{"document_id": "1976_3_1005_1009_EN", "year": 1976, "text": "1685 •\n\nSTATE OF U.P.\n\nV. ' _,\n\nPOOSU AND ANOTHER\n\nApril 2, 1976\n\n[A. N. RAY, CJ., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANO\n\nJASWANT SINGH] B\n\nConstitution of India, Articles 136 rlw 142-Re-arrest and detention of .accused during pendency of State appeal against acquittal, whether violative of\n\nArticles 14, 19(1)(a) to (g) and 21.\n\nThe accused-respondents were acquitted by the High Court of capital oft'enccs. This Court granted the State of U.P. special leave to appeal, and under Art. 136 read with Art. 142, issued orders directing the re-arrest and detention of the accused.\n\nThe orders were challenged by the accused-respondents on the grounds that their acquittal and the findings on which it is based, remain fully in force during the pendency of the State appeal, and that in the absence _. -0f a specific statutory provision, the Supreme Courfs inherent power under the i Cr.P.C., or under Art. 142, cannot be invoked to order the deprivation of the acquitted person's liberty, and that such an order would violate Articles 14, 19(1)(a) to (g) and 21 of the Constitution.\n\n_On a reference of this question to the Constitution Bench,\n\nHELD : This Court, while granting specia1 leave to appeal against an order of acquittal on a capital charge, is competent by virtue of Art. 142 read with Art. 136, to exercise the same p0wers which the High Court has under .sec. 427 (re-enacted as Sec. 390 of the new Cr.P.C. of 1973). An order directing the re-arrest and detention of an accused-respondent who has been acquitted by the High Court of a capital offence, neither offends Art. 21 or any other fundamental right guaranteed in Part III of the Constitution.. nor deprives the accused-respondent of his liberty in a manner otherwise than in accordance with procedure established by law.\n\n[!008D-E, !009AB]\n\n-' State v. Badapalli Adi & Ors. I.L.R. 1955 Cuttack 589, En1press of India v.\n\nMangu & Ors. l.L.R. 2 All. 340; Queen v. Gobin Tiwari I.L.R. [18761 l Cal. 281; Queen En1press v. Gobardhan l.L.R. [18871 9 All. 528; Banna v. 1'1ethucn\n\n& Ors. 2 Bens. 228; K. M. Nanqyati v. State of Mahara.thtra, [1962] 1 Supp.\n\nS.C.R. 567 and The State v. Capt. Jagjit Singh [1962] 3 S.C.R. 622, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Cr!. Mis. Petitions Nos. 1 and 243 of 1975.\n\n(Appeal by special leave from the judgmnt and order dated the 24-10-1973 of the Allahabad High Court in Criminal Appeal No. 710 of 1973.\n\nReferred No. 34 of 1973) R. K. Garg, S. C. Agarwal, V. J. Francis, for the petl'.ioner in Cri.\n\nMis. 1 and 243 of 1975.\n\n0. P. Rana, for the petitioner/r. 2 in Cr. M.P. No. 546/75 .\n\nD. P. Uniyal with 0. P. Rana for the opposite side in Crl. M. P.\n\nNos. 1 and 243 of 1975.\n\nPramod Swarup, for respondent No. 2 in Cr. M. P. No. 546 of 1975.\n\nThe Judgment of the Court was delivered by H\n\nSARKARIA, J.\n\nThe common question referred to the Constitution Bench in these two cases is : Whe'.her the Supreme Court while granting 14-725SC!f76\n\nSUPREME COURT REPORTS\n\n[1976] 3 S .. C.R.\n\nSpecial Leave to appeal under Article 136 of the Constitution, against an order of acquittal. on a capital charge,, has the power to issue a nonbailable warrant for the arrest and co11unittal to prison of the accusedrespondent who had bery. acquitted by the High Court? >-._} Mr. R. K. Garg, Counsel for the accused-respondcn'.s herein, contends that while the legislature bas, in its wisdom, empowered the High Court to cause an accused person to be arrested and committed to prison pending the disposal of the appeal against acquittal, no such power has been conferred on the Supreme Court by the Code or any other statute.\n\nAccording to Counsel, in the absence of a specific statutory provision, the inherent power of the Court to do complete justice under the Code or even under Article 142 of the Constitution cannot be invoked to order deprivation of the liberty of a person who has b, een found innocent and acquitted by the High Cour, t on all the charges against him because such an order would be violative of Articles 14, 19(1) (a) to (g) and 21 of the Constitution.\n\nIt is maintained that even after the grant of special leave to appeal under Article 136 against an order of acquittal passed by the High Court, the acquittal and the findings on which it is based, remain fully in force during the pendency of appeal by the State. It is contended that once it is ensured that the accused-respondent will be. available to submit himself to the final orders of this Court that may be passed in the appeal under Article 136, the inherent powers of the Court under the Code or under Article 142 exhaust themselves.\n\nIn support of his contentions,, Counsel has referred to State of U.P.\n\nv. Mohamed Noah('); and A. K. Gopalan v. State of Madras('); Lala Jairam Das and ors. v. King Emperor('); Sheo Swarup and ors. v. The King Emperor(') and M. G. Agarwal v. State of Maharashtra(\"); Prem\n\nChand Garg v. Excise Commissioner, U.P. Allahabad(').\n\nAs against this, Mr. Uniyal and Mr. 0. P. Rana submit that by virtue of Article 142 read with Article 136 of tne Constitution, this Court pending disposal of an appeal against an order of acquittal, is competent to exercise the same powers which are conferred on the High Court by the Code of Criminal Procedure.\n\nIn support of this contention, Mr. Rana has referred to State of U.P. v. Deoman Upadayaya( 1 ); Abdul Rehman Mahomed Yuuf v. Mahomed Haji Ahmed Agbotwale and anr.( 8).\n\nWe are unable to accept the contentions advanced by Mr. Garg.\n\nTo appreciate the point involved, it will be useful to have a look at the provisions of s. 427 of the Code of Criminal Procedure, 1898 and its historical perspective.\n\nThis section (which has been re-enacted as s. 390 of the new Code of 1973) provides :\n\n'When an appeal is presented under s. 41 lA sub-section\n\n(2) or section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it\n\n(1) [1958] S.C.R. 595.\n\n(2) [1950] S.C.R. 88.\n\n(3) 72 I.A. 120. (4)\n\n61 I.A. 398.\n\n\n(6) 1963 Supp I, S.C.R. 885\n\n(7) [1961] I $.C.R. 14.\n\n(8) [196011 S.C.R. 749.\n\nor any subordinate Court, and the Court before which he is A brought may commit him to prison pending the disposal of the appeal, or admit him to bail.\"\n\nIt may be noted that this provision was for the first time enacted in the Code of 1882.\n\nBut even before its enactment, the High Court as a matter of judicial practice, had the power, pending the appeal against an order of acquittal, to secure the attendance of the accusedrespondent by bailable or non-bailable warrants.\n\nAs pointed out by Panigrahi C. J. in State v. Badapa/li Adi and ors.(') \"what was formerly the judicial practice received statutory recognition in the year 1882 when this provision in s.427, Criminal Procedure Code was introduced.\" In Empress of India v. Mangu and ors.(') (which was decided several years before the addition of this provision in the Code), a Full Bench of Allahabad High Court held, that the High Court has the power to cause the rearrest and detention of the accused in prison, pending an appeal against an order of acquittal.\n\nTo the same effect was the decision of the Calcutta High Court in Queen v. Gobin Tewari('). ; Again in Queen-Empress v. Gobardhan(4 ), Sir John Edge, Chief Justice without laying down any inflexible rule, emphasised that it is not desirable that, pending the appeal against acquittal in a capital case, the prisoner should remain at large while his fate is being discussed by the High Court. The ratio of this decision was followed by a Division Bench of Orissa High Court in State v. Badapalli Adi and ors. (supra).\n\nViewed in this perspective, it is clear thot even before the enactment of this provision, the High Court had the power to cause, in its discretion, the arrest and detention in prison of the accused-respondent of or his enlargement on bail, pending disposal of the appeal against his acquittal.\n\nThis power was ancillary to and necessary for an effective exercise 0f its jurisdiction in an appeal against an order of\n\n;1 acquittal, conferred on the High Court by the Code.\n\nAs far back as 1824, in the English case, Bana v. Methuen and ors. (') Bes! J. following an older precedent enunciated the rule that :\n\n\"when an act of Parliament gives a justice jurisdiction over F\n\nan offence, it impliedly gives him a power to make out a warrant, and bring before him any person charged with such offence.\"\n\nThis is the rationale of s.427.\n\nAs soon as the High Court on perusing a petition of appeal against an order of acquittal considers that there is sufficient ground for interfering, and issuing process to the G respondent, his status as an accused person and the proceedings against him, revive.\n\nThe question of judging his guilt or innocence in respect of the charge against him, once more becomes sub judice.\n\nSimilar is the position when the Supreme Court, in its discretion, grants special leave to appeal under Article 136 of the Constitution, against an order of acquittal passed by the High Court.\n\n(1) J.L.R. [1955) Cuttack 589.\n\n(2) l.L.R. 2 All 340.\n\n(3) !.L.R. (1876) 1 Cal. 281.\n\n(4) I.L.R. (1887) 9 All. 52~.\n\n(5) 2 Bens 228.\n\nSUPREM~ COURT REPORTS\n\n\nThis Article is couched in very specious phraseology.\n\nThe power under it can be exercised in respect of \"any judgment, decree, determination, sentence or order in any cause, matter passed or made by any court or tribunal in the territory of India.\" As pointed out by this Court in K. M. Nanavati v. State of Maharashtra('), \"this wide and comprehensive power in respect of any determination of any court or tribunal must carry with it the power to pass orders incidental or ancillary to the exercise of that power.\" That is why, Article 142 in equally extensive terms gives this Court power\" to make such order as is necessary for doing complete justice in any cause or matter before it and any decree so passed or order so made shall be enforceable i, throughout the territory of India\".\n\nWith the same end in view, clause (2) of that Article (subject of course to law, if any, made by Parliament) gives this Court \"all and every power to make any order for the purpose of securing the attendance of any person\".\n\nThus there can be no doubt that this Court while granting special leave to appeal against an order of acquittal on a capital charge is competent by virtue of Article 142 read with Article 136, to exercise the same powers which the High Court has under s. 427.\n\nWhether in the circumstances of the case,, 1lhe attendance ,¢ the\n\naccused respondent can be best secured by issuing a bailable warrant ,,. or non-bailable warrant is a matter which rests entirely in the discretion of the Court.\n\nAlthough, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised.\n\nBroadly speaking, the Court would take into account the various factors such as, \"the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, tampering with evidence, larger interest of the public and State\"-see The State v. Capt. Jagjil Singh(').\n\nIn addition, the Court may also take into consideration the period during which the proceedings against the accused were pending in the courts below and the period which is likely to elapse before the appeal comes / up for final hearing before this Court.\n\nIn the context, it must be remembered. that this over-riding discretionary jurisdiction under Article 136 is invoked sparingly, in exceptional cases, where the crder of acquittal recorded by the High Court is perverse or clearly erroneous and results in a gross miscarriage of justice.\n\n(l) [19621 !Supp. 567.\n\n(2) [(962] 3 S.C.R. 622.\n\nNor do we find any merit in the contention that an order directing A tbe re-arrest and detention of an accused-respondent who had been acquitted by the High Court of a capital offence, in any way, offends Article 21 or any other fundamental right guaranteed in Part IH of the Constitution.\n\nSuch an order is made by this Court in the exercise of its plenary jurisdiction conferred by Articles 136 and 142 of the Constitution.\n\nBy no stretch of imagination can it be said t!hat such an B order deprives the accused-respondent of his liberty in a manner otherwise than in accordance with procedure established by law.\n\nIt is not necessary to burden this judgment with a discussion of the rulings cited by Mr. Garg.\n\nSuffice it to say that the facts of those cases were entirely different and they have no bearing on the point in issue before us. c\n\nFor all the foregoing reasons, we answer the question posed at the\n\n\"Icommencement of this judgment in the affirmative and dispose of the references accordingly.\n\nM.R.\n\nReference answered against the accused/respondents.", "total_entities": 68, "entities": [{"text": "STATE OF U.P", "label": "PETITIONER", "start_char": 8, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P", "offset_not_found": false}}, {"text": "POOSU AND ANOTHER", "label": "RESPONDENT", "start_char": 32, "end_char": 49, "source": "metadata", "metadata": {"canonical_name": "POOSU AND ANOTHER", "offset_not_found": false}}, {"text": "April 2, 1976", "label": "DATE", "start_char": 51, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "1685 •\n\nSTATE OF U.P.\n\nV. ' _,\n\nPOOSU AND ANOTHER\n\nApril 2, 1976\n\n[A. N. RAY, CJ.,"}}, {"text": "A. N. RAY, CJ.", "label": "JUDGE", "start_char": 67, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 83, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 94, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH", "label": "JUDGE", "start_char": 130, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 148, "end_char": 169, "source": "regex", "metadata": {}}, {"text": "Articles 136", "label": "PROVISION", "start_char": 171, "end_char": 183, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 14, 19(1)(a)", "label": "PROVISION", "start_char": 301, "end_char": 322, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "State of U.P.", "label": "ORG", "start_char": 441, "end_char": 454, "source": "ner", "metadata": {"in_sentence": "This Court granted the State of U.P. special leave to appeal, and under Art."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 490, "end_char": 498, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 509, "end_char": 517, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Courfs", "label": "COURT", "start_char": 847, "end_char": 861, "source": "ner", "metadata": {"in_sentence": "-0f a specific statutory provision, the Supreme Courfs inherent power under the i Cr."}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 889, "end_char": 895, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 907, "end_char": 915, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Articles 14, 19(1)(a)", "label": "PROVISION", "start_char": 1032, "end_char": 1053, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Constitution Bench", "label": "COURT", "start_char": 1130, "end_char": 1148, "source": "ner", "metadata": {"in_sentence": "_On a reference of this question to the Constitution Bench,\n\nHELD : This Court, while granting specia1 leave to appeal against an order of acquittal on a capital charge, is competent by virtue of Art."}}, {"text": "Art. 142", "label": "PROVISION", "start_char": 1286, "end_char": 1294, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 1305, "end_char": 1313, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "sec. 427", "label": "PROVISION", "start_char": 1375, "end_char": 1383, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Sec. 390", "label": "PROVISION", "start_char": 1399, "end_char": 1407, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 1419, "end_char": 1425, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 21", "label": "PROVISION", "start_char": 1588, "end_char": 1595, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "[1962] 3 S.C.R. 622", "label": "CASE_CITATION", "start_char": 2177, "end_char": 2196, "source": "regex", "metadata": {}}, {"text": "R. K. Garg", "label": "LAWYER", "start_char": 2454, "end_char": 2464, "source": "ner", "metadata": {"in_sentence": "34 of 1973) R. K. Garg, S. C. Agarwal, V. J. Francis, for the petl'.ioner in Cri."}}, {"text": "S. C. Agarwal", "label": "LAWYER", "start_char": 2466, "end_char": 2479, "source": "ner", "metadata": {"in_sentence": "34 of 1973) R. K. Garg, S. C. Agarwal, V. J. Francis, for the petl'.ioner in Cri."}}, {"text": "V. J. Francis", "label": "LAWYER", "start_char": 2481, "end_char": 2494, "source": "ner", "metadata": {"in_sentence": "34 of 1973) R. K. Garg, S. C. Agarwal, V. J. Francis, for the petl'.ioner in Cri."}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 2553, "end_char": 2560, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the petitioner/r. 2 in Cr."}}, {"text": "D. P. Uniyal", "label": "LAWYER", "start_char": 2612, "end_char": 2624, "source": "ner", "metadata": {"in_sentence": "D. P. Uniyal with 0."}}, {"text": "Pramod Swarup", "label": "LAWYER", "start_char": 2703, "end_char": 2716, "source": "ner", "metadata": {"in_sentence": "Pramod Swarup, for respondent No."}}, {"text": "H\n\nSARKARIA", "label": "JUDGE", "start_char": 2813, "end_char": 2824, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by H\n\nSARKARIA, J.\n\nThe common question referred to the Constitution Bench in these two cases is : Whe'.her the Supreme Court while granting 14-725SC!f76\n\nSUPREME COURT REPORTS\n\n[1976] 3 S .. C.R.\n\nSpecial Leave to appeal under Article 136 of the Constitution, against an order of acquittal."}}, {"text": "Article 136", "label": "PROVISION", "start_char": 3038, "end_char": 3049, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 3586, "end_char": 3599, "source": "ner", "metadata": {"in_sentence": "Mr. R. K. Garg, Counsel for the accused-respondcn'.s herein, contends that while the legislature bas, in its wisdom, empowered the High Court to cause an accused person to be arrested and committed to prison pending the disposal of the appeal against acquittal, no such power has been conferred on the Supreme Court by the Code or any other statute."}}, {"text": "Article 142", "label": "PROVISION", "start_char": 3791, "end_char": 3802, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 14, 19(1)", "label": "PROVISION", "start_char": 4028, "end_char": 4046, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 4163, "end_char": 4174, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 4528, "end_char": 4539, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 142", "label": "PROVISION", "start_char": 4598, "end_char": 4609, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Uniyal", "label": "OTHER_PERSON", "start_char": 4980, "end_char": 4986, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Uniyal and Mr. 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 4995, "end_char": 5005, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Uniyal and Mr. 0."}}, {"text": "Article 142", "label": "PROVISION", "start_char": 5031, "end_char": 5042, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 5053, "end_char": 5064, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 5244, "end_char": 5270, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Rana", "label": "OTHER_PERSON", "start_char": 5308, "end_char": 5312, "source": "ner", "metadata": {"in_sentence": "In support of this contention, Mr. Rana has referred to State of U.P. v. Deoman Upadayaya( 1 ); Abdul Rehman Mahomed Yuuf v. Mahomed Haji Ahmed Agbotwale and anr.("}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 5498, "end_char": 5502, "source": "ner", "metadata": {"in_sentence": "We are unable to accept the contentions advanced by Mr. Garg."}}, {"text": "s. 427", "label": "PROVISION", "start_char": 5593, "end_char": 5599, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 5607, "end_char": 5639, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 390", "label": "PROVISION", "start_char": 5716, "end_char": 5722, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 41", "label": "PROVISION", "start_char": 5795, "end_char": 5800, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 417", "label": "PROVISION", "start_char": 5824, "end_char": 5835, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Panigrahi", "label": "JUDGE", "start_char": 6592, "end_char": 6601, "source": "ner", "metadata": {"in_sentence": "As pointed out by Panigrahi C. J. in State v. Badapa/li Adi and ors.(') \""}}, {"text": "s.427", "label": "PROVISION", "start_char": 6758, "end_char": 6763, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 6765, "end_char": 6788, "source": "regex", "metadata": {}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 6948, "end_char": 6968, "source": "ner", "metadata": {"in_sentence": "which was decided several years before the addition of this provision in the Code), a Full Bench of Allahabad High Court held, that the High Court has the power to cause the rearrest and detention of the accused in prison, pending an appeal against an order of acquittal."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 7164, "end_char": 7183, "source": "ner", "metadata": {"in_sentence": "To the same effect was the decision of the Calcutta High Court in Queen v. Gobin Tewari('). ;"}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 7576, "end_char": 7593, "source": "ner", "metadata": {"in_sentence": "The ratio of this decision was followed by a Division Bench of Orissa High Court in State v. Badapalli Adi and ors. ("}}, {"text": "Parliament", "label": "ORG", "start_char": 8264, "end_char": 8274, "source": "ner", "metadata": {"in_sentence": "J. following an older precedent enunciated the rule that :\n\n\"when an act of Parliament gives a justice jurisdiction over F\n\nan offence, it impliedly gives him a power to make out a warrant, and bring before him any person charged with such offence.\""}}, {"text": "s.427", "label": "PROVISION", "start_char": 8464, "end_char": 8469, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 8955, "end_char": 8966, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 142", "label": "PROVISION", "start_char": 9733, "end_char": 9744, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India", "label": "GPE", "start_char": 9985, "end_char": 9990, "source": "ner", "metadata": {"in_sentence": "That is why, Article 142 in equally extensive terms gives this Court power\" to make such order as is necessary for doing complete justice in any cause or matter before it and any decree so passed or order so made shall be enforceable i, throughout the territory of India\"."}}, {"text": "Article 142", "label": "PROVISION", "start_char": 10377, "end_char": 10388, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 136", "label": "PROVISION", "start_char": 10399, "end_char": 10410, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 427", "label": "PROVISION", "start_char": 10471, "end_char": 10477, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 11593, "end_char": 11604, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 21", "label": "PROVISION", "start_char": 12041, "end_char": 12051, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 136 and 142", "label": "PROVISION", "start_char": 12220, "end_char": 12240, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1976_3_1010_1012_EN", "year": 1976, "text": "PREM KAKAR v.\n\nSTATE OF HARYANA AND ANR.\n\nApril 5, 1976\n\n[A. N. RAY, C.J. AND )ASWANT SINGH, J.)\n\nWrit of Manda1nus-Whether Rule Nisi can be issued to co1npel the State to n1ake a reference uls 10(1) of the Industrial Disputes Act-Art 226 fl/ the Constitutio11-lnd11strial Dfaputes Act, Ss. 10(1) and 12(5)-Scope of.\n\nUnder section 12(5) read with 10(1) of the JndJJstrial Disputes Act, if on consideration of a failure rep_ort u/s 12 ( 4) from the conciliation officer, the appropriate Government is satisfied and is of opinion that there is an industrial dispute and a case for reference, it may make such reference to the labour court.\n\nOn considering the \"failure report\", of the conciliation proceedings in respect of the appellant, an Electrical foreman, the respondent state informed him that his duties being supervisory with wages more than Rs. 500/ - his ca'ic was not covered by the definition of the terms \"workrnan\" under the Industrial Disputes Act and therefore, not a fit case for adjudication. rhe appellant assailed the said orders under Art. 226, which was dismissed.\n\nOn appeal by special leave the appellant contended that the question whether an employee is a workman or not was a disputed question of fact and law and, therefore could only be decided by a Jabour court and on a reference only; but-not by the State Gover:riment \\vhile exercising its powers u/s 12(5).\n\nDismissing the appeal, the Court\n\nHELD : (1) The order of the Government acting under s. 10(1) read \\Vith section 12(5) of the Industrial Disputes Act passed after subjective satisfaction is an administrative order and not a judicial or a quasi-judicial one. [1012A]\n\nStae of Madras v. C. P. Sarathy, [1953] S.C.R. 334 and State of Bon1bay\n\nv. K. P. Krishnan & Ors. [1961] I S.C.R. 227 [followed].\n\n(ii) In entertaining 'OO application for a writ of lnandarnus against an order made by the appropriate Government under section 10(1) read with s. 12(5) of the Act the court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons.\n\nIf it appears from the reasons j;!; iven that the appropriate Government took into account any consideration irrelevant or foreign, then the court may in a given case consider the case for a writ of mandanuts.\n\n[1012-A-C]\n\nBo1nbay Union of Journalists & Ors. v. The State of Bolnbay & A~1r. [1964] • 6 S.C.R. 22 (followed).\n\nG CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of 1975. ~\n\nAppeal by Special leave from the Judgment and order 15-4-1974 of the Punjab and Haryana High Court in Civil Petition No. 4289 of 1973.\n\nN. N. Goswami and Arvind Minocha for the Appel!ant.\n\ndated Writ\n\nG. B. Pai, S. R.\n\nAgarwal, Parveen Kumar and Khaitan & Co. for Respondent No. 2.\n\n• PREM KAKKAR v. HARYANA (Ray, C.J.)\n\n10J1\n\nA The Judgment of the Court was delivered by\n\n' .- RAY, C.J.-This appeal by special leave turns on the question\n\nwhether the State can be asked by a writ of mandamus to make a reference under section 10(1) of the Industrial Disputes Act (herir inafter referred to as the Act).\n\nThe appellant was employed by the respondent company Hindustan Dowidat Tools Ltd.\n\nThe services of the appellant were terminated on 4th September, 1972. The appellant thereafter demanded reinstatement.\n\nThe Conciliation Officer started conciliation proceedings under section 12 of the Act.\n\nNo settlement could be arrived at.\n\nThe Conciliation Officer sent a report to the State Government under section 12 ( 4) of the Act.\n\nThe State Government by letter dated 7 June, J 973 informed the appellant that the Government had considered the appellant's case not fit for reference to the Labour Court for adjudication.\n\nThe Government in the letter stated as follows :\n\n\"The Government have not found your case fit for\n\nadjudication to a Labour Court because you were working D as an Electrical Foreman in this concern, which was a supervisory job and your wages were more than Rs. 5001per month.\n\nTherefore, your case is not covered by the definition of the terms \"Workman\" given in the Industrial Disputes Act.\" The appellant under Article 226 of the Constitution applied for a writ of mandamus directing the State to make a reference.\n\nThe E High Court dismissed the application.\n\nThe appellant contended that the question whether the appellant was a workman was a disputed question of fact and law which could be decided only by an awropriate Labour Court.\n\nThe appellant also submitted that if the dispute in question raises questions of law the appropriate Government should not give a final decision on the F question. ' In short, the appellant's contention is that the issue whether the appellant is a workman or not could only be decided by the \"Labour Court and, therefore, reference should have been made.\n\nUnder Section 10 of the Act where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time refer the dispute, inter alia, to a National Tribunal for adjudication .\n\nSection 12 of the Act deals with duties of Conciliation Officers.\n\nIf the Conciliation Officer cannot arrive at a settlement of the dispute he sends a report to the appropriate Government.\n\nUnder seclion 12(5) of the Act if, on a consideration of the report referred to in sub-section ( 4) , the appropriate Government is satisfied that there is a case for reference, it may make suh reference.\n\nWhere the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor .\n\nSUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nA This Court in State of Madras v. C. P. Sarathy(') and State vf Bombay v. K. P. Krishnan & Ors.(') held that the order of the Government acting under section 10(1) read with section 12(5) of the Act is an administrative order and not a judicial or a quasi-judicial one.\n\nIn Bombay Union of Journalists & Ors. v. The State of B Bombay and Anr.(') this Court said that in entertaining an application for a writ of mandamus against an order made by the appropria'.c Goverrunent under section 10(1) read with section 12(5) of the Act the Court does not sit in appeal over the order and is not entitled to consider the propriety or the satisfactory character of the reasons given by the Government. If it appears that the reasons given show that the appropriate Government took into account any C consideration irrelevant or foreign, then the Court may in a given case consider the case on a writ of mandamus.\n\nIn K. P. Krishnan's case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the D employees had adopted go-slow tactics during the relevant year. The facts were that the company had nevertheless voluntarily paid three months' bonus for that year and the report of the Conciliation Officer\n\nwas in favour of the employees.\n\nThis Court held that the Government acted on irrelevant considerations and issued a writ of mandamus.\n\nE In the present case, the fact is that the Government found that the appellant was not a workman within the definition of workman\n\nin the Act, and, therefore, it was not a fit case for reference for \" adjudication.\n\nThe High Court rightly rejected the application.\n\nThe appeal is\" therefore, dismissed.\n\nParties will pay and bear their own costs.\n\nS.R.\n\n(1) [1953] S.C.R. 334.\n\n(2) [1961] 1S.C.R.227. (3)\n\n[19641 6 S.C.R. 22.\n\nAppeal dimissed-", "total_entities": 41, "entities": [{"text": "PREM KAKAR", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "PREM KAKAR", "offset_not_found": false}}, {"text": "STATE OF HARYANA AND ANR", "label": "RESPONDENT", "start_char": 15, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA AND ANR", "offset_not_found": false}}, {"text": "April 5, 1976", "label": "DATE", "start_char": 42, "end_char": 55, "source": "ner", "metadata": {"in_sentence": "April 5, 1976\n\n[A. N. RAY, C.J. AND )ASWANT SINGH, J.)\n\nWrit of Manda1nus-Whether Rule Nisi can be issued to co1npel the State to n1ake a reference uls 10(1) of the Industrial Disputes Act-Art 226 fl/ the Constitutio11-lnd11strial Dfaputes Act, Ss."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 58, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "ASWANT SINGH, J.", "label": "JUDGE", "start_char": 79, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 207, "end_char": 230, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art 226", "label": "PROVISION", "start_char": 231, "end_char": 238, "source": "regex", "metadata": {"statute": null}}, {"text": "Ss. 10(1) and 12(5)", "label": "PROVISION", "start_char": 287, "end_char": 306, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(5) read with 10(1)", "label": "PROVISION", "start_char": 324, "end_char": 353, "source": "regex", "metadata": {"statute": null}}, {"text": "s 12", "label": "PROVISION", "start_char": 430, "end_char": 434, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 939, "end_char": 962, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1056, "end_char": 1064, "source": "regex", "metadata": {"statute": null}}, {"text": "s 12(5)", "label": "PROVISION", "start_char": 1382, "end_char": 1389, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 1478, "end_char": 1486, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(5)", "label": "PROVISION", "start_char": 1498, "end_char": 1511, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 1519, "end_char": 1542, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 1911, "end_char": 1924, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(5)", "label": "PROVISION", "start_char": 1935, "end_char": 1943, "source": "regex", "metadata": {"statute": null}}, {"text": "N. N. Goswami", "label": "PETITIONER", "start_char": 2622, "end_char": 2635, "source": "ner", "metadata": {"in_sentence": "N. N. Goswami and Arvind Minocha for the Appel!ant."}}, {"text": "Arvind Minocha", "label": "LAWYER", "start_char": 2640, "end_char": 2654, "source": "ner", "metadata": {"in_sentence": "N. N. Goswami and Arvind Minocha for the Appel!ant."}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 2687, "end_char": 2696, "source": "ner", "metadata": {"in_sentence": "dated Writ\n\nG. B. Pai, S. R.\n\nAgarwal, Parveen Kumar and Khaitan & Co. for Respondent No."}}, {"text": "S. R.\n\nAgarwal", "label": "LAWYER", "start_char": 2698, "end_char": 2712, "source": "ner", "metadata": {"in_sentence": "dated Writ\n\nG. B. Pai, S. R.\n\nAgarwal, Parveen Kumar and Khaitan & Co. for Respondent No."}}, {"text": "Parveen Kumar", "label": "LAWYER", "start_char": 2714, "end_char": 2727, "source": "ner", "metadata": {"in_sentence": "dated Writ\n\nG. B. Pai, S. R.\n\nAgarwal, Parveen Kumar and Khaitan & Co. for Respondent No."}}, {"text": "RAY", "label": "JUDGE", "start_char": 2864, "end_char": 2867, "source": "ner", "metadata": {"in_sentence": "• PREM KAKKAR v. HARYANA (Ray, C.J.)\n\n10J1\n\nA The Judgment of the Court was delivered by\n\n' .- RAY, C.J.-This appeal by special leave turns on the question\n\nwhether the State can be asked by a writ of mandamus to make a reference under section 10(1) of the Industrial Disputes Act (herir inafter referred to as the Act)."}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 3005, "end_char": 3018, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 3026, "end_char": 3049, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hindustan Dowidat Tools Ltd.", "label": "RESPONDENT", "start_char": 3144, "end_char": 3172, "source": "ner", "metadata": {"in_sentence": "The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd.\n\nThe services of the appellant were terminated on 4th September, 1972."}}, {"text": "4th September, 1972", "label": "DATE", "start_char": 3223, "end_char": 3242, "source": "ner", "metadata": {"in_sentence": "The appellant was employed by the respondent company Hindustan Dowidat Tools Ltd.\n\nThe services of the appellant were terminated on 4th September, 1972."}}, {"text": "section 12", "label": "PROVISION", "start_char": 3358, "end_char": 3368, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 3487, "end_char": 3497, "source": "regex", "metadata": {"statute": null}}, {"text": "7 June, J 973", "label": "DATE", "start_char": 3553, "end_char": 3566, "source": "ner", "metadata": {"in_sentence": "The State Government by letter dated 7 June, J 973 informed the appellant that the Government had considered the appellant's case not fit for reference to the Labour Court for adjudication."}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 4075, "end_char": 4098, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 226", "label": "PROVISION", "start_char": 4121, "end_char": 4132, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 4811, "end_char": 4821, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12", "label": "PROVISION", "start_char": 5027, "end_char": 5037, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 5759, "end_char": 5772, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(5)", "label": "PROVISION", "start_char": 5783, "end_char": 5796, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 6090, "end_char": 6103, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(5)", "label": "PROVISION", "start_char": 6114, "end_char": 6127, "source": "regex", "metadata": {"statute": null}}, {"text": "K. P. Krishnan", "label": "OTHER_PERSON", "start_char": 6518, "end_char": 6532, "source": "ner", "metadata": {"in_sentence": "In K. P. Krishnan's case (supra) the issues in dispute related to a claim of classification for specified employees and additional bonus and the sole ground on which the Government refused to refer the dispute for adjudication under section 12(5) of the Act was that the D employees had adopted go-slow tactics during the relevant year."}}, {"text": "section 12(5)", "label": "PROVISION", "start_char": 6748, "end_char": 6761, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_1013_1021_EN", "year": 1976, "text": "' ...\n\nI. N. SUBBA REDDY v.\n\nANDHRA UNIVERSITY & ORS.\n\nApril 5, I ~76\n\n[A. N. RAY, C.J., M. H. BEG AND ]ASWA:H SINGH, JJ.]\n\nCivil Seriit.:e-Meaning of conditions of service-Tennination by punisl11nent and termination sin1pliciter-Administratio11 Manual of University-Sections 7, 8, 9, 10, 11 and 24.\n\nway of A.ndhra\n\nThe appellant joined the Andhra University as a Senior Lecturer in 1960.\n\nJn 1967, he was promoted as Professor.\n\nThe appellant entered into an agreement with the University as required by the conditions of service. He \\Vas confirmed as a Professor in October 1968. In October, 1973, the Syndicate passed a resolution determining the agreement of service with the appellant under s. 24 of Chanter V of Administration !v1anual of the Andhra Uni'lersity.\n\nA cheque_ for the salary for the six months being the notice period \\vas also sent along with the notice of termination of service.\n\nClause J 0 of the agreement provided for the termination of service simpliciter on giving 6 months notice or a salary in lieu of such notice.\n\nSection 24 also authorised the Syndicate to terminate the service of a confirmed teacher by giving 6 months notice or salary in lieu of notice. Section 7 of the University Code provided for suspension or abolition of any professorship, readership. Section 8 provided for suspension or compulsory retirement for sufficient cause after due investigation. Section 9\n\n<!1!..iliorised the Syndicate to remove a teacher for misconduct on his p;.irt or for breach by him of one or more of the terms of the contract.\n\nSection J 0 authorised the Syndicate to terminate services of a teacher on the ground of illhealth. Section 11 prescribed the procedure for removal of a teacher. Section 12 bars a claim for damages or compensation by a teacher against whom a disciplinary action is taken.\n\nThe appellant filed a suit challenging the validity of termination of his service which he withdrew later on.\n\nHe thereafter filed a writ petition.\n\nIn the \\lrrit petition, the appellant challenged the validity of the order terminating the service as well as vires of s. 24 of the Administration Manual.\n\nIt was also alleged that the action in terminating his service was , nala fide and that it was with the ulterior object of circumventing the procedure prescribed by sections 9 and 11 of the University Code. It was also contended that s. 24 of the agreement which provides for termination of service without assigning any reason was void being repugnant to ss. 8 to 12 of Chapter XXIX of the University Code.\n\nThe High Court dismissed the writ petition holding that the impugned action was neither taken as a measure of punishment for any misconduct on the part of the appellant nor did it involve the breach of mandatory statutory obligations or any principle of natural justice.\n\nIn appeal by special leave the appellant contended :\n\n1. Section 24 is ultra vires the powers conferred on the Syndicate.\n\n2. The said section 24 and clause 10 of the agreement being inconsistent with sections 7 to 12 of the University Code were void and ineffectual.\n\n3. The services of the appellant could not be terminated except on the ground mentioned in sections 7 to 10 of the University Code.\n\nHELD : 1. The expression 'conditions of service' means all those conditions H which regulate the holding of a post by a person right from the time of his apoointment till his retirement and even beyond it in matters like pension etc.\n\nThe Syndicate has power to define terms and conditions of service of teachers of\n\nlhe. Uniyersity. Section 24 undoubtedly lays down a condition of service of tie Un1vers1ty teachers and, therefore, cannot be said to be ultra vires the power!I\n\nof the Syndicate. [1018C-D, G-H]\n\n2: Se_ction~ 7 .t~ 12 of the U:niversity Ccxie have nothing to do with the\n\ntermnation. sun_phclfr .of the services of a teacher without casting any aspersion on him, which 1s a distinct and separate matter and is provided for in section 24 and clause 10 of the agreement.\n\nAs such, neither section 24 nor section 10 can be held to be void on the ground of repuanancy to sections 7 to 12.\n\n[1019D-EJ\n\n3 .. The presnt case _is merely of termination of service simpticitcr without attaching any stigma which is governed by the conditions of service specified in the contract of employment. Case of Sirsi Municipality v. Cacelia Korn Francis Tellis [1973} 3 S.C.R. 348, relied on.\n\nRelationship of master a11.d servant is governed purely by contract of employment.\n\nAny breach of .contract in such a case is enforced by a suit for wrongful dismissal and damages.\n\nIn the preseat case the services have been terminated sirnpliciter in accordance, with the terms of the contract. f1019E-G, H]\n\nC!VIL APPELLATE JURISDICTION : Civil Appeal No. 1632 of .. 1974. ~\n\nAppeal by special leave from the judgment and order 10th April, 1974 of the Andhra Pradesh High Court in tion No. 579 of 1974.\n\ndated the Writ Peti-\n\nR. K. Garg, S. C. Agarwal and V. J. Francis, for the appellant.\n\nB. Sen, S. Venkata Reddy and G. N. Rao, for the respondents.\n\nThe Judgment of the, Court was delivered by\n\nJASWANT SINGH, J.-This is an appeal by special leave from the judgment and order dated April 10, 1974, of the High Court of Andhra Pradesh at Hyderabad passed in Writ Petition No. 579 of 1974 upholding the resolution dated October 28, 1973, of the Syndicate of the Andhra University (conveniently referred to hereinafter as 'the Syndicate') terminating the services of the appellant by payment to him of salary and allowances for six months in lieu of notice for six calendar months under section 24 of Chapter V of the Administration Manual of the University and clause !O(b) of the written contract dated October 28, 1967.\n\nBriefly stated, the facts leading to this appeal are : The appellant joined the Anthropology Department of the Andhra University as a Senior Lecturer in 1960.\n\nJn course of time, he was promoted as Professor of Anthropolagy with effect from October 1, 1967, pursuant to a resolution of the Syndicate dated September 26, 1967.\n\nThe cc\"1ditions of service annexed to the communication , of the Registrar of the University informing the appellant that the Syndicate by its aforesaid resolution dated September 26, 1967, had ordered that the appellant be appointed Professor in the department of Anthropology with effect from Octoober I, 1967, inter alia stated:\n\n\"Every teacher, other than those appointed temporarily for one year or less, shall enter into a written contract with the University and get it executed within one month of the\n\n). __ ...(\n\nI. N. SUBB.A REDDY v. ANDERA UNIVERSITY (Jaswant Singh,!.) I 015\n\ndate of his joining duty and no salary can be drawn unless the contract is executed ..... .\n\nWhen a teacher is pro111oted from one grade to another he shall be treated as a new entrant in that grade and the appointee in the new grade shall be placed on probation for a period not exceeding 1 year and shall be required to execute a fresh contract. .....\n\nTeachers of the University shall ordinarily be appointed in the first instance on probation for a term not exceeding two years and shall be eligible for confirmation at the end of that period, provided their work is satisfactory. In the case of those who have been teachers before or have shown exceptional merit, the Syndicate may fix a shorter period.\n\nTeachers so confirmed shall be eligible to hold their appointments until they are 60 years of age subject\n\nto the provisions of sections 7, 8, 9 and 10 of Chapter XXX, lX of Vol. 1 of, the University Code .....\n\nThe appointments arc subject to the statutes, ordinances and regulations, etc. of the University auhorities that are current now or may be passed from time to time in respect of the University teachers''.\n\nOn October 28, 1967, the appellant entered into an agreement with the University as required by the aforementioned conditions of service and section 24 of Chapter V of the Administration Manual of the University.\n\nClause 10 of the agreement which contained a reciprocal covenant ran thus :-\n\n\"10. That the party of the first part will continue in the service of the University under the terms and conditions herein contained.\n\n(a) Provided always that the party of the first part may determine this agreement on any day after CONFIRMA- TION by giving to the University a notice in writing of his intention to that effect at least six calendar months before such day and if such notice shall be given this agreement shall terminate on that day accordingly.\n\n(b) Provided further that this agreement may be determined on any day after confirmation by the Synd:cate by giving the party of the first part a notice without assigning reasons in writing of its intention to that effect t least six calendar months before such a day or paying six month' salary in lieu of such notice; and if, such notice is given or payment made, this agreement shall terminate that day accordingly and the party of the first part shall not have the right of appeal to any other officer or authority against such termination. ( c) Provided further that this agreement may be deter- , mined on any day by the Syndicate if the Senate shall resolve to abolish the post held by the party of the first part.\"\n\nI 016\n\nSUPREME COUKT REPORTS\n\n(1976) 3 S.C.R.\n\nThe appcUant was confirmed as Professor of Anthropology with effect from October 1, 1968.\n\nOn October 28, 1973, the Syndicate passed a resolution deterj-' mining the aforesaid agreement which the appellant had entered into with the University on his promotion and appointment as Professor\n\nB of Anthropology.\n\nIntimation of the determination of the agreement was communicated to the appeUant by registered post which was received by him on November 3, 1973.\n\nThe said communication was in these terms: -\n\n\"Under section 24 of Chapter V of the Administration Manual of the Andhra University and Cl. (10) of the Agreement entered into on 28-10-1967 bet, ween Dr. I. N.\n\nC Subba Reddi on one part and the Andhra University on the other part, the said agreement is hereby determined.\n\nA cheque bearing No. 460292 dated 28-10-1973 for Rs. 9,316/15 P. on the State Bank of India, Waltair, being the salary and dearness allowance for six months is hereby enclosed as provided for in the aforesaid S. 24 and CI.\n\nlO(b)\".\n\nThe appellant thereupon filed a suit. being suit No. 910 of 1973, in the Court of District Munsiff, Visakhapatnam questioning the validity of the .aforesaid resolution dated October 28, 1973 of the Syndicate.\n\nIn the said suit, an ex-parle temporary injunction was granted on November 5, 1973, restraining the respondents herein from implementing the resolution passed by the Syndicate.\n\nAggrieved by this injunction, the respondents filed an appeal (CMA No. 41 of\n\n1973) which was dismissed by the Additional District Judge, Viskhapatnam by order dated November 28, 1973.\n\nThe respondents thereupon filed a revision petition to the High Court which by its order dated January 25, 1974, allowed the same and vacated the injunction holding inter alia that only a suit for damages and not for declaration and continuance in service lay.\n\nAfter the acceptance of the revision petition by the High Court, the appeUant withdrew the aforesaid suit and filed a writ petition in the High Court under Article 226 of the Constitution on January 29, 1973 challenging the validity of the aforesaid resolution of the Syndicate and the vires of section 24 of Chapter V of the Administration Manual.\n\nIn that petition, it was inter alia averred by the appellant that the action of the Syndicate terminating his services was mala fide, and that it was with the ulterior object of circumventing the procedure prescribed by sections 9 and 11 of Chapter XXIX of the University Code and to camouflage the punishment of dismissal visited on him for the legal action that he had taken earlier against the University\n\nthat the Syndicate purported to act under section 24 of the Administration Manual and clause 10 (b) of the agreement.\n\nIt was further asserted by the appellant that section 24 of Chapter V of t!he Administration Manual was ultra vires the powers of the Syndicate and clause lO(b) of the agreement which provided for termination of his services without assigning any reason was void being repugnant to sections 8 to 12 of Chapter XXIX of the University Code.·\n\nr. N. SUB BA REDDY v. ANDHRA TJNIVERSITY (Jaswant Singh, J.)\n\nI 017\n\nThe petition was vigorously contested by the respondents.\n\nWhile emphatically denying that the impugned action was maJa fide or that it had been taken as a measure of punishment, they averred that the relationship between the appellant and the University which was one of master and servant and was regulated by the contract of service entered into between the appellant and the University had been validly determined in accordance with the provisions of section 24 of Chapter V of the Administration Manual and clause lO(b) of the aforesaid contract of service which were perfectly legal and valid.\n\nIn view of the importance of the question involved in the writ .petition viz. whether the University could take recourse to the aforesaid\n\ncontract entered into between it and the appellant for terminating the the services of the latter without regard to the provisions of sections 8 to 12 of Chapter XXIX of the University Code and whether section 24 of Chapter V of the' Administration Manuar was intra vires the powers of the Syndicate, a learned Single Judge of the High Court before whom the petition was placed for hearing referred the same for decision to a Division Bench. Following some decisions of this Court, the Division Bench of the High Court dismissed the writ petition holding that the impugned action had neither been taken as a measure of punishment for any misconduct on the part of the appellant nor did it involve a. breach of any mandatory statutory obligation or any principle of natural justice; that in view of the fact that the impugned resolution communicated to the appellant was cumulatively based upon section 24 of Chapter V of the Administration Manual which was intra vires and clause 10 of the agreement which was valid and binding, the appellant could no: have any legal grievance which could be redressed by a court of law and that no writ lay to quash the order termiirnting the contract of service.\n\nMr. Garg, counsel for the aPPellant, has assailed the aforesaid resolution of the Syndicate terminating the services of the appellant on three grounds, viz. (I) that section 24 of Chapter V of the Administration Manual is ultra vires the powers conferred on the Syndicate; (2) that the said section 24 and clause lO(b) of the aforesaid agreement between the appellant and the University being inconsistent with section 7 to 12 of Chapter XXIX of the University Code were void and ineffectual and (3) that the services of the appellant could not be terminated except on the grounds mentioned in sections 7 to 10 of the University Code.\n\nWe shall deal with these contentions seriatim.\n\nFor a proper consideration of the first contention, it is necessary to notice section 24 of Chapter V of the Administration Manual,, clauses (c) (iii) and\n\n(d) of section 19, section 39 (f), section 34 and section 42 of the Andhra University Act (hereinafter referred to as 'the Act').\n\nSection 24 of Chapter V of the Administration Manual runs as follows:-\n\n\"24.\n\nThe Syndicate may determine the services of a H\n\nteaher after confirmation on any day by giving him a notice\n\nWITHOUT assigning reasons in writing of its\n\nA • intention to that effect at least six calendar months before such a day or paying him six months salary in lieu of such notice. It shall be sufficient service of a n.otice by the Syndicate, if the notice be signed by the Registrar or such other person as may be authorised in this behalf by the Syndicate and be delivered at or sent by registered post to the address of the teacher with ac, knowledgemen: due\".\n\n>..j\n\nClause (d) of section 19' of the Act confers power on the Syndicate to suspend or dismiss a teacher of the University (subject to such ordinances as may be made in this behalf) which obviously implies a power to take action for misconduct.\n\nClause (c) (ill) of section 19 of the Act empowers the Syndicate to fix the emoluments of the teachers of the University and to define their duties and conditions of service subject to such statutes as may be prescribed in this behalf under section 39 (f). As explained by this Court is State of Madhya Pradesh & Ors. v. Shardul Singh('), the expression 'conditions of service' means all those conditions which regulate the holding of, a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension etc.\n\nSection 29(f) of the Act lays down that subject to Uie provisions of the Act, the statutes (which can be framed by the Senate which is the supreme governing body of the University) may provide for the classification and the mode of appointment of the teachers of the University.\n\nIt does not say that statutes can be made laying down the terms and conditions of service of the teachers nor does it put any fetter on ihe power of the Syndicate to define the terms and conditions of service of the teachers focluding the condition relating to termination of their services otherwise than by way of dismissal or removal.\n\nIt follows, therefore, that the power conferred by clause (c) (iii) of section 19 of the Act is a power quite distinct and apart from the power to suspend or dismiss a teacher for misconduct and includes within its ambit power to lay down a condition relating to early termination of service of a teacher withont casting any aspersion on him by giving hlm a notice for a specified period or on payment to him of salary and allowances in lieu of the notice although he may be eligible to continue in service upto a specified age.\n\nSection 34 of the Act lays down that every salaried officer and teacher of the University shall be appointed under a written contract.\n\nSection 42 of the Act inter alia empowers the Syndicate to make Ordinances in consultation with the Academic Council with regard to all matters which by the Act or by the statutes may be provided for by the ordinances.\n\nThe analysis of the aforesaid porvisions of the Act makes it clear\n\n.. -\\\n\nthat the Syndicate is invested with untrammelled power to define the ') terms and conditions of service of the teachers of the University.\n\nNow 1' section 24 of Chapter V of the Administration Manual being undoubtedly a condition of service of the University teachers, we are unable to understand how it is 1iltra vires the powers of the Syndicate.\n\nH Tho first contention raised on behalf of the appellant is, therefore, repelled.\n\n(1)\n\n[19701 3 S.C.R. 302.\n\nI ... /\n\nLet us now see if the above quoted section 24 of Chapter V of the A Administrn'.ion Manual and clause 10 of the agreement are void being repugnant to and inconsistent with sections 7 to 12 of Chapter XXIX of the University Code.\n\nSection 7 of Chapter XXIX of the Code provides for suspension or abolition of any Professorship, Readership, Lecturership or other teaching post.\n\nSection 8 of Chapter XXIX of the Code empowers the Syndicate to suspend any teacher of the University for a maximum period of one year or to require him to B retire on sufficient cause shown and after due investigation.\n\nSection 9 of Chapter XXIX of the Code confers power on the Syndicate to renrnve a teacher for misconduct on his part or of breach by him of one or more of the terms of the contract which he has entered into with the University, which, in the opinion of the Syndicate, makes him unfit to hold the post.\n\nSection 10 of Chapter XXIX of the Code invests the Syndicate with power to terminate the services of a teacher C on the ground of ill health.\n\nSection 11 of Chapter XXIX of the Code prescribes the procedure for removal of a teacher. It also confers the right of appeal on the teacher who is removed from service or is suspended.\n\nSection 12 of Chapter XXIX of the Code bars a claim for damages or compensation by a teacher against whom disciplinary action is taken i.e. who is suspended or removed from service under sections 8 and 9 of Chapter XXIX of the Code.\n\nThe aforesaid sections of the Code have nothing to do with termination simpliciter of the services of a teacher without casting any aspersion on him, which is a distinct and separate matter and is provided for in section 24 of Chapter V of the Administration Manual and clause !O(b) of the aforesaid contract of service.\n\nAs such, neither section 24 of Chapter V of the Administration Manual nor clause IO(b) of the agreement can be held to be void on the ground of repugnancy to sections 7 to 12 of Chapter XXIX of the University Code.\n\nThis takes us to the third and last contention raised on behalf of the appellant which is also devoid of substance.\n\nThe instant case, it\n\nwill be seen, is neither a case of abolition nor suspension of a post as contemplated by section 7, nor of suspension as contemplated by section 8, nor of dismissal or removal for misconduct as contemplated F by section 8, nor of termination of services on the ground of ill-health.\n\nIt is, in our opinion,, a c.; ase ofl termination of srvice simpliciter without attaching any stigma which is governed by the conditions of service specified in the aforesaid contract of employment which the Syndicate was empowered to lay down under section 19(c) (iii) of the Act and is clearly covered by the decision of this Court in Sirsi Municipality by its President v. Cecelia Korn Francis Teel/is(') where one of us, G namely the learned Chief Justice after an exhaustive review of the case law bearing on '.he matter observed :\n\n\"Relationship of master and servant is governed purely by contract of employment.\n\nAny breach of contract in such a case is enforced by a suit for wrongful dismissal and damages.\n\nJust as a contract of emp!Oyment is not capable H of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment\n\n(I) [1973] 3 S.C.R. 348.\n\nof subsistence of employment.\n\nA declaration of uolawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services.\n\nSuch a declaration is not permissible under the law of Specific Relief Act. .... Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be.\n\nThe reason is that dismissal in breach of contract is remedied by damages.\"\n\nThat the impugned action is not invalid would also be clear from a perusal of another decision of this Court in Delhi Transport Undertaking v. Balbir Saran Goel(').\n\nThere the respondent, who was an employee of the appellant undertaking, established under the Delhi Transport Authority Act, challenged his demotion by filing a petition under Article 226 of the Constitutions.\n\nAfter the dismissal of the petition, the appellant-undertaking passed an order terminating the services of the respondent stating that they were no longer required and that one month's salary in lieu of notice would be paid.\n\nThe respondent thereupon filed a suit seeking a declaration that the ordar of his dismissal was illegal.\n\nOn the questions : ( 1) whether the respondent's services could be terminated under Regulation 9(b) by giving one month's notice or pay in lieu thereof without complying with the procedure of enquiry prescribed by Regulation 15(2) (c) and\n\n(2) whether although the order was made in perfectly harmless and innocuous terms and purported to be within Regulation 9 (b) it was a mere camouflage or cloak for inflicting punishment for breach of standing order 1 7 in as much as the respondent had approached the High Court under Article 226 of the Constitution without exhausting the departmental remedies, it was held:\n\n\"(1) Even if it be assumed that the law is the same as would be applicable to a case governed by Article 311, it was difficult to say that the services of the respondent were not merely terminated in accordance with Regulation 9 (b) which governed the conditions of his employment.\n\nIt may be that the motive for termination of his services was the breach of Standing Order 17 i.e. of filing a writ petition in the High Court against the demotion without exhausting departmental remedies but the question of motive is immaterial.\n\nNo charge-sheet was preferred under Regulation 15 nor was any enquiry held in accordance therewith before the order under Regulation 9(b) was made.\n\n(ii) As regards the punishment having been inflicted for misconduct the order being a mere camouflage, no such question could arise in the present case.\n\nRegulation 9(b1 clearly empowered the authorities to terminate the services after giving one month's notice for pay in lieu of notice.\n\nThe order was unequivocaHy made in te1ms of that Regulation.\n\nEven if the employers of the respondent thought that he was a cantankerous person and it was not desirable\n\n(!) (1970] 3 S.C.R. 757.\n\n' tt I ,.\n\n' to retain him in service, it was open to them to terminate his services in terms of Regulation 9 (b) and it was not necessary to dismiss him by way of punishment for misconduct.\n\nIf the employer chooses to terminate the services\n\n~. ,. in accordance with clause (b) of Regulation 9 after giving one month's notice or pay in lieu thereof it cannot amount to termination of service for misconduct within the . meaning of clause (a).\n\nIt is only when some punishment is inflicted on the nature specified in Regulation 15 for misconduct that the procedure laid down therein for an enquiry etc. becomes applicable.\"\n\nThe decision of the l:fouse of Lords in McCl£1land's(') case on which itrong reliance is placed by Mr. Garg is not at all helpful to the appellant. In the case, the dismissal of the plaintiff was on the ground of redundancy of the staff whidh was not one of the grounds specified in the terms and conditions of service.\n\nIn the present case, no such difficulty could arise as the terms and conditions of service specified in the contract of employment entered into between the appellant and 1 the University under section 34 of the Act contained an express provision for termination of his services by six month's notice on either side.\n\nThus all the contentions raised on behalf of the appellant having failed, the appeal cannot succeed and is hereby dismissed.\n\nIn the circumstances of the case, the parties are left to bear and pay their own costs of the appeal.\n\nP.H.P.\n\n(1) (1957) W.L.R. 594.\n\n15-125 SCi{16\n\nAppeal dismissed.", "total_entities": 120, "entities": [{"text": "I. N. SUBBA REDDY", "label": "PETITIONER", "start_char": 7, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "I. 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C. Agarwal", "label": "LAWYER", "start_char": 4950, "end_char": 4963, "source": "ner", "metadata": {"in_sentence": "dated the Writ Peti-\n\nR. K. Garg, S. C. Agarwal and V. J. Francis, for the appellant."}}, {"text": "V. J. Francis", "label": "LAWYER", "start_char": 4968, "end_char": 4981, "source": "ner", "metadata": {"in_sentence": "dated the Writ Peti-\n\nR. K. Garg, S. C. Agarwal and V. J. Francis, for the appellant."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 5003, "end_char": 5009, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Venkata Reddy and G. N. Rao, for the respondents."}}, {"text": "S. Venkata Reddy", "label": "LAWYER", "start_char": 5011, "end_char": 5027, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Venkata Reddy and G. N. Rao, for the respondents."}}, {"text": "G. N. Rao", "label": "LAWYER", "start_char": 5032, "end_char": 5041, "source": "ner", "metadata": {"in_sentence": "B. Sen, S. Venkata Reddy and G. N. Rao, for the respondents."}}, {"text": "JASWANT SINGH", "label": "JUDGE", "start_char": 5110, "end_char": 5123, "source": "ner", "metadata": {"in_sentence": "The Judgment of the, Court was delivered by\n\nJASWANT SINGH, J.-This is an appeal by special leave from the judgment and order dated April 10, 1974, of the High Court of Andhra Pradesh at Hyderabad passed in Writ Petition No.", "canonical_name": "JASWANT SINGH"}}, {"text": "section 24", "label": "PROVISION", "start_char": 5599, "end_char": 5609, "source": "regex", "metadata": {"statute": null}}, {"text": "October 28, 1967", "label": "DATE", "start_char": 5717, "end_char": 5733, "source": "ner", "metadata": {"in_sentence": "O(b) of the written contract dated October 28, 1967."}}, {"text": "sections 7, 8, 9 and 10", "label": "PROVISION", "start_char": 7490, "end_char": 7513, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 7921, "end_char": 7931, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 7994, "end_char": 8003, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 9820, "end_char": 9830, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra University", "label": "ORG", "start_char": 9880, "end_char": 9897, "source": "ner", "metadata": {"in_sentence": "The said communication was in these terms: -\n\n\"Under section 24 of Chapter V of the Administration Manual of the Andhra University and Cl. ("}}, {"text": "28-10-1967", "label": "DATE", "start_char": 9944, "end_char": 9954, "source": "ner", "metadata": {"in_sentence": "10) of the Agreement entered into on 28-10-1967 bet, ween Dr. I. N.\n\nC Subba Reddi on one part and the Andhra University on the other part, the said agreement is hereby determined."}}, {"text": "I. N.\n\nC Subba Reddi", "label": "PETITIONER", "start_char": 9969, "end_char": 9989, "source": "ner", "metadata": {"in_sentence": "10) of the Agreement entered into on 28-10-1967 bet, ween Dr. I. N.\n\nC Subba Reddi on one part and the Andhra University on the other part, the said agreement is hereby determined.", "canonical_name": "I. 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{"document_id": "1976_3_1022_1031_EN", "year": 1976, "text": "MOHATIA BROTHERS\n\nBHARAT SURYODAYA MILLS CO. LTD., AHMEDABAD\n\nApril 5, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nIndian Partnership Act (9 of 1932), s. 69-Scope of-Partnership deed\n\nshoing partners-Later deed showing change in partners-Proof, that it was 1101 acted upon.\n\n'The appellant, a registered partnership-firm, was the managing agent of the respondent.\n\nAfter submitting its resignation to the board of directors of the respondent-company, the appellant filed a suit claiming a sum of money in accordance with an agreed scheme. The appellant-firm consisted of 5 partners with effect from April 1, 1949, and in addition, a minor was entitled to a 4-anna share in the profits of the partnership but was not liable for the losses.\n\nThe minor was represented by his mother as guardian.\n\nOn October 24, 1949, another partnership deed was executed wherein the mother was shown as a partner of the appellant-firm with a 4-anna share and the minor's name was \\ omitted. The respondent contended that the suit was not maintainable, because, ·\n\nthe constitution of the old firm had been changed on October 24, 1949, and that the newly constituted firm consisting of 6 partners had not been registered.\n\nThe trial court held that the new partnPrshio deed was not acted upon and decreed the suit for a part of the amount claimed. There were appeals by both\n\nsides.\n\nThe High Court disagreed with the finding of the trial court that the later partnership deed had not been acted upon and held that the mandatory condition of s. 69(2), Indian Partnership Act, was not fulfilled as the name of the mother. who was a partner in the reconstituted firm and in whose favour a cause of action had accrued, was not shown in the register of firms, and that this defect was fatal to the suit.\n\nA1lowing the appellant's appeal to this Court and remanding the appeal to the High Court for disposal on merits, HELD : The trial court took the correct view of the matter in so far as it held that the later partnership deed was not acted upon and that the mother did not become a partner of the appellant-firm. [1028B]\n\n(1) The question as to when it was decided not to act upon the later deed is not material.\n\nThe evidence of one of the partners of the appellant-firm that it was not acted upon and that the mother was not a partner is admissible :ind is fully corroborated by the documentary evidence. It is a statement inade by him against his own pecuniary interest. because, if the mother was a partner, the loss of the other partners would extend only to 12-anna share in the rnpee; whereas. if she was not a partner then they would have to bear losses to the full extent of 16 annas in the rupee.\n\n[1029G-H; 1030H-1031D]\n\n(2) In the register relating to the registration of firms kept under the Indian Partnership Act, an entry relating to the registration of the appeIIant-firm dated May 5. 1952. reveals that even in the year 1952, the stand of the partners of the appellant-firm was that the mother was not a partner and that it wa-; only her minor son who was entitled to a share in the profits of the partnership. [1028G-1029Al\n\n(3) In the staiement of accouilts of the appellant-firm it is only the minor that is sho\\vn to have a 4-anna share and not his mother. [1030B-C]\n\n( 4) Applications in connection with the registration of that firm were prerented to the Income Tax Authorities under s. 26A, Indian Income Tax Act, 1922.\n\nAU these applications were signed by the mother and they show that tho mother never claimed to be a partner of the appellant-firm and that, on the contrary, she acknowledged that it was her minor son who was entitled to the 4-anna share in the profits. [1029E-GJ\n\n~ Jc\n\n/'' I ~\n\n(5) The directors of the respondent-company , bad passed a resolution in 1950 referring to the two partnership deeds.\n\nBut the entry which was made in the register of the respondent-company regarding the partners of its managing agents as required by s. 87, Indian Companies Act, 1913, shows that after April 1, 1949, there were only 5 partners, besides the minor under the guardianship -Of his mother of the appellant-firm. If the mother had become a partner since October 24, 1949, it is unlikely that an entry to that effect would not have been made in the reJdster of the defendant-company, because, under s. 87, a return has to be sent to the Registrar of Firms regarding any change in the particulars required to be contained in the register and non-compliance with the requirement would entail imposition of fine.\n\n[1029A-E]\n\n(6) The letter of resignation sent by the appellant-firm was signed by the mother also, but there was no indication whether she signed in her capacity as partner or as the_ guardian of her minor son.\n\n[1028F-G]\n\n(7) Soon after the presentation of the suit, on an application under Order\n\nXXX, r.2, C.P .C., filed by the respondents, the appellant-firm declared the names C of its partners and the declaration did not show the mother as one of the partners. The question as to who should share the profits of the appellant-firm and should be other, wise entitled to its assets is essentially a matter for the partners of that firm.\n\nUnlike the case of a defendant-firm from which money j is claimed here each partner may be personally liable, in the case of the plaintiff (appellant) firm claiming money, it would be a wholly untenable plea for the defendants, from whom money is claimed, to urge that even though the 1nother as well as other partners claimed that it was not she but her minor son that was D entitled to the 4-anna share in the partnership, the Court should hold that it was the mother who was entitled to that share.\n\n[1030C-G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2075 & 2076 of 1968.\n\nFrom the judgment and decree dated the 29th March & 1st April 1968 of the Gujarat High Court in First Apeals Nos. 769 and 1029 of\n\n19W.\n\nE A. K. Sen, L. M. Singhvi, S. K. Bagga and Mrs. Bagga, for the\n\n~ appellant.\n\nR. P. Bhatt, B. S. Trivedi H. S. Parihar and I. N. Shroff, fer the respondent.\n\nThe Judgment of the Court was delivered by F\n\nKHANNA, J.\n\nThese two appeals on certificate by Mohatta Brothers plaintiff-firm are directed against the judgment of Gujarat High Court whereby that court reversed on appeal the judgment of the trial court awarding a decree for recovery of Rs. 77,286/0 Anna/2 Pies in favour of the plaintiff-appellant against the respondent-company and dismissed the suit.\n\nThe plaintiff is a partnership firm doing business under the name and style of Mohatta Brothers.\n\nThe plaintiff-firm carried on the business of managing agency of the defendant company up to September 4, 1950. Sometime before that date, it appears the plaintiff-firm expre5'ed an intention of giving up the post of managing agents.\n\nOn July 31, 1950 Chaturbhujdas on behalf of M/s.\n\nChaturbhujdas, Kharawala M0hatta & Co. submitted scheme Ex. 168 in consultation with the plaintiff.\n\nParas 5, 6 and 7 of the scheme were as under : \" ( 5) Before our this Scheme is approved by the Company the present Directors shall submit before the Company\n\nthe Balance Sheets and the Profit and Loss Account upto the end of the year 1949 and get the same passed, and they shall get the Proforma Balance Sheet up to the date 31-7-5 0 prepared by the Auditors of the Company and shall hand over the same to us, and this Scheme has been given while understanding that at present everything is according to the list of machinery given to us by the present Agents.\n\nAnd no one has any kind of charge or debt claimable from the Company till this day excep'.ing the approximate amount of Rs. 4,77,850/- due to the Agents and their kith and kin till this day and the list of which is given to us.\n\nWe give this Scheme believing the said fact true.\n\n(6) The amounts of the Agents of the Company and their kith and kin which may have been deposited in the Company on the day the date 31-7-50 and which come to a)lout Rs. 4,77,850/- as told by the present Agents are to be kept credited in their accounts and interest thereon is not to be given from the date 1-8-50. And when our Scheme is approved they have not to take any interest on the said amounts from the Company for five years from the date we start the work of the Mills and they have not to withdraw the said amounts for a' period of ten years therealiter but the same are to be kept credited in the Company with interest at six per cent.\n\nBut the Company shall return the amounts earlier if it so desires.\n\n(7) At present the amount of Rs. 3,46,466-11-8 is due to the Punjab National Bank Ltd. by the Company and the demand of giving bonus to the workers for the year 1949 is outstanding from the Company.\n\nThe present Agent states that in both of the said matters payments can be made from the amounts obtained by selling the goods of stores, etc. which is lying with the Company at present, the list of which is given to us by the present Agents, and from the amounts of E.P.T. deposit and advance payments of the income tax.\n\nOn making arrangement accordingly if the debt of the Bank is not fully paid or the liability of bonus is not fully fulfiIIed and if the Company is found responsible in any way, then the same is to be fuifilled by the present Agent.\n\nBut after fuifilling all liabilities accordingly if any amount remains in balance the same shall be treated as assets of the Company and half of the said amount shall be returned towards the above mentioned amount deposited in the Company and which belongs to the present Agent and their kith and kin.\n\nBut on fulfilling completely the liability of the Bank from the sale of goods of the Stores, etc. if there does not remain sufficient surplus or before getting the amount of E.P .T. deposit and income tax advance payment if the amount of bonus is required to be paid then the present Managing Agents has to give that amount first.\"\n\n• I\n\n\"''\n\nOn the following day, i.e. August 1, 1950, the following Jetter was addressed by the plaintiff-firm to the Board of Directors of the defen- \"\"· dant-company :\n\n\"We Messrs Mohatta Brothers, the Secretaries, Treasurers & Agents of the company hereby beg to tender our resignation as Secretaries, Treasurers and Agents of the Company on condition of the scheme of Sheth Chaturbhujdas Chirnanlal dated 31-7-50 duly approved by the Board of Directors, being passed by the share-holders of the company in the Extraordinary General Meeting of the company to be held on 4th September, 1950.\n\nFOR MOHATTA BROTHERS\n\nAhmedabad Shivaratan G. Mohatta Chandratan G. Moondhra D. R. Moondhra Brijratan S. Mohatta\n\nS. R. Mohatta D Satyavati Mohatta\" A notice was then issued for convening a general meeting of the defendant-company on September 4, 1950 for sanctioning the said scheme.\n\nThe said scheme was approved by the shareholders on September 4, 1950. Accordingly, as from that date Messrs Chaturbhujdas Kharawala Mohatta & Co. took over as the new managing\n\n~ agents of the defendant-company instead of the plaintiff-firm.\n\nThe plaintiff's case was that the liability of the Punjab National Bank was fully discharged by sale of the stores.\n\nNo bonus was held to be payable by the Industrial Court to the employees of the company for the year 1949. It was stated that there was surplus left after discharging the liability of the Punjab National Bank from earmarked assets consisting of excess profit tax deposits, income tax advance amount and the amounts realised from the sale of the stores. The plaintiff-firm claimed half the surplus in terms of clause (7) of the scheme towards the deposit amounts of the plaintiff.\n\nPrayer was made for accounts of the. surplus and decree for the amount due as per terms of the scheme with 9 per cent interest.\n\n• It may be stated that the plaintiff-firm with effect from April 1, \". 1949 .consisted of five partne~. In addition to those five partners,\n\n' Shash1 Kumar, who was a mmor and whose mother Satyavati was his guardian, was entitled to four Anna share in a rupee in the profits of 1 the partnership but was not liable for its losses.\n\nPartnership deed\n\nx. 115 was executed for this purpose on May 19, 1949 and was signed by the five partners and Satyavati.\n\nOn October 24 1949 another partnership deed Ex. 116 was executed wherein s'atyavati was shown as a partner of the plaintiff-firm instead of her minor son Shashi Kumar.\n\nThe suit was resisted by the defendant-company. Besides taking other pleas with which we are not concrned, the defendant contended that the plainllff firm could not maintam the suit as the constitution of the old firm which acted as managing agents of the defendant-company had been changed on October 24, 1949. From that date, it was stated, the plaintiff-firm consisted of six partners, including Satyavati.\n\nThe newly constituted firm, according to the defendant-company, had not been registered and as such the suit was not maintainable.\n\nThe trial court held that the new partnership deed Ex. 116 by which Satyavati became a partner was not acted upon. As the original partnership mentioned in the partnership deed dated May 19, 1949 had been registered, the plaintiffs suit was held to be not barred by section . 69 of the Indian Partnership Act. It is not necessary to refer to the other issues and the findings of the trial court on those issues. Suffice it to say that the defendant was held entitled to deduct certain amounts from the amount claimed by the plaintiff. The trial court accordingly passed the following order_ :\n\n\"The plaintiff has filed this suit for account as the account was to be• taken of the realisation and expenses of the stores. But by pursis Exhibit 424 t_he parties have agreed about the net realisation of the stores and have therefore urged that no Co=issioner be appointed and a final decree be passed. The real account was to be taken of the actual receipts and expenses of the sale of stores. But now nothing is required to be done and hence there is no necessity of passing any preliminary decree.\n\nThe plaintiffs as shown above are entitled to receive Rs. 77,286-0-2, from defendant towards their deposit amount being the net surplus which they are entitled. Hence defendants are liable to pay the said amount to plaintiff. The plaintiff should pay the remaining Court-fee stamp within a month.\n\nI, therefore, pass the following order.\n\nORDER-··\n\nDefendants do pay Rs. 77,286-0-2 and the cost of the snit to plaintiff with futnre interest at 6 per cent from 1st January. 1956. The plaintiff should pay the remaining Court fees within a month. Defendants to bear their own cost.\"\n\nTwo cross-appeals were filed against the judgment and decree of the trial Court. One appeal was by the defendant-company praying for the dismissal of the plaintiff's suit. The other appeal was by the plaintiff-firm claiming for enhancement of the amount decreed by the trial court.\n\nOne of the contentions advanced by the defendantcompany was as under :\n\n\"The plaintiff-firm was not entitled to file a suit as the plaintiff-firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as\n\nthe minor Shashikumar had become major in 1953 and had\n\n• •\n\nbecome a partner of the plaintiff-firm Mohatta Brothers, Ahmedabad, and as even the name of Satya vati Devi who was the partner suing did not apepar in the entry in the register of firms the present snit was barred under section 69(2) of the Act.\" ·\n\nDealing with the above contention, the High Court disagreed with the finding of the trial court that partnership deed Ex. 116 dated October 24, 1949 had not been acted upon.\n\nThe learned Judges of the High Conrt held so far as the first part of the above contention is concerned that when a firm is reconstituted by introduction of a new partner, it would remain the sgme registered firm, and there would be no necessity of fresh registration if the continuing firm was registered with the Registrar of the Firms under section 59 of the Indian Partnership Act.\n\nDealing with the contention that Shashi Kumar had become major,. C the High Court found that there was no evidence to show the age of Shashi Kumar and the whole argument in this respect was based on niere conjecture. On the latter part of the submission, the High Court held that the mandatory condition under section 69(2) of the Indian Partnership Act was not fulfilled in the present case as the name of Satyavati who was a partner of the reconstituted firm and in whose favour a cause of action had accrued was not shown in the register of the firms.\n\nThis defect was held to be fatal. The High Court in this context observed :\n\n\"In view of this legal position which we have discussed the second mandatory condition under section 69 (2) is not fulfilled in the present case as the name of Satyavati who was partner of the reconstituted firm and in whose favour the cause of action had accrued is not shown in the register of firms.\n\nThis defect would be fatal as the first defect of want of registration of the firm itself and in both the cases we would have no option but to dismiss the suit.\n\nIn that view of the matter it would be wholly unnecessary to go into any of the other contentions which have been raised in these two appeals and to record any finding on the issues relating to the merits of the case or as regards the other appeal of the plaintiff as well.\n\nHowsoever much we may regret to dismiss the plaintiff's suit which apparently is well founded by upholding this technical objection of the defendant company. we are bound to dismiss this suit as in law a non-compliance of this second mandatory condition is also equally fatal as the non-compliance of first condition.\n\nAt the same time, however, in the circumstances of the cases while dismissing the plaintiff's suit we would order both the parties shall bear their own costs all throughout.\"\n\nIn appeal before us Mr. Sen on behalf of the appellants has assailed the judgment of the High Court in so far as it has disagreed with the finding of the trial court that Satyavati was not a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 had not been acted upon.\n\nMr.· Sen has also questioned the correctness oE the view taken by the High Court regarding the construction of section\n\nA 69 (2) of the Indian Partnership Act.\n\nAs against that, Mr. Bhatt on\n\nbehalf of the respondents has canvassed for the correctness of the view >- -~ taken by the High Court, both on the question of fact as well as on the r question of law.\n\nAfter hearing the iearned counsel for the parties and after having been taken through the relevant material on the record, we are of the opmivn that the trial court took a correct view of the matter in so far\n\nas it has held that Satyavati did not become a partner of the plaintififirm and that the deed of partnership dated October 24, 1949 was not acted upon.\n\nThe main consideration which prevailed with the High Court in holding that Satyavati became a partner of the plaintiff-firm was the execution of deed of partnership dated October 24, 1949. According to this deed, Satyavati became a partner to the extent of 4 Annas share out of 16 Annas, which had been previously held by her minor son \" Shashi Kumar. Shashi Kumar under the deed of partnership of May 19, 1949 was entitled to the share of profits to the extent of four Annas in a rupee and was not liable for the losses which were to be borne by the other five partners. Satyavati became entitled undec the deed of October 24, 1949 not only to the share of profit to the extent of 4 Annas in a rupee but also became liable to share losses to that extent.\n\nThe other circumstance relied upon by the High Court was resolution dated January 21, 1950 passed by the Board of Directon of the defendant-company.\n\nThat meeting was presided over by Shivratan G. Mohatta, partner of the plaintiff-firm.\n\nIn that resolution there was reference to partnership deeds dated May 19, 1949 and October 24, 1949 which had been received along with letter dated \" December 1, 1949 from Mohatta Brothers. The Board of Directors took note of the changes mentioned in the above two partnership deeds and agreed to accept the partners therein mentioned.\n\nThe third circnmstance relied npon by the High Court is letter dated Augnst 1, 1950 Ex. 118 which was sent on behalf of the plaintiff-firm, Mohatta Brothers, for the purpose of tendering resignation as Secretaries, Treasnrers and Agents of the defendant-company. This letter was , signed, besides the other partners, by Satyavati.\n\nThere was, however, no indication in the letter as to whether Satyavati signed it in her capacity as a partner or as the gnardian of her minor son Shashi Kumar.\n\nAs against the circumstances relied upon by the High Court, we find that in the register relating to the registration of firms kept under the Indian Partnership Act, an entry was made on May 5, 1952 relating to the registration of the plaintiff-firm.\n\nThe above entry was plainly in pursuance of application filed on behalf of the plaintiff-firm shortly before the making of that entry.\n\nThe above entry shows that the position taken up on behalf of the plaintiff-firm even in the year 1952 was that there were only five partners of the plaintiff-firm and that in addition to that, Shashi Kumar minor was admitted to the benefit of partnership. The entrv thus reveals that even in the. year 1952 the stand of the partners of the plantiff-firm was that Satyavati was not a partner r>f the olaintiff-firm and that it was her minor son\n\nShashi Kumar who was entitled to share in the profits of the partnership.\n\nThis entry would be mexplicable if Satyavati had become a partner of the plaintiff firm with effect from October 24, 1949.\n\nAnother circumstance which goes to show that Satyavati did not become a partner of the plamtiff-firm is the entry in the registers of the defendent-company. According to section 87 of the Indian Companies Act 1913, which was the Act in fqrce at the relevant time, every company shall keep inter alia at its registered office a register of managmg agents containing with respect to each of them the following particulars, that is to say, in the case of a firm, the full name, address and nationality of each partner, and the date on which each became a partner.\n\nThe entry which was made in the register of the defendantcompany regarding the partners of its managing agents showed that after April 1, 1949 there were five partners besides Shashi Kumar minor under the guardianship of his mother Satyavati, of the firm of the managing agents Mohatta Brothers.\n\nAlthough the above entry was made on October 6, 1949, no subsequent entry was made thereafter showing Satyavati as partner of the firm of Mohatta Brothers.\n\nHad Satyavati in fact become a partner since October 24, 1949 of Mohatta Brothers, it seems unlikely that an entry to that effect would not be made in the register of the defendant-company. It may aloo be mentioned in the above context that return has to be sent to the Regis'.rar of Firms under section 87 regarding any change in the particulars required to be contained in the register.\n\nFailure to comply with the above directions entailed imposition of fine.\n\nThe third significant circumstance which tends to show that Satyavati despite the execution of the deed of partnership dated October 24, 1949 did not become a partner of the plaintiff-firm is evidenced by applications in connection with the registration of that firm which were presented to the income-tax authorities under section 26A of the Indian Income-tax Act, 1922. Ex. 280 to 286 are the applications which were filed on behalf of the plaintiff-firm for the years 1949-50 to 1956-57. In all these applications, Shashi Kumar minor under the guardianship of Satyavati was shown entitled to 4 Anni!! share in a rupee in the plaintiff-firm.\n\nSatyavati was not shown in any of these applications as partner of the plaintiff-firm. All. these applications which were signed by Satyavati clearly go to show that during these years she did not claim herself to be partner of the plaintiff firm.\n\nOn the contrary, she acknowledged that it was her minor son Shashi Kumar who was entitled to 4 Annas share in the profits of the partnership.\n\nDocumentary evidence which has been brought on the record in our opinion, clearly lends support to the statement of Shivratan (PW 1) that partnership deed dated October 24, 1949 was not acted upon and that Satyavati did not become a partner of the plaintiff-firm.\n\nivan. Das PW, who was an employee of the defendant-company, ha~ likewise deposed that Satyavati was never a partner of Mohatta Brothers.\n\nDuring the hearing of the appeal, affidavit of Satyavati has been filed stating that she was never a partner of Mohatta Brothers and it\n\nwas her son Shashi Kumar who was at all material times admitted to the benefit of the partnership. Mr. Bhatt has objected to this Court taking notice of the contents of the affidavit of Satyavati including her disclanner of any interesnn the plaintiff-firm.\n\nIn this respect we arc of the view tha: even without the above affidavit, the material on the record clearly goes to show that Satyavati was not a partner of the plaintiff-firm.\n\nIn addition to what has been pointed out, we find that in the statement of accounts of the plaintiff-firm it is Shashi Kumar and not Satyavati who is shown to have 4 Annas share in the plaintiff-firm.\n\nEntries show that Shashi Kumar shared the profits as well as the losses in that proportion.\n\nThe significant thing which emerges from the account books is that Satyavati was not shown as the person entitled c to 4 Annas share in the partnership firm.\n\nSoon after the present suit had been filed, on application filed on behalf of the defendants under Order XXX, Rule 2 of the Code of Civil Procedure, names of the partners of the plaintiff-firm were declared on behalf of the plaintiff-firm.\n\nIn the declaration the name of Satyavati was not mentioned as one of the partners of the plaintiff firm.\n\nThe question as to who should share the profits of the plaintifffirm and should be otherwise entitled to its assets is essentially a matter for the partners of the plaintiff-firm.\n\nThe facts of the case disclose that the partners of the plaintiff-firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff-firm are concerned, it would be Shashi Kumar who would be entitled to the same.\n\nThat position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income-tax authorities. It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share.\n\nThe distinction between a plaintiff-firm and a defendant-firm in the above context should not be lost sight of.\n\nSo far as a defendant-firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant-firm.\n\nThe reason for that is that a creditor of a defendant-firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner. Such a consideration does not hold good when the dispute relates to the question as to who are the partners of the plaintiff-firm.\n\nIt has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon.\n\nThis statement is against the pecuniary interest of Shivratan. It is plain that if Satyavati were a partner of the plaintifffirm, Shivratan and other partners would have to bear looses to the extent of 12 Annas in a rupee.\n\nAs against that, if Shashi Kumar be entitled to share profits to the extent of 4 Annas in a rupee and be not\n\nliable for the losses, in such an eveut Shivratan and other partners would have to bear the losses to the full extent of 16 Annas in a rupee.\n\nIf despite that fact, Sh1vratan has deposed that SatayvatJ did not become a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is overwhelming documentary evidence which lends support to the above statement.\n\nThe entire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and the relations between the partners of the plaintiff-firm continued to be governed by the deed of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership. The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon t!tc deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed was not given effect to or acted upon by the parties concerned. The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.\n\nLooking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff-firm and that the deed of partnership dated October 24, 1949 had not been acted upon.\n\nThe High Court, in our opinion, was in error in reversing that finding of the trial E court.\n\nIn view of this conclusion of ours, it is not necessary to go into the legal qu, estion as to what should be the proper construction of section 69(2) of the Indian Partnership Act.\n\nLearned counsel for the parties are agreed that such question would arise only in case we had affirmed the finding of the High Court that Satyavati had become a prtner of the plaintiff-firm and that the deed of partnership dated October 24, 1949 had been acted upon.\n\nThe High Court did not deal with the merits of the cross-appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff-firm and the construction it placed upon section 69(2) of the Indian Partnership Act.\n\nIn the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross-appeals filed G by the parties may be disposed of on merits.\n\nWe accordingly accept the appeals, set aside the judgment of the High Court and remand the case to it for disposal of the appeals filed by the parties on merits Looking to all the circumstances, we leave the parties to bear their own costs of these appeals.\n\nAs the matter has been pending for a long time, the High Court may dispose of the appeals at an early date.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 87, "entities": [{"text": "MOHATIA BROTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "MOHATIA BROTHERS", "offset_not_found": false}}, {"text": "BHARAT SURYODAYA MILLS CO. LTD., AHMEDABAD", "label": "RESPONDENT", "start_char": 18, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "BHARAT SURYODAYA MILLS CO. LTD., AHMEDABAD", "offset_not_found": false}}, {"text": "April 5, 1976", "label": "DATE", "start_char": 62, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "AHMEDABAD\n\nApril 5, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 95, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 116, "end_char": 138, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 69", "label": "PROVISION", "start_char": 152, "end_char": 157, "source": "regex", "metadata": {"linked_statute_text": "Indian Partnership Act", "statute": "Indian Partnership Act"}}, {"text": "April 1, 1949", "label": "DATE", "start_char": 600, "end_char": 613, "source": "ner", "metadata": {"in_sentence": "The appellant-firm consisted of 5 partners with effect from April 1, 1949, and in addition, a minor was entitled to a 4-anna share in the profits of the partnership but was not liable for the losses."}}, {"text": "October 24, 1949", "label": "DATE", "start_char": 798, "end_char": 814, "source": "ner", "metadata": {"in_sentence": "On October 24, 1949, another partnership deed was executed wherein the mother was shown as a partner of the appellant-firm with a 4-anna share and the minor's name was \\ omitted."}}, {"text": "s. 69(2)", "label": "PROVISION", "start_char": 1524, "end_char": 1532, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 1534, "end_char": 1556, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 2787, "end_char": 2809, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "May 5. 1952", "label": "DATE", "start_char": 2877, "end_char": 2888, "source": "ner", "metadata": {"in_sentence": "[1029G-H; 1030H-1031D]\n\n(2) In the register relating to the registration of firms kept under the Indian Partnership Act, an entry relating to the registration of the appeIIant-firm dated May 5."}}, {"text": "s. 26A", "label": "PROVISION", "start_char": 3390, "end_char": 3396, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 3398, "end_char": 3425, "source": "regex", "metadata": {}}, {"text": "s. 87", "label": "PROVISION", "start_char": 3958, "end_char": 3963, "source": "regex", "metadata": {"linked_statute_text": "Indian Income Tax Act, 1922", "statute": "Indian Income Tax Act, 1922"}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 3965, "end_char": 3991, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 87", "label": "PROVISION", "start_char": 4317, "end_char": 4322, "source": "regex", "metadata": {"linked_statute_text": "Indian Companies Act, 1913", "statute": "Indian Companies Act, 1913"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5686, "end_char": 5714, "source": "ner", "metadata": {"in_sentence": "[1030C-G]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "E A. K. Sen", "label": "JUDGE", "start_char": 5895, "end_char": 5906, "source": "ner", "metadata": {"in_sentence": "769 and 1029 of\n\n19W.\n\nE A. K. Sen, L. M. Singhvi, S. K. Bagga and Mrs. Bagga, for the\n\n~ appellant."}}, {"text": "S. K. Bagga", "label": "LAWYER", "start_char": 5923, "end_char": 5934, "source": "ner", "metadata": {"in_sentence": "769 and 1029 of\n\n19W.\n\nE A. K. Sen, L. M. Singhvi, S. K. Bagga and Mrs. Bagga, for the\n\n~ appellant."}}, {"text": "Bagga", "label": "WITNESS", "start_char": 5944, "end_char": 5949, "source": "ner", "metadata": {"in_sentence": "769 and 1029 of\n\n19W.\n\nE A. K. Sen, L. M. Singhvi, S. K. Bagga and Mrs. Bagga, for the\n\n~ appellant."}}, {"text": "R. P. Bhatt", "label": "LAWYER", "start_char": 5974, "end_char": 5985, "source": "ner", "metadata": {"in_sentence": "R. P. Bhatt, B. S. Trivedi H. S. Parihar and I. N. Shroff, fer the respondent."}}, {"text": "B. S. Trivedi H. S. Parihar", "label": "LAWYER", "start_char": 5987, "end_char": 6014, "source": "ner", "metadata": {"in_sentence": "R. P. Bhatt, B. S. Trivedi H. S. Parihar and I. N. Shroff, fer the respondent."}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 6019, "end_char": 6031, "source": "ner", "metadata": {"in_sentence": "R. P. Bhatt, B. S. Trivedi H. S. Parihar and I. N. Shroff, fer the respondent."}}, {"text": "F\n\nKHANNA", "label": "JUDGE", "start_char": 6097, "end_char": 6106, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by F\n\nKHANNA, J.\n\nThese two appeals on certificate by Mohatta Brothers plaintiff-firm are directed against the judgment of Gujarat High Court whereby that court reversed on appeal the judgment of the trial court awarding a decree for recovery of Rs."}}, {"text": "Mohatta Brothers", "label": "ORG", "start_char": 6537, "end_char": 6553, "source": "ner", "metadata": {"in_sentence": "The plaintiff is a partnership firm doing business under the name and style of Mohatta Brothers."}}, {"text": "September 4, 1950", "label": "DATE", "start_char": 6649, "end_char": 6666, "source": "ner", "metadata": {"in_sentence": "The plaintiff-firm carried on the business of managing agency of the defendant company up to September 4, 1950."}}, {"text": "July 31, 1950", "label": "DATE", "start_char": 6794, "end_char": 6807, "source": "ner", "metadata": {"in_sentence": "On July 31, 1950 Chaturbhujdas on behalf of M/s.\n\nChaturbhujdas, Kharawala M0hatta & Co. submitted scheme Ex."}}, {"text": "Chaturbhujdas", "label": "OTHER_PERSON", "start_char": 6808, "end_char": 6821, "source": "ner", "metadata": {"in_sentence": "On July 31, 1950 Chaturbhujdas on behalf of M/s.\n\nChaturbhujdas, Kharawala M0hatta & Co. submitted scheme Ex."}}, {"text": "31-7-5 0", "label": "DATE", "start_char": 7268, "end_char": 7276, "source": "ner", "metadata": {"in_sentence": "Paras 5, 6 and 7 of the scheme were as under : \" ( 5) Before our this Scheme is approved by the Company the present Directors shall submit before the Company\n\nthe Balance Sheets and the Profit and Loss Account upto the end of the year 1949 and get the same passed, and they shall get the Proforma Balance Sheet up to the date 31-7-5 0 prepared by the Auditors of the Company and shall hand over the same to us, and this Scheme has been given while understanding that at present everything is according to the list of machinery given to us by the present Agents."}}, {"text": "31-7-50", "label": "DATE", "start_char": 7918, "end_char": 7925, "source": "ner", "metadata": {"in_sentence": "(6) The amounts of the Agents of the Company and their kith and kin which may have been deposited in the Company on the day the date 31-7-50 and which come to a)lout Rs."}}, {"text": "1-8-50", "label": "DATE", "start_char": 8092, "end_char": 8098, "source": "ner", "metadata": {"in_sentence": "4,77,850/- as told by the present Agents are to be kept credited in their accounts and interest thereon is not to be given from the date 1-8-50."}}, {"text": "Punjab National Bank Ltd.", "label": "ORG", "start_char": 8563, "end_char": 8588, "source": "ner", "metadata": {"in_sentence": "3,46,466-11-8 is due to the Punjab National Bank Ltd. by the Company and the demand of giving bonus to the workers for the year 1949 is outstanding from the Company."}}, {"text": "August 1, 1950", "label": "DATE", "start_char": 9930, "end_char": 9944, "source": "ner", "metadata": {"in_sentence": "• I\n\n\"''\n\nOn the following day, i.e. August 1, 1950, the following Jetter was addressed by the plaintiff-firm to the Board of Directors of the defen- \"\"· dant-company :\n\n\"We Messrs Mohatta Brothers, the Secretaries, Treasurers & Agents of the company hereby beg to tender our resignation as Secretaries, Treasurers and Agents of the Company on condition of the scheme of Sheth Chaturbhujdas Chirnanlal dated 31-7-50 duly approved by the Board of Directors, being passed by the share-holders of the company in the Extraordinary General Meeting of the company to be held on 4th September, 1950."}}, {"text": "Sheth Chaturbhujdas Chirnanlal", "label": "OTHER_PERSON", "start_char": 10264, "end_char": 10294, "source": "ner", "metadata": {"in_sentence": "• I\n\n\"''\n\nOn the following day, i.e. August 1, 1950, the following Jetter was addressed by the plaintiff-firm to the Board of Directors of the defen- \"\"· dant-company :\n\n\"We Messrs Mohatta Brothers, the Secretaries, Treasurers & Agents of the company hereby beg to tender our resignation as Secretaries, Treasurers and Agents of the Company on condition of the scheme of Sheth Chaturbhujdas Chirnanlal dated 31-7-50 duly approved by the Board of Directors, being passed by the share-holders of the company in the Extraordinary General Meeting of the company to be held on 4th September, 1950."}}, {"text": "4th September, 1950", "label": "DATE", "start_char": 10465, "end_char": 10484, "source": "ner", "metadata": {"in_sentence": "• I\n\n\"''\n\nOn the following day, i.e. August 1, 1950, the following Jetter was addressed by the plaintiff-firm to the Board of Directors of the defen- \"\"· dant-company :\n\n\"We Messrs Mohatta Brothers, the Secretaries, Treasurers & Agents of the company hereby beg to tender our resignation as Secretaries, Treasurers and Agents of the Company on condition of the scheme of Sheth Chaturbhujdas Chirnanlal dated 31-7-50 duly approved by the Board of Directors, being passed by the share-holders of the company in the Extraordinary General Meeting of the company to be held on 4th September, 1950."}}, {"text": "S. R. Mohatta D Satyavati Mohatta", "label": "OTHER_PERSON", "start_char": 10601, "end_char": 10634, "source": "ner", "metadata": {"in_sentence": "FOR MOHATTA BROTHERS\n\nAhmedabad Shivaratan G. Mohatta Chandratan G. Moondhra D. R. Moondhra Brijratan S. Mohatta\n\nS. R. Mohatta D Satyavati Mohatta\" A notice was then issued for convening a general meeting of the defendant-company on September 4, 1950 for sanctioning the said scheme."}}, {"text": "Chaturbhujdas Kharawala Mohatta & Co.", "label": "ORG", "start_char": 10882, "end_char": 10919, "source": "ner", "metadata": {"in_sentence": "Accordingly, as from that date Messrs Chaturbhujdas Kharawala Mohatta & Co. took over as the new managing\n\n~ agents of the defendant-company instead of the plaintiff-firm."}}, {"text": "Punjab National Bank", "label": "ORG", "start_char": 11322, "end_char": 11342, "source": "ner", "metadata": {"in_sentence": "It was stated that there was surplus left after discharging the liability of the Punjab National Bank from earmarked assets consisting of excess profit tax deposits, income tax advance amount and the amounts realised from the sale of the stores."}}, {"text": "April 1, \". 1949", "label": "DATE", "start_char": 11804, "end_char": 11820, "source": "ner", "metadata": {"in_sentence": "• It may be stated that the plaintiff-firm with effect from April 1, \"."}}, {"text": "Satyavati", "label": "PETITIONER", "start_char": 11934, "end_char": 11943, "source": "ner", "metadata": {"in_sentence": "1949 .consisted of five partne~. In addition to those five partners,\n\n' Shash1 Kumar, who was a mmor and whose mother Satyavati was his guardian, was entitled to four Anna share in a rupee in the profits of 1 the partnership but was not liable for its losses.", "canonical_name": "Satya vati Devi"}}, {"text": "May 19, 1949", "label": "DATE", "start_char": 12135, "end_char": 12147, "source": "ner", "metadata": {"in_sentence": "Partnership deed\n\nx. 115 was executed for this purpose on May 19, 1949 and was signed by the five partners and Satyavati."}}, {"text": "October 24 1949", "label": "DATE", "start_char": 12203, "end_char": 12218, "source": "ner", "metadata": {"in_sentence": "On October 24 1949 another partnership deed Ex."}}, {"text": "s'atyavati", "label": "PETITIONER", "start_char": 12273, "end_char": 12283, "source": "ner", "metadata": {"in_sentence": "116 was executed wherein s'atyavati was shown as a partner of the plaintiff-firm instead of her minor son Shashi Kumar.", "canonical_name": "Satya vati Devi"}}, {"text": "Shashi Kumar", "label": "PETITIONER", "start_char": 12354, "end_char": 12366, "source": "ner", "metadata": {"in_sentence": "116 was executed wherein s'atyavati was shown as a partner of the plaintiff-firm instead of her minor son Shashi Kumar.", "canonical_name": "Shashi Kumar"}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 13198, "end_char": 13220, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1st January. 1956", "label": "DATE", "start_char": 14470, "end_char": 14487, "source": "ner", "metadata": {"in_sentence": "77,286-0-2 and the cost of the snit to plaintiff with futnre interest at 6 per cent from 1st January."}}, {"text": "31st July 1950", "label": "DATE", "start_char": 15089, "end_char": 15103, "source": "ner", "metadata": {"in_sentence": "One of the contentions advanced by the defendantcompany was as under :\n\n\"The plaintiff-firm was not entitled to file a suit as the plaintiff-firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as\n\nthe minor Shashikumar had become major in 1953 and had\n\n• •\n\nbecome a partner of the plaintiff-firm Mohatta Brothers, Ahmedabad, and as even the name of Satya vati Devi who was the partner suing did not apepar in the entry in the register of firms the present snit was barred under section 69(2) of the Act.\" ·"}}, {"text": "Mohatta Brothers", "label": "PETITIONER", "start_char": 15228, "end_char": 15244, "source": "ner", "metadata": {"in_sentence": "One of the contentions advanced by the defendantcompany was as under :\n\n\"The plaintiff-firm was not entitled to file a suit as the plaintiff-firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as\n\nthe minor Shashikumar had become major in 1953 and had\n\n• •\n\nbecome a partner of the plaintiff-firm Mohatta Brothers, Ahmedabad, and as even the name of Satya vati Devi who was the partner suing did not apepar in the entry in the register of firms the present snit was barred under section 69(2) of the Act.\" ·", "canonical_name": "MOHATIA BROTHERS"}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 15246, "end_char": 15255, "source": "ner", "metadata": {"in_sentence": "One of the contentions advanced by the defendantcompany was as under :\n\n\"The plaintiff-firm was not entitled to file a suit as the plaintiff-firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as\n\nthe minor Shashikumar had become major in 1953 and had\n\n• •\n\nbecome a partner of the plaintiff-firm Mohatta Brothers, Ahmedabad, and as even the name of Satya vati Devi who was the partner suing did not apepar in the entry in the register of firms the present snit was barred under section 69(2) of the Act.\" ·"}}, {"text": "Satya vati Devi", "label": "PETITIONER", "start_char": 15281, "end_char": 15296, "source": "ner", "metadata": {"in_sentence": "One of the contentions advanced by the defendantcompany was as under :\n\n\"The plaintiff-firm was not entitled to file a suit as the plaintiff-firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as\n\nthe minor Shashikumar had become major in 1953 and had\n\n• •\n\nbecome a partner of the plaintiff-firm Mohatta Brothers, Ahmedabad, and as even the name of Satya vati Devi who was the partner suing did not apepar in the entry in the register of firms the present snit was barred under section 69(2) of the Act.\" ·", "canonical_name": "Satya vati Devi"}}, {"text": "section 69(2)", "label": "PROVISION", "start_char": 15410, "end_char": 15423, "source": "regex", "metadata": {"statute": null}}, {"text": "section 59", "label": "PROVISION", "start_char": 15959, "end_char": 15969, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 15977, "end_char": 15999, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 69(2)", "label": "PROVISION", "start_char": 16312, "end_char": 16325, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 16333, "end_char": 16355, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 69", "label": "PROVISION", "start_char": 16728, "end_char": 16738, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 17895, "end_char": 17898, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Sen on behalf of the appellants has assailed the judgment of the High Court in so far as it has disagreed with the finding of the trial court that Satyavati was not a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 had not been acted upon."}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 18305, "end_char": 18327, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bhatt", "label": "OTHER_PERSON", "start_char": 18351, "end_char": 18356, "source": "ner", "metadata": {"in_sentence": "As against that, Mr. Bhatt on\n\nbehalf of the respondents has canvassed for the correctness of the view >- -~ taken by the High Court, both on the question of fact as well as on the r question of law."}}, {"text": "January 21, 1950", "label": "DATE", "start_char": 19725, "end_char": 19741, "source": "ner", "metadata": {"in_sentence": "The other circumstance relied upon by the High Court was resolution dated January 21, 1950 passed by the Board of Directon of the defendant-company."}}, {"text": "Shivratan G. Mohatta", "label": "OTHER_PERSON", "start_char": 19835, "end_char": 19855, "source": "ner", "metadata": {"in_sentence": "That meeting was presided over by Shivratan G. Mohatta, partner of the plaintiff-firm."}}, {"text": "May 19, 1949 and", "label": "DATE", "start_char": 19955, "end_char": 19971, "source": "ner", "metadata": {"in_sentence": "In that resolution there was reference to partnership deeds dated May 19, 1949 and October 24, 1949 which had been received along with letter dated \" December 1, 1949 from Mohatta Brothers."}}, {"text": "December 1, 1949", "label": "DATE", "start_char": 20039, "end_char": 20055, "source": "ner", "metadata": {"in_sentence": "In that resolution there was reference to partnership deeds dated May 19, 1949 and October 24, 1949 which had been received along with letter dated \" December 1, 1949 from Mohatta Brothers."}}, {"text": "Augnst 1, 1950", "label": "DATE", "start_char": 20295, "end_char": 20309, "source": "ner", "metadata": {"in_sentence": "The third circnmstance relied npon by the High Court is letter dated Augnst 1, 1950 Ex."}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 20862, "end_char": 20884, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "May 5, 1952", "label": "DATE", "start_char": 20907, "end_char": 20918, "source": "ner", "metadata": {"in_sentence": "As against the circumstances relied upon by the High Court, we find that in the register relating to the registration of firms kept under the Indian Partnership Act, an entry was made on May 5, 1952 relating to the registration of the plaintiff-firm."}}, {"text": "section 87", "label": "PROVISION", "start_char": 21923, "end_char": 21933, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act 1913", "label": "STATUTE", "start_char": 21941, "end_char": 21966, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "October 6, 1949", "label": "DATE", "start_char": 22649, "end_char": 22664, "source": "ner", "metadata": {"in_sentence": "Although the above entry was made on October 6, 1949, no subsequent entry was made thereafter showing Satyavati as partner of the firm of Mohatta Brothers."}}, {"text": "section 87", "label": "PROVISION", "start_char": 23065, "end_char": 23075, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26A", "label": "PROVISION", "start_char": 23557, "end_char": 23568, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 23576, "end_char": 23603, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Shashi Kumar", "label": "PETITIONER", "start_char": 23751, "end_char": 23763, "source": "ner", "metadata": {"in_sentence": "In all these applications, Shashi Kumar minor under the guardianship of Satyavati was shown entitled to 4 Anni!!", "canonical_name": "Shashi Kumar"}}, {"text": "Shivratan", "label": "WITNESS", "start_char": 24386, "end_char": 24395, "source": "ner", "metadata": {"in_sentence": "Documentary evidence which has been brought on the record in our opinion, clearly lends support to the statement of Shivratan (PW 1) that partnership deed dated October 24, 1949 was not acted upon and that Satyavati did not become a partner of the plaintiff-firm."}}, {"text": "ivan. Das", "label": "WITNESS", "start_char": 24535, "end_char": 24544, "source": "ner", "metadata": {"in_sentence": "ivan."}}, {"text": "Satyavati", "label": "PETITIONER", "start_char": 24720, "end_char": 24729, "source": "ner", "metadata": {"in_sentence": "During the hearing of the appeal, affidavit of Satyavati has been filed stating that she was never a partner of Mohatta Brothers and it\n\nwas her son Shashi Kumar who was at all material times admitted to the benefit of the partnership.", "canonical_name": "Satya vati Devi"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 25822, "end_char": 25849, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shivratan", "label": "OTHER_PERSON", "start_char": 27735, "end_char": 27744, "source": "ner", "metadata": {"in_sentence": "It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon.", "canonical_name": "Shivratan"}}, {"text": "Sh1vratan", "label": "OTHER_PERSON", "start_char": 28354, "end_char": 28363, "source": "ner", "metadata": {"in_sentence": "If despite that fact, Sh1vratan has deposed that SatayvatJ did not become a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is overwhelming documentary evidence which lends support to the above statement.", "canonical_name": "Shivratan"}}, {"text": "SatayvatJ", "label": "PETITIONER", "start_char": 28381, "end_char": 28390, "source": "ner", "metadata": {"in_sentence": "If despite that fact, Sh1vratan has deposed that SatayvatJ did not become a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is overwhelming documentary evidence which lends support to the above statement.", "canonical_name": "Satya vati Devi"}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 29513, "end_char": 29535, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 69(2)", "label": "PROVISION", "start_char": 30088, "end_char": 30101, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 30109, "end_char": 30131, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 69(2)", "label": "PROVISION", "start_char": 30625, "end_char": 30638, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Partnership Act", "label": "STATUTE", "start_char": 30646, "end_char": 30668, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_1032_1041_EN", "year": 1976, "text": "B. PRABHAKARA RAO\n\nDESARI PANAKALA RAO & OIBERS\n\nApril 5, 1976\n\n[Y. V. CHANDRACHUD, V. R. KRISHNA !YER & N. L. UNTWALIA, JJ.J ·\n\nMotor Vehicles Act. 1947-Ss. 47 and 57-Andhra Pradesh State Tramport Appellate Tribunal Rules, 1971, r.15-Va/idity of.\n\nTribunal-If had power to admit evidence beyond the tilnt limitttl by s. n~J. .\n\nRule 15 of the Andhra Pradh State Transport Appellate Tribunal Rules, 1971, states that parties to the appeal or application shall not be entitled to produce additional evidence, whether oral or documentary, before the Tribunal e:xcept in cases stated therein but it empowers the Tribunal to allow evidence o! documents to be produced or witnesses to be examined for any other sum~ c1ent reason.\n\nThe Regional Transport Authority granted a stage carriage permit to the appellant.\n\nBefore the State Transport Appellate Tribunal another applicant produced certain information against the appellant which was not mentioned either in his history sheet or in the representations of any party under s. 57(3) of the Act.\n\nRejecting the appellant's objection that such new grounds could not be heard from an pbjector at the stage of appeal, the State Transport Appellate Tribunal cancelled the appellant's permit and gave it to respondent No. 2.\n\nOn appeal it was contended that a representation under s. 57(4) could not be made at the appellate stage beyond the time limited by that section and if rule 15 permitted it, it violated the substantive provisions of the Act.\n\nE Dismissing the appeal,\n\nHEID : Rule 15 is intra vires and it merely makes patent what is otherwise l...\\ latent in the statutory provisions. Rule 15 does not entitle parties to the appeal, or application to produce additional evidence but clothes the Tribunal with d.iscretionanr power to allow such evidence. What is received is not qua representation under s. 57(4) but qua evidence with public interest flavour.\n\n[1041F; I039Cl\n\nUnited Motor Works, A.I.R. 1964 Pat. 154 and Cumbum Roadways, A.I.R. 1965 Mad. 79, approved.\n\n(a) Public interest is the paramount consideration in transport business while private rights apparently constitute a quasi-lis for decision. The touchstone of better merit is solely the ability to serve the public and the hierarchy of transoort tribunals. bearin~ true faith and allegiance to s. 47 of the Motor Vehicles Act. 1948 have the duty and, therefore, the power to consider all factors pertinent to the larger scheme of efficient public transport. The duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits. The pro bone publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedural trappings. [I033E-GJ\n\n(b) Section 47 enjoins upan the Regional Transport Authority to have regard to the presiding idea of public interest generally and iii its ramifications as set out ins. 47(1)(a) to (f). In addition, the RTA shall also receive repre<entations as mentioned therein and take them into the reckoning. It is not as if the sole sollrce of decision-making materials consists of the representations made under s. 57(3) within the time stipulated in s. 57(4). The primary channel .ta the information that the RTA may gather bearing on matters touched upon 1n ' 47(l)(a) to (f) supplemented by facts stated in representation referred to In\n\n. 1032\n\ni. 57(3). Under s. 47 passengers' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for A a permit have a place in the scheme and may make representations on a variety of matters.\n\nSo lso, in an appeal, the RTA it<; elf may be heard.\n\nThus_. the ronsiderations going into the judicial verdict are dominated by public interest~\n\nnon-parties who have only to present points germane to public interest are allowed to represent their point of view. [1038C; !035B'Cl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.,1989 of 1975.\n\nAppeal by Special Leave from the Judgment and Order dated the 28th November 1975 of the Andhra Pradesh High Court in Writ Appeal No. 1038 of 1973.\n\nM. N. Phadke and B. Kantarao, for the Appellant.\n\nV. S. Desai, K. R. Chaudhury, S. L. Setia and Mrs. V. Khamw, C for Respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nKrusHNA !YER, J.\n\nCounsel for the appellant-a jolted transport op\"ator--has assertively argued for an untenable position, heedless of the true nature of 'transport permit' jurisprudence.\n\nThe sole issue on which limited leave has been granted to him by this Court under Art. 136 lends itself to straight forward resolution, once we grasp the public character of the litigation and public purpose of the jurisdiction where permits regulating the plying of stage carriages are awarded or refused.\n\nThe conscience of this branch of public law is justice to the public, although, in the process of adjudication, private claims to carry on transport business through permits are comparatively evaluated. Public interest is the paramount consideration, while private rights, fundamental though, apparently constitute the quasi-/is for decision. The touchstone of better merit is solely the ability to serve the public, and the hierarchy of transport tribunals, bearing true faith and allegiance to s. 47 of the Motor Vehicles Act, 1948 (for short, the Act) have the duty and, therefore, the power to consider all factors pertinent to the larger scheme of efficient public transport. To equate-and thereby hamstring-this jurisdiction and processual law with what governs a civil proceeding under the Civil Procedure Code, is to miss the policing policy of the law and maim the amplitude of the powerduty complex. In other words, the duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits.\n\nThe pro bono publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedur11.l trappings.\n\nThe minimal facts.\n\nThe appellant and the 1st respondent, among others, applied for permits to ply a stage carriage on a specified route in the Krishna District, Andhra Pradesh.\n\nAlthough there were two permits for issuance, one was given to R2 and that has become final.\n\nWe are now concerned only with the other permit which had been granted by the Regional Transport Authority (acronymically, RTA) to the appellant but was switched over to the 1st respondent by the\n\nState Transport Appellate Tribunal (STAT) or taking into consideration a fresh ground and supporting evidence to the effect that the appellant was guilty of a transport tax violation and had compounded that offence under s. 60(3) of the Act.\n\nThe power in this behalf was stated to be based on r. 15 of the Andhra Pradesh State Transport Appellate Tribunal Rules, 1971 (hereinafter referred to as the Appellate rules), which reads :\n\n\"15. Additional Evidence (i) The parties to the appeal or application shall not be entitled to produce additional evidence whether oral or documentary before the Tribunal but,- ( a) if the authority from whose order the appeal or application is preferred has refused to admit evidence which ought to have been admitted, or\n\n(b) if the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed; or ( c) if the Tribunal requires any documents to be produced or any witnesses to be examined to enable it to pass just orders; or\n\n(d) for any other sufficient reason, the Tribunal may allow such evidence or documents to be produced or witnesses examined : Provided that where such evidence is received the other party shall be entitled to produce rebutting evidence, if any.\n\n(ii) If the Tribunal is of opin'on that any witness should be examined in connection with any case before it, ; t may instead of examining him before itself, issue a commission to the concerned Regional Transport Authorities or the State Transport Authority as the case may be, or to an Advocate or such other suitable person as it may deem fit, in the circumstances of the C'ase.\" The vires of this rule was challenged before us and we will examine the contention.\n\nBut, to continue the narrative,. when the appellate authority deprived the appellant of his permit he attacked the order without avail, before the High Court at both tiers.\n\nUn<launtccl. he has carried the appeal to this Court where the controversy is confined to the validity of r. 15, although we have heard arguments on a wider ba<is to apprec; ate the point made by counsel.\n\nThe argument of ultra vires umed before us rests on the scone of ss. 57(4) and 64 of the Motor Vehicles Act and the fitrnent of r. 15 into the purpose and text of these provisions.\n\nHav; ng heard counsel on both sides, we are disincl'ned to accede to th 0 submission of Shri Phadke for the appellant. Why? We will proceed to answer. ·\n\nRulings galore, of this Court and the High Courts, have focussed A on s. 47 of the Act to emphasize that the quasi-judicial bodies entrusted with the work of issumg stage-carriage permits must be conscious of the brooding presence of public interest, in the midst of the sparring contest of private applicants.\n\nA casual perusal of that provision brings home this juristic under-pinning of the jurisdiction. Against this background, we may notice the meaning of the clauses which broaden the nature of the enquiry and mark it off from a traditional B civil litigation. Passengers' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for a permit have a place in the scheme and may make representations on a variety of matters.\n\nSo also, in an appeal, the RTA itself may be beard.\n\nThus, the considerations going mto the judicial verdict are dominated by public interest; non-parties who have only to present points germane to public interest are allowed to reprec sent therr point of view.\n\nWhy?\n\nBecause the object of the regulatory statute is to promote smooth public transport and subject to the weighty faetors bearing thereon set down in s. 4 7 (I) of the Act and, indeed, with a view to serve the public the better, applicants are chosen in recognition of their fundamental right u.nder Art. 19 canalised by reasonable restrictions in public interest.\n\nTo imprison such an enquiry into the familiar mould of a civil proceeding in ordinary courts D is to be pathological, if one may say so. A freer, healthier, approach is the prescr; ption.\n\nOf course, Shri Phadke is right in that any representation, ground or evidence presented by anyone prejudicing the right of an applicant has to be considered only subject to the canons of natural justice and in the discretion of quasi-judicial authority.\n\nJustice to the public and the parties can and must be harmonised.\n\nSuch is the simplistic statement of the Jaw.\n\nA few more facts and scme more law are necessary.\n\nAs stated earlier, the appellant got the permit from the RTA although both the contestants before us were equally qualified, having obtained equal marks on the basis of the Andhra Pradesh Motor Vehicles Rules (for short, the MV rules).\n\nThe appellate result went against the appellant because another applicant who had filed an appeal before the STAT produced, at that stage, a certificate from the concerned authority to prove that the present appellant had used a contract carriage jlS a stage-carriage on a trip to Tirupati and had compounded this offence by payment of a fee of Rs. 2,340/-.\n\nThis circumstance was regarded by the STAT as a blot on the history-sheet of the appellant, although inadvertently omitted from the history-sheet prepared officially for the consideration of the RT A. It is admitted on all hands that this semi-punishment had not been mentioned in the representations of any party under s. 57(3) of the MV Act.\n\nTherefore, an objection was raised before the ST AT that this ground was new, although the episode which formed its basis existed prior to the disposal of the applications by the RTA. It was further urged that such new grotmds could not be heard from an objector who had not included it in his representation made within the time foi'•ed by s. 57(4) of the Act. However, the STAT over-ruled these objections and proceeded on the footing that this was material information\n\nA relevant to s. 4 7 (I ) and nsed it, after giving a fair opportnnity to the • affected appellant to meet it. Consequentially, he upset the award of the permit to the appellant since this factor tilted the scales against the appellant.\n\nWe cannot, in this Court, and especially on a limited ~~ leave, look into the evaluation.\n\nThese foundational facts are common ground, but the divergence B arises on the exercise of the power under r.15 of the Appellate Rules.\n\nShri Phadke contended that a representationist, under s. 57(3) & J\n\n( 4), had to abide by the time-limit discipline of the provision and could not transgress it by making an additional representation at the appellate stage beyond the time limited by s. 57 ( 4). If r. 15 permitted such a course, it violated the substantive provision of the Act. ' Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act, this Court must hold the said rule void. Any way, if s. 57(3) & (4) had a more spacious connotation than was attributed to it by Shri Phadke, r. 15 could have full play and be accommodated within the parent provision in the Act regulating procedure.\n\nThis was the counter-contention of Shri V. S. Desai for the contesting respondent. ~\n\nD Before proceeding further, it is useful to extract s. 57(3) and ( 4) and test whether the rule-making power has exceeded the ambit of s. 57 or gone counter to it in framing r. 15 (earlier extracted) :\n\n\"57. Procedure in applying for and granting permits.- x x x x\n\n(3) On receipt of an application for stage carriage per- E mit or a public carrier's permit, the Regional Trausport Authority shall make the application available for inspection at the office of the auhority and shall publish the application or the substance thereof in ,,._ the prescribed manner together with a notice of the ' . date before which representations in connectlon therewith may be submitted and the date, not being F less than thirty days from such publication, on which and the time and place at which, the application and any representations received, will be considemi : Provided that, if the grant of any permit in accordance with the application or with modifications\n\nG would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the applications relate, beyond the limit fixed in that behalf under sub-section (3) of Section 47 or sub-section (2) of Section 55, as the I\n\ncase may be, the Regional Transport Authority may\n\nH summarily refuse the application without following the procedure laid down in this sub-section.\n\n(4) No representation in connection with an application referred to in sub-section (3) shall be considered\n\nby the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation.\" W c unhesitatingly agree with Shri Phadke that natural justice-that fine facet of judicial ethos-must broadly inform exercise of power by administrative tribunals.\n\nThis obligates such bodies to give an affected party. a fair opportunity to meet any evidence obnoxious to his case if it is to be pressed into service against him.\n\nIn the present instance, it is not disputed, as the High Co11rt has noted, that the canons of natural justice have been conformed to. The surviving issue therefore is as to whether there is any soundness in the submfasion that s. 57(3) & (4) read with s. 47 builds barricades against receiving any information by the STAT from any representator beyond the time fixed in the above sub-sections of s. 57. f Administrative law-a growing branch of Indian jurisprudence -has a mission.\n\nWhere the trellis work of technical procedures and rules of evidence usually applicable to ordinary courts under the Code contains too many taboos regarding pleadings and too many prescriptions regarding trials, admiootrative bodies, manned by lay and legal men, charged with duties which are wider than decision of individual disputes between specific parties and operating quasijudicially at the public-interest level, have to enjoy more liberal powers and less formal and more flexible processes if they are to fulfil the statutory behest efficaciously.\n\nTo over-judicialize is to undermine.\n\nIn the construction of statutes establishing administrative agencies and defining their powers, there is little scope for the deep-rooted shibboleth that into the statute must be, read, by lawyer's instinct, the J. requirements of the trial of a civil suit or the hearing of an appeal by\n\nthe ordinary courts of the land.\n\nThis may result in defeating their obvious purpose.\n\nWe will therefore briefly examine the legislative goal of the statute under construction, the general policy of the legfalature in enacting the relevant sections and the definition of the sources from which information or evidence may be sought by the tribunal working within the framework of the Act.\n\nMr.\n\nJustice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise' and John Chipman had said that the process of statutory construction is a practical art (See : Extrinsic Aid in the Construction of Statutes-by V. S. Deshpande-Journal of Indian Law Institute-Vol. Il, April-June 1969, p. 123, 126).\n\nThus, the true t.est of the amplitude and correct interpretation of s. 57(3) & 1 ( 4) is to be found in a study of its area and its exercise, as intended\n\n\\ by its makers.\n\nThe oft-quoted saying of Mr. Justice Holmes that 'the meaning of a sentence it to be felt rather than to be proved' also helps us to feel our way through the public law area sketched by s. 57(3) & (4) understood in the background of s. 47 and the conspectus of other provisions.\n\nWe have to shake off from onr minds that the type of litigation contemplated by s. 57 is the thrust and parry in a civil suit or appeal.\n\nWith these observations we may take a bird's eye view of the relevant provisions of the Act to give us a hang of the subject and help us interpret adequately . . 16-725 SCI 7r,\n\nSection 42 of the Act insists on a permit being taken by every transport operator. Section 44 lays down how the RTA is to be constituted.\n\nIt has a mixed composition of lay and judicially-trained men, the reason being that the process of adjudication is not )-J purely legal pug1lis but a broader search taking note of public con- siderations which may not be brought to its notice by contenders for permits.\n\nThe nature of the enquiry is reflected in the very structure of the body. Section 46 speaks of applications for stage-carriage permits. When we reach s. 47, we have to take a close-upof :.hat provision.\n\nProperly understood, s. 47 enjoins upon the RTA to have regard to the presiding idea of public interest generally and in its ramifications as set out ins. 47(1) (a) to (f). In addition, the RTA shall also receive representations as mentioned therein and take them into the reckoning. It is not as if the sole source of decisionmaking materials consists of the representations made under s. 5 7 ( 3) within the time stipulated ii). s. 57(4). The primary channel, it looks, is the information that the R TA may gather, bearing on matters touched upon ins. 47(1) (a) to (f), supplemented by facts~ stated in representations referred to in s. 57 (3).\n\nOnce we grasp this essential truth, the resolution of the conflict raised in this case is easy.\n\nThe focus is not on who, as between A and B, has the title to the permit, but on who, as between A and B, should be preferred to better serve the public interest.\n\nWe may, as a result of the above discussion, set down the following five propositions :\n\n1. Stage-carriage permits are granted for providing an efficient public transport system.\n\n2. The adjudicatory content has dual elements-public interest in the best stage-carriage service and private title to better serve the public.\n\n3. The procedure is flexible, free from the rigidity of court trials, and this flexibility flows from the duty of the tribunal, charged with the task of picking out him who has the best plus points for plying a good bus service, to discharge it properly.\n\nA people-conscious power cannot be pared down in a self-defeating manner.\n\n4. An activist tribunal (RTA, and, in exceptional cases, even the STAT) may even collect useful information bearing on considerations set out in s. 47 and, after public exposure of such information at the hearing and reasonable opportunity to meet it, if anyone is adversely affected, put it into the crucible of judgment.\n\n5. The antithesis is not between the right of representation within the time limited by s. 57 ( 4) and beyond it but between representations by statutorily authorised entities under ss. 4 7 and 57 and receipt of relevant\n\nevidence or information from any source whatsoever at any stage whatsoever but subject to the wholesome. rules of natural justice.\n\nrhcsc fivefold guidelines squarely accommodate r. 15 within the framework of ss. 47, 57 and 54 of the Act and there is no spill-over breaching the banks of the provisions.\n\nThe rule merely gives e!Iccl B to what the sections intend and is not therefore ultra vires.\n\nHere the certificate of payment of compounding fees was ftlcu by one of the appellants before the STAT and was received not as a representation unuer s. 57 ( 4) but as some information . the STAI regarded had a bearing on matters falling under s. 47. It is important to note that r. 15 docs not entitle parties to the appeal or application to produce additional evidence but clothes the tribunal with discretionary power to allow such evidence.\n\nWhat is received is not qua representation under s. 57 ( 4) but. qua evidence with public interc\n\nest flavour.\n\nThe rule is good and covers familiar ground to enable just orders being passed. A reference to order XLI, rule 27 C.P.C. and s. 540 Cr!. P.C. proves this point. Justice to the public is the keynote of ss. 47, 57 and r. 15. We are not lobbying for unconventional procedures of quasi-judicial tribunals but interpreting the relevant provisions according to well-established canons.\n\nWe must listen to the signature tune of quasi-judicial justice to appreciate the uote.\n\nWe may also highlight the basic principle that subject to statutory regulations, each tribunal has its inherent power to device its own procedure.\n\nNovelty, if it improves purposeful ell1ciency, is not anathema.\n\nBut caution must be exercised in going against timetried procedures lest processual law prove a charter for chaos. Likewise, it is necessary to mention that while a 'representator' under s. 47, read with s. 57, has a right to make representations and be heard, subject to the limitations written into those provisions, those who fall under it or outside it have no right to bring in evidence or urge grounds as and when they please or at all unless the tribunal, in its discretion, chooses to accept such extra information.\n\nThe first is a right of the 'representator' the second is the power of the tribunal.\n\nWe are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(') and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154).\n\nIn United Motor Works('), the Patna Case, the Court observed :\n\n\"It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or\n\n(I) [1957] S.C.R. 987. !2) AJ.R. 1964 Pat 154.\n\nbefore the Appellate Transport Authority.\n\nThe principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provided always that the rules of natural justice are observed.\n\nThe matter has been clearly put by Lord Loreburn in the course of his speech in Board of Education v. Rice (1911 AC 179) as follows :\n\n\"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of vari_ous kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law.\n\nIt will, I suppose, usually be of an administrative kind; but sometin1es it will involve a matter of law as well as a matter oi fact, or even depend upon matter of law alone.\n\nIn such cases the Board of Education will have to ascertain the law and also to .ascertain the facts.\n\nI need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything.\n\nBut I do not think they are bound to treat such a question as though it were a trial.\n\nThey have no power to administer an oath, and need not examine witnesses.\n\nThey can obtain information in any way they think best, always giving a fair opportunity to those who arc parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.\"\n\nRamaswami C. J., (as he then was) also laid down :\n\n\"It is . . . manifest that the power of the appellate authority is co-extensive with the power of the Regional Transport Authority in this respect, and there is no reason why the appellate authority should not take these matters in\"to consideration in deciding the appeal under s. 64 of the Act.\" It is trite that an appeal is a re-hearing and ordinarily appellate power is as wide as original power.\n\nThe facts of jhe Patna cnse\n\n(supra) bear a close paraJlel to our case.\n\nAnother point with which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed.\n\nThat bears upon the inter-state routes which does not arise in the instant appeal before us.\n\nIn Cumbwn Roadways(') Kailsam J. (as he then was), speaking for tlle Full Bench, stressed the same view.\n\nThe headnote in the Report is sufficiently explicit and we quote :\n\n\"The representator, who makes the representation otherwise than under s. 57(4) will not have a right to have his\n\n(I) A.T.R. 1965 Mad. 79.\n\nobjection heard and considered, but there is no prohibition against the authority taking the information furnished by the objector and acting on it after giving an opportunity to the affected party, to prove that the information is false or that it should not be acted upon.\n\nThe jurisdiction of the Regional Transport Authority or the Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the Transport Authority cannot be questioned.\n\nBut it is within the discretion of the Regional Transport Authority or the Appellate Tribunal to accept the information taking into account the relevant circumstances under which the information was brought before it. If the authority decides to accept, it is bound to give a reasonable opportunity to the affected person to show cause as to why the information should not be acted upon.\n\nWhen the authority is acting on the information, but not as a representation by the objector, the person affected cannot object to the authority considering the information on the ground that it was brought to its notice by one of the objectors without including the information in the representation made by the objector.\n\nThe right of the representator as such is no doubt limited, for, he has no right to insist that any representation made otherwise than under s. 57 ( 4) should be considered in the manner prescribed under s. 57(5). But that does nut in any way debar the authority under s. 47(1) of the Act from taking the information into account for deciding to whom the permit should be given in the interests of the public.\"\n\nThe decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke docs not really consider the issue from the position we have delineated and turns on approach which is not quite correct.\n\nOur conclusion therefore is that r. 15 is intra vires and, further\n\nthat the said rule merely makes patent what is otherwise latent in F the statutory provisions.\n\nThe appeal accordingly, fails and is dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 101, "entities": [{"text": "RAO\n\nDESARI PANAKALA RAO & OIBERS", "label": "RESPONDENT", "start_char": 14, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "DESARI PANAKALA RAO & OTHERS", "offset_not_found": false}}, {"text": "April 5, 1976", "label": "DATE", "start_char": 49, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "B. 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N. Phadke", "label": "LAWYER", "start_char": 4216, "end_char": 4228, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke and B. Kantarao, for the Appellant."}}, {"text": "B. Kantarao", "label": "LAWYER", "start_char": 4233, "end_char": 4244, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke and B. Kantarao, for the Appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 4266, "end_char": 4277, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, K. R. Chaudhury, S. L. Setia and Mrs. V. Khamw, C for Respondent No.", "canonical_name": "V. S. Deshpande"}}, {"text": "K. R. Chaudhury", "label": "LAWYER", "start_char": 4279, "end_char": 4294, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, K. R. Chaudhury, S. L. Setia and Mrs. V. Khamw, C for Respondent No."}}, {"text": "S. L. Setia", "label": "LAWYER", "start_char": 4296, "end_char": 4307, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, K. R. Chaudhury, S. L. Setia and Mrs. V. Khamw, C for Respondent No."}}, {"text": "V. Khamw", "label": "LAWYER", "start_char": 4317, "end_char": 4325, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, K. R. Chaudhury, S. L. Setia and Mrs. V. Khamw, C for Respondent No."}}, {"text": "KrusHNA !", "label": "JUDGE", "start_char": 4396, "end_char": 4405, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKrusHNA !"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 4666, "end_char": 4674, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 5388, "end_char": 5393, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act, 1948", "label": "STATUTE", "start_char": 5401, "end_char": 5425, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Krishna District", "label": "GPE", "start_char": 6304, "end_char": 6320, "source": "ner", "metadata": {"in_sentence": "The appellant and the 1st respondent, among others, applied for permits to ply a stage carriage on a specified route in the Krishna District, Andhra Pradesh."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 6322, "end_char": 6336, "source": "ner", "metadata": {"in_sentence": "The appellant and the 1st respondent, among others, applied for permits to ply a stage carriage on a specified route in the Krishna District, Andhra Pradesh."}}, {"text": "s. 60(3)", "label": "PROVISION", "start_char": 6851, "end_char": 6859, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh State Transport Appellate Tribunal Rules, 1971", "label": "STATUTE", "start_char": 6937, "end_char": 6998, "source": "regex", "metadata": {}}, {"text": "ss. 57(4) and 64", "label": "PROVISION", "start_char": 8945, "end_char": 8961, "source": "regex", "metadata": {"statute": null}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 8969, "end_char": 8987, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Phadke", "label": "OTHER_PERSON", "start_char": 9155, "end_char": 9161, "source": "ner", "metadata": {"in_sentence": "Hav; ng heard counsel on both sides, we are disincl'ned to accede to th 0 submission of Shri Phadke for the appellant."}}, {"text": "s. 47", "label": "PROVISION", "start_char": 9286, "end_char": 9291, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10432, "end_char": 10436, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 10582, "end_char": 10589, "source": "regex", "metadata": {"statute": null}}, {"text": "Tirupati", "label": "GPE", "start_char": 11775, "end_char": 11783, "source": "ner", "metadata": {"in_sentence": "The appellate result went against the appellant because another applicant who had filed an appeal before the STAT produced, at that stage, a certificate from the concerned authority to prove that the present appellant had used a contract carriage jlS a stage-carriage on a trip to Tirupati and had compounded this offence by payment of a fee of Rs."}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 12173, "end_char": 12181, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(4)", "label": "PROVISION", "start_char": 12539, "end_char": 12547, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 12685, "end_char": 12689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 13191, "end_char": 13199, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 13387, "end_char": 13392, "source": "regex", "metadata": {"statute": null}}, {"text": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act", "label": "STATUTE", "start_char": 13485, "end_char": 13585, "source": "regex", "metadata": {}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 13640, "end_char": 13648, "source": "regex", "metadata": {"linked_statute_text": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act", "statute": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act"}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 13878, "end_char": 13889, "source": "ner", "metadata": {"in_sentence": "This was the counter-contention of Shri V. S. Desai for the contesting respondent.", "canonical_name": "V. S. Deshpande"}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 13977, "end_char": 13985, "source": "regex", "metadata": {"linked_statute_text": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act", "statute": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 14060, "end_char": 14065, "source": "regex", "metadata": {"linked_statute_text": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act", "statute": "Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act"}}, {"text": "Section 47", "label": "PROVISION", "start_char": 15140, "end_char": 15150, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 55", "label": "PROVISION", "start_char": 15173, "end_char": 15183, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 16216, "end_char": 16224, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 16241, "end_char": 16246, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 16385, "end_char": 16390, "source": "regex", "metadata": {"statute": null}}, {"text": "Frankfurter", "label": "JUDGE", "start_char": 17759, "end_char": 17770, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nJustice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise' and John Chipman had said that the process of statutory construction is a practical art (See : Extrinsic Aid in the Construction of Statutes-by V. S. Deshpande-Journal of Indian Law Institute-Vol."}}, {"text": "John Chipman", "label": "OTHER_PERSON", "start_char": 17856, "end_char": 17868, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nJustice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise' and John Chipman had said that the process of statutory construction is a practical art (See : Extrinsic Aid in the Construction of Statutes-by V. S. Deshpande-Journal of Indian Law Institute-Vol."}}, {"text": "V. S. Deshpande", "label": "LAWYER", "start_char": 17996, "end_char": 18011, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nJustice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise' and John Chipman had said that the process of statutory construction is a practical art (See : Extrinsic Aid in the Construction of Statutes-by V. S. Deshpande-Journal of Indian Law Institute-Vol.", "canonical_name": "V. S. Deshpande"}}, {"text": "s. 57(3) & 1", "label": "PROVISION", "start_char": 18153, "end_char": 18165, "source": "regex", "metadata": {"statute": null}}, {"text": "Holmes", "label": "OTHER_PERSON", "start_char": 18295, "end_char": 18301, "source": "ner", "metadata": {"in_sentence": "The oft-quoted saying of Mr. Justice Holmes that 'the meaning of a sentence it to be felt rather than to be proved' also helps us to feel our way through the public law area sketched by s. 57(3) & (4) understood in the background of s. 47 and the conspectus of other provisions."}}, {"text": "s. 57(3)", "label": "PROVISION", "start_char": 18444, "end_char": 18452, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 18491, "end_char": 18496, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 18618, "end_char": 18623, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 42", "label": "PROVISION", "start_char": 18854, "end_char": 18864, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 18937, "end_char": 18947, "source": "regex", "metadata": {"statute": null}}, {"text": "RTA", "label": "COURT", "start_char": 18966, "end_char": 18969, "source": "ner", "metadata": {"in_sentence": "Section 44 lays down how the RTA is to be constituted."}}, {"text": "Section 46", "label": "PROVISION", "start_char": 19338, "end_char": 19348, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 19414, "end_char": 19419, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 19489, "end_char": 19494, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 19855, "end_char": 19859, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(4)", "label": "PROVISION", "start_char": 19899, "end_char": 19907, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 20104, "end_char": 20109, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 21177, "end_char": 21182, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 21444, "end_char": 21449, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 4", "label": "PROVISION", "start_char": 21538, "end_char": 21543, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 47, 57 and 54", "label": "PROVISION", "start_char": 21787, "end_char": 21804, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 22127, "end_char": 22132, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47", "label": "PROVISION", "start_char": 22221, "end_char": 22226, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 22472, "end_char": 22477, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 22649, "end_char": 22654, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 540", "label": "PROVISION", "start_char": 22660, "end_char": 22666, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "ss. 47, 57", "label": "PROVISION", "start_char": 22736, "end_char": 22746, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "s. 47", "label": "PROVISION", "start_char": 23404, "end_char": 23409, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 23421, "end_char": 23426, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "New Prakash Transport", "label": "ORG", "start_char": 23929, "end_char": 23950, "source": "ner", "metadata": {"in_sentence": "We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(') and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154)."}}, {"text": "Madras High Court (AIR 1965 Madras 79)", "label": "COURT", "start_char": 24017, "end_char": 24055, "source": "ner", "metadata": {"in_sentence": "We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(') and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154)."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 24094, "end_char": 24110, "source": "ner", "metadata": {"in_sentence": "We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(') and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154)."}}, {"text": "Untwalia", "label": "JUDGE", "start_char": 24131, "end_char": 24139, "source": "ner", "metadata": {"in_sentence": "We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(') and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154)."}}, {"text": "United Motor Works", "label": "ORG", "start_char": 24183, "end_char": 24201, "source": "ner", "metadata": {"in_sentence": "In United Motor Works('), the Patna Case, the Court observed :\n\n\"It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or\n\n(I) [1957] S.C.R. 987. !"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 24276, "end_char": 24289, "source": "ner", "metadata": {"in_sentence": "In United Motor Works('), the Patna Case, the Court observed :\n\n\"It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or\n\n(I) [1957] S.C.R. 987. !"}}, {"text": "Motor Vehicles Act", "label": "STATUTE", "start_char": 24312, "end_char": 24330, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Loreburn", "label": "OTHER_PERSON", "start_char": 24959, "end_char": 24967, "source": "ner", "metadata": {"in_sentence": "The matter has been clearly put by Lord Loreburn in the course of his speech in Board of Education v. Rice (1911 AC 179) as follows :\n\n\"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of vari_ous kinds."}}, {"text": "Ramaswami", "label": "JUDGE", "start_char": 26218, "end_char": 26227, "source": "ner", "metadata": {"in_sentence": "Ramaswami C. J., (as he then was) also laid down :\n\n\"It is . . ."}}, {"text": "s. 64", "label": "PROVISION", "start_char": 26548, "end_char": 26553, "source": "regex", "metadata": {"statute": null}}, {"text": "Patna", "label": "GPE", "start_char": 26815, "end_char": 26820, "source": "ner", "metadata": {"in_sentence": "Another point with which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed."}}, {"text": "Kailsam", "label": "JUDGE", "start_char": 27044, "end_char": 27051, "source": "ner", "metadata": {"in_sentence": "In Cumbwn Roadways(') Kailsam J. (as he then was), speaking for tlle Full Bench, stressed the same view."}}, {"text": "s. 57(4)", "label": "PROVISION", "start_char": 27266, "end_char": 27274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57", "label": "PROVISION", "start_char": 28680, "end_char": 28685, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 57(5)", "label": "PROVISION", "start_char": 28743, "end_char": 28751, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 47(1)", "label": "PROVISION", "start_char": 28808, "end_char": 28816, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam High Court (AIR 1959 Assam 183)", "label": "COURT", "start_char": 28971, "end_char": 29008, "source": "ner", "metadata": {"in_sentence": "The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke docs not really consider the issue from the position we have delineated and turns on approach which is not quite correct."}}]}
{"document_id": "1976_3_1042_1045_EN", "year": 1976, "text": "KAYS CONCERN\n\nUNION OF INDIA & ORS.\n\nApril 6, 1976\n\n[P. N. BuAGWATI, A. C. GuPTA AND s. MURTAzA FAZAL Au, JJ.]\n\nMi1.1eraJ Concession Rufes, 1960, Rule 54-Dispo::>al of revision application -Ohhgat1011 ol Central Govern111e11t to (, Ollsidcr tlie entire material before ii.\n\nOn the expiry of his sublease for extracting phosphale form an area of 400 hectares situate in Singbhum district, Bihar, the appellant applied to the\n\nState Government for a grant of fresh lease. For nine months the State Government failed to dispose of his _application, and under R. 24(3) of the- Mineral Concession Ilules, 1960, it was deemed to have been refused. Under _ Rut~ 54 of the ~1fineral Concession Rules, 1960, the appellant applied for revision and the Centtal Government directed the State Government to consider his application on merits. The State Government rejected the applkation on .. the ground that it had decided not to grant lease for pho...\"<phate to individuals or private parties, but to work this mineral in the public sector. The app'eJlant again applied for revision during the pendency of which an advertisement of the State Government appeared in the 'Statesman' indicating the abandonment of its proposal to mine phosphate and apatite in the public sector.\n\nThe appellant brought the advertisement to the notice of the Central Govern* 1nent, but it rejected his revision application. completely disregarding the advertisement.\n\nThe appellant preferred an appeal to this Court hy \"pecial leave.\n\nAl!owinf the appeal and remanding the case to the Central Government, the Court,\n\nHELD : The Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Oovern1ncnl, and made its order in complete disregard of it.\n\nThts was clear nonMapplication of n1ind on the part of the Central Government to a very material circun1stance which was brought to its notice before its disposal of the revision application.\n\nThe order of the Central Government, therefore, sufM fers from a patent error. [l 0440-H, 1045A] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1633 of 1968.\n\nAppeal by special leave from the judgment and order dated the 2nd December, 1967 of the Government of India, Ministry of Steel, Mines and Metals (Department of Mines and Metals) at New Delhi in No. M.V. 1 (141) /67.\n\nS. K. Mehta and K. R. Nagaraja, for the appellant.\n\nS. P. Nayar and Girish Chandra, f.r respondent No. l.\n\nU. P. Singh and Shambhu Nath !ha, for respondent No. 2.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, !- This appeal can be disposed of on a very nap:, ow point and we will, therefore, se! ont. only so mch of he facts givmg rise to the appeal as bear on this, pomt and omit what 1s unnecessary.\n\nSince 23rd December, 1959 the appellants had a sub-lease from the Receiver in Suit No. 203 of 1905 for extracting phosphate from\n\nan area of 400 hectares situate in Singhbhum District in the State of Bihar.\n\nThis sub-lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and pl10sphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under s. 13 of the Mines & Minerals (Regulation & Development) Act, 1957. The State Government failed to dispose of the application within a period of nine months from the date of its receipt and hence under Rule 24(3) of the Mineral Concession Rules, 1960 the application was deemed to have been refused by the State Government. The appellants preferred a revision application to the Central Government on 16th February, 1966 against the deemed refusal of their application under Rule 54 of the Mineral Concession Rules, 1960. The Central Government disposed of the revision application by an order dated 31st December. 1966 directing the State Government to consider the application of the appellants and to decide it on merits.\n\nThe State Government thereafter by an order dated 9th February, 1967 rejected the application of the appellants on the ground that the State Government had already taken a decision not to grant lease for phosphate ore to any individual or private party as it had decided \"to work this mineral in the public sector\".\n\nThe appellants again filed a revision application to the Central Government against the order of the State Government rejecting their application.\n\nThe .Central Government invited comments of the State Government on the revision application and on the comments submitted by the State Government, the appellants were given an opportunity to submit their cross-comments which they did on 8th August, 1967. Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th\n\nSepte1uber, 1967 to the following effect :\n\n\"Government of Bihar\n\nDepartment of Mines & Geology, Patna.\n\nMining and beneficiation of low grade apatite of\n\nSinghbhum.\n\nA reserve of a littl.e over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar.\n\nThe representative bulk samples of the minerals have laboratory Jamshedpur, and it has been found that the mineral can be suitably upgraded by benefication, to yield Apatite concentrate with 36% to 40% P.O.,\n\nsuitable for use as raw material for the manufacture of Phosphetic fertiliser. Report of economic feasibility studies available.\n\nThe State Government may consider giving tax holidays for a fixed period and also may guarantee the safety of the investtnent invested parties capable of making investment to the tune of 40 to 50 lakhs in undertaking to above project may obtain further particulars from the\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nA Mines Commissioner, Department of Mines and Geology, Government of Bihar. Patna.\n\nSd/-\n\nK. ABRAHAM, Commissioner of Mines & Geology.\"\n\nThe appellant immediately addressed a communication dated 26th September, 1967 to the Central Government enclosing a copy of the advertisement and pointing out that it was clear from the advertisement that the State Government had abandoned the idea of working apatite and phosphate in the public sector and that the ground for rejecting the application of the appellants for mining lease no longer existed.\n\nThe Central Govermnent, however, by an order dated 2nd December, 1967 rejected the revision application stating that :\n\n\". . . . the Central Government have come to conclusion that as the State Govermnent are anxious to do phosphate mining for their own fertilizer factory in public sector, there is no valid ground for interfering with the decision of the State Government rejecting your application for grant of mining lease for apatite and phosphate in Singhbhum district. H\n\nThe appellants thereupon preferred the present appeal against the order of the Central Govermnent with special leave obtained from this Court.\n\nIt is apparent from the order of the Central Government dated 2nd December, 1967 that the Central Government rejected the revision application of the appellants on the ground that the State Government was anxious to do phosphate mining for its own fertiliur factory in the public sector.\n\nThis was undoubtedly the original ground put forward by the State Govermnent for rejecting the application of the appellants for mining lease.\n\nBut it does appear prima facie from the advertisement in the issue of the Statesman dated 13th\n\nSeptember, 1967 that the proposal of the State Govermnent to mine apatite and phosphate for its own fertilizer factory in the public sector was abandoned and the State Government was prepared to give mining lease to a party which was prepared to undertake a project of setting up a plant for beneficiation of this mineral so as to make it suitable for use as raw material for the manufacture of phosphatic fertilizer.\n\nThe appellants brought this advertisement to the notice of the Central Government by their representation dated 26th September, 1967 and this was done before the revision application was disposed of by the Central Government.\n\nEven so, the Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government and made its order dated 2nd December, 1967 in complete disregard of it.\n\nThe order of the Central Government dated 2nd December, 1967 clearly shows that the Central Government failed to apply its mind to this advertisement though it was brought to its notice in time and proceeded to dispose of the revision application as if no such advertisement had been issued by the State Government.\n\nThe Central Government did not even care to invite the comments of the State\n\nGovernment in regard to the advertisement and ignored it altogether in making its order rejecting the revision application. This was clear non-application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before it disposed of the revision application.\n\nThe order of the Central Government, therefore, suffers from a patent error and it must be quashed and set aside and the matter must go back to the Central Government for fresh determination.\n\nWe accordingly set aside the order dated 2nd December, 1967 passed by the Central Government and remand the case to the Central Government with a direction to dispose of the revision application, after taking into account the entire material before it, including the advertisement given by the State Government in the issue of Statesman dated 13th September, 1967 and giving an opportunity to the State Government to offer its co=ents in regard to this advertisement and a further opportunity to the appellants to make their\n\nsubmisions on the comments, if any, offered by the State Government. The State of Bihar will pay the costs of the appeal to the appellants.\n\nM.R.\n\nAppeal allowed.", "total_entities": 35, "entities": [{"text": "KAYS CONCERN", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "KAYS CONCERN", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 14, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "April 6, 1976", "label": "DATE", "start_char": 37, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "April 6, 1976\n\n[P. N. BuAGWATI, A. C. GuPTA AND s. MURTAzA FAZAL Au, JJ.]"}}, {"text": "A. C. GuPTA", "label": "JUDGE", "start_char": 69, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Concession Rules, 1960", "label": "STATUTE", "start_char": 675, "end_char": 697, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 1554, "end_char": 1572, "source": "ner", "metadata": {"in_sentence": "Al!owinf the appeal and remanding the case to the Central Government, the Court,\n\nHELD : The Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Oovern1ncnl, and made its order in complete disregard of it."}}, {"text": "New Delhi", "label": "GPE", "start_char": 2326, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 2nd December, 1967 of the Government of India, Ministry of Steel, Mines and Metals (Department of Mines and Metals) at New Delhi in No."}}, {"text": "S. K. Mehta", "label": "LAWYER", "start_char": 2362, "end_char": 2373, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and K. R. Nagaraja, for the appellant."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 2378, "end_char": 2392, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta and K. R. Nagaraja, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2414, "end_char": 2425, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar and Girish Chandra, f.r respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 2430, "end_char": 2444, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar and Girish Chandra, f.r respondent No."}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 2469, "end_char": 2480, "source": "ner", "metadata": {"in_sentence": "l.\n\nU. P. Singh and Shambhu Nath !"}}, {"text": "Shambhu Nath !", "label": "LAWYER", "start_char": 2485, "end_char": 2499, "source": "ner", "metadata": {"in_sentence": "l.\n\nU. P. Singh and Shambhu Nath !"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 2570, "end_char": 2578, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, !-"}}, {"text": "State of Bihar", "label": "ORG", "start_char": 3015, "end_char": 3029, "source": "ner", "metadata": {"in_sentence": "This sub-lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and pl10sphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under s. 13 of the Mines & Minerals (Regulation & Development) Act, 1957."}}, {"text": "1st September, 1964", "label": "DATE", "start_char": 3051, "end_char": 3070, "source": "ner", "metadata": {"in_sentence": "This sub-lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and pl10sphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under s. 13 of the Mines & Minerals (Regulation & Development) Act, 1957."}}, {"text": "22nd/24th March, 1965", "label": "DATE", "start_char": 3147, "end_char": 3168, "source": "ner", "metadata": {"in_sentence": "This sub-lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and pl10sphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under s. 13 of the Mines & Minerals (Regulation & Development) Act, 1957."}}, {"text": "Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 3284, "end_char": 3314, "source": "regex", "metadata": {}}, {"text": "s. 13", "label": "PROVISION", "start_char": 3352, "end_char": 3357, "source": "regex", "metadata": {"linked_statute_text": "the Mineral Concession Rules, 1960", "statute": "the Mineral Concession Rules, 1960"}}, {"text": "Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 3572, "end_char": 3602, "source": "regex", "metadata": {}}, {"text": "Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 3842, "end_char": 3872, "source": "regex", "metadata": {}}, {"text": "31st December. 1966", "label": "DATE", "start_char": 3952, "end_char": 3971, "source": "ner", "metadata": {"in_sentence": "The Central Government disposed of the revision application by an order dated 31st December."}}, {"text": "9th February, 1967", "label": "DATE", "start_char": 4128, "end_char": 4146, "source": "ner", "metadata": {"in_sentence": "The State Government thereafter by an order dated 9th February, 1967 rejected the application of the appellants on the ground that the State Government had already taken a decision not to grant lease for phosphate ore to any individual or private party as it had decided \"to work this mineral in the public sector\"."}}, {"text": ".Central Government", "label": "ORG", "start_char": 4547, "end_char": 4566, "source": "ner", "metadata": {"in_sentence": "The .Central Government invited comments of the State Government on the revision application and on the comments submitted by the State Government, the appellants were given an opportunity to submit their cross-comments which they did on 8th August, 1967."}}, {"text": "13th\n\nSepte1uber, 1967", "label": "DATE", "start_char": 4913, "end_char": 4935, "source": "ner", "metadata": {"in_sentence": "Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th\n\nSepte1uber, 1967 to the following effect :\n\n\"Government of Bihar\n\nDepartment of Mines & Geology, Patna."}}, {"text": "Government of Bihar", "label": "RESPONDENT", "start_char": 4964, "end_char": 4983, "source": "ner", "metadata": {"in_sentence": "Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th\n\nSepte1uber, 1967 to the following effect :\n\n\"Government of Bihar\n\nDepartment of Mines & Geology, Patna."}}, {"text": "Singhbhum District", "label": "GPE", "start_char": 5244, "end_char": 5262, "source": "ner", "metadata": {"in_sentence": "A reserve of a littl.e over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar."}}, {"text": "Bihar", "label": "GPE", "start_char": 5266, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "A reserve of a littl.e over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar."}}, {"text": "K. ABRAHAM", "label": "OTHER_PERSON", "start_char": 6018, "end_char": 6028, "source": "ner", "metadata": {"in_sentence": "Sd/-\n\nK. ABRAHAM, Commissioner of Mines & Geology.\""}}, {"text": "26th September, 1967", "label": "DATE", "start_char": 6123, "end_char": 6143, "source": "ner", "metadata": {"in_sentence": "The appellant immediately addressed a communication dated 26th September, 1967 to the Central Government enclosing a copy of the advertisement and pointing out that it was clear from the advertisement that the State Government had abandoned the idea of working apatite and phosphate in the public sector and that the ground for rejecting the application of the appellants for mining lease no longer existed."}}, {"text": "Central Govermnent", "label": "ORG", "start_char": 6478, "end_char": 6496, "source": "ner", "metadata": {"in_sentence": "The Central Govermnent, however, by an order dated 2nd December, 1967 rejected the revision application stating that :\n\n\". . . ."}}, {"text": "2nd December, 1967", "label": "DATE", "start_char": 6525, "end_char": 6543, "source": "ner", "metadata": {"in_sentence": "The Central Govermnent, however, by an order dated 2nd December, 1967 rejected the revision application stating that :\n\n\". . . ."}}, {"text": "Singhbhum district", "label": "GPE", "start_char": 6930, "end_char": 6948, "source": "ner", "metadata": {"in_sentence": "the Central Government have come to conclusion that as the State Govermnent are anxious to do phosphate mining for their own fertilizer factory in public sector, there is no valid ground for interfering with the decision of the State Government rejecting your application for grant of mining lease for apatite and phosphate in Singhbhum district."}}, {"text": "13th\n\nSeptember, 1967", "label": "DATE", "start_char": 7620, "end_char": 7641, "source": "ner", "metadata": {"in_sentence": "But it does appear prima facie from the advertisement in the issue of the Statesman dated 13th\n\nSeptember, 1967 that the proposal of the State Govermnent to mine apatite and phosphate for its own fertilizer factory in the public sector was abandoned and the State Government was prepared to give mining lease to a party which was prepared to undertake a project of setting up a plant for beneficiation of this mineral so as to make it suitable for use as raw material for the manufacture of phosphatic fertilizer."}}, {"text": "13th September, 1967", "label": "DATE", "start_char": 9749, "end_char": 9769, "source": "ner", "metadata": {"in_sentence": "We accordingly set aside the order dated 2nd December, 1967 passed by the Central Government and remand the case to the Central Government with a direction to dispose of the revision application, after taking into account the entire material before it, including the advertisement given by the State Government in the issue of Statesman dated 13th September, 1967 and giving an opportunity to the State Government to offer its co=ents in regard to this advertisement and a further opportunity to the appellants to make their\n\nsubmisions on the comments, if any, offered by the State Government."}}]}
{"document_id": "1976_3_1046_1051_EN", "year": 1976, "text": "I 046\n\nPRINCIPAL, GUNTUR MEDICAL COLLEGE, GUNTUR\n\nv .\n\n. Y. MOHAN RAO\n\nApril 6, 1976\n\n(A. N. RAY, C.J., P. N. BHAGWATI, A. C. GUPTA, S. MURTAZA FAZAL\n\nALI AND JASWANT SINGH, JJ.)\n\nConstitution 'of India-Articles 15(4), 29(2), 341~ 366(24)-Constilutlon . (Scheduled Castes} Order 1950-Scheduled Caste-A Hindu belonging to a Scheduled Caste-Whether cea.ies to belong to Scheduled Caste on conversion to Chrfa'tianity-Dn reconversion whether he regains mentbership of Scheduled Caste-Whether a verson must belong to Scheduled Caste by bir1h.\n\nThe parents of the respondent original_ly professed Hindu religion and belongcl to fildiga caste which is a scheduled caste, in the Andhra Pradesh as spe~Hied in the schedule to the Constitution (Scheduled Castes) Order, 1950.\n\nResrondent's parents were converted' to Christianity and thereafter the respondent was born. The respondent got himself _converted to Hinduism renouncing . Christianity. Thereafter, he applied for admission to Guntur ~Iedical College on the basis that he was a member of a Scheduled Caste. 1-!e was provi~ siona11y selected for admission but subsequently was informed by the PrincipaI of the College that his selection was cancelled as he was not a Hindu by birth. Tue Principal relied on Note (b) to Clause C of rule 2 of the Rules issuett by the Government of Andhra Pradesh for admission to the M.B.B.S.\n\n, ourse iil Government Medical College. The said note provides that no candidate other than Hindu can claim to belong to Scheduled Caste. It further\n\npro\\-ides that no candidate can belong to Scheduled ste except by birth.\n\nThe respondent filed a Writ Petition in the High Court challenging the validity of Note (b} as going beyond the scope of the Constitution (Scheduled Castes) Order, 1950. The respondent succeeded before the teamed Single Judge as well as the Division Bench of the- High Court. In fact, it was conceded by the appellant before the High Court that note (b) \\VJs repugnant to the sald Order. ,\n\nDismissing the cippeal by Special Leave,\n\nHELD: 1. It is clear on a plain rcadlni of clause 4 of Article 15 that the State has power to make special provision for scheduled castes and in exercise of its power the State can reserve seats in a Medical College for members of Scheduled Castes without violating Article IS or Article 29(2). Articlo 366(24) defines Scheduled Castes to mean such castes. races or tribes as are deemed under Article 34 l to be scheduled castes. The President in exercise of the powers conferred upon him under Article 341 bas issued Constitution (Scheduled Castes) Order 1950. Madiga caste is included in the schedule to. the said order. The said order itself, however. provides that no person whe> professes a religion other than Hindu or Sikh shall be deemed t<> be a mem her of a scheduled caste.\n\nIt~ however~ does not require that he should have been born a Hindu or a Sikh. The only thing required is that at the material time he should profess Hindu or Sikh religion. The requirement of the note that a candidate in prd.er to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the said order and wa~ rightly condemned as void. [1049B-H. !050AI\n\n2. There is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity he loses his membership of the caste.\n\nIt would depend upan the structure' of the caste and its rules and regulations .. There are some castes,\n\nGUN TUR MEDICAL COLLEGE \\'. Y. MOHAN RAO (Bhagwati, J.) I 04 7\n\nparticularly in South India, where this consequence does not follow on A con\\'ersion since such castes comprise both Hindus and Christians.\n\nWhether Madiga caste falls in this category is a debatable question. For the purposes of the present appeal it is not necessary to decide the contention of the respondent that there are both Hindus and Christians in Madiga caste and l.!VCn after conversion to Christianity his parents continued to belong to Madiga \"'\"te. [!050-C.F]\n\n3. A similar question about the effect of re-conversion was decided by B !his Court in the case of C. R. Arun1ugarn vs. S. /?aiaRof)af.\n\nIn that case this Court laid down that there is no reason to hold that a person on reconversion to Hinduism cannot once again become a member of the caste in which he was born and to which he belonged before conversion to nnother religion.\n\nThe reasoning on which this decision proceeded is equally applicable in a case where the parents of a person nre contertcd from rHnduism..-to Chri:ltianity and he is born after their conversion and on his subsequent en1braching Hinduism, the n1e111bers of the caste to which the parents belong prior to their rnnvcr, ion accept him as a member within the fold. It is for the members C of the caste to decide whether or not to ndmit a person within the caste.\n\nSince the cast(; is a ocial con1bination of persons governed by its rules and regulations, it n1<1y, if its rutes nnd regulation-; so provide, admit a new inemhcr just as it n1ay expel an existing men1ber.\n\nThe only rcquircn1nt for admission of ;1 ptrson as a member of the caste i') the acceptance of the rcrson by lhe other members of the caste.\n\nOn conversion to Hinduism a person would not becon1e a member of the caste to which his parents belonged\n\nprior to their conversion, automatically or as a matter of course but he would D become such 1nernber if the other members of the caste accept him as a member and admit him within the fold.\n\n(10500. !051B-E]\n\nThere i-; nothino on record to show \\vhether the respondent \\Vas <icceptcd hy indiga cnste. \"'However, it is not necessary to undertake this enquiry becaus.: it ha:; been agreed by the appellants that whatever be the n:sult of the appeal. the ndmission of the respondent would not be disturbed. [1051-FGl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 984 of 1975.\n\nI'.\n\nAppeal by Special Leave from the judgment and Order dated the I 0th February 1975 of the Andhra Pradesh High Court in W.A. No. 752 of 1974.\n\nP. Ra111acha11dra Reddy, Advocate Ge11eral, A.P .. P. P. Rao and V Seetharaman, for the appellant.\n\nR. C. Raghavan, G. Vedanta Rao and B. Ka11ta Rao, !or the rcspundenl.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThe short question that arises for determination\n\n.111 this appeal is: whether a person whose parents belonged to a Scheduled Caste before their conversion to Christianity can, on conversion or reconversion to Hinduism, be regarded as a member of the Scheduled Caste so as to be eligible for the benefit of reservation of seats for Scheduled Castes in the matter of a admission to a mediC'31 college.\n\nThe parents of the respondent originally professed Hindu religion and belonged to Mactiga caste which is admittedly a caste deemed to be a Schedtt!cd Caste in the State of Andhra Pradesh as specified in Part I of the Schedule to the Constitution (Scheduled Castes) Order,\n\n1950. They were both converted to Chri5tianity at some point of time\n\nI 048\n\nSUPREME COURT )'.EPORTS\n\n[ 1976] 3 S.C.R.\n\nwhich does not appear clearly from the record, but it was the case of the respondent in his Writ Petition that he was born after their conversion. This was also the assumption on which the arguments proceeded before the High Court and before us, too.\n\nThe counsel :lbr the respondent expressed his readiness to argue the case on the same assumption, namely, that the respondent was born after the conversion of his parents', or, in other words, he was born of Christian parents. It appears that in the State of Andhra Pradesh, for the purpose inter alia of admission to medical college, converts to Christianity arc treated as belonging to backward class and, therefore, when the respondent applied for admission to Gandhi Medical College in 1973, he described\n\nhimself as a member of a backward class. But he did not succeed in getting admission. Thereupon he got himself converted to Hinduism on 20th September, 1973 from Andhra Pradesh Arunchatiya Sangham stating that he had renounced Christianity and embraced Hinduism after going through Suddhi ceremqny and he was thereafter \"received\n\nback into Mediga caste of Hindu fold\".\n\nOn the strength of this certificate, claiming to be a member of Madiga caste, the respondent applied for admission to Guntur Medical College and on the basis that he was a member of a Scheduled Caste, he was proY.isionally selected liar admission. But subsequently he was informed by the Principal of the Medical College that his selection was cancelled os he was not a Hindu by birth. The Principal apparently relied on Note (b) to clause (C) of rule 2 of the Rules issued by the Government of Andhra'Pradesh under GO Rt. No. 1315 dated 4th December, 1973 for admission to the M.B.B.S. Course in Government Medical Colleges for the Academic year 1973-74. This Note was in the following terms:\n\n\"No candidate other than Hindu including a Sikh can claim to belong to Schedule Castes. No candidates can claim to belong to the Scheduled Caste except by b:irth.\"\n\nThe respondent thereupon preferred a writ petition in the High Court of Andhra Pradesh challenging the validity of cancellation of his admission on the ground that Note (b ), which required that a candidate, in order to be eligible flor a seat reserved for Scheduled Caste, should belong to a Scheduled Caste by birth, went beyond the scope of the Constitution (Scheduled Castes) Order, 1950 and was, therefore, void and the Principal was not entitled to cancel his admission on the ground that he was not a Hindu or a member of a Scheduled Caste by birtb.\n\nThis ground of challenge was accepted by a Single Judge of the High Court and on appeal, a Divis!ion Bench of the High Court also took the same view.\n\nIn fact, it was conceded before the Division Bench by the learned Government Pleader appearing on behalf of the State that Note (b) was repugnant to the provisions o1l cl. (3) of the Comtitution (Scheduled Castes) Order, 1950, since the only requirement of that clause was that in order to be a member of a Scheduled Caste, a person should be professing Hindu or Sikh religion and it did not prescribe that he should be a Hindu by birth. The State did not succeed in obtaining leave to appeal from the High Court and hence it preferred a special leave petition to this Court.\n\nWhen the 'pecial leave petition came up for hearing, there was no decis!ion of\n\n<; UNTUR MEDICAL COLLEGE v. Y. MOHAN RAO (Bhagwati, !.) 1049\n\nthis Court dealing with the question as to whether a convert or re- A convert to Hinduism can become a member of a Scheduled Caste and :if so, in what circumstances and hence we granted special leave to the State, on the State agreeing that whatever be the result of the appeal, the admission of the respondent will not be disturbed and that the State will, in any event, pay the costs of the respondent.\n\nIt may be pointed out that since then a decision on this question has been rendered by a Bench of three judges of th:is Court to which B we shall refer later.\n\nIt is clear on a plain reading of clause (4) of Art. 15 that the State has power to make special provision ior Scheduled Castes and in exercise of this power, the State can reserve scats in a medical college for members of Scheduled Castes without violating Art. 15 or cl. (2) of Art. 29.\n\nThe expression 'Scheduled Castes' has a technical meaning given to it by cl. (24) of Art. 366 and it mcam \"'such castes. races or tribes or parts of or groups within such castes. + races or tribes as arc deemed under article 341 to be Scheduled Castes for the purposes of this Constitution.\" The PresiJent in exercise of the power conferred up(ln him under Art. 341 has issued the Constitution (Scheduled Castes) Order, ! 950.\n\nParagraphs ( 2) and (3) of this Order arc material and they read as follows:\n\n\"2. Subject to the provisions of this Order, the castes, races or tribes or parts of or groups within caste or trlibes 'opeeified in Part I to XIII ofi the Schedule to this Order shall. in relation to the States to which these parts respecttively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.\n\n3. Not\\vithstanding anything contained in P<iragraph 2, no\n\nperson who profesoos a religion different from the Hindu or the Sikh religion sha1! be deemed to be a member of a Scheduled Caste.\" F\n\nThe Schedule to this Order in Part I sets out the castes, races or tribes or parts of or groups within castes or tribes which shall in the different areas of the State of Andhra Pradesh be deemed to be Scheduled Castes.\n\nOne of the castes specified there is Madiga caste and that caste must, therefore, be deemed to be a Scheduled' Caste. But by reason of cl. (3), a person belonging to Madiga caste would not be .. dmed to ?c a ne~1ber of a Scheduled Caste unless l).e professes \\ Hindu or Sikh religion at the relevant time. It is not necessary that ' he should have been born a Hindu or a Sikh.\n\nThe only thing required is that he should at the material time be professing Hihdu or Sikh religion.\n\nNow, Note (b) was interpreted by the Principal of tI1e Medical College to require that a candidate, in order to be eligible for a seat reserved for Scheduled Castes, should be a Hindu by birth.\n\nTlis interprcJation was plainly erroneous because what Note (b) reqmred was not that a cansidatc should be a Hindu by birth but that\n\nI 05 0\n\nSUPREME COURT REPORTS [19761 3 s.c.R.\n\nA he should belong to a Schednled Oaste by birth. . But even this requirement that a candidate v,1 order to be eligible for a reserved seat shon!d be a member of a Schednled Caste by birth went beyond the provision in cl. ( 3) of the Constitution (Scheduled Castes) Order. y 1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the Srate.\n\nB The principal argument adval,1ced on behalf of the State was that when the respondent was converted to Hinduism, he did not automatically become a member of the Madiga caste, but it was open to the members of the Madiga caste to accept him within their fold and it was only if he was so accepted, that he could claim to have become a member of the Madiga caste. There was no evidence in the present case, contended the State, showing that the respondent, on his conver- C sion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, tilerefore, he was not at the time of his application for admission a member of a Schednled Caste.\n\nNow, before we proceed to consider this contention, it is neces- .+ sary to point out that there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hi,1duism to Christianity, he loses his membership of the caste. This question has been considered by this Court in C. M. Arumugam v. S. Rajgopal(') and it has been pointed out there that ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations.\n\nThere are some castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and ChristiffiQs.\n\nWhether Mediga is a caste which fulls within this category is a debatable question. The contention of ' the respondent in bis writ petition was that there are both Hindus and Christians in Madiga caste and even after conversioa to Christianity, his parents continued to belong to Madiga caste and he was, therefore, a member of Madiga caste right from the time of his birth. It is not necessary for the purpose of the present appeal to decide this question.\n\nWe may assume that, on conversion to Christianity, the pare1,1ts of the respondent lost their membership of Madiga caste and that the res]JO!ldent was, therefore. not a Madiga by birth.\n\nThe question is ': conld the respondent become a member of Madiga caste on conversion to Hinduism ? That is a question on which considerable light is thrown hv the decisicm of this Court in C. M. Arumugam\n\nv. S. Rajgopal (supra).\n\nThe main question which arose for decision in C. M. Arumugam /\n\nv. S. Rafgopal l•unra) was whether S. Raigopa!, who belonged to Adi Dravida caste before his conversion to Christianitv. could. on reconversion to Hinduism, Clace again become a member of the Adi Dravida caste.\n\nThis Court. after examining the auestion on Principle and referring to the decided cases, pointed out that the consistent view taken in this rountry since 1886 was that on reconversion to\n\n(l) [1976] 1 s.c.c. 863.\n\nGUNTUR ME[)JCAL COLLEGE v. Y. MOHAN RAO (Bhagwati, J:) I 051\n\nHinduism, a person can once again become a member of the caste in.\n\nA which he was born and to which he belonged before conversion to another religion, if the memb, ers of the caste accept him as a member.\n\nThis Court observed that there was 110 reason, either o~ piinciple or on authority, which should compel it to disregard this view which has prevailed for almost a century and lay down a different rule on the subject and concluded that on reconversion to Hinduism, S. Rajgopal could once again revert to his Adi Dravida caste, for he was accepted B by the other members of the caste.\n\nThe reasoning on which this decision proceeded is equally applicable i,1 a case where the parents of a person ure converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduislli, the members of the caste to which the parents belonged prior to their conversion accept him as a\n\nC \\ member within the fold. It is for the members of the caste to decide whether or not to admit a perso>,1 within the caste. Since the caste is a social combination of persons governed 11Y its rules and regulations, it may, if 'its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pomted D out by Krishnaswami Ayya1agar, J., in Durgaprasada Rao v. Sudarsanaswami('), \"in matters affecting the well being or composition of a caste, the caste itself is the supreme iudge\". (emphasis supplied).\n\nIt will, therefore, be seen that on conversion to Hinduism, a person born of Christian colaverts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such f\\ E member, if the other members of the caste accept him as a member , I and admit hinl within the fold. ·\n\nThis view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for F it is only if he was so accepted that he could clainl to be a member of a Scheduled Caste.\n\nBut it is not necessary for us to undertake this inquiry because. as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed.\n\nWe accordingly dismiss the appeal with costs in favour of the respondelat.\n\nP.H.P.\n\nAppeal dismisred.\n\n(l) A.J.R. 1940 Mad. 513.", "total_entities": 44, "entities": [{"text": "046\n\nPRINCIPAL, GUNTUR MEDICAL COLLEGE, GUNTUR", "label": "PETITIONER", "start_char": 2, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "PRINCIPAL, GUNTUR MEDICAL COLLEGE, GUNTUR", "offset_not_found": false}}, {"text": "Y. MOHAN RAO", "label": "RESPONDENT", "start_char": 57, "end_char": 69, "source": "metadata", "metadata": {"canonical_name": "Y. MOHAN RAO", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 87, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 104, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 120, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "ALI", "label": "JUDGE", "start_char": 151, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 159, "end_char": 177, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Articles 15(4), 29(2), 341", "label": "PROVISION", "start_char": 203, "end_char": 229, "source": "regex", "metadata": {"statute": null}}, {"text": "Guntur ~Iedical College", "label": "ORG", "start_char": 978, "end_char": 1001, "source": "ner", "metadata": {"in_sentence": "Thereafter, he applied for admission to Guntur ~Iedical College on the basis that he was a member of a Scheduled Caste."}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 1316, "end_char": 1344, "source": "ner", "metadata": {"in_sentence": "Tue Principal relied on Note (b) to Clause C of rule 2 of the Rules issuett by the Government of Andhra Pradesh for admission to the M.B.B.S.\n\n, ourse iil Government Medical College."}}, {"text": "M.B.B.S.\n\n, ourse iil Government Medical College", "label": "ORG", "start_char": 1366, "end_char": 1414, "source": "ner", "metadata": {"in_sentence": "Tue Principal relied on Note (b) to Clause C of rule 2 of the Rules issuett by the Government of Andhra Pradesh for admission to the M.B.B.S.\n\n, ourse iil Government Medical College."}}, {"text": "clause 4", "label": "PROVISION", "start_char": 2076, "end_char": 2084, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 15", "label": "PROVISION", "start_char": 2088, "end_char": 2098, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 29(2)", "label": "PROVISION", "start_char": 2313, "end_char": 2326, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 34", "label": "PROVISION", "start_char": 2426, "end_char": 2436, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 341", "label": "PROVISION", "start_char": 2528, "end_char": 2539, "source": "regex", "metadata": {"statute": null}}, {"text": "MOHAN RAO", "label": "JUDGE", "start_char": 3518, "end_char": 3527, "source": "ner", "metadata": {"in_sentence": "Y. MOHAN RAO (Bhagwati, J.) I 04 7\n\nparticularly in South India, where this consequence does not follow on A con\\'ersion since such castes comprise both Hindus and Christians."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 3529, "end_char": 3537, "source": "ner", "metadata": {"in_sentence": "Y. MOHAN RAO (Bhagwati, J.) I 04 7\n\nparticularly in South India, where this consequence does not follow on A con\\'ersion since such castes comprise both Hindus and Christians.", "canonical_name": "Bhagwati"}}, {"text": "South India", "label": "GPE", "start_char": 3567, "end_char": 3578, "source": "ner", "metadata": {"in_sentence": "Y. MOHAN RAO (Bhagwati, J.) I 04 7\n\nparticularly in South India, where this consequence does not follow on A con\\'ersion since such castes comprise both Hindus and Christians."}}, {"text": "P. Ra111acha11dra Reddy", "label": "LAWYER", "start_char": 6042, "end_char": 6065, "source": "ner", "metadata": {"in_sentence": "P. Ra111acha11dra Reddy, Advocate Ge11eral, A.P .. P. P. Rao and V Seetharaman, for the appellant."}}, {"text": "A.P .. P. P. Rao", "label": "LAWYER", "start_char": 6086, "end_char": 6102, "source": "ner", "metadata": {"in_sentence": "P. Ra111acha11dra Reddy, Advocate Ge11eral, A.P .. P. P. Rao and V Seetharaman, for the appellant."}}, {"text": "V Seetharaman", "label": "LAWYER", "start_char": 6107, "end_char": 6120, "source": "ner", "metadata": {"in_sentence": "P. Ra111acha11dra Reddy, Advocate Ge11eral, A.P .. P. P. Rao and V Seetharaman, for the appellant."}}, {"text": "R. C. Raghavan", "label": "LAWYER", "start_char": 6142, "end_char": 6156, "source": "ner", "metadata": {"in_sentence": "R. C. Raghavan, G. Vedanta Rao and B. Ka11ta Rao, !"}}, {"text": "G. Vedanta Rao", "label": "LAWYER", "start_char": 6158, "end_char": 6172, "source": "ner", "metadata": {"in_sentence": "R. C. Raghavan, G. Vedanta Rao and B. Ka11ta Rao, !"}}, {"text": "B. Ka11ta Rao", "label": "LAWYER", "start_char": 6177, "end_char": 6190, "source": "ner", "metadata": {"in_sentence": "R. C. Raghavan, G. Vedanta Rao and B. Ka11ta Rao, !"}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 6257, "end_char": 6265, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThe short question that arises for determination\n\n.111 this appeal is: whether a person whose parents belonged to a Scheduled Caste before their conversion to Christianity can, on conversion or reconversion to Hinduism, be regarded as a member of the Scheduled Caste so as to be eligible for the benefit of reservation of seats for Scheduled Castes in the matter of a admission to a mediC'31 college.", "canonical_name": "Bhagwati"}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 7577, "end_char": 7591, "source": "ner", "metadata": {"in_sentence": "It appears that in the State of Andhra Pradesh, for the purpose inter alia of admission to medical college, converts to Christianity arc treated as belonging to backward class and, therefore, when the respondent applied for admission to Gandhi Medical College in 1973, he described\n\nhimself as a member of a backward class."}}, {"text": "Gandhi Medical College", "label": "ORG", "start_char": 7782, "end_char": 7804, "source": "ner", "metadata": {"in_sentence": "It appears that in the State of Andhra Pradesh, for the purpose inter alia of admission to medical college, converts to Christianity arc treated as belonging to backward class and, therefore, when the respondent applied for admission to Gandhi Medical College in 1973, he described\n\nhimself as a member of a backward class."}}, {"text": "20th September, 1973", "label": "DATE", "start_char": 7964, "end_char": 7984, "source": "ner", "metadata": {"in_sentence": "Thereupon he got himself converted to Hinduism on 20th September, 1973 from Andhra Pradesh Arunchatiya Sangham stating that he had renounced Christianity and embraced Hinduism after going through Suddhi ceremqny and he was thereafter \"received\n\nback into Mediga caste of Hindu fold\"."}}, {"text": "Guntur Medical College", "label": "ORG", "start_char": 8317, "end_char": 8339, "source": "ner", "metadata": {"in_sentence": "On the strength of this certificate, claiming to be a member of Madiga caste, the respondent applied for admission to Guntur Medical College and on the basis that he was a member of a Scheduled Caste, he was proY.isionally selected liar admission."}}, {"text": "Government of Andhra'Pradesh under", "label": "ORG", "start_char": 8680, "end_char": 8714, "source": "ner", "metadata": {"in_sentence": "The Principal apparently relied on Note (b) to clause (C) of rule 2 of the Rules issued by the Government of Andhra'Pradesh under GO Rt."}}, {"text": "4th December, 1973", "label": "DATE", "start_char": 8737, "end_char": 8755, "source": "ner", "metadata": {"in_sentence": "1315 dated 4th December, 1973 for admission to the M.B.B.S. Course in Government Medical Colleges for the Academic year 1973-74."}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 8965, "end_char": 8975, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 9117, "end_char": 9145, "source": "ner", "metadata": {"in_sentence": "The respondent thereupon preferred a writ petition in the High Court of Andhra Pradesh challenging the validity of cancellation of his admission on the ground that Note (b ), which required that a candidate, in order to be eligible flor a seat reserved for Scheduled Caste, should belong to a Scheduled Caste by birth, went beyond the scope of the Constitution (Scheduled Castes) Order, 1950 and was, therefore, void and the Principal was not entitled to cancel his admission on the ground that he was not a Hindu or a member of a Scheduled Caste by birtb."}}, {"text": "Art. 15", "label": "PROVISION", "start_char": 11101, "end_char": 11108, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 15", "label": "PROVISION", "start_char": 11311, "end_char": 11318, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 29", "label": "PROVISION", "start_char": 11333, "end_char": 11340, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 366", "label": "PROVISION", "start_char": 11428, "end_char": 11436, "source": "regex", "metadata": {"statute": null}}, {"text": "article 341", "label": "PROVISION", "start_char": 11560, "end_char": 11571, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 341", "label": "PROVISION", "start_char": 11700, "end_char": 11708, "source": "regex", "metadata": {"statute": null}}, {"text": "Mediga", "label": "OTHER_PERSON", "start_char": 15380, "end_char": 15386, "source": "ner", "metadata": {"in_sentence": "Whether Mediga is a caste which fulls within this category is a debatable question."}}, {"text": "S. Raigopa", "label": "OTHER_PERSON", "start_char": 16348, "end_char": 16358, "source": "ner", "metadata": {"in_sentence": "The main question which arose for decision in C. M. Arumugam /\n\nv. S. Rafgopal l•unra) was whether S. Raigopa!,", "canonical_name": "S. Rajgopal"}}, {"text": "S. Rajgopal", "label": "OTHER_PERSON", "start_char": 17273, "end_char": 17284, "source": "ner", "metadata": {"in_sentence": "This Court observed that there was 110 reason, either o~ piinciple or on authority, which should compel it to disregard this view which has prevailed for almost a century and lay down a different rule on the subject and concluded that on reconversion to Hinduism, S. Rajgopal could once again revert to his Adi Dravida caste, for he was accepted B by the other members of the caste.", "canonical_name": "S. Rajgopal"}}, {"text": "Krishnaswami Ayya1agar", "label": "JUDGE", "start_char": 18219, "end_char": 18241, "source": "ner", "metadata": {"in_sentence": "The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pomted D out by Krishnaswami Ayya1agar, J., in Durgaprasada Rao v. Sudarsanaswami('), \"in matters affecting the well being or composition of a caste, the caste itself is the supreme iudge\". ("}}]}
{"document_id": "1976_3_1052_1061_EN", "year": 1976, "text": "CHATURDAS BHAGWANDAS PATEL v.\n\nTHE STATE OF GUJARAT\n\nApril 6, 1976\n\n(R. S. SARKARIA AND P. N. SHINGHAL, JJ.J\n\nIndian Penal Code (Act 45 of 1860), s. 161-Scope of.\n\nPrevention of Corruption Act (2 of 1947), ss. 4(1) a11d 5(1) and (2)- Statutory presiunption under-Rebuttal by accused.\n\nCode of (,'rin1inal Procedure (Act 5 of 1898) s. 537-Cflarge under ss. 161 and 34 l.P.C.-Co.accused acquittcd-('011victio11 und!'r s. 161 simplr'clter-\n\nValidity. '\n\n'fhe appellant (a Head Constable) an<l the Sub-Inspector of Police were charged with offences under s. 161 read with s. 34 and s. 165A, IPC, and !'ndcr s. 5 (2) read with s. 5 (I )(d) Prevention of Corruption Act, 1947.\n\nThe appellant admitted the receipt of money and its recovery froo1 him but stated that PWs 1 and 4 came to the Police Station, that PW 4 claimed to be a relative of the Sub-Inspector and that it was P\\V 4 and not PW 1 who gave him the money to be handed over to the Sub-Inspector ,.,.-ho vt'as absent. The prosecution adduced evidence to show that the two accused arranged for the production of PW 1 at the Police Statin in connection with the investigation of a charge of abduction of a woman; that the Sub-Inspector directed the appellant to take charge of PW I when he arrived; that the appellant demanded a bribe from PW 1 to save himself from the charge as \\vell as the indignity of being handcuffed, locked up and paraded; that a trap was set the next day when PW 1 paid the amount in the presence of PW 4 and that the amount 'vas recovered fi:om the appellant in a raid. The trial court acquitted both the accused, but on appeal, the High Court acquitted the Sub-Inspector but convicted the appellant under s. 161 IPC and s. 5(2), Prevention of Corruption Act.\n\nIn appeal to thiS Court, the appellant contended, ( 1) that P\\V l's evidence regarding the payment of gratification should not be accepted without independent corroboration, (2) that the statutory presumption under s. 4(1),\n\nPrevention of Corruption Act that the appellant accepted the gratification as a motive or re\\vard such as is mentioned in s. 161, I.P.C., should not be drawn against the appellant, because, (a) ther_e was, in fact, no complaint \\\\\"hatever against PW 1 in respect of the commission of the offence of abduction; and (b) the effect of the acquittal of the Sub-Inspector was tl>Jlt the money could not be held to have been paid to the appellant pursuant to any demand of bribe; and (c) that since the two accused were charged under s. 161 read vtith s. 34, on the acquittal of the SubTnspector the appellant could not be convicted under s. 161 si'!npliciter.\n\nDisffiissing the appeal,\n\nHELD : ( 1) The testimony of P\\V 1 stood fully corroborated by other / independent and reliable testimony and hence could be safely acted upon.\n\nThe defence version that it was PW4 who paid the n1011ey was falsified by the fact that no anthracene powder; with 'vhich the notes used in the raid were smeared, was found on PW 4's hands, while it was found on the hands of the accused and PW!. [l057E; 1059B-Cl\n\n(2) (a) The n1ere fact that no complaint of abduction or of any other offence had been made or registered against PW 1 could not take the act of the appellant-in den1anding and accepting the gratification from PW 1 in the context of the threat by the appellant-out of the mischief of s. 161, 1.P.C.\n\nThe section does not require that the public servant must, in fact. be in a\n\n-J\n\n~~~:~\n\nposition to do the official act, favour or service at the time of the demand or A receipt of the gratification. To constitute an offence under this section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, with any other public servant, and the giver gives the gratification under that belief. lt is also immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he hold~ himself out as capable of doing. The last Explanation and Illustration ( c) to the section show that the person who receives a gratification as a motive B for doing what he does not intend to do, or as a reward for doing what he has not done, comes within the purview of the words \"a motive or reward for doing\". When a public servant, being a police officer, ii charged under s. 161, l.P.C., and it is alleged that the illegal gratification was taken by him for doing er procuring an official act, the question whether there was any offence agairut the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification the requirement of the law is satisfied.\n\n[1059F 1160El C Mahesh Prasad v. State of U.P. [1955] 1 SCR 965; Dhanesl1war Narain Saxena v. Delhi Admn. [1962] 3 SCR 259; Bhanuprasad Hariprasad Dave and anr. v. State of Gujarat [1969] 1 SCR 22 and Shiv Raj Singh v. Delht Administration [19691 I SCR 183, followed.\n\nIn the present case, on the day of the payment the Sub-Inspector was away and the appellant \\vas actually in charge of the police station.\n\nIt was he who called PW 1 and asked if he had brought the money and when PW 1 replied in the affirmative but hesitated to hand over the money, represented that the D money should be handed over to him, and that he would pass it on to the Sub-Inspector, and that PW 1 would have nothing to fear.\n\n[1059C-F]\n\n(b) 'fhe only effect of the acquittal of the SubInspector is that it cannot be urged that the Sub-Inspector had demanded any bribe from P\\V 1.\n\nIt does not in any way discount the evidence that PW 1 was called to the police station and was informed by the appellant that a charge of abd11ction was against him and that the appellant demanded and received a bribe fro1n lnm.\n\n[I 058H-1059Bl E\n\n(c) The burden on the accused to displace a presumption is not as onerous as that on the prosecution to prove its case, but the accused has to discharge it by adducing evidence, circumstantial or direct, which establishes with rca~ sonnble probability that the money was accepted by the accused other than as a motive or reward such as is referred to in the section. In the present case,\n\nth~ appellant had failed to show such a balance of probability in his favour. . [1060E-Gl\n\n(3) The language of the charge shows that in addition to the charge under F s. 161 read with s. 34, the appellant was in substance also being charged under s. 161 simpliciter.\n\nAll the material circumstances -appearing in evidence constitntine an offence under s. 161, were put to him during his exa mintion under s~ 342, Cr.P.C. The objection that he could not be convicted under s. 161 simpliciter was not raised in any of the courts below.\n\nNo prejudice has therefore, been caused to him because of this technical defect of there being no express charge under s. 161 simpliciter, and the irregularity if any, is cured under s. 537, Cr, P.C. [1061B-Dl G\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 250 of 1971.\n\nAppeal by special leave from the jndgment and order dated the lst July, 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 33 of 1970.\n\nN. N. Keswani, for the appellant.\n\nS. N. Anand and M. N. Shroff, for the respondent.\n\n17-725SCI/76\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThe appellant in this appeal was Accused N0. 2 in the trial court.\n\nHe was a Head Constable (Jamadar) posted at the relevant time in Police Station, Zinzuwada. His co-accused (No. 1) was a Police Sub-Inspector posted in the same station. One Bai Sati, was alleged to have been abducted by Ghanshyamsinh alias Ghanuba.\n\nShe was in the Police Station on the 10th and 1 lth of July, 1968.\n\nAccused 1 recorded her statement and thereafter asked one Fateh Sinh (PW 7) to bring and produce his cousin Ghanshamsinh. Fatehsinh accordingly produced Ghanshamsinh before Accused 1 on July 11, 1968.\n\nAccused 1 directed the appellant to take charge of Ghanshamsinh.\n\nThe appellant did likewise and told Ghanshamsinh that if he wanted to get rid of the charge, he should gratify the Snb- Inspector.\n\nThe appellant backed up the suggestion with a threat to handcuff Ghanshamsinh and put him in the police lock up.\n\nThe appellant further demanded a bribe of. Rs. 2,000 /-. At first Ghanshamsinh expressed his inability to pay, the amount. Ultimately at the intervention of Accusd 2, the demand was scaled down to ,.\n\nRs. 1,000/- and it was agreed that out of the amount, a sum of Rs. 500 /- would be paid on the following evening at the latest.\n\nGhanshamsinh was then allowed to go.\n\nHe then talked about this deal to his cousin. Fatehsinh.\n\nOn the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (PW 8), Inspector of 'the Anti-Corruption staff of Police and made a complaint which was recorded. Shri Desai then in the presence of Panchas, supplied a sum of Rs. 500/- in five cunency notes of the denomination of Rs. 100/- each to Ghanshamsinh for use in the trapping the accused persons in the act of taking the bribe. The notes were smeared with anthracene powder and Ghanshamsinh was directed to hand over the same on demand to the accused, and then signal to the raiding party.\n\nAfter settling the plan, the party came to Zinzuwada on July 12, 1968. Ghanshamsinh was sent ahead with the tainted money to the Police Station. On seeing Ghanshamsinh along with Panch Mahendra going to the residence of Accused 1, the appellant called him and took him to his office room in the Police Station.\n\nGhanshamsinh informed the appellant that he had brought the money as agreed for payment to Accused\n\nI. The appellant told him that Accused 1 being away, he was the acting Station House Officer and the money should be paid to 1rim, adding that he would, in turn, pass it on to Accused 1 on his return.\n\nGhanshamsinh then handed over those five currency notes to the appellant who accepted the same and placed them in the drawer of his table.\n\nAll the three persons then came out of the room. The appellant locked the room.\n\nOn receiving the agreed signal from Ghanshamsinh, the police party rushed in and caught hold of the appellant by the hand.\n\nWith the key found on the person of the appellant, Inspector Desai unlocked the room and recovered the currency notes from the drawer of the appellant's table.\n\nThe hands of the complainant Ghanshamsinh, Panch Mahendra and the appellant were examined in the light of an ultra-violet lamp. Such examination revealed anthracene powder on the hands of the appellant and Ghanshamsinh; but no such P?Wder was seen on Panch Mahendra. Shri\n\nDesai prepared the Panchnama. Certain police papers on the demand A of Inspector Desai were produced by the Writer-Constable, Kansanbhai.\n\nThese are : (1) Statement, dated July 11, 1968 of Bai Sati recorded by Accused 1; (2) Statement dated July 11, 1968 of Koli Mana Jiva, recorded by Accused 1; ( 3) the writing sent by Police Sub-Inspector, Dasuda under Javak No. 2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; ( 4) The Statement of Bai Sati recorded by the Police B Sub-Inspector at Dasuda on July 10, 1968. The Inspector seized these records.\n\nAfter completing the investigation, the police sent both the accused under a charge-sheet for trial before the Special Judge, Surendranagar on charges under s. 161 read with s. 34 and s. 165A of the\n\nPenal Code and under s. 5(2) read withs. 5(l)(d) of the Preven- C tion of Corruption Act.\n\nThe trial Judge acquitted both the accused of all the charges levelled against them.\n\nOn ap_peal by the State, the High Court of Gujarat, reversed the acquittal of the appellant and convicted him on two counts, namely, one for an offence under s. 161, Penal Code and the other under s. 5(2) read withs. 5(l)(d) of the Prevention of Corruption Act D and sentenced him to suffer rigorous imprisonment for two years on the latter count.\n\nNo separate sentence under s. 161, Penal Code was inflicted.\n\nHence this appeal by special leave.\n\nThe mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police E Inspector Desai.\n\nThe first two are witnesses of the demand of the , J tainted currency notes and the acceptance thereof by the appellant from PW 1.\n\nInspector R. R. Desai, PW 8, was the Head of the raiding party who recovered the tainted notes.\n\nExamined under s. 342, Cr. P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave F this account of what happened on the 12th July 1968 :\n\n\" .... the complainant Ghanubha Champubha and his companion came up to me. I asked Ghanubha as to why he had come. . . . He informed me that his companion was related to the P .S.I., and that he had some work with him.\n\nHe told me that he had accompanied him to show him the police station.\n\nI offered them seats, and gave them water.\n\nI questioned the above person about his relationship with the Sub-Inspector. He replied to me that he was the agnate of P. S. I. Joshi, and that he had come to hand over money to him as his son was sick and that, the said money was sent by his family from Ahmedabad. I instructed him to approach his wife and give money to her. He told me that if he met her, he would hav<; to stop for the night, so that he would not be able to attend the H.L. College in the morning. He told me to take the money and give it to P .S.I.\n\nJoshi, and that, I should arrange for his transport to Ahmedabad in some motor truck proceeding there.\n\nHe gave me Rs. 500/- in five G. C. Notes, which are now before the Court at Art. 2.\n\nI placed them in a cloth purse, and kept it in my drawer, over the said application of Narubha Ex. 51. I offered them tea and asked them to wait outside. I also told him that I would arrange for his lift in the motor truck carrying salt to Ahmedabad. So saying, we came out of the police station; I locked my room because in it, are placed arms and ammunitions. I was leaving the Police Station and going to the hotel for placing an order for tea, when two men held me by my two hands. They brought me in the compound of the Police Station. Other 3, 4 men tmned up, and one Saheb from amongst them asked me to produce the money. I exclaimed, \"What money\" : I told him if the money, that was required, was the same, which the cousin of P .S.I. Joshi had handed over to me. The officer insisted that the money must be produced. I was then perplexed. He took the key from one of my hands and opened my room, and took out the money. I was seated in the verandah and was not allowed to go inside ..... I then learnt that the said brother of the P .S.I. was none else but Panch No. 1. The Officer asked from me the papers of investigation against Ghanubha. I said that I had no such papers, and that I had not made any such investigation against him. He then attached some papers from the Writer Constable Karsan Talshi.''\n\nThus, the appellant had admitted the acceptance of the tainted currency notes which were not his lega~ remuneration. In variance with the prosecution case, he, however, alleged that this money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P. S. I. Joshi (who was then away) and the money was to be passed on to Mr. Joshi. The appellant, further, admitted that after the recovery of the money, when his hands were examined in the light of t.he ultra violet lamp, shining powder was found thereon. He expressed ignorance if the hands of Ghanshamsinh and Mahendra were also similarly examined. He expressed a desire to appear in the witness box and make a statement on oath. Subsequently, however, he did not do so, but examined one Naruba Dosubha (D.W. 1) in defence, who more or less supported the version of the appellant with regard to the ., receipt of Rs. 5001by the appellant from PW Mahendra.\n\nThe trial Judge instead of appraising the evidence of the witnesses produced by the prosecution in the light of the admission made by the 1 1appellant in regard to the acceptance of money, rejected the prosecution case in toto against both the accused on grounds which were manifestly ' erroneous and umeasonable. Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of H one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed t'.lwards all the members of Zanzuwada Police, including the appellant. He brushed aside the evidence of Mahendra with the puerile observation that he \"as ai trainee Press Reporter would be beguiled into\n\ngetting this first class report of a sensational raid by acng_ as a panh witness in this raiding party, at the instance of Mr. Desai ...... and m that event, Mahendra would be too willing to accompany the raiding party and in that context would be under the intelligent thumb of police, not by means of pressure, but as a result of human inquisitive, willingness induced in him.\"\n\nThe trial Judge further stressed the fact that Mahendra had accom- B panied the raiding party from Ahmedabad to Zunzuwada and had travelled in the police van for over three hours and this in his opinion was sufficient to show that the witness was \"not so much independent as he professed to be.\" He further found it unbelievable that the appellant would accept the sum of Rs. 5001as a bribe, from Ghanshamsinh in the presence of a stranger (Mahendra).\n\nThe conclusions reached by the trial Judge had no foundation in evidence. They belonged to the realm of purespeculation. Apart from mere suggestions put to the prosecution witnesses, in cross-examination, (which were emphatically denied), there was no evidence to show that Parbhat Singh Girasdar was in any way hostile or inimically disposed towards the appellant. There was no justification for the conjecture that Panch Mahendra was under the thumb of Inspector Desai and as such, was an interested witness. We have t'xamined the evidence of Mahendra and are satisfied that the High Court rightly found him a truthful and trustworthy witness who had no axe of his own to grind.\n\nThe defence version to the effect, that it was Mahendra who had actually passed on the tainted money to the appellant by holding himself out as a relation of the Sub-Inspector, was falsified by the circumstance tha:t no anthracene powder was found on Mahendra when immediately after the recovery of the tainted notes, his hands were examined in t11e light of ultra-violet lamp; while such powder was admittedly found on the hands of the appellant, and Ghanshamsinh. This circumstance was deposed to by Inspector Desai (PW 8) whose version on this point was not challenged in cross-examination. Thus, while DW 1 told a lie on this point, this uncontroverted circumstance conld not.\n\nThe presence of Mahendra (PW 4) at the time of the receipt of the tainted notes was admitted by the appellant himse!Ji. In the face of this admission, there was no justification for the surmise made by the trial Court, that the appellant, an experienced Head-Constable, could not be so stupid as to receive Rs. 5001as a bribe in the presence of an unknown person.\n\nThus it had been indubitably established that the appellant, a public servant accepted a gratification, that is, a sum of Rs. 5001which was not his legal remuneration, from Ghanshamsinh (PW 1). On proof of this fact, the statutory presumption under s.4( 1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive\n\nor reward such as is mentioned ins. 161, Penal Code.\n\nMr. Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it. The\n\nfirst and the foremost of these circumstances, according to the Counsel, is that no complaint whatever against Ghanshamsinh in respect of the commission ot a.:i offence was under investigation with the police; that no F.l.R. had been lodged by any person complaining of the abduction of Bai Sati against Ghanshamsinh or any other person. Our attention has been drawn to the statement of Bai Sati, which is said to have been recorded by Accused 1 on~ the 11th January in which it is recorded that she had not been kidnapped or abducted by any person but had gone away from ber father's house of her own accord. The second circumstance stressed by the Counsel is that Accused 1 has been acquitted of the charge of demanding a bribe directly or indirectly through tl1e appellant, from Ghanshamsinh. It is urged that the effec~ of the acquittal of Accused 1 is that the money passed on to \\he appellant on the 12th cannot be held to have been paid pursuant to any demand of bribe made by Accnsed 1 or by the appellant. The third circumstance, pointed out by the Counsel is that Ghanshamsinh had a grudge against the appellant and a motive to falsely implicate him, because the appellant had previously investigated a criminal case under s. 324, Penal Code against the appellant, who being aware of it, would be least disposed to accept the amount, as a bribe, for himself or for the Sub-Inspector. It is further contended that PWs Fatehsinh and Ghanshamsinh were persons of questionable an!ecedents, and their evidence in the absence of reliable independent corroboration in regard to the demand and acceptance of the money as a bribe could no' be safely accepted.\n\nWe are unable to accept the contention thattl1e presumption under s. 4( 1) of the Prevention of Corruption Act had been rebutted.\n\nWhile it is true that no; report or complaint had been made or registered in the Police Station that Ghanshamsinh had abducted Bar Sati, there was credible evidence on the record to believe that both theaccused had asked Fatehsinh, PW 7, to produce his cousin Ghanshamsinh in the Police Station in connection with the investigation of a charge of abduction of Bai Sati against him. Fatehsinh conveyed this. message to Ghanshamsinh on July 10, 1968. Consequently on July 11, 1968, Ghanshamsinh was produced by Fateh Singh hefore the Police Sub-Inspector at the latter's residence, and thereafter Accusd 2, the appellant, took him into the Police Station and made him sit in his. room. It was the appellant who then accused Ghanshamsinh of having abducted Bai Sati and warned him that in case he did not pay money to the Sub Inspector, he would be arrested and paraded in handcuffs. around the village. Evidence of PWs Ghanshamsinh and Fatehsinh with regard to the summoning of Ghanshamsinh; to the Police Station to answer a supposed charge of abduction, received assurance from the circumstance that on the 10th and 11th July 1968, Bai Sati was in the\n\npolice station.\n\nIt is no doubt correct that the High Court 1has not disturbed theacquittal of Accused 1 on the ground that Ghanshamsinh's evidence H with regard to the demand of the bribe by accused 1 on the 11th, had not been corroborated by other independent evidence. The only effect of the acquittal of Accused 1, however, is that it cannot be now urgecf that Accnsed 1 had demanded any bribe from Ghanshamsinh on\n\nt l\n\nthe 11th. But his acquittal does not in any case discount the fact or obliterate the evidence in regard to the fact that Ghanuba. was called to the Police Station and was told by the appellant that there was a charge of abduction of Bai Sati against him. Nor does the acquittal of Accused l have the effect of exonerating the appellant of the demand of bribe Ol' the 11th and again on the 12th.\n\nAs already noticed, the testimony of Ghanshamsinh b()th with regard to the demand of the gratification by the appellant and its payment to him, on the 12th stood fnlly corroborated by the independent and reliable testimony of Panch Mahendra.\n\nThus, so far as the appellant is concerned the testimony of Ghanshamsinh, having been fully confirmed by other trnstworthy evidence, could safely be acted uponc\n\nAs regards the contention that the appellant was not in a position to shew any favour or disfavour to Ghanshamsinh in connection witk ; bis official duties, it may be noted, in the first place, that on the 12th July at the relevant time, the Sub-Inspector being away, the appellant Vias actua1ly incharge of the Police Station. '\"['his fact is borne out lly the entry Ex. 47 in the Station Diary. On seeing Ghansham and Mahendra going towards the residence of the Sub-Inspector, the appellant called them and enquired from Ghanshamsinh if he had brought the money.\n\nGhanshamsinh replied in the affirmative but hesitated to hand over the money to him saying that the Sub-Inspector was not present.\n\nThereupon, the appellant represented that he was the P.S.I. and that the money should be handed over to him, adding that he would pass it on to the P.S.I. on his return.\n\nThereupon, Ghansihamsinh paid the amount to the appellant saying that he should not be harassed any more, and that the demand for the balance be .Ji mercifully dispensed with.\n\nThe appellant while accepting the money assured Ghanshamsinh that he had nothing to fear so Jong as the appellimt was concerned in that affair.\n\nSecondly, this demand for payment and acceptance of the money by the appellant on the 12th July had to be appreciated in the context of the representation made by the appellant on the preceding day, to the effect, that if Ghanshamsinh would not pay the gratmcation, he would be arrested, handcuffed and paraded for the offence of abducting Bai Sati.\n\nThe proof of the foregoing facts was sufficient to establish the charge under s. 161, Penal Code.\n\nTM mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the Police Station or that no complaint had been made against him to the Police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh, out of the mischief of s. 161, Penal Code.\n\nThe Section does not require that the public servant must, in fact, be in a position to do the official aet, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by\n\ninducing a belief or by holding out that he would render assistance to the giver \"with any other public servant\" and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing.\n\nThis is clear from the last Explanation appended to s. 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done comes within the purview of the words \"a motive or reward for doing.\" The point is further clarified by Illustration ( c) under this Section.\n\nThus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshaminh \\Vas, in fact, false, this will not enable him to get out of the tentacles of s. 161, although the same act of the appellant may amount. to the offence of cheating, also (see Mahesh Prasad v. State of U.P.;(')\n\nDhaneshwar Narain Saxena v. Delhi Admn. (').\n\nIndeed, when a public servant, being a police officer, is charged under s. 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour (see Bhanuprasad Hariprasad Dave and anr. v. State of Gujarat('), and Shri Raj Singh v. Delhi Administra- ~(•). -\n\nIn the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under s. 4 ( 1) of the Prevention of Corruption Act.\n\nIt is true that the burden which rests on an accused to displace this presumption iS not as onerous as that cast on the prosecution to prove its case.\n\nNevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in s. 161.\n\nThe appellant had hopelessly failed to show such a balance of probability in his favour. '\n\n\"\",\n\nThus the charge under s. 161, Penal Code had been fully brought /\" home to the appellant.\n\nThe charge under s. 5(1) (d) read with s. 5 (2), also had been proved against him to the hilt.\n\nClearly he / had obtained the money by grossly abnsing his position.\n\nLastly, towards the fag end, in reply, Mr. Keswani attempted to assail the conviction recorded by the High Court on a grQund which had not been raised in the courts below.\n\nThe charge against the\n\n(I) [1955] l S.C.R. 965.\n\n'3) [1969] 1 S.C.R. 22.\n\n\n(4) [1969] l S.C.R.183.\n\nappellant was that he had committed an offence under s. 161, read with s. 34, Penal Code.\n\nNo charge under s. 161 sinipliciter was separately drawn up against him.\n\nThis being the case, contends :Mr. Keswani, .the High Court was not, in the event of the acquittal oi Accused 1, competent to convict the appellant under s. 161 with the aid of s. 34 Penal Code.\n\nThe contention must be repelled.\n\nFirstly, the High Court has not convicted the appellant with the aid of s. 34, Penal Code. Secondly, although in the charge, only s. 161, read with s. 34, Penal Code was mentioned, the language of the charge, could leave the appellant in no doubt that in addition to the vicarious charge under s. 161, read with s. 34, he was being charged with the commission of an .offence under s. 161, simpliciter also.\n\nThis was manifest from the words : \"You Accused 2 directly accepted from Shri Ghanshamsinh Champublia Zala Rs. 500/- ... \" All the material circumstances appearing in evidence constituting an offence under s. 161, Penal Code simpliciter were put to him during his examination.\n\nThis objection was not raised in any of the courts below at any st\"ge. No prejudice has therefore, been caused to the appellant by this technical defect in the charge.\n\nIn any case this irregularity stood cured under s. 53 7, Criminal Procedure Code.\n\nFor the foregoing reasons, the appeal ails and is dismissed.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 157, "entities": [{"text": "CHATURDAS BHAGWANDAS PATEL", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "CHATURDAS BHAGWANDAS PATEL", "offset_not_found": false}}, {"text": "THE STATE OF GUJARAT", "label": "RESPONDENT", "start_char": 31, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF GUJARAT", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 69, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "R.S. 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"statute": "Code of Criminal Procedure"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 6926, "end_char": 6932, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "s. 537", "label": "PROVISION", "start_char": 6990, "end_char": 6996, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Gujarat High Court at Ahmedabad", "label": "COURT", "start_char": 7172, "end_char": 7203, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the jndgment and order dated the lst July, 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No."}}, {"text": "N. N. Keswani", "label": "OTHER_PERSON", "start_char": 7240, "end_char": 7253, "source": "ner", "metadata": {"in_sentence": "N. N. Keswani, for the appellant."}}, {"text": "S. N. Anand", "label": "LAWYER", "start_char": 7275, "end_char": 7286, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and M. N. Shroff, for the respondent."}}, {"text": "M. N. Shroff", "label": "OTHER_PERSON", "start_char": 7291, "end_char": 7303, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and M. N. Shroff, for the respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 7384, "end_char": 7392, "source": "ner", "metadata": {"in_sentence": "17-725SCI/76\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThe appellant in this appeal was Accused N0."}}, {"text": "Bai Sati", "label": "OTHER_PERSON", "start_char": 7640, "end_char": 7648, "source": "ner", "metadata": {"in_sentence": "One Bai Sati, was alleged to have been abducted by Ghanshyamsinh alias Ghanuba.", "canonical_name": "Bai Sati"}}, {"text": "Ghanshyamsinh alias Ghanuba", "label": "OTHER_PERSON", "start_char": 7687, "end_char": 7714, "source": "ner", "metadata": {"in_sentence": "One Bai Sati, was alleged to have been abducted by Ghanshyamsinh alias Ghanuba."}}, {"text": "Fateh Sinh", "label": "WITNESS", "start_char": 7843, "end_char": 7853, "source": "ner", "metadata": {"in_sentence": "Accused 1 recorded her statement and thereafter asked one Fateh Sinh (PW 7) to bring and produce his cousin Ghanshamsinh."}}, {"text": "Ghanshamsinh", "label": "RESPONDENT", "start_char": 7893, "end_char": 7905, "source": "ner", "metadata": {"in_sentence": "Accused 1 recorded her statement and thereafter asked one Fateh Sinh (PW 7) to bring and produce his cousin Ghanshamsinh.", "canonical_name": "Ghanshaminh \\Vas"}}, {"text": "Fatehsinh", "label": "OTHER_PERSON", "start_char": 7907, "end_char": 7916, "source": "ner", "metadata": {"in_sentence": "Fatehsinh accordingly produced Ghanshamsinh before Accused 1 on July 11, 1968.", "canonical_name": "Fateh Singh"}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 8768, "end_char": 8777, "source": "ner", "metadata": {"in_sentence": "On the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (PW 8), Inspector of 'the Anti-Corruption staff of Police and made a complaint which was recorded."}}, {"text": "R. R. Desai", "label": "WITNESS", "start_char": 8797, "end_char": 8808, "source": "ner", "metadata": {"in_sentence": "On the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (PW 8), Inspector of 'the Anti-Corruption staff of Police and made a complaint which was recorded."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 8913, "end_char": 8918, "source": "ner", "metadata": {"in_sentence": "Shri Desai then in the presence of Panchas, supplied a sum of Rs.", "canonical_name": "Desai and"}}, {"text": "Panchas", "label": "OTHER_PERSON", "start_char": 8943, "end_char": 8950, "source": "ner", "metadata": {"in_sentence": "Shri Desai then in the presence of Panchas, supplied a sum of Rs."}}, {"text": "Zinzuwada", "label": "GPE", "start_char": 9338, "end_char": 9347, "source": "ner", "metadata": {"in_sentence": "After settling the plan, the party came to Zinzuwada on July 12, 1968."}}, {"text": "July 12, 1968", "label": "DATE", "start_char": 9351, "end_char": 9364, "source": "ner", "metadata": {"in_sentence": "After settling the plan, the party came to Zinzuwada on July 12, 1968."}}, {"text": "Panch Mahendra", "label": "OTHER_PERSON", "start_char": 9474, "end_char": 9488, "source": "ner", "metadata": {"in_sentence": "On seeing Ghanshamsinh along with Panch Mahendra going to the residence of Accused 1, the appellant called him and took him to his office room in the Police Station."}}, {"text": "Kansanbhai", "label": "OTHER_PERSON", "start_char": 10814, "end_char": 10824, "source": "ner", "metadata": {"in_sentence": "Certain police papers on the demand A of Inspector Desai were produced by the Writer-Constable, Kansanbhai."}}, {"text": "Koli Mana Jiva", "label": "OTHER_PERSON", "start_char": 10946, "end_char": 10960, "source": "ner", "metadata": {"in_sentence": "These are : (1) Statement, dated July 11, 1968 of Bai Sati recorded by Accused 1; (2) Statement dated July 11, 1968 of Koli Mana Jiva, recorded by Accused 1; ( 3) the writing sent by Police Sub-Inspector, Dasuda under Javak No."}}, {"text": "Dasuda", "label": "OTHER_PERSON", "start_char": 11032, "end_char": 11038, "source": "ner", "metadata": {"in_sentence": "These are : (1) Statement, dated July 11, 1968 of Bai Sati recorded by Accused 1; (2) Statement dated July 11, 1968 of Koli Mana Jiva, recorded by Accused 1; ( 3) the writing sent by Police Sub-Inspector, Dasuda under Javak No."}}, {"text": "July 10, 1968", "label": "DATE", "start_char": 11066, "end_char": 11079, "source": "ner", "metadata": {"in_sentence": "2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; ( 4) The Statement of Bai Sati recorded by the Police B Sub-Inspector at Dasuda on July 10, 1968."}}, {"text": "July 18, 1968", "label": "DATE", "start_char": 11105, "end_char": 11118, "source": "ner", "metadata": {"in_sentence": "2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; ( 4) The Statement of Bai Sati recorded by the Police B Sub-Inspector at Dasuda on July 10, 1968."}}, {"text": "Zinzuvada", "label": "GPE", "start_char": 11144, "end_char": 11153, "source": "ner", "metadata": {"in_sentence": "2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; ( 4) The Statement of Bai Sati recorded by the Police B Sub-Inspector at Dasuda on July 10, 1968."}}, {"text": "Dasuda", "label": "GPE", "start_char": 11228, "end_char": 11234, "source": "ner", "metadata": {"in_sentence": "2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; ( 4) The Statement of Bai Sati recorded by the Police B Sub-Inspector at Dasuda on July 10, 1968."}}, {"text": "Special Judge, Surendranagar", "label": "COURT", "start_char": 11401, "end_char": 11429, "source": "ner", "metadata": {"in_sentence": "After completing the investigation, the police sent both the accused under a charge-sheet for trial before the Special Judge, Surendranagar on charges under s. 161 read with s. 34 and s. 165A of the\n\nPenal Code and under s. 5(2) read withs."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 11447, "end_char": 11453, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 11464, "end_char": 11469, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 165A", "label": "PROVISION", "start_char": 11474, "end_char": 11481, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 11490, "end_char": 11500, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 11511, "end_char": 11518, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Gujarat", "label": "COURT", "start_char": 11696, "end_char": 11717, "source": "ner", "metadata": {"in_sentence": "On ap_peal by the State, the High Court of Gujarat, reversed the acquittal of the appellant and convicted him on two counts, namely, one for an offence under s. 161, Penal Code and the other under s. 5(2) read withs."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 11825, "end_char": 11831, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 11833, "end_char": 11843, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 11864, "end_char": 11871, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 11899, "end_char": 11927, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 12043, "end_char": 12049, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 12051, "end_char": 12061, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ghanshamsinh", "label": "WITNESS", "start_char": 12181, "end_char": 12193, "source": "ner", "metadata": {"in_sentence": "The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police E Inspector Desai."}}, {"text": "Panch Mahendra", "label": "WITNESS", "start_char": 12205, "end_char": 12219, "source": "ner", "metadata": {"in_sentence": "The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police E Inspector Desai."}}, {"text": "Desai", "label": "WITNESS", "start_char": 12250, "end_char": 12255, "source": "ner", "metadata": {"in_sentence": "The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police E Inspector Desai."}}, {"text": "s. 342", "label": "PROVISION", "start_char": 12502, "end_char": 12508, "source": "regex", "metadata": {"statute": null}}, {"text": "11th July, 1968", "label": "DATE", "start_char": 12579, "end_char": 12594, "source": "ner", "metadata": {"in_sentence": "P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave F this account of what happened on the 12th July 1968 :\n\n\" .... the complainant Ghanubha Champubha and his companion came up to me."}}, {"text": "Ghanubha Champubha", "label": "OTHER_PERSON", "start_char": 12699, "end_char": 12717, "source": "ner", "metadata": {"in_sentence": "P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave F this account of what happened on the 12th July 1968 :\n\n\" .... the complainant Ghanubha Champubha and his companion came up to me."}}, {"text": "Ghanubha", "label": "RESPONDENT", "start_char": 12759, "end_char": 12767, "source": "ner", "metadata": {"in_sentence": "I asked Ghanubha as to why he had come. . . .", "canonical_name": "Ghanshaminh \\Vas"}}, {"text": ".S.I.", "label": "ORG", "start_char": 12852, "end_char": 12857, "source": "ner", "metadata": {"in_sentence": "He informed me that his companion was related to the P .S.I., and that he had some work with him."}}, {"text": "P. S. I. Joshi", "label": "ORG", "start_char": 13132, "end_char": 13146, "source": "ner", "metadata": {"in_sentence": "He replied to me that he was the agnate of P. S. I. Joshi, and that he had come to hand over money to him as his son was sick and that, the said money was sent by his family from Ahmedabad."}}, {"text": "P .S.I.\n\nJoshi", "label": "ORG", "start_char": 13525, "end_char": 13539, "source": "ner", "metadata": {"in_sentence": "He told me to take the money and give it to P .S.I.\n\nJoshi, and that, I should arrange for his transport to Ahmedabad in some motor truck proceeding there."}}, {"text": "Art. 2", "label": "PROVISION", "start_char": 13714, "end_char": 13720, "source": "regex", "metadata": {"statute": null}}, {"text": "Saheb", "label": "OTHER_PERSON", "start_char": 14297, "end_char": 14302, "source": "ner", "metadata": {"in_sentence": "Other 3, 4 men tmned up, and one Saheb from amongst them asked me to produce the money."}}, {"text": "P .S.I. Joshi", "label": "OTHER_PERSON", "start_char": 14458, "end_char": 14471, "source": "ner", "metadata": {"in_sentence": "I exclaimed, \"What money\" : I told him if the money, that was required, was the same, which the cousin of P .S.I. Joshi had handed over to me.", "canonical_name": "P. S. I. Joshi"}}, {"text": "Karsan Talshi", "label": "OTHER_PERSON", "start_char": 15023, "end_char": 15036, "source": "ner", "metadata": {"in_sentence": "He then attached some papers from the Writer Constable Karsan Talshi.''"}}, {"text": "Mahendra", "label": "WITNESS", "start_char": 15260, "end_char": 15268, "source": "ner", "metadata": {"in_sentence": "In variance with the prosecution case, he, however, alleged that this money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P. S. I. Joshi (who was then away) and the money was to be passed on to Mr. Joshi."}}, {"text": "P. S. I. Joshi", "label": "OTHER_PERSON", "start_char": 15324, "end_char": 15338, "source": "ner", "metadata": {"in_sentence": "In variance with the prosecution case, he, however, alleged that this money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P. S. I. Joshi (who was then away) and the money was to be passed on to Mr. Joshi.", "canonical_name": "P. S. I. Joshi"}}, {"text": "Mahendra", "label": "OTHER_PERSON", "start_char": 15637, "end_char": 15645, "source": "ner", "metadata": {"in_sentence": "He expressed ignorance if the hands of Ghanshamsinh and Mahendra were also similarly examined."}}, {"text": "Naruba Dosubha", "label": "WITNESS", "start_char": 15815, "end_char": 15829, "source": "ner", "metadata": {"in_sentence": "Subsequently, however, he did not do so, but examined one Naruba Dosubha (D.W. 1) in defence, who more or less supported the version of the appellant with regard to the .,"}}, {"text": "Parbhat Singh Jhala", "label": "OTHER_PERSON", "start_char": 16409, "end_char": 16428, "source": "ner", "metadata": {"in_sentence": "Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of H one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed t'.lwards all the members of Zanzuwada Police, including the appellant.", "canonical_name": "Parbhat Singh Girasdar"}}, {"text": "Zanzuwada Police", "label": "ORG", "start_char": 16510, "end_char": 16526, "source": "ner", "metadata": {"in_sentence": "Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of H one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed t'.lwards all the members of Zanzuwada Police, including the appellant."}}, {"text": "Zunzuwada", "label": "GPE", "start_char": 17179, "end_char": 17188, "source": "ner", "metadata": {"in_sentence": "The trial Judge further stressed the fact that Mahendra had accom- B panied the raiding party from Ahmedabad to Zunzuwada and had travelled in the police van for over three hours and this in his opinion was sufficient to show that the witness was \"not so much independent as he professed to be.\""}}, {"text": "Parbhat Singh Girasdar", "label": "OTHER_PERSON", "start_char": 17794, "end_char": 17816, "source": "ner", "metadata": {"in_sentence": "Apart from mere suggestions put to the prosecution witnesses, in cross-examination, (which were emphatically denied), there was no evidence to show that Parbhat Singh Girasdar was in any way hostile or inimically disposed towards the appellant.", "canonical_name": "Parbhat Singh Girasdar"}}, {"text": "Desai and", "label": "OTHER_PERSON", "start_char": 17985, "end_char": 17994, "source": "ner", "metadata": {"in_sentence": "There was no justification for the conjecture that Panch Mahendra was under the thumb of Inspector Desai and as such, was an interested witness.", "canonical_name": "Desai and"}}, {"text": "s.4( 1)", "label": "PROVISION", "start_char": 19498, "end_char": 19505, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 19513, "end_char": 19541, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 19715, "end_char": 19725, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Keswani", "label": "JUDGE", "start_char": 19732, "end_char": 19739, "source": "ner", "metadata": {"in_sentence": "Mr. Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it.", "canonical_name": "Keswani"}}, {"text": "s. 324", "label": "PROVISION", "start_char": 21099, "end_char": 21105, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 21107, "end_char": 21117, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fatehsinh", "label": "WITNESS", "start_char": 21293, "end_char": 21302, "source": "ner", "metadata": {"in_sentence": "It is further contended that PWs Fatehsinh and Ghanshamsinh were persons of questionable an!ecedents, and their evidence in the absence of reliable independent corroboration in regard to the demand and acceptance of the money as a bribe could no' be safely accepted."}}, {"text": "s. 4( 1)", "label": "PROVISION", "start_char": 21594, "end_char": 21602, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 21610, "end_char": 21638, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bar Sati", "label": "OTHER_PERSON", "start_char": 21786, "end_char": 21794, "source": "ner", "metadata": {"in_sentence": "While it is true that no; report or complaint had been made or registered in the Police Station that Ghanshamsinh had abducted Bar Sati, there was credible evidence on the record to believe that both theaccused had asked Fatehsinh, PW 7, to produce his cousin Ghanshamsinh in the Police Station in connection with the investigation of a charge of abduction of Bai Sati against him.", "canonical_name": "Bai Sati"}}, {"text": "July 11, 1968", "label": "DATE", "start_char": 22124, "end_char": 22137, "source": "ner", "metadata": {"in_sentence": "Consequently on July 11, 1968, Ghanshamsinh was produced by Fateh Singh hefore the Police Sub-Inspector at the latter's residence, and thereafter Accusd 2, the appellant, took him into the Police Station and made him sit in his."}}, {"text": "Fateh Singh", "label": "OTHER_PERSON", "start_char": 22168, "end_char": 22179, "source": "ner", "metadata": {"in_sentence": "Consequently on July 11, 1968, Ghanshamsinh was produced by Fateh Singh hefore the Police Sub-Inspector at the latter's residence, and thereafter Accusd 2, the appellant, took him into the Police Station and made him sit in his.", "canonical_name": "Fateh Singh"}}, {"text": "10th and 11th July 1968", "label": "DATE", "start_char": 22766, "end_char": 22789, "source": "ner", "metadata": {"in_sentence": "Evidence of PWs Ghanshamsinh and Fatehsinh with regard to the summoning of Ghanshamsinh; to the Police Station to answer a supposed charge of abduction, received assurance from the circumstance that on the 10th and 11th July 1968, Bai Sati was in the\n\npolice station."}}, {"text": "Ghanuba", "label": "RESPONDENT", "start_char": 23358, "end_char": 23365, "source": "ner", "metadata": {"in_sentence": "But his acquittal does not in any case discount the fact or obliterate the evidence in regard to the fact that Ghanuba.", "canonical_name": "Ghanshaminh \\Vas"}}, {"text": "Vias", "label": "PETITIONER", "start_char": 24320, "end_char": 24324, "source": "ner", "metadata": {"in_sentence": "Thus, so far as the appellant is concerned the testimony of Ghanshamsinh, having been fully confirmed by other trnstworthy evidence, could safely be acted uponc\n\nAs regards the contention that the appellant was not in a position to shew any favour or disfavour to Ghanshamsinh in connection witk ; bis official duties, it may be noted, in the first place, that on the 12th July at the relevant time, the Sub-Inspector being away, the appellant Vias actua1ly incharge of the Police Station. '\"['"}}, {"text": "Ghansham", "label": "RESPONDENT", "start_char": 24445, "end_char": 24453, "source": "ner", "metadata": {"in_sentence": "On seeing Ghansham and Mahendra going towards the residence of the Sub-Inspector, the appellant called them and enquired from Ghanshamsinh if he had brought the money.", "canonical_name": "Ghanshaminh \\Vas"}}, {"text": "P.S.I.", "label": "ORG", "start_char": 24789, "end_char": 24795, "source": "ner", "metadata": {"in_sentence": "Thereupon, the appellant represented that he was the P.S.I. and that the money should be handed over to him, adding that he would pass it on to the P.S.I. on his return."}}, {"text": "Ghansihamsinh", "label": "RESPONDENT", "start_char": 24918, "end_char": 24931, "source": "ner", "metadata": {"in_sentence": "Thereupon, Ghansihamsinh paid the amount to the appellant saying that he should not be harassed any more, and that the demand for the balance be .Ji mercifully dispensed with.", "canonical_name": "Ghanshaminh \\Vas"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 25658, "end_char": 25664, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 25666, "end_char": 25676, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 26051, "end_char": 26057, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 26059, "end_char": 26069, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 26790, "end_char": 26796, "source": "regex", "metadata": {"statute": null}}, {"text": "Ghanshaminh \\Vas", "label": "RESPONDENT", "start_char": 27223, "end_char": 27239, "source": "ner", "metadata": {"in_sentence": "Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshaminh \\Vas, in fact, false, this will not enable him to get out of the tentacles of s. 161, although the same act of the appellant may amount.", "canonical_name": "Ghanshaminh \\Vas"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 27313, "end_char": 27319, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 161", "label": "PROVISION", "start_char": 27564, "end_char": 27570, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 27571, "end_char": 27581, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 28390, "end_char": 28394, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 28407, "end_char": 28435, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 161", "label": "PROVISION", "start_char": 28859, "end_char": 28865, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 161", "label": "PROVISION", "start_char": 28987, "end_char": 28993, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 28995, "end_char": 29005, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 29073, "end_char": 29080, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 29095, "end_char": 29099, "source": "regex", "metadata": {"statute": null}}, {"text": "[1969] 1 S.C.R. 22", "label": "CASE_CITATION", "start_char": 29449, "end_char": 29467, "source": "regex", "metadata": {}}, {"text": "s. 161", "label": "PROVISION", "start_char": 29549, "end_char": 29555, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 29567, 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{"document_id": "1976_3_1062_1066_EN", "year": 1976, "text": "RATNA SUGAR MILLS CO. LTD. v.\n\nSTATE OF U.P. AND OTHERS\n\nApril 7, 1976\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nU.P. LargP Land Holdings Act, 1957, S. 2(15) \"land\", scope of.\n\nThe appellant acquired some 1and in district Jaunpur for setting up a factory, but did not use the land for such purpose. Under the U.P. Large Land Holdings Act, 1957, he was required to pay holdings t<tx fCl'lr the assessment years 1365 to 1368 Fasli. The appellant's application u/s. 143 of the U.P. Zamindari Abolition and Land Re; forms Act, for treating his land as industrial land was rejected by the Sub-Divisional Officer. On appeal, the Collector affirmed the order. In further appeal to the Commissioner, the appellant succeeded as regards the years 1365 and 1366 Fasli. The State :filec!\n\nrevision petitions. Subsequently the Commissioner held that the appellant was liable to pay holdings tax for the years 1367 and 1368 Fasli. The appellant also preferred revision applications.\n\nThe Board of Revenue decided all the revision petitions in favour of the State, holding that the appe11ant's land \":as \"sirdari\" and not bhumidari, and it could not be meant for industrial purposes. The appellant's petitions under Article 226 of the Constitution -wererejected by a Single Judge of the High Court on the ground that the disputed land constituted \"land as defined in the Act, and that he was liable to pay the tax.\n\nOn appeal, the Division Bench of the High Court affirmed theorder.\n\nIt ¥ias contended before this Court that the land is held for industrial purposes, and is not \"land\" under sec. 2(15) of the Act.\n\nDisn1issing the appeals, the Court, E\n\nHELD : The appellant holds the land as a sirdar.\n\nPermission to use the land in ouestion for industrial purposes was not granted. The word \"landsn\n\nused in the Act is wide enough to include all lands whether agricultural or not. The appellant cannot escape liability for payment of holding tax by keeping the land in question uncultivated. [1065-G, 1066CD]\n\nRaia Jagannath Baksh singli v. State of Utlar Pradesh and Another, [1963] I S.C.R. 220, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1076- 1079 of 1971.\n\nAppeals by special leave from the judgment and order dated the 8th January, 1970 of the Allahabad High Court in special appeals Nos. 965 to 968 of 1964.\n\nV. M. Tarkunde. E. C. A11arwala and Miss Manik Tarkunde, for the appellant.\n\nG. N. Dikshit, Shivapujan Singh, advocate for O. P. Rana, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.-This judgment would dispose of four civil appeals Nos. I 076 to 1079 of 1971 which have been filed by special leave by Ratna Sugar Mills Ltd. against the judgment of Allahabad High Court affirming on appeal the decision of the learned single Judge\n\nRATNA SUGARMILLS v. U.P. STATE (Khanna, J.)\n\nI 063\n\nwhereby the appellant's four petitions under article 226 of the Constitution of India to challenge the order dated December 18, 1963 of the Board of Revenue directing the levy of holding tax under the U.P. Large Land Holdings Act, 1957 (U.P. Act No. 31 oi 1957) (tereinafter referred to as the Act) on the land of the appellant for the assessment years 1365, 1366, 1367 and 1368 Fasli had been dismissed.\n\nIn 1951 the appellant acquired land measuring 277.08 acres situated in village Argupur Kalan, tehsil Shahganj, district Jaunpur.\n\nAccording to the appellant, the said land was acquired for the purpose of setting up a factory for the production of paper and pulp.\n\nA licence was granted to the appellant in that connection.\n\nThe appellant filed an application under section 143 of the U.P. Zamindari Abolition and Land Reforms Act for treating its land situated in C village Agrupur Kalan as industrial land.\n\nIn the course of those pro- , ceedings, the Tahsildar submitted a report on August 24, 1959 as\n\n~ under:\n\n;,/\n\n\"As regards Argupur Kalan the whole area is recorded as sirdari of Ratna Sugar Mills and they pay Rs. 1495/- as annual land revenue. It is recorded in the Mills from D before Zamindari Abolition and Mills Authorities continue to pay the recorded land revenue to Government. The whole area is lying Banjir and lies on both the sides of the railway line and Belwai Station. It has not at all been brought under cultivation nor the Mill has derived any benefit from it. It is really meant for industrial purposes but due to financial difficulties, they could not use it as such.\" E\n\nThe Sub-Divisional Officer, however, rejected the application filed on behalf of the appellant under section 143 of the U.P. Zamindari Abolition and Land Reforms Act.\n\nThe result was that the land in dispute could not be declared to be land for industrial purpose. Appeal filed by the appellant against the order of the Sub-Divisional Officer was dismissed by the Collector.\n\nWhile the proceedings under section 143 of the U.P. Zamindari Abolition and Land Reforms Act were pending, the Commissioner held for assessment years 1365 and 1366 Fasli in an appeal filed by the appellant that the land in dispute was meant for industrial purposes and had on that account remained uncultivated.\n\nThe appellant was held not liable to pay holdings tax for the land in dispute for the assessment years 1365 and 1366 Fasli.\n\nTwo revisions were filed by the State against the above order of the Commissioner.\n\nSubsequently for the years 1367 and 1368 Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act.\n\nThe appellant filed two revisions to the Board of Revenue against that order of the Commissioner.\n\nThe four revisions, two filed by the State and two filed by the appellant, were decided by the Board of Revenue by a common order dated December 18, 1963.\n\nThe revisions filed by the State were accepted by t1'e Board, while those filed by the appellant were rejected. The\n\nBoard held that as the land held by the appellant was sirdari and not Bhumidari land, it could not be declared to be meant for industrial purposes.\n\nThe appellant was held liable to pay holdings tax for the land in question.\n\nFour petitions under article 226 of the Constitution were thereupon filed by the appellant to challenge the order of the Board of Revenue.\n\nThe learned single Judge held that the land in dispute constituted land as defined in the Act and the appellant was liable to pay holdings tax for the same. The order of the learned single Judge, as already mentioned, was affirmed on appeal by the Division Bench.\n\nBefore dealing with the question 'involved in these appeals, it would be appropriate to refer to, the relevant provisions as well as the objects and reasons.\n\nThe Act was published on November !, 1957 but according to sub-seetion ( 3) of section I, it was to be deemed to have come in force on the first day of July 1957.\n\nThe objects and reasons which were mentioned in the Bill were as under :\n\n\"For securing successful implementation of the Second Five Year Plan, it has beeome neeessary to augment the revenues of the State.\n\nThe Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of postwar zamindari era.\n\nThe principle of social justice enshrined in our Constitution ajso demands that disparities between agricultural incomes be reduced.\n\nMore efficient exploitation of agricultural lands is essential for increasing the food production in the State.\n\nThose big holders who do not fulfil their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation.\n\nWith these objeets in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.\n\nThe Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3,600. A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax.\n\nThe Bill is so designed as not to affect the sma'11 cultivator. It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax.\" Section 3 of the Act is the charging section.\n\nAccording to subseetion ( 1) of that section, there shall, save as hereinafter prnvided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not e'ceed thirty acres.\n\nSection 2(,15) of the Act defines land as under:\n\n\"(15) 'land' means land, whether assessed to land revenue or not, which is held or occupied for a purpose\n\nRATNA SUGAR MILLS v. U.P. STATE (Khanna, J.) 1065\n\nconnected with agriculture, horticulture, animal dry, pisciculture or poultry farming and includes vated land held by a landholder as such\" :\n\nhusbanunculti- A\n\nThe definition of land-holder is given in section 2(16) and the same reads as under :\n\n\"(16) 'land-holder' means-\n\n(i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and\n\n(ii) any other person who holds or occupies land\n\notherwise than as-\n\n(a) an asami.\n\n(b) a sub-tenant.\n\n(c) a tenant of sir, or ( d) a sirtan. and includes a manager or a principal officer, as the case may be:\n\nExplanation-In this clause asami does not include an asami of Gaon Samaj : \" The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force. It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P.\n\nImposition of Ceilings on Land-holdings Act, 1961 as from June 30,\n\n1%1.\n\nIn appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable t• pay holding tax on the said land.\n\nThe land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming.\n\nThe above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the cootentions are not well-founded.\n\nThe land in dispute is shown to be Banjar land in the revenue records. Although the appellant acquired the land in 1951 for the purpose of setting np a factory, somehow the factory could not be G set up_ and the land remained uncultivated.\n\nThe appellant holds the land as a sirdar.\n\nAn application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub-Divisional Officer in this respect was affirmed on appeal by the Collector. A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and H is entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It is, therefore, apparent that after the order which was\n\nmade on the appellant's application under section 143 of the U.P.\n\nZamindari Abolition and Reforms Act, the appellant cannot be said to hold the land in dispute for industrial purpose.\n\nThe purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture .and poultry farming.\n\nThe fact that the appellant did not cultivate the land _in question would not warrant exemption from the liability to pay the holding tax.\n\nThe definition of the \"land\" includes uncultivated land held by a land-holder as such. The High Court held that the words \"as such\" did not pertain to the purpose for which the land is held but have reference to the land being held by the landholder in his capacity as a landholder.\n\nWe see no snfficient ground to take a different view.\n\nIn any case even if the words \"as such\" be construed to mean 1hat the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken tcJ satisfy that requirement, because those 'are the only purposes for which the said land can now be used.\n\nThe word \"lands\" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh\n\n& Anr.(I), is wide enough to include all lands whether agricultural or not.\n\nThe object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production. The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.\n\nThere is no erit in these appeals and the same are dismissed with costs.\n\nOne hearing fee.\n\nM.R.\n\nAppeals dismissed.\n\n(1) [1963] l S.C.R. 220.\n\n• '", "total_entities": 53, "entities": [{"text": "RATNA SUGAR MILLS CO. LTD", "label": "PETITIONER", "start_char": 0, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "RATNA SUGAR MILLS CO. LTD", "offset_not_found": false}}, {"text": "STATE OF U.P. AND OTHERS", "label": "RESPONDENT", "start_char": 31, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P. AND OTHERS", "offset_not_found": false}}, {"text": "April 7, 1976", "label": "DATE", "start_char": 57, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "v.\n\nSTATE OF U.P. AND OTHERS\n\nApril 7, 1976\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. 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ceedings, the Tahsildar submitted a report on August 24, 1959 as\n\n~ under:\n\n;,/\n\n\"As regards Argupur Kalan the whole area is recorded as sirdari of Ratna Sugar Mills and they pay Rs."}}, {"text": "section 143", "label": "PROVISION", "start_char": 4542, "end_char": 4553, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 4566, "end_char": 4606, "source": "regex", "metadata": {}}, {"text": "section 143", "label": "PROVISION", "start_char": 4845, "end_char": 4856, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 4869, "end_char": 4909, "source": "regex", "metadata": {}}, {"text": "December 18, 1963", "label": "DATE", "start_char": 5733, "end_char": 5750, "source": "ner", "metadata": {"in_sentence": "The four revisions, two filed by the State and two filed by the appellant, were decided by the Board of Revenue by a common order dated December 18, 1963."}}, {"text": "article 226", "label": "PROVISION", "start_char": 6117, "end_char": 6128, "source": "regex", "metadata": {"linked_statute_text": "Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act", "statute": "Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act"}}, {"text": "November !, 1957", "label": "DATE", "start_char": 6685, "end_char": 6701, "source": "ner", "metadata": {"in_sentence": "The Act was published on November !,"}}, {"text": "Agricultural Income Tax Act, 1948", "label": "STATUTE", "start_char": 7688, "end_char": 7721, "source": "regex", "metadata": {}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8162, "end_char": 8171, "source": "regex", "metadata": {"linked_statute_text": "the Agricultural Income Tax Act, 1948", "statute": "the Agricultural Income Tax Act, 1948"}}, {"text": "Section 2(,15)", "label": "PROVISION", "start_char": 8576, "end_char": 8590, "source": "regex", "metadata": {"linked_statute_text": "the Agricultural Income Tax Act, 1948", "statute": "the Agricultural Income Tax Act, 1948"}}, {"text": "section 2(16)", "label": "PROVISION", "start_char": 8987, "end_char": 9000, "source": "regex", "metadata": {"statute": null}}, {"text": "Agricultural Income Tax Act, 1948", "label": "STATUTE", "start_char": 9494, "end_char": 9527, "source": "regex", "metadata": {}}, {"text": "section 28", "label": "PROVISION", "start_char": 9565, "end_char": 9575, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income Tax Act, 1948", "statute": "Agricultural Income Tax Act, 1948"}}, {"text": "section 45", "label": "PROVISION", "start_char": 9708, "end_char": 9718, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income Tax Act, 1948", "statute": "Agricultural Income Tax Act, 1948"}}, {"text": "Imposition of Ceilings on Land-holdings Act, 1961", "label": "STATUTE", "start_char": 9732, "end_char": 9781, "source": "regex", "metadata": {}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 9830, "end_char": 9838, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable t• pay holding tax on the said land."}}, {"text": "section 2(15)", "label": "PROVISION", "start_char": 9942, "end_char": 9955, "source": "regex", "metadata": {"linked_statute_text": "Imposition of Ceilings on Land-holdings Act, 1961", "statute": "Imposition of Ceilings on Land-holdings Act, 1961"}}, {"text": "Dikshit", "label": "OTHER_PERSON", "start_char": 10288, "end_char": 10295, "source": "ner", "metadata": {"in_sentence": "The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the cootentions are not well-founded."}}, {"text": "section 146", "label": "PROVISION", "start_char": 10922, "end_char": 10933, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act", "label": "STATUTE", "start_char": 10946, "end_char": 10986, "source": "regex", "metadata": {}}, {"text": "section 143", "label": "PROVISION", "start_char": 11297, "end_char": 11308, "source": "regex", "metadata": {"linked_statute_text": "Zamindari Abolition and Land Reforms Act", "statute": "Zamindari Abolition and Land Reforms Act"}}, {"text": "Zamindari Abolition and Reforms Act", "label": "STATUTE", "start_char": 11322, "end_char": 11357, "source": "regex", "metadata": {}}]}
{"document_id": "1976_3_1067_1075_EN", "year": 1976, "text": "JOSE DA COSTA & ANOTHER\n\nBASCORA SADASHIVA SINAI NARCORNIM & ANR.\n\nApril 7, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\n10 67\n\nOwnership by prescription or adverse possessio11-K11owledge of possession-\n\nPosse, sion for a long tin1e-Peaceful-Pennissible posJession whether su!Ji- B cient.\n\nPorruraiese Civil Code-Articles 474, 505, 510, 528 and 529.\n\nThe respondent plaintiffs instituted a suit in 1961 in accordance with the Portuguese law then in force in those territories for ejectmcnt of the defendantappellants from the suit property. It was alleged in the plaint that on the death of father of the plaintiff No. 1. Sadashiva the suit land was assigned to Sitabai mother of plaintiff No. 1 and that on the death of Sitabai the property devolved on the respondent No. 1 and his 6 sisters.\n\nIt was also contended that the house built on a portion of the land in dispute and occ.upied by the defendants should be removed by the defendants and the defendants should be directed to hand-over vacant possession of the plot to the respondents. The appellants in their written statement pleaded that the suit property was given on perpetual lease to the ancestors of the appellants and that no rent was paid for over 40 years. The appellants further contended that the suit property was in their open peaceful and continuous possession including that of their predece:i; sors in interest as owners for a period of more than 50 years and that they have acquired a title by prescription.\n\nThe trial court decreed the suit. An appeal filed by the appellants before the learned Additional Judicial Commissioner was dismissed. When the matter came up before this Court by special leave this Court remanded the matter to the court of the Judicial Commissioner for a finding on the plea of prescription raised by the appellants. The learned Judicial Commissioner after remand .came to the conclusion that the appellants have failed to prove the acquisition of full title to the suit property by prescription under the law in force at the relevant time. The learned Judicial Commissioner also held that the appellants failed to establish their plea of perpetual lease.\n\nPartly allowing the appeal,\n\nHEID : (1) In view of the earlier decision of this Court~ this Court would be justified in deciding the appeal only on the question of plea of pres cription. The appellants had been in continuous possession of the enitre plot of land described in para 1 of the plaint which has a larger area including the portion where the house of the appellant stands. In the year 1920, the F respondents sought to make their construction on the vacant portion of the land close to the appellants' house which led to opposition and obstruction from the appellants. Later on, the appellants agreed to the construction by the respondents. However. so far as the land on which the appellants had their house is concerned there was no proof nor any evidence of any change on the part of the appellants to their open hostility to the respondents' title to the same. The respondents did not give any evidence of any such amicable solution.\n\nOn the other hand. it is admitted that they had reported. to the G Administrator without even caring to know the result of such action against the appellants. The further fact that the respondents annexed to the plaint a certified copy of the partition deed of 1920 which was obtained as early as in 1920 goes to show that they were fully cognizant of the public assertion by the appellants of their own title, to the land on which their house stands repudiating that of the respondents.\n\nThe learned Judicial Commissioner has erred in holding that the appellants have not been able to prove an overt act of possession to the knowledge of the respondents. According to Art. 474 of the Portuguese Civil Code oossession is defined as holding or fruition of H anything or right. The acts done by licence or permission do not constitute possession. According to Article 505 things and rights are acquired by virtue of_ possession. just as obligations are extinguished by reason of not demand~\n\ning their fulfilment. The law lays do'\\vn conditions and the period of time\n\nthat are necessary for one as well as for the other thing and that is called'. prescription. Under Article 528 of the Portuguese Code in the absence of registration of possession or title of acquisition prescription with respect to immovable property or rights to immovable will ope rate by virtue of possession for 15 years.\n\nUnder Art. 529 .J when the possession of immovable property or rights to immovable property rhas lasted for a period of 30 years prescription will operate. Under the Porto guese lav;.· what appears to be clear is that permissive possession: is not suffi cient to prescribe title of the owner of the land. There is no evidence what~ seever for the conclusion of the Judicial Commissioner that the possession Of the appellants was permissible under the respondents. On the other hand, evidence is agait recognition by the appellants of any title in the respondents.\n\nWe are, therefore, left with the long continuous and peaceful, possession by the appellants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the respondents to the land in 1920. The fact that the appellants set up title in Vishnu Narcomim describing him as respondents' ancestor does not affect the position in view of the respon, dents' denial that Vishnu had anything to do with the land. The Jutiicial Commissioner fell into an error by not keeping the distinction Between Vishnu's title and the respondents' title. The origin of ownership of land being dipped in the misty past what emerges from the evidence in the absence of proof of lease or permission by the respondents' own ancestors is that the appellants have been in long and open possession of the land over which they I.\n\nIave constructed their house for a period long nough for that possession to '-\"' ripen into ownership. The appellants have acquired title to the said land by prescription. Since there is no proof of permissive possession under the res~ pondents or their ancestors there is no question of application of Article 510.\n\nThe learned counsel for the appellants has confined his claim in this case only to the land on which appellants have their house. The suit of the respond~ ents so far as it relates to the portion of the land on which the appellants have their house is dismissed and in respect of the remaining portion of land is decreed. [1070G, !072A-D. 1073A-H, !074A-C, !075D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1521 of 1968\n\nE Appeal by special leave from the judgment and decree dated the\n\n20th January, 1968 of the Court of Addi. Judicial Commr., Goa Daman, Diu in Civil Appeal No. 213 of 1966. )<,\n\nU. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and S. L. Setia, for the appellants.\n\nV. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.\n\nThe plaintiffs instituted a suit in the court of Judge of Quempem < Comarca on February 27, 1961, in accordance with the Portuguese law then in force in those territories for ejectment of the defendants from the suit property. It was alleged that on the death of Sadashiva, father of the plaintiff, Bascora, in partition proceedings with H minors (inventario), this plot was assigned to Bascora's mother, Sitabai, towards her moiety in the estate.\n\nOn Sitabai's death, the property devolved on the plaintiffs, Bascora and his six sisters.\n\nBefore the partition of the property among the legal heirs of Sitabai, Bascora\n\n...\n\nacquired the rights from some of his sisters and became the. o\"'.ner of the suit property with other heirs.\n\nBascora's parents had mhentecl this properly from their ancestors.\n\nThe father of Bascora hd pc~- mitted the ancestors of the defendants to bmld a house for thc1r residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so.\n\nIn the. latter event, they shall be entitled to remove the super-structures of the building raised by them.\n\nEven so, the plaint goes on to say that Caetana Esperanea Fernandes the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot.\n\nOn the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their\n\n~:ncetors and nO\\V in their occupation.\n\nOn the above allegations. the plaintiffs prayed fc.r a declaration that the plaintiff, Bascora, and the other heirs of his mother. SiLabai, are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was c()nstruct.ed in the circumstances and subject to the terms mentioned in the plaint.\n\nThey further prayed that , the defendants be directed to vacate the f'\\Ot after removing the materials of their house.\n\nThe defendants denied the allegations and pleaded that it was Visnum Bascom Sinai Narcornim, an ancester of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875. at an annual rent of rupees >( 2 4/-.\n\nIt was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time.\n\nIt was Pascoal da Costa who possessed the plot as his own and originally built one house on it,\n\nbut subsequently his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute.\n\nOn Pascoal de Costa's death, in inventario proceedings, this property on November 16, 1920, was \"consolidated in full ownership in the !'atritnony of the descendants of the said Pascoa~ cla C\\ista. n\n\nThe defendants further aver in their written statement that the suit property has been in their \"open, peaceful and continuous\" possession including that of their predecessors-in-interest. as owners for a period o' more than 50 years and that they have acquired title hy prescription.\n\nThe trial court decreed the suit on April 30. J 9f.6., directing the d2fendants o ren1ove the:r supcrstruatures on th: land or in th~;. alt..:rnative to receive from the plaintiffs Rs. 10841which was found to be the value of the materials of the house in question as per estimate of the experts appointed for the purpose.\n\nOn appeal the learned Additional Judicial Commissioner dismissed the same on January 20, 1968, and affirmed the decree of the trial court.\n\nThe defendants came to this Court by special leave against the judgment of the Additional Judicial Commissioner and this Court by its order dated August 1, t8-72iSCI/76\n\n1975, which has since been reported in AIR 1975 S.C. 1853, remanded the appeal to the Judicial Commissioner for a finding on the plea of prescnption raised by the defendants by observing as follows :- yi \"The plea of prescription goes to the root of the matter.\n\nIt was raised by the defendants in their pleadings and the matter was put in issue.\n\nIt was again taken up in the grounds of appeal filed in the Court of the Judicial Commissioner, but was left undecided.\n\nFor the purpose of doing complete justice in the case, we think it necessary to have the advantage of the finding of the court below on this issue.\n\nAccordingly, we remit this case to the Co_urt of the Judicial Commissioner, Goa Daman and Diu with the direction that it should after rehearing the parties record a specilic Jinding . on the issue as to whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time.\n\nThe Judicial Commissiqner shall submit his report with reasons therefor to this Court within four months from the date on which the records are received in his court. In the meantime the appeal shall remain pending in this Court.\"\n\nWe have actually taken the facts of this case from the above decision.\n\nThe Judicial Commissioner 'has since submitted his report dated December 5, 1975, and the appeal has come up before us for final hearing.\n\nAfter examining the entire evidence, oral and documentary, the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the , suii 'property )(, by prescription under the Jaw in force at the relevant time.\n\nDuring the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we ; would have ordianily liked to refer.\n\nCounsel for the appellants, however, produced certain extracts from various articles to which counsel for the respondents has not taken any exception. There is also reference certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judical GQmmissioner.\n\nBot)l the parties accept those articles as correct, although the original books are not before us.\n\nIn view of the earlier decision of this Court and after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea of prescription .\n\n. Since the original perpetul!l lease was not produced iJ; I aJllr, t and a certified copy of the original translation of the perpetual. Jee issued on November 23, 1920, was alqne produced, we have po f, eaS.Qll to\n\ndis~J!ree with the conch,1sion qf the, ll!Rki~I sioner that the\n\ndefendants failed to estaltlish tb, eir ple:; i of pe, pel!:il JCllSe qf the land.\n\nBefore we may proceed .further it will be approPfiate to rote t.hat even the plaintiffs themselves laid a nucleus fot the plea of adverse\n\nJOSE DA COSTA v. BASCORA SADASHIYA (Goswami, !.)\n\nI 071\n\npossession to be easily taken up by the defendants.\n\nPara 5 of the plaint may, therefore, be quoted :-\n\n\"5. Notwithstanding this, the mother and mother-in-la\\\\ of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party in a deed drawn up on 16 Noyember, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of \"Deulacodil tucda\" or \"Mordi\" was partitioned, one-third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate.\"\n\nIndeed this repudiation of title of the plaintiffs by the defendants gave rise to the cause of action.\n\nWe cannot accept the submission of Mr. Tarkunde on behalf of the respondents that the word \"allege\" in the above paragraph in the present tense makes any difference in the matter of the plea.\n\nNot only in the plaint, but also in the evidence, the plaintiff Bascora gave further reinforeemenf to the plea of adverse possession when he D stated thus :\n\n\" ..... in 1920 the deponent (that is the plaintiff), desiring to build the house existing in the plot of land, there were disputes raise-0 by defendant's motlier and by one Santana Costa and then the deponent (that is the plaintiff) notified them through the Administration Office of Sanguem to vacate the plot land.\n\nHe does not know what subsequent course his petition had ....... \"\n\nMr. Tarkunde submits that there might have been some dispute which, however, was settled and the plaintiffs built the house on the suit land and the defendants also continued on the land under the\n\nearlier permissive arrangement.\n\nMr. Tarkunde draws our attention F to the following passage in the evidence of defendant No. 1 :-\n\n\"In 1920 more or less, the plaintiff built a house in the plot in question and begun to stay there.\n\nThe same house was built very near the house where the deponent (that is\n\nthe defendant No. 1) stays and which alreac!y existed at the time of that building.\n\nThe deponent was about 14 or 15 years old.\n\nThe grandfather of the deponent Pascoal da Costa and his uncle Francisco Piedade Costa and even the deponent's mother opposed the said building raised by the plaintiff.\n\nThe question was amicably solved at the house of Narcornins Bencares to which the plaintiff belongs, to the effect that the plaintiff should build the house and reside in it as well as the said persons who had their houses in it should continue to res; de therein.\n\nThe deponent came to know of these facts regarding the dispute and its solution after hearing his said uncle Francisco Piedade da Costa.\"\n\nApart from the fact that the above is hearsay evidence we are clearly of the view that the statement is not sufficient to annihilate the . j theory of repudiation of the title of the plaintiffs to the propertY: It r stands to reason that the defendants had been in continuous possession of the entire plot of land described in para 1 of the plaint which is a larger area including the portion where the house of the defendants stands.\n\nIn the year 1926 the plaintiffs sought to make their constmction on the vacant portion of the land close to the defendants' house which led to opposition and obstruction from the defendants.\n\nAt that time apparently the defendants later agreed to the constmction by the plaintiffs and that seems to be the reference to the \"amicable\" solution in the above extract.\n\nSo far as the land on which the defendants had their house, there was no proof nor any evidence of any change on the part of the defendants to their open hostility to the plaintiffs' . title to the same.\n\nThe plaintiffs did not give any evidence of any such amicable solution. On the other hand, it is admitted that they had reported to the Administrator without even caring to know the result of such action against the defendants.\n\nThe further fact that along with the plaint the plaintiffs annexed a certified copy of the partition deed of November 16, 1920, which copy was obtained as early as on December 22, 1920goes to show that they were fully cognizant of the public assertion by the defendants of their own title to the land on which their house stands repudiating that of the plaintiffs.\n\nMr. Tarkunde submits that there is no evidence that this document had been actually obtained by the plaintiffs, but production of the document without any explanation from the side of the plaintiffs speaks a volume about their knowledge of the repudiation of title. )<:\n\nMr. Tarkunde also invited our attention to the statement of defendant No. 1 to the effect :\n\n\"that the plaintiff for reasons of enmity does not receive this rent nor he ever asked for its payment to the deponent (that is defendant No. 1) and other members of his family.\"\n\nThis statement cannot be tom from the context of the alternative plea set up by the defendants.\n\nThis statement is fairly consistent with the alternative plea of perpetual lease of the land set up by the defendants.\n\nAccording to the defendants the land had been in their occupation on perpetual lease from Visnum Narcomim, the plaintiffs' paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be willing to pay even to the plaintiffs the annual rent.\n\nBut it is the clear case of the plaintiffs tha.t the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or 1uthorised to lease out the same.\n\nWe, therefore, cannot accept the e, xaggerated importance to the above statement of the defendant No. 1 in his cross-examination.\n\nThe Judicial Commissioner, however, rightly observed that \"an overt act of possession to the knowledge of the plaintiffs nnd their\n\n( /\n\n) •\n\nascendants must be shown to have taken palce.\" From the above discussion, we have no hesitation in arriving at the conclusion that the defendants have been able to establish the same and the Judcial Commissioner is not right in taking a contrary view.\n\nAccording to Article 474 of the Portuguese Civil Code, \"Possession is defined as holding or fruition of any thing or right.\n\nPara 1.\n\nThe acts done by licence or permission do not constitute possession .... \"\n\nAccording to Article 505, ' things and ; ights are acquired by virtue of possession, just as obligations are extinguished by reas.on of not demanding their fulfihnent.\n\nThe law lays down conditions and the period of time that are necessary for one as well as for the other thing.\n\nThis is called prescription.\n\n\" ,_)\n\nProviso.\n\nThe acquisition of things and rights is known as positive C prescriptjon; the discharge of the obligations by reason of not demanding their fulfilment is known as negative prescription.\"\n\nArticle 528 reads thus :\n\n\"In the absence of registration of possession or title of acquisition, prescription with respect to immovable property or rights to immovable will operate by virtue of possession for D 15 years.\"\n\nArticle 529 of the Code is as follows :-\n\n\"When, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of Article 510.\"\n\nThus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.\n\nThe Judicial Commissioner was not right in holding that possession F of the defendants was permissive under the plaintiffs.\n\nThere is no evidence is against recognition by the defendants of any title in the evidence is against recognition by the defondants :if any title in the plaintiffs as such.\n\nThe Judicial Commissioner mistook the defendants' admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding :hat the defendants failed to establish perpetual lease.\n\nWe are, therefore, left with the long, continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920.\n\nThe fact that the defendants set up title in Visnum Narcornim describing him as plaintiffs' ancestor, does not affect the position in view of the plaintiffs' avowed denial that H Visnum Narcornim had anything to do with the land.\n\nVisnum Narcornirn is survived by his own descendants and we are not dealing with a case where Visnum Narcornim's heirs as such have sought\n\neviction of the defendants from the land.\n\nThe plaintiffs do not accept Visnum Narcornim's title to the land as their title.\n\nThe Judicial Commissioner fell into an error becau.se of not keeping the distinction between Visnum Narcorllim's title to the land and the plaintiffs' title to the same.\n\nThe origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiff)>' own anestors, is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership.\n\nThe defendants in our opinion should be held to have acquired title to the said land by prescription.\n\nThere being no proof whatsoever of permissive possession under the plaintiffs or their ancestors, there is no question of application 0f the rule laid down under Article 510, relied upon by Mr. Tarkunde.\n\nArticle 510 reads thus :\n\n\"One who possesses a thing in another's name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third pai:Jy, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title.\n\nSole para : The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership (dominio).\"\n\nE According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time \"in, version of title\" their posession was merely \"detencaon (namely, a precarious possession) and such physical detencao without \"animus\" cannot be invoked for the purpose of claiming any effect that possession in one's own name or as of right connotes.\n\nIt is difficult to see how Article 510 can be attracted to the instant case.\n\nF The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs.\n\nThey were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnu.m Narcornim, who, even according to the plaintiffs, was an unauthgrised person.\n\nArticle 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narcornim or his descendants.\n\nArticle 510 G is, therefore, clearly out of the way.\n\nWe are, therefore, not even required to consider whether there was any \"inversion of title\" in this case or not.\n\nIt is clear that the defendants' ancestors and, after them, the defendants have been in possession of the land since 1815. Title of the plaintiffs was repudiated openly in the year 1920.\n\nThe d>fendants are H in possession by occupying the house standing on the land and the house was constructed by the defendants' ancestors.\n\nThe plaintiffs had made a complaint about their conduct in denying their title t-0 the land and in opposing their construction as early as in 1920.\n\nThe\n\nJOSE DA COSTA r. BASCORA SADASIJIVA (Goswami, J.) 1075\n\npassivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescrjption set up by the defendants.\n\nIt is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a, portion of the land only in the year 1920, sought to establish the title to the property \"by virtue of the prescription liiat operated in their favour\" (see paragraph 3 of the plaint).\n\nMr. Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants' witnesses while dcribing the land in suit acknowledged it as \"the plaintiffs' land\". It may not be overlooked that the plaintiffs also have their own house on a part of the land.\n\nWe, therefore, cannot agree that the defendants' witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession. ·\n\nWe n1av observe that Mr. L'<lli1:, the learned counsel fer appellants, fairly conceded that he was conlinin!! his claim in case only to the land on which the defendants have their house.\n\nthe this\n\nThe appeal is, therefore, partly allowed.\n\nThe plaintiffs' suit for title to the land in occupation of the defendants and for their eviction so far as that portion of the land with their house on it is concerned is dismissed.\n\nThe plaintiffs' suit for declaration in respect of the remaining portion of the land, however, is decreed.\n\nAs there is no prayer for eviction of any person other than the defendants, that claim is rejected.\n\nWe express no opinion with regard to the claim of persons who may be in occupation of the land other than the defendants who are not impleaded in the suit and against whom no relier has been claimed.\n\nThe judgment and decree of the Additional Judicial Conuni5sioner to the extent indicated in this judgment arc set aside.\n\nThere wi1l be, however, no order as to costs.\n\nP.H.P.\n\nAppeal allowed in part.", "total_entities": 72, "entities": [{"text": "JOSE DA COSTA & ANOTHER", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "JOSE DA COSTA & ANOTHER", "offset_not_found": false}}, {"text": "BASCORA SADASHIVA SINAI NARCORNIM & ANR", "label": "RESPONDENT", "start_char": 25, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "BASCORA SADASHIVA SINAI NARCORNIM & ANR", "offset_not_found": false}}, {"text": "April 7, 1976", "label": "DATE", "start_char": 67, "end_char": 80, "source": "ner", "metadata": {"in_sentence": "April 7, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 83, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 100, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Porruraiese Civil Code", "label": "STATUTE", "start_char": 290, "end_char": 312, "source": "regex", "metadata": {}}, {"text": "Articles 474, 505, 510, 528 and 529", "label": "PROVISION", "start_char": 313, "end_char": 348, "source": "regex", "metadata": {"linked_statute_text": "Porruraiese Civil Code", "statute": "Porruraiese Civil Code"}}, {"text": "Sitabai", "label": "OTHER_PERSON", "start_char": 662, "end_char": 669, "source": "ner", "metadata": {"in_sentence": "Sadashiva the suit land was assigned to Sitabai mother of plaintiff No.", "canonical_name": "Sitabai"}}, {"text": "Art. 474", "label": "PROVISION", "start_char": 3779, "end_char": 3787, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 505", "label": "PROVISION", "start_char": 3968, "end_char": 3979, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 528", "label": "PROVISION", "start_char": 4276, "end_char": 4287, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 529", "label": "PROVISION", "start_char": 4510, "end_char": 4518, "source": "regex", "metadata": {"statute": null}}, {"text": "Vishnu Narcomim", "label": "OTHER_PERSON", "start_char": 5366, "end_char": 5381, "source": "ner", "metadata": {"in_sentence": "The fact that the appellants set up title in Vishnu Narcomim describing him as respondents' ancestor does not affect the position in view of the respon, dents' denial that Vishnu had anything to do with the land.", "canonical_name": "Visnum Narcornirn"}}, {"text": "Vishnu", "label": "OTHER_PERSON", "start_char": 5493, "end_char": 5499, "source": "ner", "metadata": {"in_sentence": "The fact that the appellants set up title in Vishnu Narcomim describing him as respondents' ancestor does not affect the position in view of the respon, dents' denial that Vishnu had anything to do with the land."}}, {"text": "Article 510", "label": "PROVISION", "start_char": 6233, "end_char": 6244, "source": "regex", "metadata": {"statute": null}}, {"text": "U. R. Lalit", "label": "LAWYER", "start_char": 6853, "end_char": 6864, "source": "ner", "metadata": {"in_sentence": "<,\n\nU. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and S. L. Setia, for the appellants."}}, {"text": "K. Rajendra Chowdhary", "label": "LAWYER", "start_char": 6866, "end_char": 6887, "source": "ner", "metadata": {"in_sentence": "<,\n\nU. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and S. L. Setia, for the appellants."}}, {"text": "Veena Khanna", "label": "LAWYER", "start_char": 6894, "end_char": 6906, "source": "ner", "metadata": {"in_sentence": "<,\n\nU. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and S. L. Setia, for the appellants."}}, {"text": "S. L. Setia", "label": "LAWYER", "start_char": 6911, "end_char": 6922, "source": "ner", "metadata": {"in_sentence": "<,\n\nU. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and S. L. Setia, for the appellants."}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 6945, "end_char": 6959, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents."}}, {"text": "V. N. Ganpule", "label": "LAWYER", "start_char": 6961, "end_char": 6974, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 6979, "end_char": 6996, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 7064, "end_char": 7071, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.", "canonical_name": "GOSWAMI"}}, {"text": "Jose da Costa", "label": "PETITIONER", "start_char": 7123, "end_char": 7136, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.", "canonical_name": "JOSE DA COSTA & ANOTHER"}}, {"text": "Isabela Braganca", "label": "OTHER_PERSON", "start_char": 7151, "end_char": 7167, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit."}}, {"text": "Bascora Sadashiva Sinai Narcornim", "label": "LAWYER", "start_char": 7209, "end_char": 7242, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.", "canonical_name": "BASCORA SADASHIVA SINAI NARCORNIM & ANR"}}, {"text": "Durgabai Narcornim", "label": "OTHER_PERSON", "start_char": 7257, "end_char": 7275, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit."}}, {"text": "February 27, 1961", "label": "DATE", "start_char": 7398, "end_char": 7415, "source": "ner", "metadata": {"in_sentence": "The plaintiffs instituted a suit in the court of Judge of Quempem < Comarca on February 27, 1961, in accordance with the Portuguese law then in force in those territories for ejectment of the defendants from the suit property."}}, {"text": "Sadashiva", "label": "OTHER_PERSON", "start_char": 7582, "end_char": 7591, "source": "ner", "metadata": {"in_sentence": "It was alleged that on the death of Sadashiva, father of the plaintiff, Bascora, in partition proceedings with H minors (inventario), this plot was assigned to Bascora's mother, Sitabai, towards her moiety in the estate."}}, {"text": "Bascora", "label": "PETITIONER", "start_char": 7618, "end_char": 7625, "source": "ner", "metadata": {"in_sentence": "It was alleged that on the death of Sadashiva, father of the plaintiff, Bascora, in partition proceedings with H minors (inventario), this plot was assigned to Bascora's mother, Sitabai, towards her moiety in the estate.", "canonical_name": "Bascora"}}, {"text": "Caetana Esperanea Fernandes", "label": "RESPONDENT", "start_char": 8494, "end_char": 8521, "source": "ner", "metadata": {"in_sentence": "Even so, the plaint goes on to say that Caetana Esperanea Fernandes the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot.", "canonical_name": "Caetana Esperanea Fernandes"}}, {"text": "November 16, 1920", "label": "DATE", "start_char": 8585, "end_char": 8602, "source": "ner", "metadata": {"in_sentence": "Even so, the plaint goes on to say that Caetana Esperanea Fernandes the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot."}}, {"text": "Comarca", "label": "GPE", "start_char": 8632, "end_char": 8639, "source": "ner", "metadata": {"in_sentence": "Even so, the plaint goes on to say that Caetana Esperanea Fernandes the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot."}}, {"text": "Bascora", "label": "PETITIONER", "start_char": 8971, "end_char": 8978, "source": "ner", "metadata": {"in_sentence": "the plaintiffs prayed fc.r a declaration that the plaintiff, Bascora, and the other heirs of his mother.", "canonical_name": "Bascora"}}, {"text": "SiLabai", "label": "OTHER_PERSON", "start_char": 9015, "end_char": 9022, "source": "ner", "metadata": {"in_sentence": "SiLabai, are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was c()nstruct.ed in the circumstances and subject to the terms mentioned in the plaint.", "canonical_name": "Sitabai"}}, {"text": "Visnum Bascom Sinai Narcornim", "label": "OTHER_PERSON", "start_char": 9417, "end_char": 9446, "source": "ner", "metadata": {"in_sentence": "The defendants denied the allegations and pleaded that it was Visnum Bascom Sinai Narcornim, an ancester of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875."}}, {"text": "Pascoal da Costa", "label": "OTHER_PERSON", "start_char": 9533, "end_char": 9549, "source": "ner", "metadata": {"in_sentence": "The defendants denied the allegations and pleaded that it was Visnum Bascom Sinai Narcornim, an ancester of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875.", "canonical_name": "Pascoal da Costa"}}, {"text": "Pascoal de Costa", "label": "OTHER_PERSON", "start_char": 10058, "end_char": 10074, "source": "ner", "metadata": {"in_sentence": "On Pascoal de Costa's death, in inventario proceedings, this property on November 16, 1920, was \"consolidated in full ownership in the !'", "canonical_name": "Pascoal da Costa"}}, {"text": "April 30. J 9f.6", "label": "DATE", "start_char": 10578, "end_char": 10594, "source": "ner", "metadata": {"in_sentence": "The trial court decreed the suit on April 30."}}, {"text": "January 20, 1968", "label": "DATE", "start_char": 10942, "end_char": 10958, "source": "ner", "metadata": {"in_sentence": "On appeal the learned Additional Judicial Commissioner dismissed the same on January 20, 1968, and affirmed the decree of the trial court."}}, {"text": "August 1, t8-72iSCI/76", "label": "DATE", "start_char": 11151, "end_char": 11173, "source": "ner", "metadata": {"in_sentence": "The defendants came to this Court by special leave against the judgment of the Additional Judicial Commissioner and this Court by its order dated August 1, t8-72iSCI/76\n\n1975, which has since been reported in AIR 1975 S.C. 1853, remanded the appeal to the Judicial Commissioner for a finding on the plea of prescnption raised by the defendants by observing as follows :- yi \"The plea of prescription goes to the root of the matter."}}, {"text": "Diu", "label": "OTHER_PERSON", "start_char": 11883, "end_char": 11886, "source": "ner", "metadata": {"in_sentence": "Accordingly, we remit this case to the Co_urt of the Judicial Commissioner, Goa Daman and Diu with the direction that it should after rehearing the parties record a specilic Jinding ."}}, {"text": "December 5, 1975", "label": "DATE", "start_char": 12494, "end_char": 12510, "source": "ner", "metadata": {"in_sentence": "The Judicial Commissioner 'has since submitted his report dated December 5, 1975, and the appeal has come up before us for final hearing."}}, {"text": "During the hearing we did not have before us any printed Portuguese Civil Code", "label": "STATUTE", "start_char": 12844, "end_char": 12922, "source": "regex", "metadata": {}}, {"text": "is also reference certain articles from the Portuguese Civil Code", "label": "STATUTE", "start_char": 13163, "end_char": 13228, "source": "regex", "metadata": {}}, {"text": "Caetana Esperanca Fernandes", "label": "RESPONDENT", "start_char": 14361, "end_char": 14388, "source": "ner", "metadata": {"in_sentence": "Notwithstanding this, the mother and mother-in-la\\\\ of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party in a deed drawn up on 16 Noyember, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of \"Deulacodil tucda\" or \"Mordi\" was partitioned, one-third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate.\"", "canonical_name": "Caetana Esperanea Fernandes"}}, {"text": "16 Noyember, 1920", "label": "DATE", "start_char": 14542, "end_char": 14559, "source": "ner", "metadata": {"in_sentence": "Notwithstanding this, the mother and mother-in-la\\\\ of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party in a deed drawn up on 16 Noyember, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of \"Deulacodil tucda\" or \"Mordi\" was partitioned, one-third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate.\""}}, {"text": "Salinho da Silva", "label": "OTHER_PERSON", "start_char": 14606, "end_char": 14622, "source": "ner", "metadata": {"in_sentence": "Notwithstanding this, the mother and mother-in-la\\\\ of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party in a deed drawn up on 16 Noyember, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of \"Deulacodil tucda\" or \"Mordi\" was partitioned, one-third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate.\""}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 15059, "end_char": 15067, "source": "ner", "metadata": {"in_sentence": "We cannot accept the submission of Mr. Tarkunde on behalf of the respondents that the word \"allege\" in the above paragraph in the present tense makes any difference in the matter of the plea."}}, {"text": "Santana Costa", "label": "OTHER_PERSON", "start_char": 15545, "end_char": 15558, "source": "ner", "metadata": {"in_sentence": "Not only in the plaint, but also in the evidence, the plaintiff Bascora gave further reinforeemenf to the plea of adverse possession when he D stated thus :\n\n\" ..... in 1920 the deponent (that is the plaintiff), desiring to build the house existing in the plot of land, there were disputes raise-0 by defendant's motlier and by one Santana Costa and then the deponent (that is the plaintiff) notified them through the Administration Office of Sanguem to vacate the plot land."}}, {"text": "Francisco Piedade Costa", "label": "OTHER_PERSON", "start_char": 16455, "end_char": 16478, "source": "ner", "metadata": {"in_sentence": "The grandfather of the deponent Pascoal da Costa and his uncle Francisco Piedade Costa and even the deponent's mother opposed the said building raised by the plaintiff.", "canonical_name": "Francisco Piedade da Costa"}}, {"text": "Narcornins Bencares", "label": "OTHER_PERSON", "start_char": 16611, "end_char": 16630, "source": "ner", "metadata": {"in_sentence": "The question was amicably solved at the house of Narcornins Bencares to which the plaintiff belongs, to the effect that the plaintiff should build the house and reside in it as well as the said persons who had their houses in it should continue to res; de therein."}}, {"text": "Francisco Piedade da Costa", "label": "OTHER_PERSON", "start_char": 16937, "end_char": 16963, "source": "ner", "metadata": {"in_sentence": "The deponent came to know of these facts regarding the dispute and its solution after hearing his said uncle Francisco Piedade da Costa.\"", "canonical_name": "Francisco Piedade da Costa"}}, {"text": "December 22, 1920goes", "label": "DATE", "start_char": 18370, "end_char": 18391, "source": "ner", "metadata": {"in_sentence": "The further fact that along with the plaint the plaintiffs annexed a certified copy of the partition deed of November 16, 1920, which copy was obtained as early as on December 22, 1920goes to show that they were fully cognizant of the public assertion by the defendants of their own title to the land on which their house stands repudiating that of the plaintiffs."}}, {"text": "Visnum Narcomim", "label": "OTHER_PERSON", "start_char": 19420, "end_char": 19435, "source": "ner", "metadata": {"in_sentence": "According to the defendants the land had been in their occupation on perpetual lease from Visnum Narcomim, the plaintiffs' paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be willing to pay even to the plaintiffs the annual rent.", "canonical_name": "Visnum Narcornirn"}}, {"text": "Visnum Narcornim", "label": "OTHER_PERSON", "start_char": 19737, "end_char": 19753, "source": "ner", "metadata": {"in_sentence": "But it is the clear case of the plaintiffs tha.t the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or 1uthorised to lease out the same.", "canonical_name": "Visnum Narcornirn"}}, {"text": "Article 474", "label": "PROVISION", "start_char": 20381, "end_char": 20392, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 505", "label": "PROVISION", "start_char": 20591, "end_char": 20602, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 528", "label": "PROVISION", "start_char": 21094, "end_char": 21105, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 529", "label": "PROVISION", "start_char": 21317, "end_char": 21328, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 510", "label": "PROVISION", "start_char": 21623, "end_char": 21634, "source": "regex", "metadata": {"statute": null}}, {"text": "Visnum Narcornirn", "label": "OTHER_PERSON", "start_char": 22811, "end_char": 22828, "source": "ner", "metadata": {"in_sentence": "Visnum Narcornirn is survived by his own descendants and we are not dealing with a case where Visnum Narcornim's heirs as such have sought\n\neviction of the defendants from the land.", "canonical_name": "Visnum Narcornirn"}}, {"text": "Visnum Narcorllim", "label": "OTHER_PERSON", "start_char": 23170, "end_char": 23187, "source": "ner", "metadata": {"in_sentence": "The Judicial Commissioner fell into an error becau.se of not keeping the distinction between Visnum Narcorllim's title to the land and the plaintiffs' title to the same.", "canonical_name": "Visnum Narcornirn"}}, {"text": "Article 510", "label": "PROVISION", "start_char": 23882, "end_char": 23893, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 510", "label": "PROVISION", "start_char": 23925, "end_char": 23936, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 510", "label": "PROVISION", "start_char": 24922, "end_char": 24933, "source": "regex", "metadata": {"statute": null}}, {"text": "Visnu.m Narcornim", "label": "OTHER_PERSON", "start_char": 25208, "end_char": 25225, "source": "ner", "metadata": {"in_sentence": "They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnu.m Narcornim, who, even according to the plaintiffs, was an unauthgrised person.", "canonical_name": "Visnum Narcornirn"}}, {"text": "Article 510", "label": "PROVISION", "start_char": 25295, "end_char": 25306, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 510", "label": "PROVISION", "start_char": 25446, "end_char": 25457, "source": "regex", "metadata": {"statute": null}}, {"text": "JOSE DA COSTA", "label": "JUDGE", "start_char": 26096, "end_char": 26109, "source": "ner", "metadata": {"in_sentence": "The\n\nJOSE DA COSTA r. BASCORA SADASIJIVA (Goswami, J.) 1075\n\npassivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescrjption set up by the defendants.", "canonical_name": "JOSE DA COSTA & ANOTHER"}}, {"text": "BASCORA SADASIJIVA", "label": "JUDGE", "start_char": 26113, "end_char": 26131, "source": "ner", "metadata": {"in_sentence": "The\n\nJOSE DA COSTA r. BASCORA SADASIJIVA (Goswami, J.) 1075\n\npassivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescrjption set up by the defendants."}}, {"text": "Goswami", "label": "JUDGE", "start_char": 26133, "end_char": 26140, "source": "ner", "metadata": {"in_sentence": "The\n\nJOSE DA COSTA r. BASCORA SADASIJIVA (Goswami, J.) 1075\n\npassivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescrjption set up by the defendants.", "canonical_name": "GOSWAMI"}}]}
{"document_id": "1976_3_1076_1084_EN", "year": 1976, "text": "1076 ·, r\n\nSTATE OF GUJARAT\n\nCHATRABHUJ MAGANLAL AND ANOTHER\n\nApril 1, 1976 . ,. [R. S. SARKARIA AND N. L. UNTWALIA, JJ; j - . -~·;:;:;~\n\nSuppression Of [111111oral Traffic in W 01nen & Girls Act, notification e111powering all }l.fagistrates of First Class Would cial/y en1powered\".\n\n1956; s. 2(c)-lf make theni- \"specl11terpretatio11 of statutes-Provision susceptible of two meaninis-Choice of 111eaning where pro1isio11 confers power on Governn1ent for specific purpose. ..\n\nsectic:-i 2(c). Suppression of Immoral Traffic in \\Vomen and Girls -·.z\\ct. 1956, defines a ~Iagistrate to mean a District 11agistrati. a Sub-Divisional ~Iagis trat_e of_ the First Class specially e1npowered by the State Government,· by notification in the official Gaz.ette~ to exercise jurisdiction under the Act.\n\nThe appellant-State issued a notification under_ the -section _empO~'ering c.ll l. the Judicial }t[agistrates of the Jst Class to e:\\ercise jurisdiction to try c::nain _.., offences under the Act.\n\nTh~ High Court held that the notification did not have .ll''-e effect of making a ~[ag:stra'te one specially_ en1powered within the meaning of s. 2(c).\n\nAllowing the appeal to this Court,\n\nHELD : It is not necessary that the State Government -should pick 3nd chooc; e individual ).Iagistrates and confer special power on thm. The notification had the effect of making every Judicial ?vfagistrate of the First Class-_in the State, within the area of his respective jurisdiction, a ~[agistrate specialJy E empowered to try those offences. [1083E; 1084C]\n\n.\\Johd. Qasinz & Anr. v. E111peror~ AIR, 1918 Mad. 1159; _ E1npernr v.\n\nUdlio Clu1nd11n1al, AIR 1943 Sind 107; Polublia Vajubha v. Tapu Buda, AIR\n\n1956 Sau.- 73 and Sabuddin _Sheil..h Mansur v. J. S. Thakkar & Anr. ILR [19681 ):.\n\nGuj. 4, disapproved.\n\nK. N. Vijayan v. State, AIR 1953 Tr: Co. 402; State v. Judhahir Caetri, AIR 1953 Ass<im 35; (F.H.); State of J,, fysore v. Kashan1bi & Anr. [1963] 2 Cr.\n\nL.J. 226: Ashaq Hussain Khan v. S.D.O. }.fanghfr. AIR 1965 Pat. 446 and C. l'. , lfadha1a J\\Jan11adiar v. Distt. Collector & Ors., AIR 1970 Kerala 50. approved ..\n\n( 1) \\Vhere the language of a statutory pro\\ision is s, usceptibl:e of two interpretations, the one which promotes the object of the provision. comports best \\.\\-ith its purpose and presen1es its smooth \\vorking, should be chosen in preference to the other v.hich introcluces inconvenience and uncertainty in the working of the system. This rule will apply in full force where the prOvision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result. [1079G-1080A]\n\n(2) The \\Vord .. specially\" has reference to the special purpose of tf:ie empowerment and is not intended to convey the sense of a \"sveciar• ilS contrasted \\.\\-ith a .. general\"' empowerment. ..Specially\"' qualifies the word .. empowered\" and not the person On whom the rov.er is conferred.\n\nIn this - , iew the State Government is wlthin its comtietence to confer powers under !he section on some or all of the 1\\.fagistrates of the First Clas~ in the Slate~ 1n any of the modes knov.1n to law. and the 1\\.Iagistrate or 1\\.fagistrates, Oil\n\nwhom powers are so conferred. V.'ill be \"specially fmpowered\" within the meaning of the section.\n\nThis broad view keeps in focus the special purpose of the empowerment and must be preferred to the narrow view namely that the \\\\oord \"specially\" stands in contrast to the word .. genera11y\"9. • Accordi.ng to\n\nthe narrow view if po\\\\crs to try certain offences are conferred on a c[as.'i c.f\n\noff~\\:ials by their official title, they are .. generally empov.ered\";. but if - le po\\\\ers are conferred on particular individuals by name or by yutue of their office, as a result of selection by the Governn1cnt, they are .. specially empo\\ver .. cd\"'.\n\nThis view \\Vhich reads into the expression .. specially empowered\" a restriction as to the nzode or manner of empowerment, is neither congeniat to the special purpose of the pro, ision, nor conducive to the main obect of the Act, and tends to reduce its efficacy and to impede the exercise of the dicre-: tionary power \\Vbich the legislature has confided in full measure to the Go\\'.ernmenL [1079B-D, E-G; 1080BC, H; !082Gl ·\n\n_ (3) The word ''specially' signifies the investmnt of some or all the l\\fagistrates -of the First Class \\l.\"ith po\"'ers -\\vhich are \"special\" and are not part of the ... ordinary\" or ''addition:1l\"' pO\\Yers which can be conferred on a tagistrate of\n\nthe First Oass under the Code of Criminal Procedure. The fallacv in the narrow ,-iew stem-; from the undue stress it lavs on th>! 1node of em!Jov.rerment at )ht; cost of the spei;:ial purpose of the empov.erment, ifnJring the h1.ct that the Act is a code by itself \\vhich creates new offences triable only by those itagistratcs of the First Class who are specially empowered under s .. 2(c) of the Act. and not under the Code of Criminal Procedure. Pov:er may be conferred under s. 39 of the Code of Criminal Procedure. 1898, corresponding to s. 32 of the Code of Criminal Procedure. 1973. on anJ! person either by name or in virtue of his office or on classes of --.officials generally by their official title. The special mode or the general mode of conferring the power\n\napplies to the conferment of pov,..er both for a general purpose or a special purpose. The mode of conferrini: power is not to b.! confused with the purpose of the power. [l082H; I083B-Dl\n\n( 4) A person can be specially empowered even by virtue of his office. If empo\\vering a tagistrate of the First Class to try offences under the Act by virtue of his office satisfies the requirement of s. 2(c), there is no reason \\\\hy the empowerment of all the }i!agistrates of the First Class in the State under one notification by virtue of their office to try offences unOer the Act in the areas of their respective jurisdictions should not be held to be special but treated as general. The Government could have issued separate notifications for E each 1\\-fagistrate. Instead of doing so if one notification were to be issued authorising each of them to perform those functions, there could be no valid objection. [IOSIFG; 1083EF, G-1084Bl\n\nSindhi Lokana Chaithra1n _ v. State of _Guiarat, [19671 3 S.C.R. 351 and Abdul Hussain TaJabali and ors. v. State of Gujarat and or.s. (1968] 1 S.C.R. 591, followed.\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. ~12- F 213/71. .\n\nAppeal from the Judgment 'a!ad order dated the 21st November, 1970 of the Gujarat High Court in Criminal Revision Applications Nos. 321 and 322 of 1969. • · · S. N. Anand and M. N. Shroff for the Appellant. N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J. Controversy. l,1 these appeals centres round the' inc terpretation of the words \"specially empowered\" appearing iri. s. Z(c) of the Suppression of Immoral Traffic in Women and Girls Act; 1956 (to be hereinafter referred to as the Act). '\n\nThe facts giving rise to these nppeals are as follows :\n\n- '!\n\nChaturbhuj Maganlal and Bai Sabita, respondents herein,· , are. husband and wife residing together at Parvati Bhuv,,.1, Rajkot.. Both ..\n\nof them together with Bai Hamid•a Basir Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under ss. 5 an.ct 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr. Cases Nos. 1372 and 1404 of 1968. When the trial was about to commence in these rnses, the accused moved applications rais; iag an objection that the Magistrate had no jurisdiction to try the offences as he had not been \"specially empowered\" as required by s. 2 ( c) of the Act. The Magistrate rejected those. applice..tious whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same.\n\nAggrieved, the accused filed two revisions (Cr. R. 321 and 322 of 1969) in the High Court of Gnjarat. A learned Judge of the High Court allowed the revisions on the gronnd that Mr. Modha, Magistrate 1st Class Ra jkot, before whom these cases were pe,1ding, had no jurisdict; on to try the same becanse the State Government notification, dated February 19, 1959 did not have the effect of making him a ·Mag:strate of the first class specially empowered\" within the meaning of s. 2(c) of the Act. Accordingly, the Magistrate was directed to drop the proceedings pending against the revision-petitioners.\n\nAgainst that dccisio>.1 of the High Court, the State has now filed these appeals on \" certificate granted by the High Court under Article 134(1) (c) of the Constitution.\n\nSection 2 ( c) of the Act defines a \"Magistrate\" to mean\n\n'a District Magistrate, a Sub-Divisional Magistrate of :he First Class specially empowered by the State Government. by notification in the Olficial Gazette, to exercise jurisdiction under the Act\".\n\nSection 22 further says :\n\n\"No court inferior to that of a magistrate as defined in Clause ( c) of Section 2 shall try any offence under Section\n\n3, Section 4, Section 5, Section 6, Section 7 or Section 8\".\n\nThe State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under s. 2(c), runs as follows :\n\n\"In the exercise of the powers conferred by s. 2 ( c) of the Suppression of Immoral Trafilc in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under ss. 12(1), 18(1), 19, 20(1) and (3) of the Act.\"\n\nThe question is. whether this notification has the effect of maki11g every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under ss. 3. 4. 5. 6, 7 and or 8 of the Act? ,;\n\nAnswer to this question depends on a correct interpretation of the exprcssicia \"specially empowered\" in Section 2 ( c).\n\nTho; r~ has bee_n a shatp conflict of judicial opinion in regard to the meanmg of this expression.\n\nOne line of decisions has taken the view (hereafter referrecl to us the narrow view) that the word \"specially\" in this expressi9n has reference only to the mode of empowerment as indicated in s. 39(1) of the Code of Criminal Procedure, 1898.\n\nAccording to this view the word \"specially· s\\'ands in contrast to the word \"generally\".\n\nTherefore, if powers to try certain offences are conferred on a class of officials by their official title, they are \"gel1erally empowered\"; but if the powers are conferred on particular individuals by name or by virtue of their o!hce. they are \"specially empowered\". On this reasoning it is deduced that the words \"specially empowered\" imply \"the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred\". f Some of the cases in which this view has beea expounded are : Mohd.\n\nQasim and anr. v. Emperor('); Emperor v. Udho Chandwnal('); Polubha Vajubha v. Tapu Ruda( 3 ); and Sabuddin Sheikh Mansur v.\n\nJ. S. Thakkar and a/Jr.(').\n\nA different view (hereafter referred to as the broad view) has been taken in these decisions : K. N. Vijavan v. State('); State v.\n\nJudhabir Caetri( 6 ); State of Mysore v. Kashambi and anr.(7); Ashaq Hussain Khan v. S. D. 0. Monghir,( 8 ) C. V. Madhava Mannadiar v.\n\nDistrict Collector and ors.(') According to this view, the word \"specially\" has reference to the special purpose of the empowerment and is not intended to convey the sense of a \"special\" as contrasted \\Vith a \"general\" empowerment. \"Specially\" qualifies the word \"empowered\" and not the person on whom the power is conferred.\n\nIn this view, the State Government is within its competence to confer powers under s. 2(c) of the Act on some or all the Magistrates of the First Class in the State. in uny of the modes known to law, and the\n\nMagisrate or Magistrates cla whom powers are so conferred will be \"specially empowered'\" within the meaning of s. 2(c).\n\nIn our opinion. this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow vie\\v.\n\nIt is well recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision. comports best with its purpose und preserves its smooth worki'.1g, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.\n\nThis rule will apply in full force where the provision confers ample\n\n(I) A.LR. 1918 bd. 1159.\n\n(3) A.LR. 1956 S:w. 73. (5) A.LR. 1953 Tr. C'o. 402.\n\n(7) (1961) 2, C'r. L. J. 226.\n\n(2) A.LR. 1943 Sinrl 107, (4) I.LR. [l968] Guj. 4.\n\n(6) A.LR. 1953 Assam 35, (F.B.)\n\n(8) A.LR. 1965 Pat. 446. (9) A.LR. 1970 Kerala 50.\n\nA discretion on the Government for a specific purpose to enable it to bring about an effective result.\n\nThe Act has been enacted to suppress a special kind of mischief.\n\nWith that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement.\n\nTh narrow view taken in the decision led by Mohd. Qasim's case, which reads, with external aid, into the expression \"specially empowered\" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act. It tends to latroduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision. It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has, in its wisdom, confided lli1 full measure to the Government. In the context of s. 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression \"specially empowered\" has to be eschewed.\n\nIncidently, it may be noticed that none of the decisions expounding 1 the narrow view, was concerned with the interpret.ition of the expres- 1 sion \"specially empowered\" in the context of the Suppression of Immoral Traffic in Women and Girls Act.\n\nIn Mohammed Qasim\n\nv. Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in s. 3 of the Opium Act. Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin's case (supra) (the ratio of which has been followed by the Judgment tmder appeal), turns on an interpretation of this expression in the context of s. 56 of the Bombay Police Act.\n\nOn the other hand. in State of Mysore v.\n\nKashambi and anr.,\n\n(supra) which is a prominent exponent of the broad view, the cons- )( truc'tion of s. 2(c) of the Act was directly in issue before the Mysore High Court.\n\nTherein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act.\n\nThe accused, Kashambi and Mohadinbi were being prosecuted under s. S(a) of the Act in the court of Judicial Magistrate First Class, Saundatti. The accused raised an objection that. the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective 'to confer the jurisdiction on him as it did not satisfy the requirement of s. 2(c) regarding \"special empowerment\". Hegde, J., who spoke for the Bench, expressly dissented from ti the view taken in Polubha Vajubha v.\n\nTepu Buda (supra) and Mohammed Qasim v. Emperor (supra) and held that the language of s. 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special / conferment of power as required bys. 2(c) and therefore enlarges the ,!- scope of that sectio\"\" In the opinion of the Bench, the word \"specially\" is -an adjective (adverb?) to the verb \"empowered\" and not an adjective to the noun \"Magistrate\" and that this word means \"specifically\" or \"for a particular purpose''.\n\nThe Bench did not accept the contention that the word \"specially\" conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose\n\nof confer1iag the additional powers. It was emphasised that fhe conferment-of power under s. 2(c) of the Act is not made by having recourse to s. 39, Cr. Procedure Code.\n\nIn our opinion, the view taken by the Mysore High Court in Kashambi' s case is the correct one. It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for ccJastruction.\n\nIn this connection, the first case to be noticed is Sindhi Lohana Chaitliram v. State of Gujarat(').\n\nTherein the meaning of the expression 'specially empowered\" occurring in s. 6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration. By a notification, dated January 22, 1955. the Saurashtra Govc1\\1ment empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander. to authorise by issue of special warrants in each f case, a pnlice officer not below the rank of Sub-Inspector of Police to do the various things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, roon1 or place was suspected us being used as a conunon g'-'tn1in~ house.\n\nThe appellant's house was raided by a Sub-Inspector of Police, and on the basis of incriminating evidence the appellant and six other>. were charged under ss. 4 and 6 of the Act.\n\nAt the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search \\\\'arrant, was not authorised to do so because the aforesaid •aotification did not specially empower Shri Pandhya within the contemplation of s. 6.\n\nThis Court expressed that in view of the principle embodied in s. 15 of the Bombay General Clauses Act, 1904 when power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially.\n\nJudging by this test, the Court held that the Mtification, dated January 22, 1955, \"specially empowered\" Shri Pandhya, holder of the office of the Dy. Superintendent of Police, Porbander to issue lhe search warrant under s. 6.\n\nThe Court noticed the conflict of judicial opinion on the question whether a notification\n\nempowerl.1g all Magistrates of certain class to try certain cases, can be said to I>< empowered specially every Magistrate of that class to try those cases, but left fhat question open.\n\nHowever. it settled that a person can be specially empowered even by virtue of his office.\n\nAgain, in Abdul Husein Tayabali and ors. v. State of Gujarat and ors. ( 2) decided on September 20, 1967, the construction of the expression \"specially appointed\" within the mearuag of s. 3 ( c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acqttisition (Company's) Rules, came up for consideration before this Court.\n\nBy a notification, dated October 1, 1963, issued under s. 3(r,) of the Land Acquisition Act, the State Government au!horiscd all Special Land Acquisition Officers in the State to perfonn the functions of\n\n(1) [1967] 3 S.C.R. 351.\n\n(2) [1968] I S.C.R. 5'7\n\nCollectors under that Act within the area of their respective jurisdictions.\n\nQuestion arose whether that notification satisfied the l'equirements of s. 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act.\n\nShela!, J., speaking for a Bench of three .Jearned Judges, answered this question in the affirmative a:.id made these apposite observations :\n\n''In our view, these words (specially appointed) simply mean that ns such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed', that is, appointed for the specific purpose of performing those functions.\n\nThe word 'specially' has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against •a general appointment.\n\nThe word \"specially\" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act. It qualifies the word \"appointed\" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector. It is the appointment therefore which is special and not the person from amongst several such officers. Besides sec. 15 of the General Clauses Act provides that where a Cilil!fal Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office.\"\n\nThere would therefore be no objection if the appointment is made of an officer by virtue of his office and not by bis name.\"\n\nThe 'above observations are ~\" apt guide to the interpretation of the expression \"specially empowered\" in s. 2 ( c) of the Act with which we are concerned. Although the words ins. 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Husain's case, were \"specially appointed\", their connotation is the same as conveyed by the expressid,1 \"specially authorised\" or \"specially empowered\" (see Oxford Dictionary according to which the word \"authorised\" means \"emppwered\" \"appointed\").\n\nTn construing the expression \"spedally empowered\" in the instant case, therefore, we can safely adopt the reasoning in Abdul Husain's case. Thus considered, the term \"specially\" must be tak<la to have reference to the special purpose of the empowerment.\n\nEven according to Odord Dictionary, one sense of this word is \"of special purpose''. It qualifies the word \"empowered''. It is used in an attributhe sense tn highlight the special nature of the power. It does not convey the sense of a contradistinction or contrast between \"special\" empowerment and \"general\" empowerment.\n\nAll that this word signifies is the investment of some or a\\1 the Magistrates of the First Class with powers which are 'special' and are not part of the 'ordinary' or 'additional' powers which can be conferred on a Magistrate of the First Oass under the Code of Criminal Procedure. fo short, the word \"specialty\"\n\nconnotes th•at it is the empowerment which is special and not the per- A son.\n\nThus considered, special empowerment docs not necessarily involve selection of individuals by name or ex-officio from the Mais trates of the I st Class.\n\nThe fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under s. 2(c) of the Act, and not under the Code of Criminal Procedure.\n\nBe that as it may, s. 39 of the Code of Criminal Proce<.!urc, 1898 and s. 32 of the Code of Criminal Procedure, 1973, are coru:cmed with the mode of conferring power. \"Power may be conferred on any person either by name or in virtue of his office\", or \"on classes of officials generally by their official title\".\n\nThe special mode or the general mode of conferring the power applies to the confermel.1t of power both for a general purpose or •a special purpose. The mode of conferring power is not to be confused with the purpose of th< power, as seems to have been done in the cases taking the narrow view.\n\nThe narrow view can be tested yet from another a\"1gle. According to it, if a Magistrate of the I st Class is selected by name or by virtne of his office and invested with these powers to try offences under the Act, he would be \"specially empowered''. If no such pick and ehose is made and the power is conferred on all the Magistrates of the same class, they would be \"generally empowered\".\n\nThis distinction if taken to its logical and, breaks down, and exposes the inherent artificiality of the proposition. If the empowering of a Magistr; Uc of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of s. 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.\n\nIn Abdul Hussain's case, the contention canvassed for the narrow view was considered from this aspect, also. It was observed :\n\n\" ... even if the meaning of the word 'specially' \\\\re to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L. A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.\n\nInstead of doi,1g th'Jl, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.\n\nSuch a notification would have the same force as a separate notification in respect of each individual Sp. L. A. Officer. Such 'J notification would mea:,1 that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas.\"\n\nA On parity of reasoning, it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notifica- \" tio1a, by virtue of their ollice to try offences under the Act in the area f of their respective jurisdiction, must be held to be \"special\" and not \"general\".\n\nIt will not be out of place to mention here that Abdul Hussain's B case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddz'n's case (supra), Consequently. the Bench did not have the advantage of the guidance furnished by Abdul Hussain's case.\n\nJn the light of the construction put by us on the expression \"specially empowered\" as used in s. 2( c) of the Act, we hold that by virtue of the State Government Notification dated July 22,· 1958, the Judicial Magistrate First Class Rajkot has the jur.isdiction to try the offences under the Act. Accordingly, we allow these appeoals, set aside the judgment of the High Court The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law.\n\nThe cases, being very old, it is directed that they be disposed of on top-priority basis, with utmost expedition, if possible, within three months from today.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 105, "entities": [{"text": "r\n\nSTATE OF GUJARAT", "label": "PETITIONER", "start_char": 8, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "CHATRABHUJ MAGANLAL AND ANOTHER", "label": "RESPONDENT", "start_char": 29, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "CHATRABHUJ MAGANLAL AND ANOTHER", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 82, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "R.S. 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N. Anand", "label": "LAWYER", "start_char": 6609, "end_char": 6620, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and M. N. Shroff for the Appellant."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 6625, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and M. N. Shroff for the Appellant."}}, {"text": "N. H. Hingorani", "label": "LAWYER", "start_char": 6657, "end_char": 6672, "source": "ner", "metadata": {"in_sentence": "N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J. Controversy."}}, {"text": "K. Hingorani", "label": "LAWYER", "start_char": 6684, "end_char": 6696, "source": "ner", "metadata": {"in_sentence": "N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J. Controversy."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 6759, "end_char": 6767, "source": "ner", "metadata": {"in_sentence": "N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J. Controversy."}}, {"text": "Chaturbhuj Maganlal", "label": "RESPONDENT", "start_char": 7074, "end_char": 7093, "source": "ner", "metadata": {"in_sentence": "Chaturbhuj Maganlal and Bai Sabita, respondents herein,· , are."}}, {"text": "Bai Sabita", "label": "RESPONDENT", "start_char": 7098, "end_char": 7108, "source": "ner", "metadata": {"in_sentence": "Chaturbhuj Maganlal and Bai Sabita, respondents herein,· , are."}}, {"text": "ss. 5", "label": "PROVISION", "start_char": 7361, "end_char": 7366, "source": "regex", "metadata": {"statute": null}}, {"text": "Judicial Magistrate, First Class Rajkot", "label": "COURT", "start_char": 7397, "end_char": 7436, "source": "ner", "metadata": {"in_sentence": "5 an.ct 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 7701, "end_char": 7705, "source": "regex", "metadata": {"statute": null}}, {"text": "Sessions Judge, Rajkot", "label": "COURT", "start_char": 7819, "end_char": 7841, "source": "ner", "metadata": {"in_sentence": "applice..tious whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same."}}, {"text": "High Court of Gnjarat", "label": "COURT", "start_char": 7946, "end_char": 7967, "source": "ner", "metadata": {"in_sentence": "R. 321 and 322 of 1969) in the High Court of Gnjarat."}}, {"text": "Modha", "label": "JUDGE", "start_char": 8048, "end_char": 8053, "source": "ner", "metadata": {"in_sentence": "A learned Judge of the High Court allowed the revisions on the gronnd that Mr. Modha, Magistrate 1st Class Ra jkot, before whom these cases were pe,1ding, had no jurisdict; on to try the same becanse the State Government notification, dated February 19, 1959 did not have the effect of making him a ·Mag:strate of the first class specially empowered\" within the meaning of s. 2(c) of the Act."}}, {"text": "February 19, 1959", "label": "DATE", "start_char": 8210, "end_char": 8227, "source": "ner", "metadata": {"in_sentence": "A learned Judge of the High Court allowed the revisions on the gronnd that Mr. Modha, Magistrate 1st Class Ra jkot, before whom these cases were pe,1ding, had no jurisdict; on to try the same becanse the State Government notification, dated February 19, 1959 did not have the effect of making him a ·Mag:strate of the first class specially empowered\" within the meaning of s. 2(c) of the Act."}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 8342, "end_char": 8349, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 134(1)", "label": "PROVISION", "start_char": 8600, "end_char": 8614, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 8641, "end_char": 8650, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22", "label": "PROVISION", "start_char": 8898, "end_char": 8908, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 8997, "end_char": 9006, "source": "regex", "metadata": {"statute": null}}, {"text": "Section\n\n3", "label": "PROVISION", "start_char": 9035, "end_char": 9045, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 9047, "end_char": 9056, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 9058, "end_char": 9067, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 9069, "end_char": 9078, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 9080, "end_char": 9089, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 9093, "end_char": 9102, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 9277, "end_char": 9284, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9349, "end_char": 9353, "source": "regex", "metadata": {"statute": null}}, {"text": "Suppression of Immoral Trafilc in Women and Girls Act, 1956", "label": "STATUTE", "start_char": 9366, "end_char": 9425, "source": "regex", "metadata": {}}, {"text": "Government of Bombay", "label": "ORG", "start_char": 9431, "end_char": 9451, "source": "ner", "metadata": {"in_sentence": "PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under s. 2(c), runs as follows :\n\n\"In the exercise of the powers conferred by s. 2 ( c) of the Suppression of Immoral Trafilc in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under ss."}}, {"text": "ss. 12(1), 18(1), 19, 20(1)", "label": "PROVISION", "start_char": 9574, "end_char": 9601, "source": "regex", "metadata": {"linked_statute_text": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956", "statute": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956"}}, {"text": "ss. 3", "label": "PROVISION", "start_char": 9847, "end_char": 9852, "source": "regex", "metadata": {"linked_statute_text": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956", "statute": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 9994, "end_char": 10003, "source": "regex", "metadata": {"linked_statute_text": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956", "statute": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956"}}, {"text": "s. 39(1)", "label": "PROVISION", "start_char": 10303, "end_char": 10311, "source": "regex", "metadata": {"linked_statute_text": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956", "statute": "the Suppression of Immoral Trafilc in Women and Girls Act, 1956"}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 10319, "end_char": 10351, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 11832, "end_char": 11839, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 12069, "end_char": 12076, "source": "regex", "metadata": {"statute": null}}, {"text": "Mohd. Qasim", "label": "OTHER_PERSON", "start_char": 13243, "end_char": 13254, "source": "ner", "metadata": {"in_sentence": "Th narrow view taken in the decision led by Mohd."}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 13813, "end_char": 13820, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 14275, "end_char": 14292, "source": "ner", "metadata": {"in_sentence": "In Mohammed Qasim\n\nv. Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in s. 3 of the Opium Act."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14359, "end_char": 14363, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 14424, "end_char": 14442, "source": "ner", "metadata": {"in_sentence": "Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin's case (supra) (the ratio of which has been followed by the Judgment tmder appeal), turns on an interpretation of this expression in the context of s. 56 of the Bombay Police Act."}}, {"text": "Sabuddin", "label": "OTHER_PERSON", "start_char": 14446, "end_char": 14454, "source": "ner", "metadata": {"in_sentence": "Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin's case (supra) (the ratio of which has been followed by the Judgment tmder appeal), turns on an interpretation of this expression in the context of s. 56 of the Bombay Police Act.", "canonical_name": "Sabuddz'n"}}, {"text": "s. 56", "label": "PROVISION", "start_char": 14603, "end_char": 14608, "source": "regex", "metadata": {"statute": null}}, {"text": "Police Act", "label": "STATUTE", "start_char": 14623, "end_char": 14633, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 14781, "end_char": 14788, "source": "regex", "metadata": {"statute": null}}, {"text": "Mysore High Court", "label": "COURT", "start_char": 14833, "end_char": 14850, "source": "ner", "metadata": {"in_sentence": "(supra) which is a prominent exponent of the broad view, the cons- )( truc'tion of s. 2(c) of the Act was directly in issue before the Mysore High Court."}}, {"text": "Kashambi", "label": "PETITIONER", "start_char": 14992, "end_char": 15000, "source": "ner", "metadata": {"in_sentence": "The accused, Kashambi and Mohadinbi were being prosecuted under s. S(a) of the Act in the court of Judicial Magistrate First Class, Saundatti.", "canonical_name": "Kashambi"}}, {"text": "Mohadinbi", "label": "OTHER_PERSON", "start_char": 15005, "end_char": 15014, "source": "ner", "metadata": {"in_sentence": "The accused, Kashambi and Mohadinbi were being prosecuted under s. S(a) of the Act in the court of Judicial Magistrate First Class, Saundatti."}}, {"text": "Judicial Magistrate First Class, Saundatti", "label": "COURT", "start_char": 15078, "end_char": 15120, "source": "ner", "metadata": {"in_sentence": "The accused, Kashambi and Mohadinbi were being prosecuted under s. S(a) of the Act in the court of Judicial Magistrate First Class, Saundatti."}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 15351, "end_char": 15358, "source": "regex", "metadata": {"statute": null}}, {"text": "Hegde", "label": "JUDGE", "start_char": 15392, "end_char": 15397, "source": "ner", "metadata": {"in_sentence": "Hegde, J., who spoke for the Bench, expressly dissented from ti the view taken in Polubha Vajubha v.\n\nTepu Buda (supra) and Mohammed Qasim v. Emperor (supra) and held that the language of s. 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special / conferment of power as required bys."}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 15580, "end_char": 15587, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 16282, "end_char": 16289, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 16335, "end_char": 16340, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashambi", "label": "PETITIONER", "start_char": 16422, "end_char": 16430, "source": "ner", "metadata": {"in_sentence": "In our opinion, the view taken by the Mysore High Court in Kashambi' s case is the correct one.", "canonical_name": "Kashambi"}}, {"text": "s. 6(1)", "label": "PROVISION", "start_char": 16774, "end_char": 16781, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Prevention of Gambling Act, 1887", "label": "STATUTE", "start_char": 16789, "end_char": 16828, "source": "regex", "metadata": {}}, {"text": "January 22, 1955", "label": "DATE", "start_char": 16881, "end_char": 16897, "source": "ner", "metadata": {"in_sentence": "By a notification, dated January 22, 1955."}}, {"text": "Saurashtra Govc1\\1ment empowered", "label": "ORG", "start_char": 16903, "end_char": 16935, "source": "ner", "metadata": {"in_sentence": "the Saurashtra Govc1\\1ment empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander."}}, {"text": "ss. 4 and 6", "label": "PROVISION", "start_char": 17535, "end_char": 17546, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Prevention of Gambling Act, 1887", "statute": "the Bombay Prevention of Gambling Act, 1887"}}, {"text": "Pandhya", "label": "OTHER_PERSON", "start_char": 17605, "end_char": 17612, "source": "ner", "metadata": {"in_sentence": "At the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search \\\\'arrant, was not authorised to do so because the aforesaid •aotification did not specially empower Shri Pandhya within the contemplation of s. 6."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 17817, "end_char": 17821, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Prevention of Gambling Act, 1887", "statute": "the Bombay Prevention of Gambling Act, 1887"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 17887, "end_char": 17892, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay General Clauses Act, 1904", "label": "STATUTE", "start_char": 17900, "end_char": 17932, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 6", "label": "PROVISION", "start_char": 18335, "end_char": 18339, "source": "regex", "metadata": {"linked_statute_text": "the Bombay General Clauses Act, 1904", "statute": "the Bombay General Clauses Act, 1904"}}, {"text": "September 20, 1967", "label": "DATE", "start_char": 18798, "end_char": 18816, "source": "ner", "metadata": {"in_sentence": "2) decided on September 20, 1967, the construction of the expression \"specially appointed\" within the mearuag of s. 3 ( c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acqttisition (Company's) Rules, came up for consideration before this Court."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 18897, "end_char": 18901, "source": "regex", "metadata": {"linked_statute_text": "the Bombay General Clauses Act, 1904", "statute": "the Bombay General Clauses Act, 1904"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 18914, "end_char": 18940, "source": "regex", "metadata": {}}, {"text": "s. 3(r,)", "label": "PROVISION", "start_char": 19101, "end_char": 19109, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "[1967] 3 S.C.R. 351", "label": "CASE_CITATION", "start_char": 19255, "end_char": 19274, "source": "regex", "metadata": {}}, {"text": "s. 3(c)", "label": "PROVISION", "start_char": 19452, "end_char": 19459, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": "Shela", "label": "JUDGE", "start_char": 19586, "end_char": 19591, "source": "ner", "metadata": {"in_sentence": "Shela!,"}}, {"text": "Collector and cannot perform the functions of a Collector under the Act", "label": "STATUTE", "start_char": 19823, "end_char": 19894, "source": "regex", "metadata": {}}, {"text": "sec. 15", "label": "PROVISION", "start_char": 20596, "end_char": 20603, "source": "regex", "metadata": {"linked_statute_text": "Collector and cannot perform the functions of a Collector under the Act", "statute": "Collector and cannot perform the functions of a Collector under the Act"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 20611, "end_char": 20630, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21041, "end_char": 21045, "source": "regex", "metadata": {"statute": null}}, {"text": "Abdul Husain", "label": "OTHER_PERSON", "start_char": 21193, "end_char": 21205, "source": "ner", "metadata": {"in_sentence": "3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Husain's case, were \"specially appointed\", their connotation is the same as conveyed by the expressid,1 \"specially authorised\" or \"specially empowered\" (see Oxford Dictionary according to which the word \"authorised\" means \"emppwered\" \"appointed\").", "canonical_name": "Abdul Hussain"}}, {"text": "Magistrate of the First Oass under the Code", "label": "STATUTE", "start_char": 22241, "end_char": 22284, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 22879, "end_char": 22886, "source": "regex", "metadata": {"linked_statute_text": "Magistrate of the First Oass under the Code", "statute": "Magistrate of the First Oass under the Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 22917, "end_char": 22943, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 39", "label": "PROVISION", "start_char": 22965, "end_char": 22970, "source": "regex", "metadata": {"linked_statute_text": "Magistrate of the First Oass under the Code", "statute": "Magistrate of the First Oass under the Code"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 23017, "end_char": 23022, "source": "regex", "metadata": {"linked_statute_text": "Magistrate of the First Oass under the Code", "statute": "Magistrate of the First Oass under the Code"}}, {"text": "Code of Criminal Procedure, 1973", "label": "STATUTE", "start_char": 23030, "end_char": 23062, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Uc of the First Class to try offences under this Act", "label": "STATUTE", "start_char": 24097, "end_char": 24149, "source": "regex", "metadata": {}}, {"text": "s. 2(c)", "label": "PROVISION", "start_char": 24206, "end_char": 24213, "source": "regex", "metadata": {"linked_statute_text": "Uc of the First Class to try offences under this Act", "statute": "Uc of the First Class to try offences under this Act"}}, {"text": "Abdul Hussain", "label": "OTHER_PERSON", "start_char": 24361, "end_char": 24374, "source": "ner", "metadata": {"in_sentence": "In Abdul Hussain's case, the contention canvassed for the narrow view was considered from this aspect, also.", "canonical_name": "Abdul Hussain"}}, {"text": "Sabuddz'n", "label": "OTHER_PERSON", "start_char": 25775, "end_char": 25784, "source": "ner", "metadata": {"in_sentence": "It will not be out of place to mention here that Abdul Hussain's B case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddz'n's case (supra), Consequently.", "canonical_name": "Sabuddz'n"}}, {"text": "s. 2( c)", "label": "PROVISION", "start_char": 25998, "end_char": 26006, "source": "regex", "metadata": {"statute": null}}, {"text": "July 22,· 1958", "label": "DATE", "start_char": 26085, "end_char": 26099, "source": "ner", "metadata": {"in_sentence": "Jn the light of the construction put by us on the expression \"specially empowered\" as used in s. 2( c) of the Act, we hold that by virtue of the State Government Notification dated July 22,· 1958, the Judicial Magistrate First Class Rajkot has the jur.isdiction to try the offences under the Act."}}, {"text": "Judicial Magistrate First Class Rajkot", "label": "COURT", "start_char": 26105, "end_char": 26143, "source": "ner", "metadata": {"in_sentence": "Jn the light of the construction put by us on the expression \"specially empowered\" as used in s. 2( c) of the Act, we hold that by virtue of the State Government Notification dated July 22,· 1958, the Judicial Magistrate First Class Rajkot has the jur.isdiction to try the offences under the Act."}}, {"text": "Judicial Magistrate, First Class, Rajkot", "label": "COURT", "start_char": 26314, "end_char": 26354, "source": "ner", "metadata": {"in_sentence": "Accordingly, we allow these appeoals, set aside the judgment of the High Court The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law."}}]}
{"document_id": "1976_3_1085_1087_EN", "year": 1976, "text": ",, '\n\nGENERAL MANAGER, SOUTHERN RAILWAY, MADRAS\n\nT. !vi. PARAMASlVAM\n\nApril 8, 197 6\n\n[A. N. RAY, C.J., !vi. H. BEG A1'D ]ASWANT SINGH, JJ.]\n\nRetire1nc11t on supera111111atio11--Conclitiv11s prescribed for pre-1938 entrant are nuuulatory to avail the benefit u11der-Hailway E.\\tub!isl1111cnt Code Rule 2046 (b).\n\nUnder llule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled tu the higher age of rctiren1ent at 60 years (i) if he had entered service on or before 3 lst l\\1arch 1938 and (ii) if he held on 31st March 1938 either a lien or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post.\n\nThe respondent had been appl'inted a temporary clerk on 10th Decen1ber 1936 and was confirn1ed in thal post on 1st Septen1bcr 1938.\n\nWhen he w~1s rctircd on attaining the age of SK, ht: challenged the orders clain1ing benefit of Rule 2046(b).\n\nThe High Court allowed the writ petition holding that since he was continncd on 1st Septen1ber 1938 he would be deemed to have been permanently appointed since 10th December 1936.\n\nAllowing the appeal by special leave lhc court,\n\nHELD: (l) Rule 2046\\b) clearly lays down that not only the fir:; t but one of the 1wo alternatives of the second set o( conditions inust also be fulfilled hy the Government servant \"'on that date'' i.e. 31st March 1938. The specified requirement of the rule could not be overriden by some deemed retrospective benefit alleged to accrue fron1 a confinnation subsequent to 31st March\n\n1938.\n\n[1086D-EJ E\n\nState uf P1111jab v. Dhara111 Singh !1~68] 13) S.C.R. l; State vf l'•lagala1ul v.\n\nG. Vasa111f/(/ i\\.l.R. 1970 SC 537: Director of Panchayar Raj & Anr. v. Babu Singh Gaar, [1972] (2) S.C.R. 400, (followed)\n\n[His Lo1dship observed that the position was so clear, under the la\\V, that it should not have been nc.:cssary at all for the parties to have had to come to this Court for a correct dceisionl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 571 of 1972.\n\nAppeal by Special Leave from the Judgment and Order dated the 15th June 1971 of the Madras High Court in W.P. No. 3112/70.\n\nP. P. Rav and G. Chandra for the Appellant.\n\nP. C. Blwnari and I. B. Dadachanji for the Respondent. 1he Judgment of the Court was delivered by\n\nBEG, J.\n\nThe General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court.\n\nThe learned Judges, Vecraswami, C.J., and Raghavan, J., had held. in a very short judgment, a notification of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970, to be inoperative.\n\nThe petitioner-respondent had been appointed a tell]porary Clerk _on 10th December, 1936, and had been confirmed in that post on 1st\n\n19-725SCI/76\n\nSUPREME COURT REPORTS [1976] 3 s.c.R.\n\nA September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement. He claimed the benefit of Rule 2046 (b) of the Railway Establishment Code.\n\nAccording to Rule 2046(b), a Ministerial Railway Servant was entiUed to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly, he had held \"on that date\" (i.e. on 31st March, 1938), either: (i)\n\n\"a lien or, a suspended lien on a permanent post\"; or (ii) \"a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption nntil he was confirmed in that post\".\n\nIt is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March,\n\n1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement.\n\nIt is very difficult to appreciate the reasoning of the High Court when Rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be 'fulfilled by the Government servant \"on that date\", that is to say, on 31st March, 1938. The specified requirements of the rule could not be over-ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938.\n\nThe second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a \"temporary Government servant\" and not a \"provisional Government servant\" as defined by Rule 2008(2). Rule 2008 may be reproduced here.\n\nIt reads :\n\n\"2008--Suspension of lien:-\n\n(a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity:\n\n( 1) to a tenure post or\n\n(2) to a permanent post outside the cadre on which he is borne, or\n\n(3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule.\n\nI (\n\n,; ;\n\nSOUTHERN RAILWAY V. T. M. PARAMASIVAM (Beg, J.) 1087\n\n(b) A competent authority inay, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of . these cases there is a reason to believe that he will remain absent from the post on which he holds a lien 'or a period of not less than three years.\n\n(c) Notwithstanding anything contained in Clause (a) and (b) of this Rule a railway servant\"s lien on a tenure post may, on circumstances, be suspended.\n\nhe is appointed substantively to another permanent c post, his lien on the tenure post must be terminated ..\n\n(d) If a railway servant's lien on a post is suspended under clause (a) or (b) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revives.\n\nNorn :-This clause applies if the post concerned is a post in a selection grade of a cadre''.\n\nThe respondent petitioner having been confirmed on !st September, 1938, could be said to be appointed in substantive capacity only on that date.\n\nHe could neither have a lien nor a suspended lien on a permanent post.\n\nHe could also not be found to hold a permanent post in a provisional capacity under clause ( d) of Rule 2008 before\n\n31st March, 1938.\n\nThe respondent petitioner had not been shewn to hold a permanent post on 31st March, 1938.\n\nLearned Counsel for the appellant, therefore, relied on : State of Punjab v.\n\nDharan1 Singh('); State of Nagaland v. G. Vasantha('); Director of Panchayat Raj & Anr. v. Babu Singh Gaur( 3).\n\nLearned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court.\n\nLearned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get -the question of law involved settled.\n\nThe position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.\n\nWe allow this appeal and set aside the judgment and order of tk High Court.\n\nThe parties will bear their own costs.\n\nS.R.\n\n(1) [1968] (3) s.c.R: I.\n\n(2) A.LR. 1970 S.C. 537. (3)\n\n[1972] (2) S.C.R. 400.\n\nAppeal allowed.", "total_entities": 27, "entities": [{"text": "GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS", "label": "PETITIONER", "start_char": 6, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS", "offset_not_found": false}}, {"text": "T. !vi. PARAMASlVAM", "label": "RESPONDENT", "start_char": 49, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "T. M. PARAMASlVAM", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 87, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "vi. H. BEG", "label": "JUDGE", "start_char": 105, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "ASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 122, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Code Rule 2046", "label": "STATUTE", "start_char": 292, "end_char": 306, "source": "regex", "metadata": {}}, {"text": "Railway Establishment Code", "label": "STATUTE", "start_char": 337, "end_char": 363, "source": "regex", "metadata": {}}, {"text": "10th Decen1ber 1936", "label": "DATE", "start_char": 802, "end_char": 821, "source": "ner", "metadata": {"in_sentence": "The respondent had been appl'inted a temporary clerk on 10th Decen1ber 1936 and was confirn1ed in thal post on 1st Septen1bcr 1938."}}, {"text": "1st Septen1bcr 1938", "label": "DATE", "start_char": 857, "end_char": 876, "source": "ner", "metadata": {"in_sentence": "The respondent had been appl'inted a temporary clerk on 10th Decen1ber 1936 and was confirn1ed in thal post on 1st Septen1bcr 1938."}}, {"text": "1st Septen1ber 1938", "label": "DATE", "start_char": 1070, "end_char": 1089, "source": "ner", "metadata": {"in_sentence": "The High Court allowed the writ petition holding that since he was continncd on 1st Septen1ber 1938 he would be deemed to have been permanently appointed since 10th December 1936."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2169, "end_char": 2186, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated the 15th June 1971 of the Madras High Court in W.P. No."}}, {"text": "P. P. Rav", "label": "LAWYER", "start_char": 2209, "end_char": 2218, "source": "ner", "metadata": {"in_sentence": "P. P. Rav and G. Chandra for the Appellant."}}, {"text": "G. Chandra", "label": "LAWYER", "start_char": 2223, "end_char": 2233, "source": "ner", "metadata": {"in_sentence": "P. P. Rav and G. Chandra for the Appellant."}}, {"text": "P. C. Blwnari", "label": "LAWYER", "start_char": 2254, "end_char": 2267, "source": "ner", "metadata": {"in_sentence": "P. C. Blwnari and I. B. Dadachanji for the Respondent."}}, {"text": "I. B. Dadachanji", "label": "LAWYER", "start_char": 2272, "end_char": 2288, "source": "ner", "metadata": {"in_sentence": "P. C. Blwnari and I. B. Dadachanji for the Respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 2353, "end_char": 2356, "source": "ner", "metadata": {"in_sentence": "1he Judgment of the Court was delivered by\n\nBEG, J.\n\nThe General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court."}}, {"text": "Vecraswami", "label": "JUDGE", "start_char": 2533, "end_char": 2543, "source": "ner", "metadata": {"in_sentence": "The learned Judges, Vecraswami, C.J., and Raghavan, J., had held."}}, {"text": "Raghavan", "label": "JUDGE", "start_char": 2555, "end_char": 2563, "source": "ner", "metadata": {"in_sentence": "The learned Judges, Vecraswami, C.J., and Raghavan, J., had held."}}, {"text": "SUPREME COURT REPORTS [1976] 3 s.c.R.", "label": "COURT", "start_char": 2899, "end_char": 2936, "source": "ner", "metadata": {"in_sentence": "The petitioner-respondent had been appointed a tell]porary Clerk _on 10th December, 1936, and had been confirmed in that post on 1st\n\n19-725SCI/76\n\nSUPREME COURT REPORTS [1976] 3 s.c."}}, {"text": "claimed the benefit of Rule 2046", "label": "STATUTE", "start_char": 3230, "end_char": 3262, "source": "regex", "metadata": {}}, {"text": "According to Rule 2046", "label": "STATUTE", "start_char": 3303, "end_char": 3325, "source": "regex", "metadata": {}}, {"text": "31st March, 1938", "label": "DATE", "start_char": 3470, "end_char": 3486, "source": "ner", "metadata": {"in_sentence": "According to Rule 2046(b), a Ministerial Railway Servant was entiUed to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly, he had held \"on that date\" (i.e. on 31st March, 1938), either: (i)\n\n\"a lien or, a suspended lien on a permanent post\"; or (ii) \"a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption nntil he was confirmed in that post\"."}}, {"text": "31st March,\n\n1938", "label": "DATE", "start_char": 3981, "end_char": 3998, "source": "ner", "metadata": {"in_sentence": "It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March,\n\n1938."}}, {"text": "1st September, 1938", "label": "DATE", "start_char": 4075, "end_char": 4094, "source": "ner", "metadata": {"in_sentence": "The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement."}}, {"text": "10th December, 1936", "label": "DATE", "start_char": 4156, "end_char": 4175, "source": "ner", "metadata": {"in_sentence": "The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement."}}, {"text": "is very difficult to appreciate the reasoning of the High Court when Rule 2046", "label": "STATUTE", "start_char": 4354, "end_char": 4432, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 5729, "end_char": 5734, "source": "ner", "metadata": {"in_sentence": "I (\n\n,; ;\n\nSOUTHERN RAILWAY V. T. M. PARAMASIVAM (Beg, J.) 1087\n\n(b) A competent authority inay, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of ."}}]}
{"document_id": "1976_3_1088_1091_EN", "year": 1976, "text": "STATE OF KARNATAKA AND ANR. ETC. v.\n\nELIZABETH MAYNE AND ANR. ETC.\n\nApril 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT S!NGII, JJ.]\n\nReden1ption of the tree f!fOWtii on \"Bane\" lands by '~Wargadars\" or their transferees/successors in poslession-Riglus of reden1ption-The Coorg Lan• and Revenue Regulations 1899, Section 97 and the Karnataka Forest Rules 1969 Rule 137 Karnataka Land_Revenue Act 1967, s. 75-Scope of. -\n\n'Bane lands\" are forest lands granted for the service of the \"Warg\", holding rice fields to which they are allotted to be held, free of revenue, for grazing, leaf nlanure/firewood and for timber required in the Warg, capable of being alienated only along with the Warg lands u/s 97 of the Coorg Land and Revenue Regulations 1899, which is in pari n1ateria with Rule 151 A and B made under the Indian Forest Rules 1954.\n\nThe holders of the Bane Land had the riJ!:ht to redeem the trees standing on such Bane lands subject to the payment of seignorage etc. Under Rule 137 of the Karnataka Forest Rules 1969, effective from 1st March 1969, redemption of the .growth on \"Bane lands\" \\Vas allowed on pHyment of 50% of the value of the timber. Rule 137 was however deleted w.e.f. !5th January 1974.\n\nThe various appellants who were holders of \"Bane Lands\" challenged, under Art. 226. the orders of the Forest authorities demanding full value of the timber sought to be \"redee1ned\" by them contending that (i.) they had vested right to redeem the trees on Bane lands on payment of 50% of the value of timber under the Coorg Land and Revenue Regulations of 1899 and (ii) Section\n\n75 of the K!!rnataka Land Revenue Act, 1964 vested in th_em an absolute right in respect of the trees on Bane lands and the Government therefore had no right even to demand 50% of the value. All the writs \\Vere accepted by the Mysore Jiigh Court following its earlier decision in l.L.R. (Karnataka) 1975 Vol. 25, p. 443 (Ra1naraju J\\laidu v. Div/. Forest Officer) holding that the Rules conferred a right on the holders of Bane lands to redeem the trees standing on such lands on payment of 50o/o of the value of the timber to the State alongwith other incidental charges.\n\nThe court did not express any opinion whether the State had no right to demand 50% of the value under the Karnataka Land Revenue Act of 1964.\n\nAllowing the State appeal against I.L.R. (Karnataka) I 97 5 Vol. 25 page 443 the Division Bench held [in State of Karnataka v.\n\nRamaraju Naida I.L.R. (Karnataka) 1975 Vol. 2'5 p. 1361] that (i) the Bane holders had no propriety right to the soil of Bane Land and to the trees standing thereon but only limited privilege to collect grass leaves timber etc. for domestic purposes (ii) Even after s. 75(1) of the Karnataka Land Revenue_ Act was enacted. the Bane holders did not become holders or occupants as defined in the Act and ownership of trees did not accrue to them and (iii) Section 79 of the Karnataka Land Revenue Act which preserved the preexisting privileges of Bane holders has no application to Bane lands.\n\nKeeping 15-1-74, the date of deletion of Rule 137 of the Karnataka Forest Rules 1969, the Division Bench, however, directed that ( 1) the respondents \\vho deposited before 15th January 1974 50% of the value of timber as determined by the Forest Officer could be graflted permits to cut and rem.eve timber, with liberty to the Forest Officer to recover and any differential amount between the 50% of the actual value of timber and amount paid on the basis of prior determination and (ii) those respondents who have made applications under rule 137 before 15th January 1974, brit not deposited the amount could also be granted permits on deposit of 50% of the value of timber.\n\nDismissing the State appeals, by certificate, the court\n\nHELD : (I) Th~ learned single judge in ILR (Karnataka) 1975 Vol. 25 p. 443 rightly did not express any view on the second question as to whether\n\nthe Bane Land holders could ask for removal of trees without payment full of A . value u/s 75 of the Karnataka Land Revenue Act, 1964. [1091Al 'W Ramaraju Naidu v. Div/. Forest Officer I.L.R. (Karnataka) 1975, Vol. 25 • p. 443 (partly affirmed).\n\n(ii) The directions given by the Division Bench are explicable because of 15th January 1974 being taken as the dividing line \\Vith regard to persons who made payments and persons who did not make payment consequent upon the B repeal of Rule 137 of the Karnataka Forest Rules, 1969. [1091Fl\n\n[Their Lordships left open to the parties to urge their rival contentions on the questions. of the nature and terms of Bane lands and rights, if in future. there will be any dispute between them, in view of their making it clear that the observations and opinions of the High Court l)ivision Bench should not operate as res judicata]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1867-1924, 1952 of 1975 and 9 to 66 of 1976.\n\nFrom the Judgments and orders dated the 18-4-75, 28-4-75 and 'f 27-5-75 of the Mysore (Kamataka) High Court in Writ Appeal Nos.\n\n1034-1039/74 and 116 to 143/75, 951-74, 922-923/74, 32/75, 1035\n\nof 1974 and 976 to 1033/74 respectively.\n\nL. N. Sinha, Sol. General in C.A. No. 1891 and 1952 for the D appellants in C.As. 1867-1924 and Respondent in CA 1952/75 and K. S. Puttaswamy, !st Addi. Government Advocate (In Cas. 1867- 1924 and 1952/75) B. R. G. K. Achar.\n\nS. G. Sundaraswamy, K. S. Gourishanker and K. N. Bhatt for the Appellants in C.As. 1952/75 and Respondents in C.A. 1891/75.\n\nL. N. Sinha, Sol. General in (CA 9) K. S. Puttaswamy, Asstt.\n\nE Addi. Government Advocate, Narayan Netter and B. R. G. K. Achar )( for the Appellants in C.As. 9 to 66 of 1976.\n\nS. V. Gupte (In CA 1890/75), S.S. Javali and B. P. Singh for Respondents in CAs. 1875 to 79, 1882-83 1885, 1887-90, 1893, 1895, 1897, 1902-08, 1909, 1910, 1912, 1914, 1917, 1920, 1923-24/ 75 and for R. 2 in C.As. 1867, 1874, 1880-81, 1884, 1889-1901, 1903 F 1906-07 and 1921/75 and for Respondent in Appeals Nos. 9, 13-18, 20, 21, 39-44, 54, 56, 58, 60-63 and for Respondent No. I in Cas. 19, 22-23, 37, 43, 46, 51, 55, 59, 65 and Respondent No. 2 in C.As. 38 of 1975.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThese appeals are by certificate from the judgment G dated 18 April, 1975 of the High Court of Karnataka.\n\nThe respondents were the petitioners in the High Court.\n\nThe respondents are either holders of Bane lands in the District of Coorg or holders of such lands who purchased timber standing on them from such holders.\n\nThe respondents in the High Court asked for writ directing the Divisional Forest Officer of the State to issue permits to the respondents to remove trees standing on Bane lands as particularised in the petition.\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nThe Divisional Forest Officer refused permits to the respondents to cut trees and remove timber.\n\nThe two grounds on which the respon-\n\n!.,\n\ndents challenged the order of refusal are these.\n\nFirst, the respon~ dents claimed a vested right to redeem the trees on Bane lands on payment of 50 per cent of the value of timber under Coorg Land and Revenue Regulation of 1899 and the rules framed thereunder. Second '-- the respondents claimed that, by section 75 of the Karnataka Land Revenue Act, 1964, an absolute right was conferred on them in respect of trees on Bane lands and the Government have no right even to demand 50 per cent of the value.\n\nThe learned Single Judge referred to the provisions of Coorg Land and Revenue Regnlation of 1899 and in particular rule 97 thereof.\n\nThe learned Single Judge came to the conclusion that rules conferred a right on the holders of Bane land to redeem the trees standing on such Bane lands.\n\nHe also held that under the rules, the respondents were required to pay 50 per cent of the value of the timber to the State along with other incidental charges. ~\n\nThe contention of the State that the Coorg Land and Revenue Regulation, 1899 was repealed and, therefore, the respondents had no right under those Regufations to remove timber was repelled by the learned Single Judge.\n\nThe learned Judge held that section 202 of the Karnataka Land Revenue Act of 1964 did not affect the right acquired by the holders of Bane lands in spite of repeal of the Coorg Land and Revenue Regulation of 1899.\n\nIn this view of the matter, the learned Single Judge did not consider it necessary to express any opinion on the second contention of the respondents whether under section 75 of the Karnataka Land Revenue Act of 1964, the State had no right to demand 50 per cent of the value.\n\nThe Division Bench on appeal held that the respondents ceuld be X divided into two categories.\n\nAs to the first category, the Division Bench in sub-paragraph (1) of paragraph 59 of the judgmnt said that those who deposited before 15 January, 1974, 50 per cent of the value of timber as determined by the Divisional Forest Officer, could be granted permits to cut and remove timber. If there was any difference between the 50 per cent of the actual value of timber and the amount paid on the basis of determination by the Divisional Forest Officer, the Divisional Forest Officer would recover the difference as mentioned in the said paragraph 59(1).\n\nIn sub-paragraph (2) of paragraph 59, the Division Bench dealt with respondents who did not fall within category 1, but made applications before 15 January, 1974.\n\nThe Solicitor General appearing for the State with his usual fairness said that he did not want to take up time of the Court in going into the merits of the appeals. He accepted the conclusions of the High Court in paragraph 59 of the judgment.\n\nThe result is that the conclusions of the High Court in paragraph 59 are affirmed.\n\nThe matter, however, does not end there because counsel for the respondents submitted that the Division Bench went into the nature and tenure of Bane lands and expressed views which are not correct\n\nand which in any event were not necessary for the purpose of the\n\n~ present case. ....\n\nThe learned Single Judge rightly did not express any view on the second question as to whether the Bane land holders could ask for removal of trees without payment of full value.\n\nThe Division Bench, however, in paragraphs 16 and 20 dealt with the legal position of Bane lands prior to 1 November, 1899, in paragraph 30 on the legal position between l November 1899 and l April 1964 and in paragraphs 36 and 43 on the legal position after 1 April 1964. The Division Bench of the High Court in paragraphs 17 and 19 of the judgment dealt with Banc and Kumki lands and equated the same.\n\nIt may be stated here that one of the respondents-Consolidated Coffee Ltd., also filed an appeal from the judgment of the High Court.\n\nThe Solicitor General contended that the Consolidated Coffee Ltd. was not competent to file an appeal because the company had obtained t relief and could not, therefore, attack the judgment.\n\nHaving heard the Solicitor General and counsel for the respondents, we are of opinion that the course adopted by the learned Single\n\nJudge was correct.\n\nThe Division Bench of the High Court need not have gone into the question on the nature and tenure of Bane lands and expressed opinion on rights of the parties.\n\nThese observations were not necessary.\n\nWe, therefore, hold that we affirm the conclusions of the Division Bench of High Court as stated in paragraph 59 of the judgment and make it clear that the observations and opinions expressed by the Division Bench on the nature and tenure of Bane lands and rights of \" the parties will not bind the parties on these questions in future. lt \" will be open to both parties, namely, the appellants and respondents to urge their rival contentions on these questions if in future there will be any dispute between the parties.\n\nThe directions given by the Division Bench in paragraph 59 of the judgment will be followed by the parties.\n\nThe directions are explicable because of 15 January 1974 being taken as the dividing line with regard to persons who made payment and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rule, 1969. !' The appeals are dismissed.\n\nParties will pay and bear their own costs.\n\n1,\n\nS.R.\n\nAppeals .dismissed. '", "total_entities": 51, "entities": [{"text": "STATE OF KARNATAKA AND ANR. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF KARNATAKA AND ANR. ETC", "offset_not_found": false}}, {"text": "ELIZABETH MAYNE AND ANR. ETC", "label": "RESPONDENT", "start_char": 37, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "ELIZABETH MAYNE AND ANR. ETC", "offset_not_found": false}}, {"text": "April 8, 1976", "label": "DATE", "start_char": 68, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "April 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT S!NGII, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 84, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 101, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Revenue Regulations 1899", "label": "STATUTE", "start_char": 289, "end_char": 313, "source": "regex", "metadata": {}}, {"text": "Section 97", "label": "PROVISION", "start_char": 315, "end_char": 325, "source": "regex", "metadata": {"linked_statute_text": "Revenue Regulations 1899", "statute": "Revenue Regulations 1899"}}, {"text": "Karnataka Forest Rules 1969", "label": "STATUTE", "start_char": 334, "end_char": 361, "source": "regex", "metadata": {}}, {"text": "Revenue Act 1967", "label": "STATUTE", "start_char": 386, "end_char": 402, "source": "regex", "metadata": {}}, {"text": "s. 75", "label": "PROVISION", "start_char": 404, "end_char": 409, "source": "regex", "metadata": {"linked_statute_text": "Revenue Act 1967", "statute": "Revenue Act 1967"}}, {"text": "s 97", "label": "PROVISION", "start_char": 700, "end_char": 704, "source": "regex", "metadata": {"linked_statute_text": "Revenue Act 1967", "statute": "Revenue Act 1967"}}, {"text": "Coorg Land and Revenue Regulations 1899", "label": "STATUTE", "start_char": 712, "end_char": 751, "source": "regex", "metadata": {}}, {"text": "Indian Forest Rules 1954", "label": "STATUTE", "start_char": 816, "end_char": 840, "source": "regex", "metadata": {}}, {"text": "Karnataka Forest Rules 1969", "label": "STATUTE", "start_char": 1000, "end_char": 1027, "source": "regex", "metadata": {}}, {"text": "1st March 1969", "label": "DATE", "start_char": 1044, "end_char": 1058, "source": "ner", "metadata": {"in_sentence": "Under Rule 137 of the Karnataka Forest Rules 1969, effective from 1st March 1969, redemption of the .growth on \"Bane lands\" \\Vas allowed on pHyment of 50% of the value of the timber."}}, {"text": "5th January 1974", "label": "DATE", "start_char": 1198, "end_char": 1214, "source": "ner", "metadata": {"in_sentence": "5th January 1974."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1291, "end_char": 1299, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Forest Rules 1969", "statute": "the Karnataka Forest Rules 1969"}}, {"text": "Section\n\n75", "label": "PROVISION", "start_char": 1586, "end_char": 1597, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Forest Rules 1969", "statute": "the Karnataka Forest Rules 1969"}}, {"text": "Land Revenue Act, 1964", "label": "STATUTE", "start_char": 1616, "end_char": 1638, "source": "regex", "metadata": {}}, {"text": "Mysore Jiigh Court", "label": "COURT", "start_char": 1822, "end_char": 1840, "source": "ner", "metadata": {"in_sentence": "All the writs \\Vere accepted by the Mysore Jiigh Court following its earlier decision in l.L.R. (Karnataka) 1975 Vol."}}, {"text": "s. 75(1)", "label": "PROVISION", "start_char": 2706, "end_char": 2714, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 79", "label": "PROVISION", "start_char": 2894, "end_char": 2904, "source": "regex", "metadata": {"statute": null}}, {"text": "15-1-74", "label": "DATE", "start_char": 3041, "end_char": 3048, "source": "ner", "metadata": {"in_sentence": "Keeping 15-1-74, the date of deletion of Rule 137 of the Karnataka Forest Rules 1969, the Division Bench, however, directed that ( 1) the respondents \\vho deposited before 15th January 1974 50% of the value of timber as determined by the Forest Officer could be graflted permits to cut and rem.eve timber, with liberty to the Forest Officer to recover and any differential amount between the 50% of the actual value of timber and amount paid on the basis of prior determination and (ii) those respondents who have made applications under rule 137 before 15th January 1974, brit not deposited the amount could also be granted permits on deposit of 50% of the value of timber."}}, {"text": "Karnataka Forest Rules 1969", "label": "STATUTE", "start_char": 3090, "end_char": 3117, "source": "regex", "metadata": {}}, {"text": "s 75", "label": "PROVISION", "start_char": 4001, "end_char": 4005, "source": "regex", "metadata": {"linked_statute_text": "the Karnataka Forest Rules 1969", "statute": "the Karnataka Forest Rules 1969"}}, {"text": "Karnataka Land Revenue Act, 1964", "label": "STATUTE", "start_char": 4013, "end_char": 4045, "source": "regex", "metadata": {}}, {"text": "Karnataka Forest Rules, 1969", "label": "STATUTE", "start_char": 4411, "end_char": 4439, "source": "regex", "metadata": {}}, {"text": "Mysore (Kamataka) High Court", "label": "COURT", "start_char": 4959, "end_char": 4987, "source": "ner", "metadata": {"in_sentence": "From the Judgments and orders dated the 18-4-75, 28-4-75 and 'f 27-5-75 of the Mysore (Kamataka) High Court in Writ Appeal Nos."}}, {"text": "L. N. Sinha", "label": "RESPONDENT", "start_char": 5116, "end_char": 5127, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol.", "canonical_name": "L. N. Sinha"}}, {"text": "K. S. Puttaswamy", "label": "LAWYER", "start_char": 5241, "end_char": 5257, "source": "ner", "metadata": {"in_sentence": "1867-1924 and Respondent in CA 1952/75 and K. S. Puttaswamy, !"}}, {"text": "B. R. G. K. Achar", "label": "LAWYER", "start_char": 5322, "end_char": 5339, "source": "ner", "metadata": {"in_sentence": "1867- 1924 and 1952/75) B. R. G. K. Achar."}}, {"text": "S. G. Sundaraswamy", "label": "LAWYER", "start_char": 5342, "end_char": 5360, "source": "ner", "metadata": {"in_sentence": "S. G. Sundaraswamy, K. S. Gourishanker and K. N. Bhatt for the Appellants in C.As."}}, {"text": "K. S. Gourishanker", "label": "LAWYER", "start_char": 5362, "end_char": 5380, "source": "ner", "metadata": {"in_sentence": "S. G. Sundaraswamy, K. S. Gourishanker and K. N. Bhatt for the Appellants in C.As."}}, {"text": "K. N. Bhatt", "label": "LAWYER", "start_char": 5385, "end_char": 5396, "source": "ner", "metadata": {"in_sentence": "S. G. Sundaraswamy, K. S. Gourishanker and K. N. Bhatt for the Appellants in C.As."}}, {"text": "L. N. Sinha", "label": "LAWYER", "start_char": 5467, "end_char": 5478, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Sol.", "canonical_name": "L. N. Sinha"}}, {"text": "Narayan Netter", "label": "LAWYER", "start_char": 5558, "end_char": 5572, "source": "ner", "metadata": {"in_sentence": "Government Advocate, Narayan Netter and B. R. G. K. Achar )( for the Appellants in C.As."}}, {"text": "S. V. Gupte", "label": "LAWYER", "start_char": 5644, "end_char": 5655, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte (In CA 1890/75), S.S. Javali and B. P. Singh for Respondents in CAs."}}, {"text": "S.S. Javali", "label": "LAWYER", "start_char": 5673, "end_char": 5684, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte (In CA 1890/75), S.S. Javali and B. P. Singh for Respondents in CAs."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 5689, "end_char": 5700, "source": "ner", "metadata": {"in_sentence": "S. V. Gupte (In CA 1890/75), S.S. Javali and B. P. Singh for Respondents in CAs."}}, {"text": "RAY", "label": "JUDGE", "start_char": 6158, "end_char": 6161, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThese appeals are by certificate from the judgment G dated 18 April, 1975 of the High Court of Karnataka."}}, {"text": "Coorg Land and Revenue Regulation", "label": "STATUTE", "start_char": 7071, "end_char": 7104, "source": "regex", "metadata": {}}, {"text": "section 75", "label": "PROVISION", "start_char": 7190, "end_char": 7200, "source": "regex", "metadata": {"linked_statute_text": "Coorg Land and Revenue Regulation", "statute": "Coorg Land and Revenue Regulation"}}, {"text": "Karnataka Land Revenue Act, 1964", "label": "STATUTE", "start_char": 7208, "end_char": 7240, "source": "regex", "metadata": {}}, {"text": "contention of the State that the Coorg Land and Revenue Regulation, 1899", "label": "STATUTE", "start_char": 7847, "end_char": 7919, "source": "regex", "metadata": {}}, {"text": "section 202", "label": "PROVISION", "start_char": 8090, "end_char": 8101, "source": "regex", "metadata": {"linked_statute_text": "The contention of the State that the Coorg Land and Revenue Regulation, 1899", "statute": "The contention of the State that the Coorg Land and Revenue Regulation, 1899"}}, {"text": "Bane lands in spite of repeal of the Coorg Land and Revenue Regulation", "label": "STATUTE", "start_char": 8196, "end_char": 8266, "source": "regex", "metadata": {}}, {"text": "section 75", "label": "PROVISION", "start_char": 8441, "end_char": 8451, "source": "regex", "metadata": {"linked_statute_text": "Bane lands in spite of repeal of the Coorg Land and Revenue Regulation", "statute": "Bane lands in spite of repeal of the Coorg Land and Revenue Regulation"}}, {"text": "15 January, 1974", "label": "DATE", "start_char": 9350, "end_char": 9366, "source": "ner", "metadata": {"in_sentence": "In sub-paragraph (2) of paragraph 59, the Division Bench dealt with respondents who did not fall within category 1, but made applications before 15 January, 1974."}}, {"text": "Consolidated Coffee Ltd.", "label": "PETITIONER", "start_char": 10621, "end_char": 10645, "source": "ner", "metadata": {"in_sentence": "It may be stated here that one of the respondents-Consolidated Coffee Ltd., also filed an appeal from the judgment of the High Court."}}, {"text": "Consolidated Coffee Ltd.", "label": "ORG", "start_char": 10747, "end_char": 10771, "source": "ner", "metadata": {"in_sentence": "The Solicitor General contended that the Consolidated Coffee Ltd. was not competent to file an appeal because the company had obtained t relief and could not, therefore, attack the judgment."}}, {"text": "Karnataka Forest Rule, 1969", "label": "STATUTE", "start_char": 12098, "end_char": 12125, "source": "regex", "metadata": {}}]}
{"document_id": "1976_3_1092_1095_EN", "year": 1976, "text": ". F\n\nSETH BALGOPAL DAS v.\n\nTHE STATE OF U.P. & ORS.\n\nApril 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JAsWANT SINGH, JJ.}\n\nU.P. (Ten1porary) Control of Rent and Eviction Act, 1947, S.3(2), rcquiren1ent of-Receipt of revision application by Additional District Mngisrrate, whether validated by practice in absence of rules or specific authorisation bv\n\nConmissioner. ·\n\nThe Rent Control and Eviction Officer, Dehradun. granted permission to the respondent landlady under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, to file a suit for eviction of the appellant tenant, on the ground that the accommodation was required for her personal residence.\n\nThe tenant filed a revision application under s. 3 (2) of the Act, purporting to be made to the Commissioner, Meerut Division, but actually filed before the Additional Distrct fagistrate who rejected it as time barred. The appellant tenant's further ..l revision application, made under s. 7F of the Act, v,.ras rejected by the State \\ Government, and then his petition under Article 226 was rejected by a Single Judge of the Allahabad High Court cin two grounds: Firstly that neither the' Act, nor the rules made thereunder had any provision enabling the Additional District Magistrate to receive the tenant's application under s. 3 (2); and secondly, that the time spent in obtaining the certified copy of the Distri..:t tagistrate's order could not be excluded under s. 12(2) of the Limitation Act, 1963. The appellant's special appeal was summarily rejected by a Division Bench of the High Court.\n\nIn appeal by special leave, the appellant contended before the Court that, as a pra.ctice had grown up in Dehradun, that the Additional District A-Iagistrate receives the revision applications made to the Commissioner, the requirements of s. 3(2) should l]e deemed to have been sufficiently complied with.\n\nl)ismissing the appeal, the Court,\n\nHELD : There is not even a rule on this subject made by the State Government.\n\nA wrong practice cannot possibly modify what naturally follo-w'S from the language if s. 3 (2) of the Act, that the party must apply to the Commissioner directly and not through some other authority or official, For that pur!'ose, proof of at least specific authorisation by the Commissioner, after the introduction of s. 3(2), was required. [1094C; 1095A & Fl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 222 of 1975.\n\nAppeal by special leave from the judgment and order dated the 8th August, 1973 of the Allahabad High Court in Special Appeal No. 189 1 of 1972.\n\nB. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0. P.\n\nKhaitan for the appellant.\n\nT. S. Krishnamoorthy Iyer and P. K. Pillai for Respondent No. 4\n\nThe Judgment of the Court was delivered by\n\nBEG, J. The appellant, here, by special leave, is a tenant of premises in Dehradun in respect of which the landlord respondent No. 4 had sought permission, under Section 3 of the U.P. (Temporary) Control of Rent & Eviction Act III of 194 7 (hereinafter referred to as 'the\n\nf I\n\nAct'), to sue for his eviction.\n\nThe permission was granted by the Rent Control and Eviction Officer, Dehradun, as long ago as 11 August, 1969, and, there:j.fter, the suit for ejectment of the appellant was filed on 19th November, 1969.\n\nSection 3, sub. sec. (I) of the Act had merely imposed a bar on suits in Civil Courts filed without the permission of the District Magistrate except on certain grounds which are given there. The plaintiffrespondent, one Mrs. Sheila Ka1ha wife of a retired army officer, was given permission to file her suit on the ground that she required the accommodation for personal residence. She is said to have been living at considerable expense to her at New Delhi due to inability to live in her own house at Dehradun as it has been occupied by the appellant.\n\nThe tenant had applied on 19th August, 1969, for a certified copy of the order of the Rent Control Officer granting the landlord permission to sue and got its copy on 25th August, 1969. Thereafter, the tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut D.iision, but actually filed on 16th September, 1969, before an Add1t10nal District Magistrate of Dehradun who had forwarded it on to the Commissioner.\n\nThe Revision Application was received in the Commissioner's Office on 24th September,\n\n1969. It was rejected by the Commissioner on the ground that it was filed beyond the time prescribed by Section 3(2) of the Act which reads as follows:\n\n\"(2) Where any application has been made to the District Magistrate for permission to sue a tenant for eviction\n\nfrom any accommodation and the District Magistrate, grants E or refuses to grant the permission, the party aggrieved by his order may within 30 days from the date on which the order is communicated to him apply to the Commissioner to revise the order.\"\n\nThe State Government also rejected the rev1s10n application of the appellant tenant, filed under section 7F of the Act, against the\n\nF .\n\nCommissioner's order.\n\nThe appellant tenant then approached the Allahabad High Court with a petition under Article 226 of the Constitution.\n\nThe petition was rejected by a learned Judge on 21st October, 1972, on two grounds : firstly, under Section 3 (2) of the Act; and, secondly, that the time spent on obtaining the certified copy of the order of the G District Magistrate could not be excluded under Section 12(2) of the Limitation Act of 1963.\n\nFor the second proposition reliance was placed upon Shyam Sunder Bajpai v. Commissioner Allahabad Division, Allahabad & Anr.(I) and Ram Lakhan v. Commissioner, Varanasi Division, Varanasi & Ors. (').\n\nA Division Bench of the Allahabad High Court had rejected the tenant's Special Appeal summarily.\n\nThis Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th\n\n(I) 1965 A.L.J. 211. (2)\n\n1970 A.L.J. 909.\n\n109 4\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nJuly, 1975.\n\nWe need not express any opinion on the correctness of the second proposition here if we agree with the High Court's view on the first point because, in that case, the tenant's application would be time barred even if the time spent in obtaining the copy was exclqded.\n\nThe only contention, put forward by Mr. B. Sen on behalf of the temnl-appe!Jant, on the first point, is that there is a practice in Dehradun, acting on so1ne instruction of the Commissioner, Meerut Division, to receive revision applications to the Commissioner through an Additional District Magistrate of Dehradun, who has, therefore, the Commissioner's authority to receive these applications. It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances, to be sufficient compliance with the requirements of Section 3(2) of the Act which provides, as it clear from a bare look at it, that the revision application lies before the Commissioner.\n\nIt is difficult to sec how a practice could possibly modify the provisions of the Act. There is not even a rule on this subject made by the State Govt. under the provisions of Section 17 of the Act which authorises the Govt. to \"make rules to give effect to the purposes of this Act.\" There are rules on other matters but not on such a matter.\n\nMr. B. Sen relied on a Division Bench decision of the Allahabad High Court in T. C. Pasricha & Anr. v. The State of U.P.( 1 ) where it was held :\n\n\"It appears that the Commissioner had authorised the District Magistrate to receive revisions meant for him. By so authorising, the Commissioner was only indicating the place and, the manner of representation of the revisions.\n\nSince the Rent Control Act did not either by itself or rules framed under it lay down the precise procedure in regard to the presentation of the revision, the Commissioner who was the authority entitled to entertain and decide the revisions was\n\nwithinhis rights to prescribe the procedure in respect of representation of the revisions. The direction given by the Commissioner in 1946 with regard to the presentation of revision was valid and enforceable\".\n\nIn Pasricha's case (supra), the Single Judge decision in Seth Bal Gopal Das v. State of U.P.(') on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice.\n\nBoth Pasricha' s case (supra) and the case now before us come from the Dehradun District.\n\nWe think it is difficult to reconcile the Division Bench decision in Pasricha's case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, al'.h?'!gh we find that one of the learned Judges is common to both the D1v1S1on Benches.\n\n-·(ll- Special Appeal No. 744 of 1971 decided on 5th April, 1973. (2)\n\n1973 A.L.J. 120.\n\n't r\n\n( ·~ )\n\nf (\n\nWe prefer the reasoning of the learned Single Judge in Seth Bal Gvpal Das v. Stat~ of U.P. (supra) to the reasoning of the Division Bench m Pasncha s case (supra). A wrong practice cannot possibly modify what naturally and fog, call)'. follows trom the Jaguage m Section 3_\\2) of the Act.\n\nThi.s prov1s10n sas that the party aggrieved must apply to the Comm1ss10ncr to revise the order\".\n\nThe natural inference is that the party must apply to the Commissioner directly and not through some other authority or official.\n\nIt is true that Section 3(2) does not prescribe the manner and place of presentation of applications.\n\nBut, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office to act as the agent of the Commissioner, or a clear and specific authrisation by the Commissioner is proved, we fail to sec how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to the Commissioner.\n\nIn Pasricha's case (supra), the Division Bench had gone to the .extent of hold; ng that some communication made by the Commissioner in 1946 to the D:strict Magistrate of Dehradun, even a copy of which was not placed before the Court, could be hown by means of an affidavit of a party, to have been both established and to be enough to confer .an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3 ( 2) of the Act which were introduced after 1946 according to the statement of facts in Pasricha's case (supra) itself.\n\nPrima facie, an authorisation cannot relate to a power or right conferred by a provision which could not be present to the mind of the Commissioner at all at the time when he is supposed to have made some communication to the District Magistrate as the provision for a revision in sueh a case did not even exist then.\n\nWe, therefore, think that the reasoning of the Division Bench in Pasricha's case (supra) is unacceptable.\n\nThe alleged practice cannot be held to have been even established. And, in any event, such a practice was not enough to confer .authority to receive petitions on. behalf of .the. Commissioner. 'for that purpose, proof of at least specific authonsation by the Comm1ssiom:r, after the introduction of the new provision, was required.\n\nThe result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his evic.tion Jong enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the \"land-lady .. ),\n\nhas been required to meet the landlord's dire personal needs since at least 1969. We hope that the trial of the suit in such a case will not be delayed now.\n\nWe dismiss this appeal with costs throughout.\n\nM.R.\n\nAppeal dismissed.", "total_entities": 59, "entities": [{"text": "F\n\nSETH BALGOPAL DAS", "label": "PETITIONER", "start_char": 2, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "SETH BALGOPAL DAS", "offset_not_found": false}}, {"text": "THE STATE OF U.P. & ORS", "label": "RESPONDENT", "start_char": 27, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF U.P. & ORS", "offset_not_found": false}}, {"text": "April 8, 1976", "label": "DATE", "start_char": 53, "end_char": 66, "source": "ner", "metadata": {"in_sentence": "April 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JAsWANT SINGH, JJ.}"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 69, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 86, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JAsWANT SINGH, JJ.", "label": "JUDGE", "start_char": 100, "end_char": 118, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Control of Rent and Eviction Act, 1947", "label": "STATUTE", "start_char": 139, "end_char": 177, "source": "regex", "metadata": {}}, {"text": "S.3(2)", "label": "PROVISION", "start_char": 179, "end_char": 185, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 468, "end_char": 472, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act, 1947", "statute": "Control of Rent and Eviction Act, 1947"}}, {"text": "Control of Rent and Eviction Act", "label": "STATUTE", "start_char": 497, "end_char": 529, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 709, "end_char": 713, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "s. 7F", "label": "PROVISION", "start_char": 950, "end_char": 955, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 1039, "end_char": 1050, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "Allahabad", "label": "GPE", "start_char": 1089, "end_char": 1098, "source": "ner", "metadata": {"in_sentence": "The appellant tenant's further ..l revision application, made under s. 7F of the Act, v,.ras rejected by the State \\ Government, and then his petition under Article 226 was rejected by a Single Judge of the Allahabad High Court cin two grounds: Firstly that neither the' Act, nor the rules made thereunder had any provision enabling the Additional District Magistrate to receive the tenant's application under s. 3 (2); and secondly, that the time spent in obtaining the certified copy of the Distri..:t tagistrate's order could not be excluded under s. 12(2) of the Limitation Act, 1963."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 1292, "end_char": 1296, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "s. 12(2)", "label": "PROVISION", "start_char": 1433, "end_char": 1441, "source": "regex", "metadata": {"linked_statute_text": "Control of Rent and Eviction Act", "statute": "Control of Rent and Eviction Act"}}, {"text": "Limitation Act, 1963", "label": "STATUTE", "start_char": 1449, "end_char": 1469, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dehradun", "label": "GPE", "start_char": 1671, "end_char": 1679, "source": "ner", "metadata": {"in_sentence": "In appeal by special leave, the appellant contended before the Court that, as a pra.ctice had grown up in Dehradun, that the Additional District A-Iagistrate receives the revision applications made to the Commissioner, the requirements of s. 3(2) should l]e deemed to have been sufficiently complied with."}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 1804, "end_char": 1811, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1963", "statute": "the Limitation Act, 1963"}}, {"text": "s. 3", "label": "PROVISION", "start_char": 2073, "end_char": 2077, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1963", "statute": "the Limitation Act, 1963"}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 2306, "end_char": 2313, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1963", "statute": "the Limitation Act, 1963"}}, {"text": "8th August, 1973", "label": "DATE", "start_char": 2472, "end_char": 2488, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 8th August, 1973 of the Allahabad High Court in Special Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 2496, "end_char": 2516, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 8th August, 1973 of the Allahabad High Court in Special Appeal No."}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 2555, "end_char": 2561, "source": "ner", "metadata": {"in_sentence": "B. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0."}}, {"text": "Leila Seth", "label": "OTHER_PERSON", "start_char": 2568, "end_char": 2578, "source": "ner", "metadata": {"in_sentence": "B. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0."}}, {"text": "B. Mohan", "label": "OTHER_PERSON", "start_char": 2580, "end_char": 2588, "source": "ner", "metadata": {"in_sentence": "B. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0."}}, {"text": "Parveen Kumar", "label": "LAWYER", "start_char": 2590, "end_char": 2603, "source": "ner", "metadata": {"in_sentence": "B. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0."}}, {"text": "0. P.\n\nKhaitan", "label": "LAWYER", "start_char": 2608, "end_char": 2622, "source": "ner", "metadata": {"in_sentence": "B. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0."}}, {"text": "T. S. Krishnamoorthy Iyer", "label": "LAWYER", "start_char": 2643, "end_char": 2668, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamoorthy Iyer and P. K. Pillai for Respondent No."}}, {"text": "P. K. Pillai", "label": "LAWYER", "start_char": 2673, "end_char": 2685, "source": "ner", "metadata": {"in_sentence": "T. S. Krishnamoorthy Iyer and P. K. Pillai for Respondent No."}}, {"text": "BEG", "label": "JUDGE", "start_char": 2752, "end_char": 2755, "source": "ner", "metadata": {"in_sentence": "4\n\nThe Judgment of the Court was delivered by\n\nBEG, J. The appellant, here, by special leave, is a tenant of premises in Dehradun in respect of which the landlord respondent No."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 2914, "end_char": 2923, "source": "regex", "metadata": {"statute": null}}, {"text": "19th November, 1969", "label": "DATE", "start_char": 3247, "end_char": 3266, "source": "ner", "metadata": {"in_sentence": "The permission was granted by the Rent Control and Eviction Officer, Dehradun, as long ago as 11 August, 1969, and, there:j.fter, the suit for ejectment of the appellant was filed on 19th November, 1969."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 3269, "end_char": 3278, "source": "regex", "metadata": {"statute": null}}, {"text": "Sheila Ka1", "label": "OTHER_PERSON", "start_char": 3494, "end_char": 3504, "source": "ner", "metadata": {"in_sentence": "The plaintiffrespondent, one Mrs. Sheila Ka1ha wife of a retired army officer, was given permission to file her suit on the ground that she required the accommodation for personal residence."}}, {"text": "New Delhi", "label": "GPE", "start_char": 3717, "end_char": 3726, "source": "ner", "metadata": {"in_sentence": "She is said to have been living at considerable expense to her at New Delhi due to inability to live in her own house at Dehradun as it has been occupied by the appellant."}}, {"text": "25th August, 1969", "label": "DATE", "start_char": 3991, "end_char": 4008, "source": "ner", "metadata": {"in_sentence": "The tenant had applied on 19th August, 1969, for a certified copy of the order of the Rent Control Officer granting the landlord permission to sue and got its copy on 25th August, 1969."}}, {"text": "section 3(2)", "label": "PROVISION", "start_char": 4068, "end_char": 4080, "source": "regex", "metadata": {"statute": null}}, {"text": "16th September, 1969", "label": "DATE", "start_char": 4175, "end_char": 4195, "source": "ner", "metadata": {"in_sentence": "Thereafter, the tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut D.iision, but actually filed on 16th September, 1969, before an Add1t10nal District Magistrate of Dehradun who had forwarded it on to the Commissioner."}}, {"text": "24th September,\n\n1969", "label": "DATE", "start_char": 4366, "end_char": 4387, "source": "ner", "metadata": {"in_sentence": "The Revision Application was received in the Commissioner's Office on 24th September,\n\n1969."}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 4487, "end_char": 4499, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7F", "label": "PROVISION", "start_char": 5000, "end_char": 5010, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 5148, "end_char": 5159, "source": "regex", "metadata": {"statute": null}}, {"text": "21st October, 1972", "label": "DATE", "start_char": 5230, "end_char": 5248, "source": "ner", "metadata": {"in_sentence": "The petition was rejected by a learned Judge on 21st October, 1972, on two grounds : firstly, under Section 3 (2) of the Act; and, secondly, that the time spent on obtaining the certified copy of the order of the G District Magistrate could not be excluded under Section 12(2) of the Limitation Act of 1963."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 5282, "end_char": 5291, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12(2)", "label": "PROVISION", "start_char": 5445, "end_char": 5458, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 5466, "end_char": 5480, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 136", "label": "PROVISION", "start_char": 5849, "end_char": 5860, "source": "regex", "metadata": {"statute": null}}, {"text": "20th\n\n(I) 1965 A.L.J. 211. (2)\n\n1970 A.L.J. 909", "label": "DATE", "start_char": 5884, "end_char": 5931, "source": "ner", "metadata": {"in_sentence": "This Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th\n\n(I) 1965 A.L.J. 211. ("}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 6852, "end_char": 6864, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 7165, "end_char": 7175, "source": "regex", "metadata": {"statute": null}}, {"text": "Since the Rent Control Act", "label": "STATUTE", "start_char": 7709, "end_char": 7735, "source": "regex", "metadata": {}}, {"text": "Pasricha", "label": "OTHER_PERSON", "start_char": 8170, "end_char": 8178, "source": "ner", "metadata": {"in_sentence": "In Pasricha's case (supra), the Single Judge decision in Seth Bal Gopal Das v. State of U.P.(') on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice."}}, {"text": "Dehradun District", "label": "GPE", "start_char": 8503, "end_char": 8520, "source": "ner", "metadata": {"in_sentence": "Both Pasricha' s case (supra) and the case now before us come from the Dehradun District."}}, {"text": "5th April, 1973", "label": "DATE", "start_char": 8620, "end_char": 8635, "source": "ner", "metadata": {"in_sentence": "We think it is difficult to reconcile the Division Bench decision in Pasricha's case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 9218, "end_char": 9227, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(2)", "label": "PROVISION", "start_char": 9491, "end_char": 9503, "source": "regex", "metadata": {"statute": null}}, {"text": "Dehradun", "label": "OTHER_PERSON", "start_char": 10168, "end_char": 10176, "source": "ner", "metadata": {"in_sentence": "In Pasricha's case (supra), the Division Bench had gone to the .extent of hold; ng that some communication made by the Commissioner in 1946 to the D:strict Magistrate of Dehradun, even a copy of which was not placed before the Court, could be hown by means of an affidavit of a party, to have been both established and to be enough to confer .an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3 ( 2) of the Act which were introduced after 1946 according to the statement of facts in Pasricha's case (supra) itself."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 10481, "end_char": 10490, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_1096_1102_EN", "year": 1976, "text": "COMMISSLONER OF WEALTH TAX, WEST BENGAL v.\n\nBISHW ANATH CHATTERJEE AND OTHERS\n\nApril 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANI>\n\nJASWANT SINGH, JJ.]\n\nWealth Tax Act, s. 3-Coparceners goierned by Dayabhaga School of Hindu Law-If could he assessed as Hindu Undivided Family.\n\nllindu Law-Coparcener under Dayabhaga School-If could be t1sssscd as Hindu Undivided Fan1ily.\n\nRejecting the respondents' plea that as persons governed by the Dayabhaga School of Hindu Law they had held definite and determined shares in the properties inherited by them. from their father and were liable to separate assessment of wealth tax, the Wealtb. Tax Officer assessed them as a Hindu Undivided Family. On appeal the Appellate Assistant Commissioner held that the properties should be taxed in the hands of the co-sharers ')eparately. On further appeaJ, the Appellate Tribunal held that notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu La\\V in respect of family property and each member thereof lwd no definite share in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu Undivided Family.\n\nOn reference, the High Court held in favour of the assessee.\n\nDismissing the appeal to this Court,\n\nHELD : Dayabhaga means partition of heritage.\n\nA Dayabhaga male's wife or sons or daughters have no ownership_ in his property during his lifetime.\n\nOwnership of wealth is ve:-; led in the heirs by the death of their father, \\Vhen they become co-heirs and can clail}1 partition. The heritage of a Dayabhaga male does not become the ioint property of the heirs or of the joint family on the demise of the Jast owner but becomes the fractional property of the heirs in well-defined shares. That is why partition in Dayabhaga is defined as an aCt of particularisin_g ownership. In Dayabhaga, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.\n\nWhile fitakshara is known as the SchooJ of \"aggregate ownership\", Dayabhaga is known as the school of \"fractional ownership\". The essence of a coparcenary under the Mitakshara Law is unity of ownership; under the Dayabha_ga it is unity of possession, not unity of ownership at all.\n\nUnder the Dayabha_ga school every .coparcener takes a definite share in the property and he is the owner of that share which is defined immediately the inheritance falls in. [l 099D-G; 11 OOBH]\n\nSreemutty Soorieemoney Dossee v. Denobundoo Mullick, 6 i\\I.l.A. 526 at p. 553.\n\n1. Hindu Law by Colebrooke p. 9, 2. Law relating to the Joint Hindu Family (Tagore Law Lectures) by Krishna Ka1nal Bhattacharya, p. 168 and 3.\n\nPrinciples of Hindu Law by l'rfulla (14th Edition) p. 348. Hindu Law & Usage, by Mayne, 11th Edition 364, approved.\n\n(i) Under s._ 3, the liability of wealth tax arises in respect of the net wealth of the assessee.\n\nThe term \"net wealth\" means all the assets belonging to the assessee, on the valuation date. The expression \"belong\" accordin_g to the Oxford Dictionary means \"to be the property or rightful possession of\". [1098G- H HJ\n\n(ii) The liability to wealth tax arises out of ownership of the asset and not otherwise. l\\1ere possession or joint possession unaccompanied by the right to or ownership of property would, therefore, not bring the property within the\n\ndefinition of \"net wealth\", for it would not then be the asset belonging to the A assessee. ll099C] In the instant case, the property in question \\Vas the individual property of the father of the respondents and it devolved on the heirs according to the provisions of the Hindu Successio11 Act, 1956.\n\nThe coparcenary had unity of possession but not unity of ownership on the property.\n\nEach coparceaer took a defined share in the property and was the owner of his share.\n\nEach such defined share thus belonged to the coparcener.\n\nIt was his net wealth within the meaning of s. 2(m) of the Wealth Tax Act and was liable to \\Vealth tax, as such, under s. 3.\n\n[1102C-D]\n\nCo1nniissioner of JVealth-tax, 1-Vest Bengal v. Gouri Shankar Bhar, (1972)\n\n1 84 I.T.R. 699. explained. .\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1101 of 1969.\n\nFrom the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No. 421 of 1964.\n\nS. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the\n\nAppellant.\n\nS. K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nSmNGHAL, J.\n\nThis appeal by certificate has come before us as the question of law arising for decision is said to be of great importance.\n\nThe facts giving rise to the appeal are quite simple and may be shortly stated.\n\nOne Bircswar Chatterjee, who was admittedly governed by the Dayabhaga School of Hindu law, was assessed to income-tax as an E individual.\n\nHe died intestate on January 7, 1957, leaving his widow, sons and daughters.\n\nThe Wealth-tax Ofticer rejected their plea that on the death of Bircswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958-59.\n\nOn appeal, lihe Appellate Assistant Commissioner held that since the assessee was governed by the Dayabhaga School of Hindu F law, the properties could not belong to the Hindu undivided family and were to be taxed \"in the hands of the co-sharers separately.\" The department took an appeal to the Income-tax AppeUate Tribunal, 'B' Bench, Calcutta.\n\nThere was difference of opinion between the members of the Tribunal, and in accordence with the opinion of the majority of llhe members it was ordered that \"notwithstanding that there was no unity of ownership amongst members governed by the G.\n\nDayabhaga School of Hindu law in respect of the family property and each member thereof had definite shares in it, such property, until partitioned, was assessable to wealth-tax in the hands of the Hindu undivided family.\" The Tribunal however referred the following question of law to the Calcutta High Court for decision,-\n\n\"Whether on the facts and in circumstances of the case, fl the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth-tax jointly in the status of a Hindu undivided family?\"\n\nA The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu\n\nundivided family governed by the Dayabhaga School of Hindu law, j and reframed it as follows,- I\n\n\"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the property possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wcalthtax jointly in the status of a Hindu undivided family?\"\n\nIt took the view that the matter was covered by its earlier decisions including Commissioner of Wealth-tax. West Bengal v. Gouri Shankar\n\nBhar( 1) where it had been held that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family, and remain as co-owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as membrs of a joint family.\n\nThe High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4, 1959, and answered the reframed question in the negative.\n\nAs has been stated, the lj:igh Court has certified this to be fit case for appeal to this Court.\n\nMr. S. T. Desai appearing for the Commissioner of Wealth-tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existance by operation of law.\n\nHe has accordingly argued that the father's property is liable to be taxed under section 3 of the Wealth-tax Act, hereinafter referred to as the Act, as a unit until it is partitioned amongst its members by metes and bounds.\n\nReference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary.\n\nSection 3 of the Act is the charging section and the correctness or otherwise of the view taken by the Hi.Qh Court depends on its meaning and content.\n\nThe section provides for the charge of wealth-tax in these terms.-\n\n\"3. Subject to the other provisions contained in this Act, there shall be charged for every assessment vear commencing on and from the first day of April, 1957, a tax (heremafter referred to as Wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule.\"\n\nThe liability to wealth-tax therefore arises in respect of the \"net wealth\" of the assessee, which expression has been defined as follows in section 2(m) ,-\n\n\"(m) \"net wealth\" means the amount by which the aggregate value computed in accordance with the provisions ---------\n\n(!) (1968) 68 I.T.R. 345.\n\n' . \\\n\nof this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owned by the assessee on the valuation date other than, . ..... \"\n\nThe expression \"belong\" has been defined as follows in the Oxford English Dictionary.-\n\n\"To be the property or rightful possession of.\" So it is the property of a person, or that which is in his possession as of right, which is liable to wealth-tax.\n\nIn other words, the liability to wealth-tax arises out of ownership of the asset, and not otherwise. Mere possession, or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of net wealth\" for it would not then be an asset \"belonging\" to the assessee.\n\nThe question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs, after his death?\n\nIt is not in controversy, and is in fact admitted, that the property in question belonged to Bireswar Chatterjee who was its sole owner in his life time and was assessed to income-tax as an individual.\n\nHis family consisted of his widow, sons and daughters and was governed by the Dayabhaga School of . Hindu law.\n\nBireswar Chatterjee's property was therefore the heritage, or the wealth, which vested in his heirs en his death.\n\nAccording to Jimuta Vahana, his wife or sons or daughters had no ownership in his property during his life time for \"sons have not ownership while the father is alive and free from defect.\" (Hindu Law by Colebrooke, P.9) Ownership of wealth is\n\nhowever vested in the heirs \"by the death of their father\" (page 54, supra) when they become coheirs and can claim partition.\n\nIt is on this basis that \"Dayabhaga\" (partition of heritage) has been expounded by Jimuta Vahana.\n\nAccording to him, \"since anyone parcener is proprietor of his own wealth, partition at the choice even of a single person is thence deducible.\" (page 16, supra). The heritage does not therefore become the joint property of the heirs, or the joint family, on the demise of the last owner, but becomes the fractional property of the heirs in well defined shares.\n\nThis concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his \"Law relating to the Joint Hindu Family\" (Tagore Law Lectures) with reference to the doctrine of negation of the on's right by birth (page 168) ,-\n\n\"As a corollary of the doctrine set forth above, negativing the son's right by birth, is another peculiar doctrine of the Bengal School, that of what is called the 'fractional ownership' of the heirs, contrasted with the doctrine of 'aggre· gate ownership expounded by all other schools.\"\n\nThat is why 'partition' in Dayabhaga is defined as an act of \"particularising ownership\", and is not the act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara. The\n\nllOO\n\nSUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nA learned author has clarified the position in nnmistakable terms as follows (pages 172-73),-\n\n\"From what has been said above, it is evident that there is no unity of ownership in Bengal joint family, although there may be something like a unity of possession.\" (Emphasis added)\n\nThis is why Mitakshara is designated as the School of \"aggregate ownership\", while Dayabhaga is known as the Sdhool of \"fractional\n\nownership.\" As has been stated in Gopalchandra Sarkar Sastri's \"Hindu Jaw\" (eighth edition page 4@5), while the joint family system prevails in Bengal, \"there cannot be a real joint family consisting of father and sons during the father's life-time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint.\" This is why, accoring to the Bengal School, the sons become tenants-in-common and not joint-tenants in respect of the estate inherited by them from their father.\n\nThe position of joint family under the Dayabhaga Jaw has been stated as follows in Mayne's Treatise on \"Hindu Ldw and Usage\" (eleventh edition, page 364),-\n\n\"lt follows therefore that under the Dayabhaga Jaw, a father and his sons do not form a joint family in the technical sense having coparcenary property. But as soon as it has made a descent, the brothers or other co-heirs hold their shares in quasi-severalty.\n\nEach coparcener has full powers of dispo&al over his share which is defined and not fluctuating with births and . deaths as in the case of a Mitakshara family and his interest, while still undivided, will on his death pass on to his own heirs male or female or even to his legatees .. \"\n\nThat was stated to be the Jaw in Sreemutty Soorjeemoney Dossee v.\n\nDenobundoo Mullick( 1).\n\nThe position has been dealt with in Mulla's \"Principles of Hindu Law\" (fourteenth edition, at page 348), as follows,-\n\n\"The essence of a coparcenary under the Mitakshara law i§ unity of ownership.\n\nOn the other hand, the essence of a coparcenary under the Dayabhaga law is untiy of possession.\n\nIt is not unity of ownership at all.\n\nThe ownership of the coparcenary property is not in the whole body of coparceners.\n\nEvery coparcener takes a defined share in the property, and he is the owner of that share.\n\nThat share is defined immediately the inheritance falls in.\n\nIt does not fluctuate with births and deaths in the family.\n\nEven before partition any coparcener can say that he is entitled to a particular share, one-third or one-fourth. Thus if A dies leaving three sons, B, C, and D, each son will take one-tihird, and each on~ will be the owner of his onethird share.\n\nThe sons are coparceners in this sense that ' '\n\n(1) 6 M.1.A. 526 at p. 553. i\n\npossession of the property inherited from A is joint. It is the unity of possession that makes them coparceners.\n\nSo long as there is unity of possession, no coparcener can\n\nsay that a particular third of the property belongs to' him; that he can say only after a partition.\n\nPartition then, according to the Dayabhaga Jaw, consists in splitting up joint possession and assigning specific portions of the property to the several coparceners.\n\nAccording to the Mitakshara law, it consists in splitting up joint ownership and in defining the share of each coparcener.\"\n\nIn fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar, a Hindu governed by the Dayabhaga School, died intestate.\n\nHis mother, widow, hree sons and one daughter survived him. Since the death took place before the Hindu Succession Act, 1956 came into operation, he was succeeded by his widow and three sons, each inheriting one-fourth share in the estate. Gouri Shankar Bhar, one of the sons, took out letters of • administration and filed a wealth-tax return in his capacity as adr- ministrator describing the status of the assessee as a Hindu undivided family.\n\nThe Wealth-tax Officer also treated the status as such, and made the assessment.\n\nGouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School, the shares of the coparceners in the property of the deceased were definite and ascertained and !he assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property.\n\nThe Appellate Assistant Commissioner overruled the Contention and took the view that even though the shares of the coparceners were definite and ascertained, the income from the property of the family did not belong to the several members in specified }( shares but continued to belong to the Hindu undivided family as a whole.\n\nOn further appeal, the Tribunal held that as the coparcener under the Dayabhaga Jaw had a definite share in the property left by the deceased and was legally the owner thereof, he had a defined share and that since the wealth-tax was levied on the basis of ownership, it was proper that the assessment should have been made on the individual coparceners on their respective shares and assessment of the total wealth in the hands of the undivided family would be illegal.\n\nThe matter was r'1)'erred to the High Court at the instance of the Commi- ssioner of Wealth-tax.\n\nThe High Court of Calcutta in Commissioner t\n\nof Wealth-tax case (supra) made a reference, inter alia, to the decision in Biswa Ranjan Sarvadhikari v. Income-tax Officer, F. Ward District,\n\n(2) Calcutta(') and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are definite and ascertainable, then, although they are in joint possession, the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family.\n\nIt was held that the position was not different under the :-Vealth-tax Act.\n\nThe 1'.1tter was brought to. this Court on appeal and 1t was conceded by Solicitor General appeanng for the Commissioner of Wealth-tax that as the property was the individual property of the\n\n(I) (1963) 471.T.R. 927.\n\ndeceased, it devolved on his heirs in severalty. It was held that as each of them took. a definite and separate share in the property, each of l them was hable, m law, to pay wealth-tax as an individual.\n\nWhile upholding the decision of the High Court it was however observed by\n\n, J, this Court that it was not necessary to decide, in that case, whether a Dayabhaga family .could be considered as a Hindu •undivided family\n\nwithin the meaning of section 3 of the Act: That decision is Commissioner of Wealth-tax, West Bengal v. Gauri Shankar Bhar.(')\n\nIn the case before us, it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956.\n\nIt will be recalled that a suit for partition was filed on June 21, 1957 and a preliminary decree was passed on July 4, 1959.\n\nFor reasons already stated, the coparcenary had unity of possession but not unity of ownership on the property. Each coparcener therefore took a defined share in the property and was the owner of his share.\n\nEach such defined share thus \"belonged\" to l the coparcener. It was his \"net wealth\" within the meaning of \". section 2(m) of the Act and was liable to wealth-tax as such under section 3.\n\nThe High Court was therefore right in answering the rcframed question in the negative, and as we find no force in the argument of Mr. Desai, the appeal fails and is dismissed with costs.\n\nP.B.R.\n\n(l) (1972) 84 f'T.R. 699.\n\n725 SCl/76-GlPF.\n\nAppeal dismissed,", "total_entities": 51, "entities": [{"text": "COMMISSLONER OF WEALTH TAX, WEST BENGAL", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF WEALTH TAX, WEST BENGAL", "offset_not_found": false}}, {"text": "BISHW ANATH CHATTERJEE AND OTHERS", "label": "RESPONDENT", "start_char": 44, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "BISHWANATH CHATTERJEE AND OTHERS", "offset_not_found": false}}, {"text": "April 8, 1976", "label": "DATE", "start_char": 79, "end_char": 92, "source": "ner", "metadata": {"in_sentence": "COMMISSLONER OF WEALTH TAX, WEST BENGAL v.\n\nBISHW ANATH CHATTERJEE AND OTHERS\n\nApril 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANI>\n\nJASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 95, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 112, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 123, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 160, "end_char": 178, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Wealth Tax Act", "label": "STATUTE", "start_char": 181, "end_char": 195, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 197, "end_char": 201, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act", "statute": "Wealth Tax Act"}}, {"text": "Krishna Ka1nal Bhattacharya", "label": "LAWYER", "start_char": 2672, "end_char": 2699, "source": "ner", "metadata": {"in_sentence": "Law relating to the Joint Hindu Family (Tagore Law Lectures) by Krishna Ka1nal Bhattacharya, p. 168 and 3.", "canonical_name": "Krishna Ka1nal Bhattacharya"}}, {"text": "s. 2(m)", "label": "PROVISION", "start_char": 3963, "end_char": 3970, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4039, "end_char": 4043, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 4287, "end_char": 4306, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No."}}, {"text": "S. T. Desai", "label": "PETITIONER", "start_char": 4346, "end_char": 4357, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the\n\nAppellant.", "canonical_name": "S. T. Desai"}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 4359, "end_char": 4370, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the\n\nAppellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4372, "end_char": 4383, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the\n\nAppellant."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 4388, "end_char": 4402, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the\n\nAppellant."}}, {"text": "S. K. Sen", "label": "LAWYER", "start_char": 4425, "end_char": 4434, "source": "ner", "metadata": {"in_sentence": "S. K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents."}}, {"text": "A. K. Nag", "label": "LAWYER", "start_char": 4436, "end_char": 4445, "source": "ner", "metadata": {"in_sentence": "S. K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents."}}, {"text": "D. P. Mukherjee", "label": "LAWYER", "start_char": 4450, "end_char": 4465, "source": "ner", "metadata": {"in_sentence": "S. K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents."}}, {"text": "SmNGHAL", "label": "JUDGE", "start_char": 4532, "end_char": 4539, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSmNGHAL, J.\n\nThis appeal by certificate has come before us as the question of law arising for decision is said to be of great importance."}}, {"text": "Bircswar Chatterjee", "label": "OTHER_PERSON", "start_char": 4756, "end_char": 4775, "source": "ner", "metadata": {"in_sentence": "One Bircswar Chatterjee, who was admittedly governed by the Dayabhaga School of Hindu law, was assessed to income-tax as an E individual.", "canonical_name": "Bircswar Chatterjee"}}, {"text": "January 7, 1957", "label": "DATE", "start_char": 4912, "end_char": 4927, "source": "ner", "metadata": {"in_sentence": "He died intestate on January 7, 1957, leaving his widow, sons and daughters."}}, {"text": "Income-tax AppeUate Tribunal, 'B' Bench, Calcutta", "label": "COURT", "start_char": 5528, "end_char": 5577, "source": "ner", "metadata": {"in_sentence": "The department took an appeal to the Income-tax AppeUate Tribunal, 'B' Bench, Calcutta."}}, {"text": "July 4, 1959", "label": "DATE", "start_char": 7525, "end_char": 7537, "source": "ner", "metadata": {"in_sentence": "The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4, 1959, and answered the reframed question in the negative."}}, {"text": "S. T. Desai", "label": "PETITIONER", "start_char": 7694, "end_char": 7705, "source": "ner", "metadata": {"in_sentence": "Mr. S. T. Desai appearing for the Commissioner of Wealth-tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existance by operation of law.", "canonical_name": "S. T. Desai"}}, {"text": "section 3", "label": "PROVISION", "start_char": 8094, "end_char": 8103, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth-tax Act", "label": "STATUTE", "start_char": 8111, "end_char": 8125, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 8371, "end_char": 8380, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(m)", "label": "PROVISION", "start_char": 9108, "end_char": 9120, "source": "regex", "metadata": {"statute": null}}, {"text": "Bireswar Chatterjee", "label": "OTHER_PERSON", "start_char": 10222, "end_char": 10241, "source": "ner", "metadata": {"in_sentence": "The question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs, after his death?", "canonical_name": "Bircswar Chatterjee"}}, {"text": "Jimuta Vahana", "label": "OTHER_PERSON", "start_char": 10749, "end_char": 10762, "source": "ner", "metadata": {"in_sentence": "According to Jimuta Vahana, his wife or sons or daughters had no ownership in his property during his life time for \"sons have not ownership while the father is alive and free from defect.\" ("}}, {"text": "Colebrooke", "label": "WITNESS", "start_char": 10940, "end_char": 10950, "source": "ner", "metadata": {"in_sentence": "Hindu Law by Colebrooke, P.9) Ownership of wealth is\n\nhowever vested in the heirs \"by the death of their father\" (page 54, supra) when they become coheirs and can claim partition."}}, {"text": "Krishna Kamal Bhattacharya", "label": "LAWYER", "start_char": 11636, "end_char": 11662, "source": "ner", "metadata": {"in_sentence": "This concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his \"Law relating to the Joint Hindu Family\" (Tagore Law Lectures) with reference to the doctrine of negation of the on's right by birth (page 168) ,-\n\n\"As a corollary of the doctrine set forth above, negativing the son's right by birth, is another peculiar doctrine of the Bengal School, that of what is called the 'fractional ownership' of the heirs, contrasted with the doctrine of 'aggre· gate ownership expounded by all other schools.\"", "canonical_name": "Krishna Ka1nal Bhattacharya"}}, {"text": "Mitakshara", "label": "OTHER_PERSON", "start_char": 12657, "end_char": 12667, "source": "ner", "metadata": {"in_sentence": "Emphasis added)\n\nThis is why Mitakshara is designated as the School of \"aggregate ownership\", while Dayabhaga is known as the Sdhool of \"fractional\n\nownership.\""}}, {"text": "Dayabhaga", "label": "OTHER_PERSON", "start_char": 12728, "end_char": 12737, "source": "ner", "metadata": {"in_sentence": "Emphasis added)\n\nThis is why Mitakshara is designated as the School of \"aggregate ownership\", while Dayabhaga is known as the Sdhool of \"fractional\n\nownership.\""}}, {"text": "Gopalchandra Sarkar Sastri", "label": "OTHER_PERSON", "start_char": 12811, "end_char": 12837, "source": "ner", "metadata": {"in_sentence": "As has been stated in Gopalchandra Sarkar Sastri's \"Hindu Jaw\" (eighth edition page 4@5), while the joint family system prevails in Bengal, \"there cannot be a real joint family consisting of father and sons during the father's life-time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint.\""}}, {"text": "Bengal", "label": "GPE", "start_char": 12921, "end_char": 12927, "source": "ner", "metadata": {"in_sentence": "As has been stated in Gopalchandra Sarkar Sastri's \"Hindu Jaw\" (eighth edition page 4@5), while the joint family system prevails in Bengal, \"there cannot be a real joint family consisting of father and sons during the father's life-time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint.\""}}, {"text": "Mayne", "label": "OTHER_PERSON", "start_char": 13394, "end_char": 13399, "source": "ner", "metadata": {"in_sentence": "The position of joint family under the Dayabhaga Jaw has been stated as follows in Mayne's Treatise on \"Hindu Ldw and Usage\" (eleventh edition, page 364),-\n\n\"lt follows therefore that under the Dayabhaga Jaw, a father and his sons do not form a joint family in the technical sense having coparcenary property."}}, {"text": "Mulla", "label": "OTHER_PERSON", "start_char": 14145, "end_char": 14150, "source": "ner", "metadata": {"in_sentence": "The position has been dealt with in Mulla's \"Principles of Hindu Law\" (fourteenth edition, at page 348), as follows,-\n\n\"The essence of a coparcenary under the Mitakshara law i§ unity of ownership."}}, {"text": "Prafulla Chandra Bhar", "label": "OTHER_PERSON", "start_char": 15716, "end_char": 15737, "source": "ner", "metadata": {"in_sentence": "In fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar, a Hindu governed by the Dayabhaga School, died intestate."}}, {"text": "Since the death took place before the Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 15858, "end_char": 15922, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Gouri Shankar Bhar", "label": "OTHER_PERSON", "start_char": 16038, "end_char": 16056, "source": "ner", "metadata": {"in_sentence": "Gouri Shankar Bhar, one of the sons, took out letters of • administration and filed a wealth-tax return in his capacity as adr- ministrator describing the status of the assessee as a Hindu undivided family.", "canonical_name": "Gouri Shankar Bhar"}}, {"text": "Gouri Shankar", "label": "OTHER_PERSON", "start_char": 16328, "end_char": 16341, "source": "ner", "metadata": {"in_sentence": "Gouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School, the shares of the coparceners in the property of the deceased were definite and ascertained and !", "canonical_name": "Gouri Shankar Bhar"}}, {"text": "High Court of Calcutta", "label": "COURT", "start_char": 17629, "end_char": 17651, "source": "ner", "metadata": {"in_sentence": "The High Court of Calcutta in Commissioner t\n\nof Wealth-tax case (supra) made a reference, inter alia, to the decision in Biswa Ranjan Sarvadhikari v. Income-tax Officer, F. Ward District,\n\n(2) Calcutta(') and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are definite and ascertainable, then, although they are in joint possession, the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family."}}, {"text": "section 3", "label": "PROVISION", "start_char": 18907, "end_char": 18916, "source": "regex", "metadata": {"statute": null}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 19207, "end_char": 19233, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "21, 1957", "label": "DATE", "start_char": 19300, "end_char": 19308, "source": "ner", "metadata": {"in_sentence": "It will be recalled that a suit for partition was filed on June 21, 1957 and a preliminary decree was passed on July 4, 1959."}}, {"text": "section 2(m)", "label": "PROVISION", "start_char": 19681, "end_char": 19693, "source": "regex", "metadata": {"linked_statute_text": "Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956", "statute": "Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956"}}, {"text": "section 3", "label": "PROVISION", "start_char": 19748, "end_char": 19757, "source": "regex", "metadata": {"linked_statute_text": "Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956", "statute": "Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956"}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 19894, "end_char": 19899, "source": "ner", "metadata": {"in_sentence": "The High Court was therefore right in answering the rcframed question in the negative, and as we find no force in the argument of Mr. Desai, the appeal fails and is dismissed with costs."}}]}
{"document_id": "1976_3_119_129_EN", "year": 1976, "text": "MAHA SINGH\n\nSTATE (DELHI ADMINISTRATION)\n\nJanuary 8. 1976\n\n[P. K. GOSWAMI AND P. N. SJIINGHAL, JJ.J\n\n11 9\n\nCrI111inal Procedure Code (Act V) 1898- Sec. 367 contents of j11dg'!11ent- Verdic! of g11ilty-Duty of the Court to exercise caution .\n\nCrin1inal Procedure Code (Act V) 1898-Sections 222, 223 and 225- Whcn e~'idencc is led to prove a charge and the accused is fully. aware of the charge and n1adc 110 niistake in takinf: a definite defence, oniission of a nan1e in the charge is not \"material prejudicial\" to the accused,\n\nPica of defence in Prevention of Corruption Act cases-Plea of planting of C ; ncritninatinR object without the knowledge or acquie.1ce11ce of ti1e accused is valid.\n\n\"Participe.1 crhninis\"-Whcther a11 unwillinf{ and a forced bribe given a// accomplice-Indian Evidence Act (Act I) 1872, s. 133.\n\nfndian Evidence Act (Act /), 1872-Se(·. 3 read with s. 133 eridentiar\\' value of a trap witness in a pre-arranged raid-Trap witness is neither a; i accamp!icc per se nor an interested witness-Appreciation of such evidence.\n\nCrl!ninal Procedure Code (Act 5), 1_898-Sections 4(1), 161 and 162- Steps ta1e11 by the Inspector of the Anti-Corruption Departn1ent to detect the accused in a case under the Preyention of Corruption Act, 1947 is \"investilgation\" within the n1eanb1g of s. 4(1)-Sending complaint of the investigation for for:na( registration does not take away the character of \"investigatio1i\".- Staten1ent n1ude by the accused in such an \"invesagafion\" admitting to have rt'-\n\nceivcd the incrin1inatin.r: ohiect is a staterne111 under s. 161, Cr. P.C. and /Jenee fnadnihsible under s. 162, Cr. P.C.\n\nIndian Evidence Act (Act I) 1872--Sec. 8 relevancy of the conduct of the accused ill pro.\\eCution for o!Jence of, bribery under Prevention of Corruption Act.\n\nAfter recording a complaint dated 7-4-1969 by one \"SDM\" that the accusedappeliant, a head constable, demanded a sum of Rs. 10/- for not puttiag up a challan on 8-4-1969 before the SDM, Delhi in a case pending against him, (the said sum being payable by 3.00 p.m. on 7-4-1969) and also a sum of Rs. SO/- for not challaning him in future, the Anti-Corruption Departn1ent arranged a raid to detect the accused, as his name was not known to the complainant.\n\nOn a signal from the complainant., after the receipt of the G.C. Note of Rs. 10/-\n\n(the number of which was already noted by the Anti-Corruption Department) by the accused, the raid party including the trap witnesses surrounded the accused, recovered the G.C. note of Rs. 10/- which tallied with the number already nott:d, besides a further sum of Rs. 51 /- and two challans referred to in the compfoint of \"SDM\".\n\nThe statement of the accused duly signed by him and witnessed by the trap witnesses and also a search memo duly signed by the accused and the trap witnesses, were produced as docun1entary evidence at the trial. The accused was charged under s. 161, T.P.C. read , vith s. 5(2) read withs. 5(1) (d) of the Prevention of Corruption A<.:t, 1947, found guilty. convicte<l anU eutenced to one year rigorous in1prisonment besides fine.\n\nOn appenl the High Court affirmed the conviction and the sentence.\n\nDismissing the appeal by special leave, the Court,\n\nHELD: (1) In a case under s. 161 !.P.C. ands. 5(2) read withs. 5(l)(dl cf the Prevention of Corruption Act, 1947, where there was a clinching factor that a particular already marked currency note v.ras recovered fron1 the left side front rocket of the shirt of the <tCCU<; ed that too immcdiale!y after its :-ceipl from the complainant anJ which fact is corroborated by the seizure m•::mo dul~ , c, igned by the accus:.:tl about the state of its recovery duly witnessed and also by\n\n9--Ll90SCl)76\n\nA. the oral evidence, the defence story of the complainant giving a ten rupee not\\! wrapped inside the \"purchee\" is absolutely false.\n\nWhen such a conclusive proot is found with regard to this part of the case, viz. \"'seizure of the currency note·; deficieT1cy of corroboration with regard to the negotiation of the accused with the co1nplainant pales into insignificance. [126 A-F]\n\n(2) When \\vitnesses swear home through a two inch board and somctin1es quantitatively the defence musters up a number of witnesses, the court has to be extren1ely cautious and careful to enter a verdict of guilty only if the complainant's version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the re:l position against the accused. [126 G-HJ\n\n( 3) A defence plea of planting any incriminating object, in answer to a charge, to be successful must be or at any rate should reasonably appear to have been 1nade V>ithout the knowledge or acquiesence of the accused.\n\nRani Prakash Arora v. State of Punjab, [1972] 3 S.C.C, 652, distinguished.\n\n( 4) When, in a trial against a head constable for not challaning, evidence was clearly led regarding the said challan, which had been handed over to the accused by the complainant along with the curfency note, and the accused was fully aware of the charge, he had to meet and made no mistake in taking a defence, particular mention of the challan against the complainant instead of Charan Dass in the charge, does not result in any \"material prejudice\" to the accused. [127 A-BJ\n\n(5) Where the complainant comes from a class of poor hawkers who some how eke out their li\"'.ing, unable to pay the demanded bribe for purchasing immunity from being challaned by the accused head constable, and out of des- .peration, takes recourse to public authorities against such illegal proposals he is an unwilling or forced bribe-giver. Such an unwilling or forced bribe-giver may not even be stagmatised as an accomplice in the strict sense of the term of \"parlicipes criminis\". [127 D-F] '\n\n(6) There is no rule of law that even if a witness is otherw\"ise reliable and independent his association in a pre-arranged raid about Vlhich he had become acquainted makes him an accomplice or a partisan witness. In the. absence of anything to warrant a contrary conclusion, conviction is not untenable merely because it is based on the testimony of such a witness.\n\nEverY Witness of a raiding party cannot be dubbed as an accomplice per se or even <] s an interested\n\n\\vitne~s in total absence of materials justifying such an inference. [128 A-B]\n\n(7) In a case, where on a complaint made to the Inspector of the Anti- Corruption Department he recorded the same, arranged for the raid by noting each step taken, thereafter in a regular manner, the steps taken by him in order to detect the accused while taking the bribe comes \\Vithin the term \"investigation\" under s. 4(1) of the Criminal Procedure Code, 1898. The fact that he had also later on forwarded the complaint for formal registration of the case at the police station having the jurisdiction did not do a\\vay with the character of the \"investigation\" already commenced, by the Inspector or recording the complainant's statement disclosing a cognizable oITence. [128 F--H]\n\nTherefore, any statement made by the accused in ansvv\"er t1J questions put by the Inspector is inadmissible under s. 162, Criminal ProceJure Code and neither the prosecution nor the accused can take advantage of these answers.\n\n[129 A]\n\n(8) For an offence under the Prevention of Corruption Act. 1947, the conduct of the accused v, iould be relevant under s, 8 of the evidence Act, jf his immediate reactions to the illegal overture of the complainant or his action in inserting unwanted something in his pocket were reveafed in f1e form of acts accompanied then and there or immediately thereafter by words or gestL1res reliably established.\n\nJn the present case., there is no evidence to support an innocent piece of conduct of the accused, [ 129 B-C]\n\n.. ..,\n\nCRIMINAL APPELLATE JuRISDJCT!ON : Criminal Appeal No. 209 A of t97L\n\nAppeal by special leave from the judgement and order dated the i9th January, 1971 of the Delhi High Court at New Dell>i in Criminal Appeal No. 71 of 1970.\n\nFrank Anthony, K. B. Rohtagi and V. K. Jain, for the appellant.\n\nS. N. Anand and R. N. Sachthey, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI J.-The complainant Shiv Darshan Nath, (PW 1) was an unlicensed hawker selling oranges and fruits in what is described as a 'chabba' around Novelty Cinema area in Delhi.\n\nThe locality is within the jurisdiction of the Lahori Gate Police Station.\n\nThe accused Maha Singh was enrolled as a Constable in the Delhi Police in July 1957 and was promoted as Head Constable (Havaldar) in August 1963. He was posted to the Lahori Gate Police Statioa on November 21, 1967 and had since been serving there in that capacity until his suspension in connection with the present case.\n\nDuring April 1969 the accused was deputed for prosecuting unauthorised squatters and persons indulging in petty offences within the area of the said Police Station. The accused in performance ol these duties was required to and did maintain a petty offences Register and he had \"to do pervi of these cases challaned by him in the court.\"\n\nThe complainant approached the Anti-Corruption Jnspector Delhi, Bal Krishan (PW 7)· on April 7, 1969 at about 11.00 a.m. and made a complaint to him.\n\nThis complaint was recorded by the Inspector (PW! I A). The material allegations disclosed therein were :-\n\n\" ...... Now, for some days a new Havaldar of\n\nP.S.\n\nLah?ri Gate, has been coming there for challaning under section 33, Bombay Police Act, and he has been harassing people unlawfully.\n\nHe has challaned me also a number of\n\nties. He drew up one challan (against me) on 3-4-69,\n\nwhih stands fixed for hearing on 8-4-69, in the Court of\n\nShn 0. P. Yadav, SDM. This Havaldar says that he will not put up this challan in case I pay him Rs. JO/- and that in case I give him Rs. 50/- p.m.\n\nI will not be 'challaned in future. I am poor man and unable to meet his said desire.\n\nOn 5-4-69, the Havaldar aforesaid came to me and said that he would come again on 7-5-69 about 3.00 p.m. and that m case rupees ten were not paid, the cha!Jan would be put in Court. Since the Havaldar of Lahori Gate Police\n\nStation has demanded Rs. 10/- from me as bribe I have come for report.\n\nSuitable action may be taken ... ' ... \".\n\nThe words \"against me\" in parentheses in the above extract arc not to be found in the oiginal statement recorded in the Urdu language.\n\nThis has to be mentioned as Mr. Frank Anthony appearing on be- Blalf of the accused strenuously submitted that since there had been\n\nno challan against the complainant the entire edifice of the case was destroyed.\n\nWe felt some doubt about the translation in the paperbook and, therefore, looked into the original document and we are satisfied that the words \"against me\" are not to be found therein.\n\nNow following the sequence, the Inspector decided to arrange a raid and summoned two witnesses from the Deputy Commissioner's Office (PWs 3 and 4) and recorded in a raid memo the number of the only ten rupee note (P-1) which the complainant had with him. The Inspector proceeded to state that-\n\n\"The said G.C. note was later returned to the complainant with a direction to pass it on to the accused within the sight of the panch witnesses having such talk with the accused as to indicate the said G.C. note had been passed on to the accused by way of bribe.\n\nBoth the panch witnesses were also instructed to remain close to the complainant and the accused, hear their talk, see the passing of the bribe money and on ascertaining that the same had been passed to the accused by way of bribe, Ved Prakash was further instructed to give the agreed signal\".\n\nThe Inspector and the party with the complainant were in the area of the Novelty Cinema from about 2.10 p.m. The accused was not to be seen in the area till 5.45 p.m. when, however, he was located in plain clothes in a three-wheeler scooter sitting in the rear seat with Babu Ram (P.W. 6) a constable of the Lahori Gate Police Station on duty, in uniform.\n\nIn addition to the complainant, Sohan Singh (PW 3) stated that \" .... somebody came and called the complainant.\n\nHe took him along with .him.\" This has to be particularly noted as the High Court put great reliance upon this piece of evidence of PW 3 as will be noticed later.\n\nThe complainant approaching the accused sat in the driver's seat inside the scooter.\n\nAccording to the complainant-\n\n'The accused then asked me that if I had to get the challan cancelled, I should pay Rs. 10 /- and that if further challans were not desired, a sum of Rs. 50 /- on my behalf and on behalf of my brother should be paid to him.\n\nI handed over Rs. 10/- G.C. note P-1 and the challan P-2 to the accused.\n\nThe accused put these in his front pocket of the shirt.\"\n\nAs arranged the signal was given to the Inspector oy PW 4 (Ved Parkash) and the Inspector and the party, who were at an eye-shot. reached the place immediately.\n\nThe Inspector recovered the G.C. note P-1 from the pocket of the accused's shirt and comparing the number of the G.C. note found it to tally with the one already recorded by him.\n\nOn further search of the person of the accused a sum ol Rs. 51 /- alongwith carbon copies of two challans were also recovered.\n\nAccording to the Inspector when challenged by him the accused\n\n'tt-\n\n...\n\n\"replied that he had taken a ten rupee G.C. note which he had put in the front pocket of his shirt.\n\nOn his search one G.C. note of Rs. 10/- was recovered from the front pocket of his shirt and fater comparing its number with the raid report which was found to tally' and it was taken into possession vide memo.\n\nPW 1/C. Besides, the two challans P-2 and P-3 and a sum of Rs. 51/- were also recovered and were taken into possession vide memo PW 1 /D\".\n\nAlthough PWs 3 and 4 were requisitioned for help in the arranged raid, as stated above, they did not come upto full expectations.\n\nAccording to PW3 \"I heard no talk between the complainant and the accused, nor could I see the passing of the money\".\n\nHe stated that he was standing at quite a distance whereas Ved Parkash was nearer to the scooter\".\n\nHe also stated that on the accused being challenged by the Inspector \"if he had taken the bribe money'', the accused replied \"that he had taken one challan 'purchee' P-2 and one G.C. note P-1 of Rs. 10/-\" and \"on being searched G.C. note Ex. P-1 was recovered from the front pocket of the shirt of the accused which he was wearing.\" He further stated that \"from the personal search of the accused 51 currency notes and two challan purchees P-2 and P-3 were also recovered and the same were taken into possession vidc memo PWl/D\".\n\nP.W. 4, on the other hand, stated that-\n\n\"thc complainant handed over a ten rupee G.C. note major portion of which was wrapped in a white paper to the accused Maha Singh present in court and told the accused that my challan may be got corrected (mera challan theek kara dena).\n\nThe accused took the the G.C. note with the white paper and put the same in his front shirt pocket.\n\nI gave the signal.\n\nInspector Bal Krishan reached the spot.\n\nHe disclosed his identity and secured the accused.\n\nI told the Inspector that G.C. note has been put by the accused in his shirt pocket.\n\nThe same was recovered by Inspector Bal Krishan vide memo PW 1/C. Two challans P-2 and P-3 were also recovered besides Rs. 51 /- from the accused vidc memo PW 1/D\".\n\nP.W. 4, however, stated that \"the accused denied having taken any bribe when challenged by Inspector Bal Krishan.\"\n\nIt may be mentioned here that P-2 is the challan relating to the complainanCs brother, Charan Dass. It appears from P-2 that the case against Charan Dass was fixed in the court of Shri 0. P. Yadav, Sub-Divisional Magistrate, on April 8, 1969. P-3 related to Mangal Sain (DW 5) showing that he was to attend his case in the same court on the same date, April 8, 1969. Both the cases were under section 33/13/131 Bombay Police Act (obstruction of public passage) and P-2 and P-3 are personal recognizance bonds.\n\nThe case was investigated by the Anti-Corruption Department and the charge-sheet was snbmitted after obtaining sanction from the Superintendent of Police, North District, Delhi (PW 5).\n\nA The accused stands charged under section 161 I.P.C. and section 5 ( 2) rea<J with section 5 (I) ( d) of the Prevention of Corruption Act (briefly the Act).\n\nHis defence is that the case was concocted against him by the complainant and the money was planted in his pocket as he \"had casually told him also not to obstruct the public way once earlier.\" He further stated in his examination under section 342.\n\nCode of Criminal Procedure \"in fact the complainant hastened to put B something in the challan in my pocket against my wishes and I was trying to know \\Vhat it was about when I was su1rounded by the Inspector.\n\nI told the Inspector also that I had not done anything and l might not be harassed unnecessarily\".\n\nFrom the above, the version of the prosecution and that of the accused arc clear.\n\nWhile according to the prosecution the accused c had earlier negotiated for a bribe and later on accepted the same from the complainant, according to the accused he had made no negotiation\n\nwith the complainant nor did he voluntarily accept any money from .i fhe complainant.\n\nQn the other hand, the complainant planted the currency note of Rs. 10/- in to his pocket against his wishes when ht:°\n\nwas all of a sudden surrounded by the Inspector and the raiding party.\n\nThe trial court accepted the prosecution case and convicted the accused under both the sections and sentenced him to rigorous imprisonment for one year on both the counts running concurrently and t<> a fine of Rs. 100/- in addition, in default one month's imprisonment.\n\nThe High Court affirmed the conviction and the sentence.\n\nHence this appeal by special leave.\n\nMr. Frank Anthony submitted that since the prosecution failed to establish that there was any case instituted by the accused against the complainant which might furnish an occasion for offering a bribe the entire story of the complainant should stand discredited.\n\nHe also submitted that the complainant's brother, Charan Dass, was not even examined by the police nor in the court.\n\nMangat Sain was not examined by the prosecution but had been examined by the 'accused.\n\nHe further emphasised that the story of the complainant_ with regard to the negotiation for the bribe stood on his solitary uncorroborated testimony and he was not such an absolutely independent witness whose testimony was worthy of credit for the purpose of basing a conviction.\n\nCounsel further emphasised that while the prosecution sought to prove that the accused voluntarily accepted the bribe and himself put the currency note in bis pocket, this story did not find corroboration from any independent source.\n\nJ-·\n\nPW 3, of course, does not state about the passing of the money nor about any conversation.\n\nP.W. 4, however, supported the complainant in his examination-in-chief although he added that \"the accused denied having taken any bribe when challenged by Inspector Bal Krishan\".\n\nIn the course of his cross-examination, however, he stated that \"he did not hear the talk between the complainant and the\n\naccused.\" Constable Babu Ram (PW 6), who was sitting with the accused in the scooter, deposed that his attention was more towards\n\nthe road than towards the complainant and the accused. He com- A pletcly threw overboard the complainant's version and stated \"I saw the complainant Shiv Darshan Nath putting a purchee with a note in the pocket of the accused.\" He further stated that \"I did not hear the accused telling the Inspector that he had taken no bribe and should not be harassed.\"\n\nThe High Court accepted the version of the complainant and B found that the prosecution case stood established beyond any doubt.\n\nThe learned Judge observed :\n\n''To me it appears an admission that the appellant allowed PW 1 to put something in his pocket. If that was against his wishes he should have thrown it out\".\n\nThe High Court also accepted the testimony of PW 3 corroborating c the complainant in that a person had called PW 1 to the scooter where the accused was sitting.\n\nFrom this the High Court concluded- \"Why at all was PW 1 sent for if there were no prior negotiations and if the accnsed was not sure that in fulfilment thereof he will be receiving the money from PW 1\".\n\nNothing has been elicited against PW 3 as to why he should be disbelieved. He has not gone to the entire length of supporting every detail of the prosecution case. It is, therefore, not possible to hold that the High Court was absolutely wrong in accepting his statement that the complainant had been sent for by the accused to the scooter through some persons who could not be later identified for the purpose of examination in court. It was not possible in such a situation to recognise and locate the messenger.\n\nThe trial court does not seem to have relied upon the evidence of PW 4.\n\nFrom the evidence of the defence witnesses (DWs 1, 2, 3, 4 and 7) it is clear that the witness is not an independent person, nor a very reliable one.\n\nThere was a case against him under section 161 !PC and section 5(2) of the Act.\n\nHis services were terminated for massing of certain records although he was later on re-employed in July 1968. He was a raid witness for the police in several anticorruption cases.\n\nThe High Court also has not relied upon his evidence .\n\nIn view of the defence of the accused which is supported by PW 4, PW6, DW5 and DW6 with regard to the fact of the complainant putting the currency note wrapped inside 'purchee' P-2 into the pocket of the accused, the recovery of the note by the Inspector from the accused's pocket is absolutely inconsequential says Mr. Frank Anthony.\n\nThere are, however, more things than meet the eye.\n\nThere were two persons, DW 5, Mangal Sain and Charan Dass (complainant's brother), who has been sent up by the accused on April 3, 1969, under the Bombay Police Act for prosecution in Court. It is understandable that while performing these duties policeman may clash with the shopkeepers. There is also equal possibility of patching up with concerned offenders.\n\nIn this situation it is extremely important for\n\nA the court to find by unerring and cogent evidence whether the accused had committed the offence.\n\nIn our view there is a clinching factor. If the accused's version is true, the recovery of the note would have been inside 'purchee' P-2 since the accused and his four supporting witnesses had deposed to that effect. If this version is even prima facie reliable, the accused will be entitled to the benefit of doubt.\n\nWe are however, unable to hold so. The seizure memo PW l/C about which there has been no cross-examination shows that a currency note of Rs. 10/- bearing number C-67-090721 was recovered from the left side front pocket of the shirt worn by the accused. There is nothing to show that this currency not was recovered from his pocket being wrapped inside the particular 'Purchee' or for the matter of that jp.side \"another white paper\". This fact of recovery is proved by t!JJ, Police Inspector as well as by PW3 and the complainant who had signed the memo.\n\nEven Ved Prakash (PW 4) had signed this memo.\n\nSimilarly, we have the seizure memo.\n\nPW 1/d which is prepared by the Inspector and signed by the complainant and PWs 3 and 4.\n\nThis seizure memo shows that the currency notes of Rs. 51 /-, a carbon copy of challan of Charan Dass (P-2) and another carbon copy of challan of Mangal\n\nSain (P-3) admittedly received by the accused a short while ago were recovered from the left side front pocket of the shirt.\n\nFrom the above it is clear that the defence story of the complainant giving a ten rupee note wrapped inside the 'purchee' relating to Charan Dass is absolutely false.\n\nIf, as stated by the accused, the Inspector arrived immediaely after the money was put inside his pocket, namely, wrapped inside a 'purchee', the seizure memo (PW 1/C) would have shown the recovery in that state. We do not find it to be so. The evidence of the complainant is corroborated by the Inspector and P W3 and also corroborated by the documentary evidence, PW l/c, coupled with the manner of the recovery of the note.\n\nWhen we find such a conclusive proof with regard to this part of the case, deficiency of evidence of corroboration with regard to the negotiation of the accused with the complainant pales into insignificance.\n\nFurther, one of the witnesses, who deposed with regard to the recovery of the note as per PW 1/C was cross-examined to the effect that the note was recovered wrapped in the 'purchee' (P-2). Even the evidence of PW4, PW 6, DWS, and DW 6 called in aid to support the accused's plea of planting the currency notes, is belied by the Ione recovery of the marked currency note of Rs. 19/- by itself detached from the 'purchec' in which it was said to be more or less concealed from external view.\n\nWhen witness swear home through a two inch board and sometimes quantitatively the defence musters up a number of witnesss, the co_urt has to be extremely cautious and careful to enter a verdict of guilty only if the complainant's version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the real position against the accused. This we have been able to find in this case as noted above.\n\n' MAHA SING II \". STATE, (Goswami, I.) 127\n\nIt was also argued at the stage that the charge being with reference to favour shown to the complainant in person, with regard to his. own case, the accused was entitled to an acquittal as the case in court was that it related to his brother Charan Dass. We do not think that a particular mention of the challan against the complainant ; nstead of against Charan Dass, in the charge, has resulted in any material prejudice to the accused in the present trial.\n\nEvidence was clearly led regardin@ the challan against Charan Dass and it was his 'purchec' which had been handed over to the accused by the complainant alongwith the currency note.\n\nThe accused was fully aware of the charge he had to meet and made no mistake in taking a definite defence although, unfortunately, the same could not be established. Even the grievance of non-examination of Charan Dass as a prosecution witness in presence of admitted 'purchee' is not of any consequence.\n\nA defence plea of planting of any incriminating object in answer to a charge, to be successful must be or, at any rate, should reasonably appear to have been, made without. the knowledge or acquiescence of the accused.\n\nThe case in hand is not such a case.\n\nThe learned counsel strenuously relied upon Ram Prakash Arora v. State of Punjab (1) where notwithstanding recovery of the two marked ten rupee currency notes the accused was acquitted in a bribery charge.\n\nBut in that case recovery of the currency notes which was denied by the accused, assumed great importance and the fact that the same could not be established by reliable and independent search witnesses was considered by this Court as one of the serious infirmities.\n\nThe class from which the complainant comes is one. of poor hawkers who somehow eke out their living.\n\nNothing is known whether they just deliberately avoid payment of licence fees for hawking, which may not even be exorbitant, or they avoid being tucked to a particular place being subject to a licence in absence of which they may squat at any place of their choice and convenience. It is, however, manifest that such encroachment of public place will be a continuing offence and, if repeated, will be committed every day afresh. In that view a demand of Rs. 10/- for clearing one single day's offence and Rs. 50/- for purchasing immunity for the whole month may drive such a person to desperation prompting recourse to public authorities against such illegal proposals. In this view of the matter, an unwilling or forced bribe-giver, as in the case at hand, may not even be stigmatised as an accomplice in the strict sense of the term of particeps cri- 1ninis.\n\nEven so we will adopt a cautious line in following the dictate of G prudence to seek for some material corroboration even in this case to assure the judicial mind about the truthfulness of the crux of the matter in respect of the offence charged and of the nexus of the crime with the criminal.\n\nThe matter will be different when a person himself abets the offences of bribery under section 161 and section 165 IPC which is an independent offence uhder section 165A equivalent earlier to section H 161 read with section 109 or section 116 IPC. ---·----\n\n(]) [1972] 3 S.CC. 652.\n\nThis also leads to the question whether all witnesses who are called upon to assist detection of a bribery case by laying trap, should be considered unreliable as accomplices or at any rate partisan witnesses.\n\nThere 1s no rule of law that even if a witness is otherwise reliabk and independent, his association in a pre-arranged raid about which he 1.1ad become acquainted, makes him an accomplice or a parlisan witness_. fo absence of anything to warrant a contrary conclus1on, conv1clion m not untenable merely because it is based on the testimony of such a witness.\n\nWe are also n.°1 prepared to dub every witness of a raiding party to be an accomplice per se or even as an interested witness in total absence of materials justifying such an inference.\n\nWhile PW 4 will be highly partisan witness in this case in his own interest to oblige the police, nothing was shown against PW 3.\n\nP.W. 7, the Inspector, cannot be considered as an absolutely partisan witness because he is a Police Officer who took immediate action on the complaint.\n\nNothing unusual is suggested against him.\n\nWe have no hesitation in accepting the testimony of PW 3 and PW 7 on their own.\n\nThey do corroborate the complainant.\n\nAs demonstrated above, it is not a case where conviction of the accused by the High Court is based only on the uncorroborated testimony of the bribe-giver.\n\nEven three or four days' time taken by the complainant after the accused's demand of the bribe for the purpose of reporting the matter to the Anti-Corruption Deparl!nent is not such as to efface the offence when it was actually committed on the very day of the report which was faithfvlly recorded by the Inspector then and there without loss of time.\n\nA question arose whether the statement of the accused before the Inspector admitting to haw received the bribe was admissible in evidence.\n\nIt is apparent from the evidence of the Inspector that these cases are investigated by the Anti-Corruption Department which carries on its work on its own.\n\nOn a complaint made to the Inspector he recorded the same and arranged the raid by notiug each step taken thereafter in a regular manner.\n\nWhat has been done by the Inspector in this case in order to detect the accused while taking the bribe comes within the term 'investigation' under section 4(1) of the Code of Criminal Procedure, 1898.\n\nThe moment the Inspector had recorded the complaint with a view to take action to track the offender, v:hose uame was not even known at that stage, and' in this case proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code.\n\nIndeed the Inspector himself stated that he examined the witnesses under section 161 Cr. P.C. and completed the investigation.\n\nThe fact that he had also later on forwarded the complaint for formal registration of the case at Lahori Gate Police Station does not do away with the character of the investigation already commenced by the Inspector\n\non recording the complainant's statement disclosing a cognizable offence.\n\nTherefore, any statement made by the accused in answer to questions put by the Inspector is inadmissible under section 162 Cr. P .C. and neither the prosecution nor the accused can take advantage of these answers.\n\nThese are, therefore, excluded from consideration in\n\nthis case by us.\n\nBut all the same the conduct of the accused would be relevant under section 8 of the Evidence Act if his immediate reactions lo the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there or immediately thereafter by words or gestures reliably\n\ncsld1lishcd.\n\nThere is no evidence to support an innocent piece of c conduct.\n\nIn the entire circumstances of the case we agree with the High Court that it was not against the wishes of the accused that the money passed from lhc hands of the complainant into his pocket.\n\nThe High Court and the trial court cannot, therefore, be said to have made any gross error of law in appreciating the evidence and coming to the conclusion that the charges against the accused were D fully established.\n\nIn the result the appeal fails and is dismissed.\n\nThe accused shall surrender to his bail to serve the sentence.\n\nS.R.\n\nAppeal dismissed .", "total_entities": 93, "entities": [{"text": "MAHA SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "MAHA SINGH", "offset_not_found": false}}, {"text": "STATE (DELHI ADMINISTRATION", "label": "RESPONDENT", "start_char": 12, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE (DELHI ADMINISTRATION)", "offset_not_found": false}}, {"text": "January 8. 1976", "label": "DATE", "start_char": 42, "end_char": 57, "source": "ner", "metadata": {"in_sentence": "MAHA SINGH\n\nSTATE (DELHI ADMINISTRATION)\n\nJanuary 8."}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 60, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Sec. 367", "label": "PROVISION", "start_char": 147, "end_char": 155, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 222, 223 and 225", "label": "PROVISION", "start_char": 280, "end_char": 305, "source": "regex", "metadata": {"statute": null}}, {"text": "Pica of defence in Prevention of Corruption Act", "label": "STATUTE", "start_char": 529, "end_char": 576, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 781, "end_char": 800, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 133", "label": "PROVISION", "start_char": 815, "end_char": 821, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "s. 133", "label": "PROVISION", "start_char": 876, "end_char": 882, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Sections 4(1), 161 and 162", "label": "PROVISION", "start_char": 1088, "end_char": 1114, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Preyention of Corruption Act, 1947", "label": "STATUTE", "start_char": 1223, "end_char": 1257, "source": "regex", "metadata": {}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 1301, "end_char": 1308, "source": "regex", "metadata": {"linked_statute_text": "the Preyention of Corruption Act, 1947", "statute": "the Preyention of Corruption Act, 1947"}}, {"text": "s. 161", "label": "PROVISION", "start_char": 1568, "end_char": 1574, "source": "regex", "metadata": {"linked_statute_text": "the Preyention of Corruption Act, 1947", "statute": "the Preyention of Corruption Act, 1947"}}, {"text": "s. 162", "label": "PROVISION", "start_char": 1615, "end_char": 1621, "source": "regex", "metadata": {"linked_statute_text": "the Preyention of Corruption Act, 1947", "statute": "the Preyention of Corruption Act, 1947"}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 1633, "end_char": 1652, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 8", "label": "PROVISION", "start_char": 1667, "end_char": 1673, "source": "regex", "metadata": {"linked_statute_text": "Indian Evidence Act", "statute": "Indian Evidence Act"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 1761, "end_char": 1789, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "4-1969", "label": "DATE", "start_char": 1954, "end_char": 1960, "source": "ner", "metadata": {"in_sentence": "10/- for not puttiag up a challan on 8-4-1969 before the SDM, Delhi in a case pending against him, (the said sum being payable by 3.00 p.m. on 7-4-1969) and also a sum of Rs."}}, {"text": "Delhi", "label": "GPE", "start_char": 1977, "end_char": 1982, "source": "ner", "metadata": {"in_sentence": "10/- for not puttiag up a challan on 8-4-1969 before the SDM, Delhi in a case pending against him, (the said sum being payable by 3.00 p.m. on 7-4-1969) and also a sum of Rs."}}, {"text": "7-4-1969", "label": "DATE", "start_char": 2058, "end_char": 2066, "source": "ner", "metadata": {"in_sentence": "10/- for not puttiag up a challan on 8-4-1969 before the SDM, Delhi in a case pending against him, (the said sum being payable by 3.00 p.m. on 7-4-1969) and also a sum of Rs."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 2903, "end_char": 2909, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 2930, "end_char": 2937, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 161", "label": "PROVISION", "start_char": 3238, "end_char": 3244, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 3290, "end_char": 3324, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Charan Dass", "label": "OTHER_PERSON", "start_char": 5206, "end_char": 5217, "source": "ner", "metadata": {"in_sentence": "( 4) When, in a trial against a head constable for not challaning, evidence was clearly led regarding the said challan, which had been handed over to the accused by the complainant along with the curfency note, and the accused was fully aware of the charge, he had to meet and made no mistake in taking a defence, particular mention of the challan against the complainant instead of Charan Dass in the charge, does not result in any \"material prejudice\" to the accused. ["}}, {"text": "Vlhich", "label": "OTHER_PERSON", "start_char": 5939, "end_char": 5945, "source": "ner", "metadata": {"in_sentence": "127 D-F] '\n\n(6) There is no rule of law that even if a witness is otherw\"ise reliable and independent his association in a pre-arranged raid about Vlhich he had become acquainted makes him an accomplice or a partisan witness."}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 6672, "end_char": 6679, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code, 1898", "label": "STATUTE", "start_char": 6687, "end_char": 6716, "source": "regex", "metadata": {}}, {"text": "s. 162", "label": "PROVISION", "start_char": 7154, "end_char": 7160, "source": "regex", "metadata": {"linked_statute_text": "the Criminal Procedure Code, 1898", "statute": "the Criminal Procedure Code, 1898"}}, {"text": "Criminal ProceJure Code", "label": "STATUTE", "start_char": 7162, "end_char": 7185, "source": "regex", "metadata": {}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 7306, "end_char": 7334, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Frank Anthony", "label": "OTHER_PERSON", "start_char": 8028, "end_char": 8041, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. B. Rohtagi and V. K. Jain, for the appellant."}}, {"text": "K. B. Rohtagi", "label": "LAWYER", "start_char": 8043, "end_char": 8056, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. B. Rohtagi and V. K. Jain, for the appellant."}}, {"text": "V. K. Jain", "label": "LAWYER", "start_char": 8061, "end_char": 8071, "source": "ner", "metadata": {"in_sentence": "Frank Anthony, K. B. Rohtagi and V. K. Jain, for the appellant."}}, {"text": "S. N. Anand", "label": "LAWYER", "start_char": 8093, "end_char": 8104, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and R. N. Sachthey, for the respondent."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 8109, "end_char": 8123, "source": "ner", "metadata": {"in_sentence": "S. N. Anand and R. N. Sachthey, for the respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 8190, "end_char": 8197, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI J.-The complainant Shiv Darshan Nath, (PW 1) was an unlicensed hawker selling oranges and fruits in what is described as a 'chabba' around Novelty Cinema area in Delhi."}}, {"text": "Shiv Darshan Nath", "label": "WITNESS", "start_char": 8217, "end_char": 8234, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI J.-The complainant Shiv Darshan Nath, (PW 1) was an unlicensed hawker selling oranges and fruits in what is described as a 'chabba' around Novelty Cinema area in Delhi."}}, {"text": "Maha Singh", "label": "PETITIONER", "start_char": 8456, "end_char": 8466, "source": "ner", "metadata": {"in_sentence": "The accused Maha Singh was enrolled as a Constable in the Delhi Police in July 1957 and was promoted as Head Constable (Havaldar) in August 1963.", "canonical_name": "MAHA SINGH"}}, {"text": "Delhi Police", "label": "ORG", "start_char": 8502, "end_char": 8514, "source": "ner", "metadata": {"in_sentence": "The accused Maha Singh was enrolled as a Constable in the Delhi Police in July 1957 and was promoted as Head Constable (Havaldar) in August 1963."}}, {"text": "Lahori Gate Police Statioa", "label": "ORG", "start_char": 8611, "end_char": 8637, "source": "ner", "metadata": {"in_sentence": "He was posted to the Lahori Gate Police Statioa on November 21, 1967 and had since been serving there in that capacity until his suspension in connection with the present case."}}, {"text": "November 21, 1967", "label": "DATE", "start_char": 8641, "end_char": 8658, "source": "ner", "metadata": {"in_sentence": "He was posted to the Lahori Gate Police Statioa on November 21, 1967 and had since been serving there in that capacity until his suspension in connection with the present case."}}, {"text": "Anti-Corruption Jnspector Delhi", "label": "COURT", "start_char": 9138, "end_char": 9169, "source": "ner", "metadata": {"in_sentence": "The complainant approached the Anti-Corruption Jnspector Delhi, Bal Krishan (PW 7)· on April 7, 1969 at about 11.00 a.m. and made a complaint to him."}}, {"text": "Bal Krishan", "label": "WITNESS", "start_char": 9171, "end_char": 9182, "source": "ner", "metadata": {"in_sentence": "The complainant approached the Anti-Corruption Jnspector Delhi, Bal Krishan (PW 7)· on April 7, 1969 at about 11.00 a.m. and made a complaint to him."}}, {"text": "April 7, 1969", "label": "DATE", "start_char": 9194, "end_char": 9207, "source": "ner", "metadata": {"in_sentence": "The complainant approached the Anti-Corruption Jnspector Delhi, Bal Krishan (PW 7)· on April 7, 1969 at about 11.00 a.m. and made a complaint to him."}}, {"text": "section 33", "label": "PROVISION", "start_char": 9475, "end_char": 9485, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Police Act", "label": "STATUTE", "start_char": 9487, "end_char": 9504, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "3-4-69", "label": "DATE", "start_char": 9635, "end_char": 9641, "source": "ner", "metadata": {"in_sentence": "He drew up one challan (against me) on 3-4-69,\n\nwhih stands fixed for hearing on 8-4-69, in the Court of\n\nShn 0."}}, {"text": "8-4-69", "label": "DATE", "start_char": 9677, "end_char": 9683, "source": "ner", "metadata": {"in_sentence": "He drew up one challan (against me) on 3-4-69,\n\nwhih stands fixed for hearing on 8-4-69, in the Court of\n\nShn 0."}}, {"text": "P. Yadav", "label": "JUDGE", "start_char": 9709, "end_char": 9717, "source": "ner", "metadata": {"in_sentence": "P. Yadav, SDM."}}, {"text": "5-4-69", "label": "DATE", "start_char": 9940, "end_char": 9946, "source": "ner", "metadata": {"in_sentence": "On 5-4-69, the Havaldar aforesaid came to me and said that he would come again on 7-5-69 about 3.00 p.m. and that m case rupees ten were not paid, the cha!Jan would be put in Court."}}, {"text": "7-5-69", "label": "DATE", "start_char": 10019, "end_char": 10025, "source": "ner", "metadata": {"in_sentence": "On 5-4-69, the Havaldar aforesaid came to me and said that he would come again on 7-5-69 about 3.00 p.m. and that m case rupees ten were not paid, the cha!Jan would be put in Court."}}, {"text": "Ved Prakash", "label": "OTHER_PERSON", "start_char": 11605, "end_char": 11616, "source": "ner", "metadata": {"in_sentence": "Both the panch witnesses were also instructed to remain close to the complainant and the accused, hear their talk, see the passing of the bribe money and on ascertaining that the same had been passed to the accused by way of bribe, Ved Prakash was further instructed to give the agreed signal\".", "canonical_name": "Ved Prakash"}}, {"text": "Babu Ram", "label": "WITNESS", "start_char": 11940, "end_char": 11948, "source": "ner", "metadata": {"in_sentence": "The Inspector and the party with the complainant were in the area of the Novelty Cinema from about 2.10 p.m. The accused was not to be seen in the area till 5.45 p.m. when, however, he was located in plain clothes in a three-wheeler scooter sitting in the rear seat with Babu Ram (P.W. 6) a constable of the Lahori Gate Police Station on duty, in uniform."}}, {"text": "Lahori Gate Police Station", "label": "ORG", "start_char": 11977, "end_char": 12003, "source": "ner", "metadata": {"in_sentence": "The Inspector and the party with the complainant were in the area of the Novelty Cinema from about 2.10 p.m. The accused was not to be seen in the area till 5.45 p.m. when, however, he was located in plain clothes in a three-wheeler scooter sitting in the rear seat with Babu Ram (P.W. 6) a constable of the Lahori Gate Police Station on duty, in uniform."}}, {"text": "Sohan Singh", "label": "WITNESS", "start_char": 12058, "end_char": 12069, "source": "ner", "metadata": {"in_sentence": "In addition to the complainant, Sohan Singh (PW 3) stated that \" .... somebody came and called the complainant."}}, {"text": "Ved Parkash", "label": "WITNESS", "start_char": 12836, "end_char": 12847, "source": "ner", "metadata": {"in_sentence": "As arranged the signal was given to the Inspector oy PW 4 (Ved Parkash) and the Inspector and the party, who were at an eye-shot."}}, {"text": "Ved Parkash", "label": "OTHER_PERSON", "start_char": 14083, "end_char": 14094, "source": "ner", "metadata": {"in_sentence": "He stated that he was standing at quite a distance whereas Ved Parkash was nearer to the scooter\".", "canonical_name": "Ved Prakash"}}, {"text": "Bal Krishan", "label": "OTHER_PERSON", "start_char": 15500, "end_char": 15511, "source": "ner", "metadata": {"in_sentence": "P.W. 4, however, stated that \"the accused denied having taken any bribe when challenged by Inspector Bal Krishan.\""}}, {"text": "0. P. Yadav", "label": "JUDGE", "start_char": 15700, "end_char": 15711, "source": "ner", "metadata": {"in_sentence": "It appears from P-2 that the case against Charan Dass was fixed in the court of Shri 0."}}, {"text": "April 8, 1969", "label": "DATE", "start_char": 15743, "end_char": 15756, "source": "ner", "metadata": {"in_sentence": "P. Yadav, Sub-Divisional Magistrate, on April 8, 1969."}}, {"text": "Mangal Sain", "label": "WITNESS", "start_char": 15773, "end_char": 15784, "source": "ner", "metadata": {"in_sentence": "P-3 related to Mangal Sain (DW 5) showing that he was to attend his case in the same court on the same date, April 8, 1969."}}, {"text": "section 33", "label": "PROVISION", "start_char": 15908, "end_char": 15918, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Police Act", "label": "STATUTE", "start_char": 15926, "end_char": 15943, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 161", "label": "PROVISION", "start_char": 16247, "end_char": 16258, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 16259, "end_char": 16264, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 16270, "end_char": 16279, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 5", "label": "PROVISION", "start_char": 16296, "end_char": 16305, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 16322, "end_char": 16350, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 342", "label": "PROVISION", "start_char": 16608, "end_char": 16619, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 16622, "end_char": 16648, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mangat Sain", "label": "WITNESS", "start_char": 18234, "end_char": 18245, "source": "ner", "metadata": {"in_sentence": "Mangat Sain was not examined by the prosecution but had been examined by the 'accused."}}, {"text": "Shiv Darshan Nath", "label": "OTHER_PERSON", "start_char": 19519, "end_char": 19536, "source": "ner", "metadata": {"in_sentence": "He com- A pletcly threw overboard the complainant's version and stated \"I saw the complainant Shiv Darshan Nath putting a purchee with a note in the pocket of the accused.\""}}, {"text": "section 161", "label": "PROVISION", "start_char": 21190, "end_char": 21201, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 21210, "end_char": 21222, "source": "regex", "metadata": {"statute": null}}, {"text": "Charan Dass", "label": "WITNESS", "start_char": 21908, "end_char": 21919, "source": "ner", "metadata": {"in_sentence": "There were two persons, DW 5, Mangal Sain and Charan Dass (complainant's brother), who has been sent up by the accused on April 3, 1969, under the Bombay Police Act for prosecution in Court."}}, {"text": "April 3, 1969", "label": "DATE", "start_char": 21984, "end_char": 21997, "source": "ner", "metadata": {"in_sentence": "There were two persons, DW 5, Mangal Sain and Charan Dass (complainant's brother), who has been sent up by the accused on April 3, 1969, under the Bombay Police Act for prosecution in Court."}}, {"text": "Police Act", "label": "STATUTE", "start_char": 22016, "end_char": 22026, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ved Prakash", "label": "WITNESS", "start_char": 23253, "end_char": 23264, "source": "ner", "metadata": {"in_sentence": "Even Ved Prakash (PW 4) had signed this memo."}}, {"text": "Mangal\n\nSain", "label": "OTHER_PERSON", "start_char": 23569, "end_char": 23581, "source": "ner", "metadata": {"in_sentence": "51 /-, a carbon copy of challan of Charan Dass (P-2) and another carbon copy of challan of Mangal\n\nSain (P-3) admittedly received by the accused a short while ago were recovered from the left side front pocket of the shirt."}}, {"text": "section 161", "label": "PROVISION", "start_char": 28549, "end_char": 28560, "source": "regex", "metadata": {"statute": null}}, {"text": "section 165", "label": "PROVISION", "start_char": 28565, "end_char": 28576, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 28577, "end_char": 28580, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 165A", "label": "PROVISION", "start_char": 28619, "end_char": 28631, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 109", "label": "PROVISION", "start_char": 28678, "end_char": 28689, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 116", "label": "PROVISION", "start_char": 28693, "end_char": 28704, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 28705, "end_char": 28708, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 31043, "end_char": 31055, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 31063, "end_char": 31095, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 161", "label": "PROVISION", "start_char": 31538, "end_char": 31549, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 162", "label": "PROVISION", "start_char": 31997, "end_char": 32008, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "section 8", "label": "PROVISION", "start_char": 32241, "end_char": 32250, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_130_148_EN", "year": 1976, "text": "WORKMEN OF NATIONAL & GRINDLAYS BANK LTD. v.\n\nTHE NATIONAL & GRINDLAYS BANK LTD.\n\nJanuary 16, 1976\n\n[H. R. KHANNA .. P. N. BllAGWATI AND S. MURTAZA FAZAL ALI, JJ.]\n\nPr1y111e11t of Bonus Act, 1965-Foreign banking con1pa11y-Bo11us-Cornputt11ion of allocable surplus itr!111s to be taken into account-Depreciation-Cntijictlfl is.Hied by l11coo1c Tax Officer-If posseses cvidentiary ia!ue-Working\n\nj'1111ds-Mea11i1u~ of.\n\nAs a result of negotiations between the respondent-Bank and its employees\n\n(appellants) an industrial dispute with regard to bonus for the years 1956 to J 964 was settled on an ad hoc basis.\n\nBy the time of the settlement however, The Payment of Bonus Act, 1965 came into force.\n\nIn respect of the accounting year 1964, though the bonus formula was applicable, no separate computation \\\\as n1ade in accordance with that formula since it was settled on an ad hoc basis as a part of tin omnibus settlement.\n\nThe Hor.us Act provides a statutory formula for the con1putation of bonus.\n\nSection 2(13) defines an 'employee' to mean 11ny person en1ployed on a salary or \\vage not exceeding one thousand and six hundred rupees per menscm.\n\nSection 4(a) provides that the gross profits shall be calculated in the matl!ler specified in the First Schedule. ltem 2 of the First Schedule deals with \"add back\" in respect of (a) bonus to employees, (b) depreciation (c) development rebate reserve and (d) any other reserves.\n\nItem 3(a) deal-; with •add back\" of bonus paid to employees in respect of previous accounting years. Item 6(e) deals with deduction in the case of foreign banking companies of proportionate adn1inistrative (overhead) expenses of head office allocable to fndian business. The concept of \"available surplus\" is defined ins. 2(6) to mean avai!- able surplus computed under s. 5 and that section lays do\\vn that the available surplus in respect of any accounting year shall be the gross profit for that year after deducting therefrom the sums referred to in s. 6 which, under clause (a) include \"any aniount by \\\\ay of depreciation admissible in accordance \\Vith the provisions of s. 32( I) of the lncome Tax Act'' and under clause (d) \"uch further sums as are specified in re'>pcct of the employer in the Third Schedule.'' Clause (iv) of the proviso to item 2 of the Third Schedule provides that in the case of a banking company any sum v.ihich, in respect of the accounting year, is deposited by it with the Reserve Bank of India under s. 11 (2)(b)(ii) of the B;:i.nking Regulation Act, 1949 not exceeding the amount required up.der this provision to be so deposited shall be deducted from the gross profits as prior charge.\n\nSection 15 provides for what is liable to be carried forward for being set on and set off out of allocable surrlus in the succeeding year or yenrs.\n\nAn induslrial dispute having arisen betv-1een the parties in regard to the computation of bonus for the accounting year 1966. it \\1{<lS referred to an Industrial Tribunal for adjudication.\n\nThe Tribunal's award was assailed by the \\vorkmen on the following grounds : (a) that there was an excess of allocable surplus over the amount of maximum bonus for the accounting years 1964 and\n\n1965, which, by reason of s. 15(1 ), was liable to be carried forward f0r being\n\nct on in the succeeding accounting year 1966;\n\n(b) that \\vhile the object of \"add back\" was that the entire affiount set apart ; is provision for bonus should be added back in determining the available surplus. in spite of making a provision of a much larger amount as bonus. the Bank had added back only a small amount representing the bonus of thosl) \\Vorkmen who were employees falling within the n1eaning of s. 2(13) and thereby failed to take into account bonus in respect of those workmen who arc not such employees: the \\Von.I 'e-mployee' in items 2(a) of the First Schedule \\Vas not limited to employees as defined in s. 2(13) but was used, in a wider sense to include all en1ployees, that is, employees drawing more than 1600 rupees or less;\n\nWORKMEN V. GRINOLAYS BANK 13 1\n\n( c) that the Tribunal was wrong in allowing the Bank to deduct a much A higher sum by way of depreciation than \\vas shown in the profit and loss account, that the burden of showing wha't the amount of depreciation admissible under s. 32( 1) of the Income Tax Act \\\\'.as, \\Vas on the Bank which it had failed to discharge and that, at any rate the certificate issued by the Income Tax Officer was no evidence and could not be taken irrto account;\n\n{d) that the balance sheet of the Bank for the year 1966 showed a much lesser an1ount than what the Bank clai1ned to have deposited with the Reserve Bank under s. 11 (2)(b) (ii) of the Banking Regulation Act, 1949 and it was this sum \\Vhich was liable to be deducted under this head and not the larger stun \\\\hich it actually deducted.\n\nThe Industrial Tribunal's calculation of proportionate adn1inistrative (over head) expenses of head office allocable to the Indian business which are deductible in con1puting the gross profits, both the Bank and the employees assailed it as being incorrect.\n\nFor the bank, it \\Vas contended, (a) that borrowings from other banking companies, the amount of bills issued by the bank and the balance of profit and loss uccount constituted part of its \"working funds\" and that the Industrial Tribunal \\V<Js wrong in rejecting this interpretation of \"working funds\" and in limiting it to \"paid !JP capital, reserves and deposits only\",\n\n(b) that the Tribunal was wrong in refusing to permit the Bank to add back the 'iUn1 falling under item 3 (a) of the First Schedule.\n\nHELD : 1. The workmen are not enti1led to contend that though the claim\n\nfor bonus for the year 1964 was settled on an ad hoc basis without making D computation under the provisions of the Act. such computation mut now be made. not for the purpose of determining the bonus payable to them, but for the purpose of detern1ining whether there is any amount 1iab1e to be carried forv; ard and set on.\n\nSection 15 ( 1) can have no application where no computation is made under the Act and bonus is paid, not in accordance with the statutory forn1ul~ but on an ad hoc basis.\n\nThen it is not possible to say what W3S really the bonus payable under the Act. It may be less or mo~ than the bonus in fact paid.\n\nThat enquiry being rendered irrelevant by the ad hoc settl<.!ment, there can be no question of carry forward and set on of any amount, E' unL::-, s specifically agreetl upon as part of tha settlement. [137 F-138 G]\n\n2. The workmen cannot be permitted to raise a new contention for the first time in this Court that the provision for bonus liable to be added back was not n1erely the provision for bonus payable to employees as defined in s. 2(13) of the Act but also the provision for bonus payable to workmen who are not such empl_oyees.\n\nWhat is liable to be added back under item 2(a) of the First Schedule is not the amount of bonus payable to the workmen nor the amount of bonus in fact paid, but the provision for. b?nps made in the profit and, loss account, 3(a) Though the amount of dcprec1at1on calculated in accordance with account. [139 B-CJ\n\nJ. (a) Though the amount of depreciation calculated in accordance with m.eth_ods kno\\vn to acountancy practice may be unexceptionable from the point of vte\\v _of commercial accountancy, it would not necessarily be admissible as a deduction from gross profits under s. 6(a). What is allowable as a deduction from the gros~ profits under that clause is not depreciation calculated according to any recognised method but only such depreciation as is adniiss; b[c in accor- G\n\nda1ce with th~ provisions of s. 32(1) of the lncon1c Tax Act, 1961. rt39 E-FJ\n\n(b) The burden of providing that the depreciation claimed by the Bank v.a5 the correct amount admissible under s. 32(1) of the Income Tax Act 1961 \\Va5 on tile Baf!k cn1d tht ?urden had to be discharged by the Bank by producing prot1er and satisfactory evidence. rt 41 Cl\n\n. Cc) A certificate issued by the Tncomc Tr1x Officer was not admissible in\n\n._ ... _. cv1cnce to rove the.dpreciation admissible under s. 32(! ).\" It is the Industrial TnbunaI ~'h1ch fl!US~, in the exercise of its quasi-judicial duty, calculate the H amount of deprec1at1on. by adopting the n1ethod set out ins. 32(1). The Tribuna~ cannot S?Y that 1t would accept the figure of depreciation arrived at by anot.er authonty charged with the function of determining depreciation under\n\n132 SUPREr-..IE COURT REPORTS\n\n[ 1976] 3 S.C.R.\n\nA a different statute.\n\nThere is nothing in the Jncome Tax Act or in the Payn1ent of Bonus Act or in any other provision of lnw which attaches a presumption of accuracy to the determination of the Jncome Tnx Officer in this matter or invest<; it with probative or evidentiary value in the J>TOcec<lings before the Industrial • Tritunal. l142 F-143 Cl\n\nIn the ino.; tant case. however, there is no reason to interfere with the decision of the Tribun<1l in rcg:ird to the amount of depreciation deductible under s. 6(a). The certific;1te of the lncome Tax Officer was admitted in evidence without any objection by the workmen. Had the wcrkn1en objecled to its ndmissibility before the Tribunal the Bank could hnve led other evidence to substantiate its claim for depreciation.\n\nSince no such objection was taken before the Tribunal the BaFJk contented it., clf by tenUering in evidence only th: ccrtificati: of the Jncon1;; 'Tax ()fticer. l 143 C-D_l\n\n4. No reliance can be placed by the workmen on the bG..ance sheet for 1966 for repelling the Bank's claim to deduct from the gross profit the amount deposited with the Reserve Bank of India under s. 11(2) (b)(ii) of the Banking Regulation Act, 1949.\n\nThe balance sheet for the accounting year 1966 would not show the amount deposited by the Bank \\Vith the Reserve Bank in respect of tllar acco1111ti11u year, because that amount would ordinarily be deposited only after the expiration, and riot during the currency of that <H.:connting year.\n\n[144 C-FJ\n\n5. (a) The Industrial Tribun; il had committed a manifest error in regard to the calculation of Proportionate Administrative (Overhead) Expenses of head otlice all@cablc to Indian business. Although item 1 of the First Schedule requires the Industrial Tribunal to take as the starting point of computation ''net profit as shown in the profit and loss account after making usual and necessary provisions\", The fact that item 6( e) provides for deduction of proportionate administrative expenses of hend office allocable to Indian business in arriving at the gross profit for the purpose of bonus under item 7 shows that the net profit contem1)lated in item 1 is the net profit arrived at without (lcducting proportion.1te .1dn1inistn1tive expenses of head office allocable to India business. The amount in respect of the actual head office administrative expense<; allocable to lndian husincs should be added back in arriving at the figure of net profit for the purp0c of item 1. [145 D-146 BJ\n\n(b) In con1puting the Indian gross profit the Industrial Trib_un.al added back only the amounts representing bonus to employees ad depreciation a~ set out in item 2 of the First Schedule. Fo?t _note 3 requtres that te lnd1an gross profit should be determined as shown tn Item 7 and, therefore, it \\Vas necessary to add back not only amounts under ite-m 2 but also an1ounts nder item 3 an~ .i and to deduct amounts under item 6 for the purpose of 1unv1ng at the Indian gross p1ofit under item 7. 1146 A-Bl\n\n(c) In calculating the total gross profi.t~ the Industrial Tribunal committed an error by adding back merely the prov1s1on made under the pi:ot and loss account of the Indian business for bonus to employees and depreciation .. Foot note 3 requires that thetotal v.:or19 gro&s. pr?fit should. be as p:r consoh<lat.ed profit and los account ater ad1ust1ng as 111 item 2 \\vh1ch_ mean~ that the pro,· vision made in the consohdated profit and loss account for bonus to employees. depreciation development rebate reserve and any other reserves should be added back to the' net profit as shown in the consolidated profit and loss .accou!1t for the purpose of arriving at the total. orld gros.s profit.\n\nTh~ Industrial Tnbunal did not examine \\vhat was the proviston, made tn the_ onsohd;1ted prot and los~ account of the Bank under this head. 1 f any prov1s1on were made 1n the consolidated profit and loss account for bonus to en1ploye~. which would mean em\n\ntoyees of the Bank throughout the world. depre.c1al1on on world assets and evelopment rebate and other reseves such p_roy1stn \\Vuld ave to. b.e ?dded t . k to the nt profit a'i 'ihO\\Vn 1n the conso\\ltlah:d prpfit ,1nd lo~'> account. '\"c '\n\n[146 C-FJ\n\n6. (a) 'Ihe Industrial Tribunal was rig~.~ in _its interpi:etatio~ of the tern1 ·working funds\" occurring in cl. (ii) and (1n) of tl:e pr.oy1so to_c1ti;:~1 2., o~,.1,~~ Third Schedule. The tern1 n1ust be construeJ to n1cdll p, ud up c.ip1\\al. ti.:\"o..:. \\1.:s\n\nWORKMEN v. GRINDLAYS BANK (Bhagwati, J.) 133\n\nand average deposits for 52 weeks of each year for which weekly returns of A depvsits are sub111itted to the Reserve Brink of India. It could hardly be disputed that borrowings from other banking 'ompanies, the amounts of bills issued by the Bank and the balance of pr~)fit and loss account are neither reserves.nor <lepusits and they are not liable to be shown in the weekly returns of deposit\n\nsubn1itted to the: Reserve Bank of India. ll47 F-HJ\n\n(b) The term \"'working funds'' was firsl defined in the award of Mr. K. C.\n\nSen in 1949 in regard to Banks, and it was also used in the Shastri award made in 1953 in reg'<tr<l to industrial disputes between certain banking companies and their work1nen. These words have ahvays been understood in the above sense and that is the sense in which they must be deemed to have been used by the legislature when it enacted clauses (ii) and (iii) of the proviso to item 2 of the ThirJ Schedule. J 147 D-F]\n\n7. The Industrial Tribunal was wrong in refusing to permit the Bank to add back the sum of Rs. 13.27 lacs on the ground that \"a sum out of 1965 account niust not be allowed to adulterate the amount of 1966.\" This sum paid to the employees in respect of bonus for the accounting year 1965 was, on the plain terms of itc1n 3(a) of the First Schedule, liable to be added back. [143 F-HJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2533 of 1969.\n\nAppeal by special leave from the Award dated the 25th June, 1969 of the Central Government Industrial Tribunal, Calcutta, in Reference No. 35 of 1968.\n\nM. K. Ramamurth;, Ramesh Pathak, Vineet Kumar for the Appellants.\n\nG. P. Pai, 0. C. Mathur, D. N. Mishra and J. B. Dadachanji & Co. for Respondent.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J .-This appeal by special leave is directed against an award made by the Industrial Tribunal, Calcutta in a reference between the National and Grindlays Bank Ltd. (hereinafter referred to as the Bank) and its workmen represented by the All India National & Grindlays Bank Employees Federation.\n\nThe Bank is a banking company within the meaning of s. 5 of the Banking Companies Act, 1949 and has its Head Office in London and branch offices in dificrcnt parts of the world, including India. .The principal office of the Bank in India is situate in Calcutta. The Bank maintains its accounts according to the calender year and it brings out not only a consolidated balance sheet and profit and loss account for its world business, but also a separate balance sheet and profit and loss account for its Indian business.\n\nThere was an industrial dispute between the Bank and its workmen in regard to bonus for the years 1956 to 1964 and as a result of negotiations, this industrial dispute was settled between the parties on an ad hoc basis under a Memorandum of Settlement dated 28th December, 1-965.\n\nThe material terms of the settlement were :\n\n\"I. The Bank will pay and the workmen and non-workmen staff will receive.a swn of.Rs. 27 lakhs (Rupees twentyseven lakhs only) in full and final settlement of all bonus claims covering the periods from 1st January 1956 to 31st December 1964, including any claims relating to Centenary Jlonus. '\n\n! ,\n\n2. The above sum of Rs. 27 lakhs will be allocated as to one-third thereof to Award-staff only and as to the remaining two-thirds to both the Award and non-Award staff, in both cases based on the basic salary paid over the period, namely, !st January, 1956 to 31st December, 1964, and unrelated to any particular year. * *\n\n8. The parties agree that this Settlement shall not be taken as the basis or govern the principle for this determination of bonus in future, but nevertheless this Settlement shall be final and binding on the parties as regards bonus claims for the years 1956 to 1964 (both inclusive) and any claim relating to Centenary Bonus, as also regards qualifications for eligibility and procedures as set ciut above.\n\nIt may be noted that this Settlement was arrived at between the parties after the Payment of Bonus Act, 1965 came into force on 25th September, 1965.\n\nThis Act provided a statutory formula for computation and payment of bonus and it was admittedly applicable in respect of the accounting year 1964, but no separate computation of bonus for that year was made in accordance with this statutory formula and it was settled on an ad hoc basis as a part of an omnibus settlement for the accounting years 1956 to 1964. So far as the claim for bonus for the accounting year 1965 was concerned, computation was made in accordance with the statutory formula provided in the Payment of Bonus Act and the maximum 20% of the salary or wage earned during that accounting year was paid by way of bonus to the workmen. The claim for bonus for the accounting year 1966, however, could not be settled between the parties and, though the Bank paid 18% of the wage or salary earned by the workmeu during that accoul)ting year as bonus, the workmen were not satisfied and the industrial dispute arising from their claim had to be referred for adjudication.\n\nThere were different aspects of this industrial dispute which required consideration and the Central Government, tl1erefore, formulated each aspect as a separate question and referred those questions for adjudication to the Industrial Tribunal, Calcutta. The Industrial Tribunal made an award holding that, on an application of the statutory formula, the amount available for paymenut of' bonus was Rs. 22.17 lakhs and the workmen were, therefore, entitled to a little over 9% of their salary or wage as bonus, but since they had already been paid by the Bank bonus at the rate of 18 % of their salary or wage, which was much more than what they were entitled to receive, nothing further remained to be paid and they were not entitled to any relief. This award is impugned in the present appeal brought by the workmen with special leave.\n\nThere are only certain items in the computation of bonus which are now in dispute in the appeal before us and we shall confine our attention to them. But before we deal specifically .with these items, it could be convenient to refer to some of the relevan~ provisions of the Payment of Bonus Act. We will refer only to those provisions which have a bearing on the items in dispute between the parties. Section 2 is the definition section and cl. (13) of thcit section defines 'cm\\,1oyec'\n\nWORKMEN v. GRIND LAYS BANK (Bf; iagwati, l.) 13 5\n\nto mean any person employed on a salary or wage not exceeding one A thousand and six hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward. The mode of computation of gross profits in the case of a banking company is laid down in section 4, cl. (a) which provides that the gross profit shall be calculated in the manner specified in the First Schedule. The First Sche- -Oule sets out in items 2, 3 and 4 various amo\\lnts which arc to be added B and in item 6, various amounts which are to be deducted from the net profit as shown in the profit and loss account. We are concerned in this appeal only with items 2, 3(a) and 6(e) which read as follows:-\n\nItem No.\n\nParticul1rs\n\n2. Add back provision for :\n\n(a) Bonus to employees\n\n(b) Depreciation {c) Dvelopmnt Rebate Reserve.\n\n(d) Any other reserves\n\nTotal of Item No. 2 Rs.\n\n3. Add back also (a} Bonus paid to employees in respect of previous accounting years\n\n6. Deduct :\n\nAmount of sub-items Amount of main items Remarks c\n\n(;.!) In the case of foreign\n\n. E banking companies proportionate administrative (overhead) expenses of Head office allocable to Indian business\n\nThe concept of 'available surplus' is defined in s. 2, cl. ( 6) to mean F available surplus computed under s. 5 and that section lays down that the available surplus in respect of any accounting year shall be the\n\ngross profit of that year after deducting therefrom the sums referred to in s. 6. Clauses (a) and ( d) of s. 6 provide that the following sums shall be deducted from the gross profits as prior charge, namely :-\n\n\" (a) any amount by way of the depreciation admissible in accordance with the provisions of sub-section ( 1) of section G 32 of the Income-Tax Act, or in accordance with the provisions of the agricultural income-tax law, as the case may be :''\n\n\" ( d) such further sums as are specified in respect of the employer in the Third Schedule.\" The Third Sched'!le is rather material as it bears on one item in dispute\n\n):ietween t.he par!Ies.\n\nClauses (ii) and (iii) of the proviso to item 2 .!n the Tl.urd Schedule enact that in case of a banking company which H 1s a foreign company within the meaning of s. 591 of the Companies\n\n10-390SCIJ76 .\n\nA Act, 1956-the Bank in the present case being such banking companythe amount to be deducted shall be the aggregate of- .\n\n\"(ii) 7.5 per cent. of such amount as bears the same proportion to its total paid up equity share capital as its total working funds in Ind.ia bear to its total world working funds;\n\n(iii) 5 per cent of such amount as bears the same proportion to its total disclosed reserves as its total working funds in India bear to its total world working funds;~\n\nThen Wf1 come to the concept of allocable surplus which is defined in s. 2, cl. ( 4) and under that clause, 60% of the available surplus is to be taken to be the allocable surplus and it is this allocable surplus which is to be distributed by way of bonus to the workmen, subject to a limit of 20 per cent. of the total salary or wage of the employees employed in the establishment. Sec. I 0, sub-sec. ( l) provides for payment of a minimum bonus of 4 per cent. of the salary or wage earned by the employees, irrespective whether or not there are profits in the accounting year, and sub-sec. ( 1) of s. 11 lays down that where the allocable surplus exceeds the amount of minimum bonus payable under s. 10, sub-s. (I) \"the employer shall, in lieu of such minimum bonus, be bound to pay to every employee in the accounting year bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent. of such salary or wage\". Sec. 15 is the next material section and it provides, inter alia :\n\n\" (I) Where for any accounting year the allocable surplus exceeds the amount of maximum bonus payable to the employees in the establishment under sec. 11, then, the excess shall, subject to a limit of twenty per cent, of the total salary or wage of the employees employed in the establishment in that accounting year, be carried forward for being set on in the succeeding accounting year and so on up to and inclusive of the fourth accounting year to be utilised for the purpose of payment of bonus in the manner illustrated in the Fourth Schedule.\n\n(2) Where for any accounting year, there is no available surplus or the allocable surplus in respect of that year falls short of the amount of minimum bonus payable to the employees in the esta_blishment under sec. 10, and there is no amount or sufficient amount carried forward and set on under sub-sec. ( 1) which could be utilised for the purpose of payment of the minimum bonus, then, such minimum amount or the deficiency, as the case .may be, shall be carried forward for being set off in the succeeding accounting year and so on up to and inclusive of the fourth accounting year in the manner itlustrated in the Fourth Schedule.\n\nH ( 4) Where in any accounting year any a1!1ount. has been carried forward and set on or set off under this sectton, then, in calculating bonus for the succeeding accounting year, the\n\n'.,\n\nWORKMEN v. GR!NDLAYS BANK (Bhagwa.ti, J.) 137\n\namount of set on or set off carried forward from the earliest A accounting yea~ shall first be taken into account.\" .\n\nSec. 34, sub-s. ( 3) enables employees employed in any establishment or class of establishments to enter into agreement with their employer for grant of bonus under a formula which is different from that under the Payment of Bonus Act, so long as it does not deprive them of the minimum bonus payable under s. 10, sub-sec. (1). It is in the light B of these provisions that we have to consider the various points arising for determination in the appeal.\n\nWe will first take UQ for consideration question No. 2 referred to the Industrial Tribunal.\n\nThat question raises the issue whether any amount is liable to be carried forward for being set on in the accounting year 1956 and if so, what amount.\n\nThe claim of the workmen was that there was excess of allocable surplus over the amount of maxi- C mum bonus in both accounting; years 1964 and 1965 and the excess in respect of both these years was, by reason of s. 15, sub-s. (1), liable to be carried forward for being set on in the succeeding accounting year 1966. Now, so far as the claim in respect of the accounting year 1965 was concerned, the amount to be carried forward and set on was settled at the figure of Rs. 10.23 lacs under an agreement arrived at between the parties and no dispute, therefore, survived in respect of I> that claim. But the claim in respect of the accounting year 1964 was strongly resisted on behalf of the Bank and a preliminary objection was raised that the question whether any amount was liable to be carried forward and set on ou~ of the profits of the accounting year 1964 did not form the subject-matter of the reference and hence this Court, in appeal from the Industrial Tribunal, had no jurisdiction to adjudicate upon this question.\n\nWe do not think there is any substauce in this E preliminary objection. Question No. 2, referred to the Industrial Tribunal, in terms raises the issue \"whether any amount is to be carried forward for being set on--in the accounting year 1966\", and this issue is wide enough to cover the question in regard to carry forward and set on of an amount out of the profits of the accounting year 1964.\n\nThe Bank then contended that since the bonus payable for the accounting year 1964 was settled on an ad hoc basis, it was not possible to say F that the allocable surplus exceeded the maximum bonus payable for that year and hence there could be no question of any excess to be carried forward and set on in the succeeding year. There is great force in this contention.\n\nSec. 15, sub-s. (1) provides for carry forward and -set on and, on its plain terms, it comes into operation only when, in a given accounting year, the allocable surplus exceeds the maximum bonus payable under the Act, so that after payment of the maximum bonus; there G is surplus left which can be carried forward and set on, subject, of course, to the limit of 20 per cent. of the total salary or wage. It is clear from the scheme of the Act and the context in which this subsection occurs, following closely upon sections 4 to 10, that the basic condition for the applicability of this sub-section is that bonus is computed in accordance with the statutory formula provided in the preceding section_§ of the Act atid as a result of such computation, it is found R that the allocable surplus is more than sufficient ..•. to cover the maximum bonus payable under the Act and where such is the case, the subsection provides that the excess over the amount of the maximum bonus\n\nshall, to the extent of 20 per cent. of the total wage or salary, be carried forward and set on in the succeeding ygar. This sub-section can have no application where no computation is made under the Act and bonus is paid, not in accordance with the statutory formula, but on an ad hoc basis. Then it is not possible to say what was really the bonus payable under the Act. It may be less or more than the bonus in fact paid. That inquiry being rendered irrelevant by the ad hoc settlement, there can be no question of carry forward and set on of any amount, unless specifically agreed upon as part of the settlement. The workmen !n the present case were, therefore, not entitled to contend that, though the claim for bonus for the accounting year 1964 was settled on an ad hoc without making computation under the provisions of the Act, such computation must now be made, not for the purpose of determining the bonus payable to them, which is the only purpose for which such computation is contemplated to be made, but for the purpose of determining whether there is any amount liable to be carried forward and set on.\n\nThe claim of the workmen for carry forward and set on in respect of the accounting year 1964 must accordingly stand rejected.\n\nWe now, proceed to consider the items in dispute in the computation of 'available surplus' for the accounting year 1966, which fall within question No. 1 referred to the Industrial Tribunal. The first item to which wc must refer is the item of provision for bonus to employees made in the profit and loss account.\n\nThis item figures as item 2(a) in the First Schedule to the Act and it is required to be added back in the computation of the gross profits under s. 4(a). Now, so far as the profit and loss account of the Bank in respect of it& Indian business was concerned, the provision for bonus to employees did not figure in E it as a separate item, but, according to the Bank, i, t was included under\n\n- the heading \"Salaries and Allowances\" or \"Other Expenditure\" and it came to Rs. 19.52 lakhs. The Bank thus agreed to an add back of Rs. 19.52 lakhs in respect of provision for bonus to employees. The workmen, however, contended that the provision for bonus made by the Bank was for a much larger amount and the amount of Rs. 19.52 lakhs represented provision for bonus only in respect of those workmen who were 'employees' within the meaning of s. 2, cl. ( 13) and the Bank had failed to take into account _the provision for bonus in respect of those workmen who were not such 'employees'. The argument of the workmen was that tha word 'employees' in item 2 (a) of the First Schedule was not limited to 'employees' as defined in s. 2, cl. (13), but covered all employees, because the object of adding back provision for bonus to employees was to arrive at the figure of profit available for distribution of bonus and that required that the entire amount set apart as provision for bonus should be added back, for in determining what is the available fund with reference to which bonus should be paid, one cannot exclude the amount already paid or provided as bonus, whether to employees drawing more than Rs. 1600/- or to employees drawing less. It is true, said the workmen, that the word 'employees' is defined in s. 2, cl. ( 13 ), but they contended that every definition is subject to the requirement of the context and here the context clearly showed that the word 'employees' was not used in the restricted sense, but in a wider sense, including all employees. Now, this argument of the Workmen would have required serious consideration by us, br; t we do not\n\n• ,\n\nWORKlEN v. ORINDLAYS BANK (Bhagwati, J.) 139\n\nthink we can permit the workmen to raise it, as i~ does not appear to A have been advanced by them before the Industrial Tribunal. The award of the Indnstrial Tribunal does not show that this argument was at any time urged by the workmen. The only argument raised by the workmen before the Industrial Tribunal was that the amount of bonus payable to them for the accounting year 1966 was Rs. 38.66 lacs representing 18 per cent. of their wage or salary and this amount of Rs. 38.66 lacs was liable to be added back and not the amount of Rs. 19.52 lacs.\n\nB This argument was rightly rejected by the Industrial Tribunal because what is liable to be added back under Item 2 (a) of the First Schedule is not the amount of bonus payable to the workmen, nor the amount of bonus in fact paid, but the provision for bonus made in the profit and loss account. We cannot, therefore, permit the workmen to raise a new contention for the first time in this Court that the provision for bonus liable to be added back was not merely the provision for bonus to C 'employees' as defined in s. 2 cl. (13), but also the provision for bonus to workmen who were not such 'employees'.\n\nThe next item in dispute relates to the amount liable to be deducted from the gross profits under s. 6, cl. (a). What is required to be deducted under this. clause is the amount of depreciation admissible in accordance with the provisions of sub-s. (1) of s. 32 of the Income- Tax Act. Now, depreciation represents the diminution in value of a capital asset when applied to the purpose of making profit or gain. There are various methods known to accountancy practice for measuring such diminution in value and a banking company, like any other firm or company, may follow any one of these methods in maintaining its accounts\n\nand the amount of depreciation calculated according to such method would be reflected in its profit and loss account.\n\nBut, though such amount of depreciation shown in the profit and loss account may be unexceptionable from the point of view of comm., rcial acc\\)untancy principles, it would not necessarily be admissible as a deduction from gross profits under s. 6, cl. (a). What is allowable as a deduction from the gross profits under that clause is not depreciation calculated according to any recognised method of accountancy followed by a banking company, but only such depreciation as is admissible in accordance with the provisions of sub-s. (!) of s. 32 of the Income-tax Act. The profit and loss account of the Bank for the accounting year 1966 showed an amount of Rs. 22.40 lacs debited against the composite item \"Depreciation and Repairs to the Banking Company's Property\" and according to the Bank, this figure included an amount of Rs. 1.89 lacs by way of depreciation. Now, there would be no difficulty if the Bank\n\nclaied to deduct only the amount of Rs. 1.89 lacs by way of deprecal!on under s. 6, cl. (a), as that was the amount of depreciation de- ?1ted m th.e profit and loss accoun~. But the Bank claimed that, though 1t had debited by way of deprec1at10n in the profit and loss account only\n\na; i an; ount of Rs. 1.89. lacs, the anount of depreciation actually admissible m accordance with the provisions of sub-s. (1) of s. 32 of the Income-tax Act was Rs. 12.79 lacs and in support of this claim the Bank produced a certificate issued by the Income Tax. officer ,,; hich was marke~ Ex. 12 in evidence. The Industrial Tribunal relying solely on the certificate Ex. 12 held that \"depreciation admissible in accordance with the provisions of sub-s. (1) of s. 32 of the Income-tax Act\"\n\nA was Rs. 12.79 lacs as evidenced by the certificate Ex. 12 and the Bank was, therefore, entitled to deduct that amount froll). the gross profits under s. 6, cl. (a).\n\nThis decision of the Industrial Tribunal was assailed before us and it was contended on behalf of the workmen that the burden of showing wha\\ was the amount of depreciation admissible in accordance with the provisions of sub-s. (1) of s. 32 of the Income-tax Act was on the Bank and this burden, the Bank had failed to discharge by producing proper evidence. The only evidence produced on behalf of the Bank, said the workmen, was the certificate Ex. 12 issued by the Income-tax officer, but that certificate was no evidence and could not be taken into account for the purpose of holding that the depreciation admissible under sub-s. (I) of s. 32 of the Income-tax Act was Rs. 12.79 lacs.\n\nThe Bank, however, contended that the workmen did not at any time dispute that the depreciation admissible under sub-s. (I) or s. 32 of the Income-tax Act was Rs. 12. 79 lacs nor did they at any time cha!· lenge the correctness of the certificate Ex. 12 issued by the Income-tax officer and in the circumstances, this certificate was sufficient to establish the claim of the Bank.\n\nNow, in the first place, it is not correct to say that the workmen D did not at any time dispute the correctness of the figure of depreciation claimed by the Bank. Both the workmen and the Bank filed their respective computations of bonus before the Industrial Tribunal and while the Bank, in its computation, claimed to deduct the amount of Rs. 12.79 lacs as depreciation, the workmen agreed to deduction only of the amount of Rs. 1.89 lacs as appearing in the profit and loss account.\n\nThe workmen did not at any time accept the position that the correct E am@unt of depreciati n admissible under s. 32, sub-s. ( 1) of the Incometax Act came to Rs. 12. 79 lacs as claimed by the Bank. They seriously disputed it before the Industrial Tribunal and hence the Industrial Tribunal had to go into that question and come to a finding upon it. Even prior to the making uf tlw reference, when the calculation sheet regarding bonus payable for the accounting year 1966 was sent by the Bank to the workmen with its letter dated 26th July, 1967, the workmn by F their letter dated 3rd August, 1967 called upon the Bank to furnish particulars in regard to the amount of Rs. 12.79 lacs claimed by the Bank as depreciation and the only reply given by the Bank to this demand was that the information required by the workmen went \"far beyond any legal requirements\" and the Bank was not in a position to accede to the same. Vide Bank's letter dated 8th August, 1967. This circumstance would also show that the workmen did not accept the G figure of depreciation claimed by the Bank. It is true that in the ap plication made by the workmen to the Industrial Tribunal for certain clarifications on 8th January, 1969, the workmen did not ask for any clarification in regard to the amount of Rs. 12.79 lacs claimed by the Bank by way of depreciation, but if we look at this application, it will be clear that the clarifications sought by the workmen were 'on various aspects of the published balance-sheet of the company for the account- H ing years--1-1-1966 to 31-12-1966 and other figures' and there was no attempt at seeking clarifications in respect of the various items in the computation sheet filed by the Bank. Moreover, when these clarifications were sought by the application dated 8th January, 1969 the\n\nWORKMEN v. GRINDLAYS BANK (Bhagwati, !.)\n\n14 I\n\ncontroversy between the parties was already crystallised in their plead- A ings and it was cle_ar from the computation sheets filed by them that there was real dispute in regard to the amount of deprccia!ion and, therefore, mere failure on the part of the workmen to ask for clarification in respect of the amount of Rs. 12.79 lacs claimed by the Bank, could not justify an inference that the workmen had conceded the claim of the Bank and abandoned the dispute. There can be no doubt that the dispute in regard to the amount of depreciation was very much B there between the parties and it had to be resolved by the Industrial Tribunal.\n\nIt was not seriously di>puted on behalf of the Bank, and indeed having regard to the well settled position in law it could not be so disputed, that since the Bank claimed the deduction of depreciation at a figure higher than that appearing in the profit and loss account, the burden of proving that the depreciation claimed by it was the correct amount of depreciation admissible under s. 32, sub-s. (1) of the Income-tax Act was on the Bank and that burden had to be discharged by the Bank by producing proper and satisfactory evidence. Though the Industrial Tribunal relied solely on the certificate Ex. 12 issued by the Income-tax Officer for th\" purpose of holding that that the correct amount of depreciation admissible under s. 32, sub-s. (1) was Rs. 12.79 lacs, the Bank in the course of its arguments before us, placed reliance not only on this certificate but also on the oral evidence of A. K. Basu who was the Officer examined on behalf of the Bank. We will first consider the oral evidence of A. K. Basu and then examine how far the certificate Ex. 12 helps to establish !he claim of the Bank. The statement in the oral evidence of A. K. Basu which was strongly relied upon on behalf of the Bank, was : \"Under the Heading 'Prior Charge', the figure against 'depreciation' was collected from the income-tax assessment\n\norder\" and it was contended that since there was no cross-examination of A. K. Basu in regard. to this statement, it must be accepted as correct and that was sufficient to prove that the depreciation admissible under s. 32 sub-section (I) wa.s Rs. 12.79 lacs. This contentim: is '.vholly fallacious and it proceeds upon a misreading of the statement made by A. K. Basu. It is no doubt true that A. K. Basu stated that the figure against depreciation was collected from income-tax assessment order, but this statement was made in reference to the figure against depreciation appearing in the First Enclosure to Annexure (C) to the written statement of the workmen, which was the computation sheet containing calculation of bonus for the accounting year 1965. That is evident from the context in which this statement occurs. This statement finds place in the paragraph which contains answers given by the witness to the Industrial Tribunal and the six sentences preceding this paragraph as also the first sentence of this paragraph clearly show that the answers were in reference to the accounting year 1965.\n\nWe have carefully scanned through the entire evidence of A. K. Basu, but we do not find in it any statement in regard to the amount of depreciation shown in the Second Enclosure to Annexure (C) to the written statement of the workmen, which contained the computation in regard to bonus for the accounting year 1966. There was no evidence given by A. K. Basu in regard to the amount of Rs. 12.79 lacs claimed by the Bank by way of depreciation in the computation sheet submitted by it. Not a word\n\nwas said about it by A. K. Basu in his evidence and apart from A. K.\n\nBasu, no other witness was examined on behalf of the Bank. There was therefore, clearly no oral evidence to support the claim of the Bank.\n\nEven if the statement of A. K. Basu that the figures against depreciation were collected from the income-tax assessment order be construed as referring to the computatiou sheet in respect of the accounting year 1966, it does not advance the case of the Bank. The income-tax assessment order for the accounting year 1966 admittedly did not show depreciation at the figure of Rs. 12. 79 lacs and that figure could not, therefore, have been collected by M. A. K. Basu, from the income-tax assessment order.\n\nEven if the words 'Income-tax assessment order' as appearing in his statement be read so as to include the income-tax return. it was admitted that the relevant income-tax return was not produced on behalf of the Bank, and moreover, A. K. Basu admitted in his crossexamination. that he did not prepare the income-tax return and consequently it must follow that he had no personal knowledge of the correctness or veracity of the income-tax return and what he stated had no probative or evidentiary value.\n\nThat leaves for consideration the certificate Ex. 12 issued by the Income-tax Officer which was strongly relied upon on behalf of the Bank and on which the Industrial Tribunal rested its decision on this part of the case. It is clear on a plain natural reading of the language of s. 6, cl. (a) that what is deductible under that clause is \"deprecia· tion admissible in accordance with the provisions of sub-s. (!) of s. 32\n\nof the Income-tax Act\" and not \"depreciation allowed by the Incometax Officer in making assessmen~ on the e1nployer\". It is the Industrial Tribunal which has to find for itself what is the amount of depreciation admissible under sub-s. (I) of s. 32 and it cannot abdicate its duty and surrender its judgment to what has been done by the Income-tax Officer while making assessment under the Income-tax Act. Since depreciation may be computed according to various methods recognized by accountancy principles, section 6, clause (a) while providing for deduction of depreciation, had to specify the method according to which depreciation to be deducted shall be calculated and it adopted the method specified in sub-s. ( 1) of s. 32. But the calculation of depreciation in accordance with this method would necessarily have to be done by the Industrial Tribunal which is entrusted with the task of determining the amount of bonus by applying the statutory formula.\n\nTherefore, it is the industrial Tribunal which must in the exercise of its quasi judicial duty calculate the amount of depreciation by adopting the method set out in sub-s. (1) of s. 32. The Industrial Tribunal cannot say that it will blindly accept the figure of depreciation arrived at by another authority charged with the function of determining depreciation under a different statute. The determination of the Income-tax Officer in regard to depreciation admissible under section 32, sub-section ( 1) can be taken into account as evidence only if there is some provision of law which provides to that effect. We do not find anything in the Income-tax Act or in the Payment of Bonus Act or in any other provision of law which attaches presumption of accuracy to the determination of the Income-tax Officer in this matter or invests' it with probative 0r cvidcntiary value in the proceedings before the Industrial Tribunal.\n\nAnd the reason for this is obvious, because the workmen, who are sought\n\n\"\" I\n\nWORKMEN v. GRINDLAYS BANK (Bhagwati, J.) 143\n\nto be bound by the determinatiou of the Income-tax Officer, would not A be parties to the income-tax proceedings and they would have no opportumty of putting forward their point of view before the determination is arrived at by the Income-tax Ollicer. Moreover, the possibility cannot be ruled out that the determination made by the Income-tax Officer may be wrong and he might have made a bona fide mistake in arriving at the figure of depreciation. If the workmen were to be held bound by the figure of depreciation determined by the Income-tax Officer, they S would have no opportunity of challenging its corredness or showing that it is wrong, nor would they be able to verify the figure of depreciation by cross-examination of the employer or his witnesses who may have calculated the same. That would be contrary to the established principles of it1dicial prccedure. There can, therefore, be no doubt that the certificate issued by the Income-tax Officer was not admissible in evidence to prove the depreciation admissible under sub-section ( 1) of C section 32 and ordinarily we would have refused to rely upon it and directed the Industrial Tribunal to arrive at a fresh decision after giving opportunity to the Bank to prove its claim for depreciation by leading evidence, but we find that the certificate of the Income-tax Ollicer was admitted in evidence without any objection on the part of the workmen and at no stage of the hearing before the Indutrial Tribunal, it was contended on behalf of the workmen that it was an inadmissible piece of D evidence. If the workman had contended before the Industrial Tribunal that the certificate of the Income-tax Officer was not admissible in evi- deuce, the Bank could have led other evidence to substantiate its claim !or depreciation, but since no objection was raised on behalf of the workmen, the Bank contented itself by producing and tendering in evidence only the certificate of the Income-tax Officer. We do not, in the circumstances see why reason to interfere with the decision of the Tn- E dustrial Tribunal in regard to the amount of depreciation deductible under section 6, clause (a).\n\nWe then come to item 3(a) of the First Schedule which requires bonus paid to the employees in respect of the previous accounting years to be added back in computing gross profits. The amount paid to the employees-in the accounting year 1965 was Rs. 13.27 lacs and the work- F men claimed that this amount of Rs. 13.27 lacs should be added back under item 3 (a) of the First Schedule.\n\nThe Bank, in the computation sheet filed by it, also showed this amount of Rs. !3.27 '\" an add back and, therefore, there should really have been no dispute about it.\n\nBut the Industrial Tribunal refused to permit the- Bank to add back this amount of Rs. 13.27 lacs on the grou.nd that \"a sum out of 1965 accoµnt must not be allowed to adulterate the account of 1966\". This G was an obvious error committed by the Industrial Trihunal. The amount of Rs. 13.27 lacs paid to the employees in respect of honus for the accounting year 1965 was clearly, on the plain terms of Item 3(a) of the First Schedule, liable to be added back and we direct the Industrial Tribunal to do so when the case goes back to it.\n\nThe item which then requires to be considered is that under\n\ncl. (iv) of the proviso to Item 2 of the Thircl Schedule. That clause provides that in the case of a banking company, any sum which, in\n\nrespect of the accounting year, is deposited by it with the Reserve Bank of India under s. 11 (2 )(b) (ii) of the Banking Regulation Act, I 949 not exceeding the amount required under the saiu provision to be so deposited, shall be deducted from the gross profits.\n\nThe Bank claimed to deduct under this item a sum of Rs. 13.48 lacs on the ground that it represented the amount deposited by the Bank with the Reserve Bank of India under s. 11(2)(b)(ii) of the Banking Regulation Act, 1949 and produced in support of this claim, a certificate of the Reserve Bank of India dated 3rd February, 1969 confirming that the Bank had deposited security adequate to fulfil the requirements s. 11 (2 )(b )(ii) of the Banking Regulation Act, 1949 in respect of the accounting year 1966.\n\nThis certificate was produced by A. K. Basu on behalf of the Bank without any objection by the workmen and it was marked Ex. 11.\n\nThe Industrial Tribunal accepted the claim of the Bank on the strength of this certificate and permitted deduction of the amount of Rs. 13.38 lacs. The workmen impugned this decision of the Industrial Tribunal on the ground that the balance sheet of the Bank for the accounting year 1966 showed that the amount deposited by the Bank. with the Reserve Bank of\n\nlncEa during that accounting year was only Rs. 70,000/- being the difference between Rs. 99.10 lacs and Rs. 98.40 lacs and it was, therefore, only this amount which was liable to be deducted in respect of this claim.\n\nBut this contention of the workmen is clearly fallacious.\n\nThe balance sheet of the Bank for the accounting year 1966 would not show the amount deposited by the Bank with the Reserve Bank of India in respect of that accounting year, for, on a plain reading of s. 11 (2) (b )(ii) of the Banking Regulation Act, 1949, that amount would ordinarily be deposited only after the expiration and not during the currency of that accounting year.\n\nNo reliance can, therefore, be placed on behalf of the workmen on the balance sheet of the Bank for the accounting year 1966 for the purpose of repelling the claim of the Bank.\n\nOn' the other hand, the evidence given by A K. Basu on behalr of the Bank clearly showed that the Bank had deposited with the Reserve Bank of India securities adequate to fulfil the requirements of s. 11(2)(b)(ii) of the Banking Regulation Act, 1949 and this statement made by the witness was sought to be supported by the certificate issued by the Reserve Bank of India.\n\nThe workmen did question A. K. Basu on , this point, but he clearly stated that the deposit was made in securities. Having regard to this evidence of A. K. Basu supported by the certificate of the Reserve Bank of India, we must hold that rhe claim of the Bank to deduction of the amount of Rs. 13.48 lacs was well founded and it was rightly allowed by the Industrial Tribunal.\n\nThat takes us to the last item in dispute which is Item 6(e) of the First Schedule.\n\nThat item requires that in .the case of foreign banking companies, Proportionate Administrative (Over Head) Expenses of Head Office allocable to Indian business shall , be deductible in computing gross profits.\n\nThe Bank claimed that a sum of Rs. 43.40 lacs was liable to be deducted under this item, while according to the workmen, the claim for deduction was admissible\n\nWORKMEN v. GRINDLAYS BANK (Bhagwati, J.) 145\n\nonly to the extent of Rs. 43.10 lacs.\n\nThe Industrial Tribunal, however, did not accept the figure of either party but made its own calculations and came to the conclusion that the proportionate. administrative expenses allocable to Indian business amounted to Rs. 23.88 lacs and hence that was the amount deductible under this item.\n\nThis decision of the Industrial Tribunal was challenged on both sides.\n\nIn order to appreciate the grounds of cl\\allenge, it is necessary to understand how the Industrial Tribunal actually calculated the proportionate administrative expenses of Head Office allocable to Indian business.\n\nFoot Note 3 of the First Schedule provides that proportionate administrative expenses of Head Office allocable to Indian business should be calculated \"in the proportion of Indian Gross profit (Item No. 7) to total world gross profit (as per consolidated profit and Joss account, adjusted as in Item No. 2 above only)\".\n\nNow, the administrative expenses of Head Office were admittedly Rs. 120.52 lacs and if X was the amount of proportionate administrative expenses allocable to Indian business, X/120 would be equal to Indian gross profit under Item No. 7 /total world gross profit adjusted as in Item No. 2.\n\nThe Indian gross profit for the purpose of working out this proportion was calculated by the Industrial Tribunal by taking the figure of Rs. 67.39 lacs which was the net profit shown in the profit and loss account and adding to it Rs. 19.52 lacs representing bonus to employees and Rs. 1.89 lacs representing depreciation and it was, thus, determined at Rs. 88.80 lacs.\n\nHere there was a manifest error committed by the Industrial Tribunal.\n\nThe net profit of Rs. 67.39 lacs shown in the profit and loss account was admittedly arrived at after deducting from the profit of the Bank a sum of Rs. 43.10 lacs in respect of actual head office administrative expenses allocable to India. This amount of Rs~ 43.10 lacs was obviously required to be added back, since Item 6 ( e) provided for deduction of proportionate Head Office administrative expenses allocable to Indian business and the same item could not be deducted twice over in arriving at the Indian gross profit. It is true that Item 1 of the First Schedule requires the Industrial Tribunal to take as the starting point of computation \"net profit as shown in the profit and Joss account after making usual and necessary provisions\". But the fact that Item 6(e) provides for deduction of proportionate administrative expenses of Head Office allocable to Indian business in arriving at the gross profit for the purpose of bonus under Item 7 shows that the net profit contemplated in Item 1 is net orofit arrived at without deducting proportionate administrative expenses of head office allocable to Indian business. That is not regarded by the• Legislature as usual and necessary provision should be deducted fm the nuroose of ascertaining net orofit under Item 1.\n\nThis position was indeed not disnuted by the learned counsel appearing on behalf of the Bank and it is, therefore, obvious that the amount of Rs. 43.10 lacs should be added back in arriving at the figure of net profit for the purpose of Item I.\n\nThen again, it is clear from the calculation made bv the Industrial Tribunal that in comnuting the Indian gross profit at the figure of Rs. 88.80 lacs, the Industrial Tribunal added hack only the amounts representing bonus to employees and depreciation as set out in Item 2 of the First Schedule.\n\nBut Foot Note 3\n\nL' '\n\nrequires that the Indian gross profit should be determined as shown in Item 7 and, therefore, it was necessary to add back not only amounts under item 2 but also amounts under items 3 and 4 and to deduct amounts under item 6 for the purpose of arriving at the Indian gross profit under item 7.\n\nThis, the Industrial Tribunal clearly failed to do.\n\nWe would, therefore, direct the Industrial Tribunal. , When the case goes back to it, to determine the figure of Indian gross profit as set out in item 7 after adding back the amount of Rs. 43 .10 lacs the figure of net profit under Item I.\n\nThe workmen also pointed out another error in the calculation made by the Industrial Tribunal and that was in regard to computation of total world gross profit.\n\nFoot Note 3 requires that !he total gross profit should be as per consolidated profit and loss account after adjustment as in Item 2.\n\nThat means that the provision made in the consolidated profit and loss account for bonus to employees, depreciation, development rebate reserve and any other reserves should be added back to the net profit as shown in the consolidated profit and loss account for the purpose of arriving at the total world gross profit.\n\nWhat the Industrial Tribunal, however, , did in the present case was to add back merely the provision made in the profit and loss account of the Indian business for bonus to employees and depreciation.\n\nThe Industrial Tribunal did not examine what was the provision made in the consolidated profit and loss account of the Bank for bonus to employees, depreciation, development rebate reserve and other reserves. If any provision were made in the consolidated profit and loss account for bonus to employees, which would mean employees of the Bank throughout the world, depreciation on world assets and development rebate and other reserves, such provision . would have to be added back to the net profit as shown in the consolidated profit and loss account.\n\nThis would have to be done by the Industrial Tribunal when the matter goes back to it on remand. .\n\nThe Industrial Tribunal will, thus, after calculating the Indian gross profit above, apply the proportion of Indian gross profit/total world gross profit to the amount of Rs. 120.52 lacs reresenting the administrative expenses of Head Office and determine the proportionate administrative expenses of head office allocable to Indian business for the purpose of deduction under Item 6(e) of the first Schedule.\n\nWe must also refer to one other ground of challenge put forward on behalf of the Bank against the decision of the Industrial Ttibun11I in regard to the amounts deductible under els. (ii) and (iii) of the proviso to Item 2 of the Third Schedule.\n\nThis ground of challenge was urged on behalf of the Bank in support of the ultimate award of the Industrial Tribunal determining the bonus payable to the workmen at a little over 9 per cent. of their salary or wage.\n\nIt was clearly open to the Bank to urge this ground of challenge since the Bank was entitled to support the award of the Industrial Tribunal\n\nWORKMEN v. GR!NDLAYS BANK (Bhagwati, J.) 14 7\n\neven on a ground decided against .it.\n\nVide J. K. Synthetics Ltd. v.\n\nJ. K. Synthetics Mazdoor Union(') and Management of l.C.C. v.\n\nWorkmen(').\n\nThe controversy arising out of this ground of challenge turned on the true interpretation of the words 'working funds' in clauses (ii) and (iii) of the proviso to Item 2 of the Third Schedule.\n\nThe Industrial Tribunal interpreted the words 'working funds' to mean \"paid up capital, reserves and deposits\" and rejected the contention of the Bank that they also included borrowings from other banking companies, bills payable and. balance of profit and loss account.\n\nThis view taken by the Industrial Tribunal was assailed on behalf of the Bank at the hearing of the appeal before us.\n\nThe Bank contended that borrowings from other banking companies, the amounts of bills issued by the Bank and balance of profit and loss account constituted part of the working funds of the Bank and were, therefore, within the expression \"working funds\".\n\nThis contention, plausible though it may seem at first sight, is, in our opinion, not well founded.\n\nThe words \"working funds\", when used in relation to a banking company, are not to be construed in their ordinary popular sense by reference to a dictionary.\n\nThey have a history of their own and they have acquired a definite meaning.\n\nThese words were first defined in the award made by Mr. K. C. Sen in 1949 in regard to banks and the' definition he gave was that 'working funds' consisted of \"paid-up\" capital, reserves and deposits\".\n\nSo also in the Sastri Award made in 1953 in regard to Industrial desputes between certain banking companies and their workmen, the words 'working funds' were defined to mean \"paid-up capital, reserves and the average of the deposits for 52 weeks of each year for which weekly returns of deposits are submitted to the Reserve Bank of India under the provisions of the Reserve Bank of India Act\".\n\nSo far as banking companies are concerned, the \\vords 'working funds' have always been understood in this sense and that is the sense in which they must be deemed to have been used by the Legislature when it enacted els. (ii) and (iii) of the proviso to Item 2 of the Third Schedule. It is a well settled rule of interpretation that when the Legislature uses certain words which have acquired a definite meaning over a period of time, it must be assumed that those words have been used by the Legislature in the same sense. The words 'working funds' in els. (ii) and (iii) of the proviso to Item 2 of the Third Schedule must, therefore, be construed to mean paid up capitaL reserves and avera?c of the deposits for 52 weeks of each year for which weekly returns of deposits are submitted to the Reserve Bank of India. It could hardly be disputed that borrowings from other banking companies, the amounts of bills issued by the Bank and the balance of profit and loss account are neither reserves nor deposits and they are not liable to be shown in the weekly returns of deoosits submitted to the Reserve Bank of India.\n\nThe Industrial Tribunal was. therefore. rioht in excluding them from the category of 'working funds' and this m-ound of challange urged on behalf of the Bank must be rejected.\n\n(1) [1972] I S.C.R. 051\n\n(2) [1973] I S.C.R. 105.\n\nWe accordingly set aside the award made by the Industrial Tribunal and remand the case to the Industrial Tribunal with a direction to dispose it according to law in the light of the decisions given and observations made in this judgment.\n\nSince the workmen have partly succeeded and partly failed, we think that the fair order of costs would be that each party should bear and pay its own costs of these proceedings.\n\nP.B.R.\n\nAppeal allowed in part.", "total_entities": 179, "entities": [{"text": "WORKMEN OF NATIONAL & GRINDLAYS BANK LTD", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "WORKMEN OF NATIONAL & GRINDLAYS BANK LTD", "offset_not_found": false}}, {"text": "THE NATIONAL & GRINDLAYS BANK LTD", "label": "RESPONDENT", "start_char": 46, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "THE NATIONAL & GRINDLAYS BANK LTD", "offset_not_found": false}}, {"text": "January 16, 1976", "label": "DATE", "start_char": 82, "end_char": 98, "source": "ner", "metadata": {"in_sentence": "January 16, 1976\n\n[H. R. KHANNA .. P. N. BllAGWATI AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 101, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 137, "end_char": 162, "source": "metadata", "metadata": {"canonical_name": "S. 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"metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 33290, "end_char": 33294, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 33448, "end_char": 33453, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 34181, "end_char": 34185, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 34477, "end_char": 34482, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 34490, "end_char": 34504, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 6", "label": "PROVISION", "start_char": 34930, "end_char": 34934, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 35265, "end_char": 35270, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 35278, "end_char": 35292, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 35598, "end_char": 35603, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 35611, "end_char": 35625, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 6", "label": "PROVISION", "start_char": 35780, "end_char": 35784, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 36031, "end_char": 36036, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 36044, "end_char": 36058, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 36437, "end_char": 36442, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 36450, "end_char": 36464, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 36613, "end_char": 36618, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 36626, "end_char": 36640, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 37467, "end_char": 37472, "source": "regex", "metadata": {"statute": null}}, {"text": "26th July, 1967", "label": "DATE", "start_char": 37888, "end_char": 37903, "source": "ner", "metadata": {"in_sentence": "Even prior to the making uf tlw reference, when the calculation sheet regarding bonus payable for the accounting year 1966 was sent by the Bank to the workmen with its letter dated 26th July, 1967, the workmn by F their letter dated 3rd August, 1967 called upon the Bank to furnish particulars in regard to the amount of Rs."}}, {"text": "3rd August, 1967", "label": "DATE", "start_char": 37940, "end_char": 37956, "source": "ner", "metadata": {"in_sentence": "Even prior to the making uf tlw reference, when the calculation sheet regarding bonus payable for the accounting year 1966 was sent by the Bank to the workmen with its letter dated 26th July, 1967, the workmn by F their letter dated 3rd August, 1967 called upon the Bank to furnish particulars in regard to the amount of Rs."}}, {"text": "8th August, 1967", "label": "DATE", "start_char": 38304, "end_char": 38320, "source": "ner", "metadata": {"in_sentence": "Vide Bank's letter dated 8th August, 1967."}}, {"text": "8th January, 1969", "label": "DATE", "start_char": 38551, "end_char": 38568, "source": "ner", "metadata": {"in_sentence": "It is true that in the ap plication made by the workmen to the Industrial Tribunal for certain clarifications on 8th January, 1969, the workmen did not ask for any clarification in regard to the amount of Rs."}}, {"text": "31-12-1966", "label": "DATE", "start_char": 38914, "end_char": 38924, "source": "ner", "metadata": {"in_sentence": "12.79 lacs claimed by the Bank by way of depreciation, but if we look at this application, it will be clear that the clarifications sought by the workmen were 'on various aspects of the published balance-sheet of the company for the account- H ing years--1-1-1966 to 31-12-1966 and other figures' and there was no attempt at seeking clarifications in respect of the various items in the computation sheet filed by the Bank."}}, {"text": "s. 32", "label": "PROVISION", "start_char": 40240, "end_char": 40245, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 40265, "end_char": 40279, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 40585, "end_char": 40590, "source": "regex", "metadata": {"statute": null}}, {"text": "A. K. Basu", "label": "WITNESS", "start_char": 40752, "end_char": 40762, "source": "ner", "metadata": {"in_sentence": "12.79 lacs, the Bank in the course of its arguments before us, placed reliance not only on this certificate but also on the oral evidence of A. K. Basu who was the Officer examined on behalf of the Bank."}}, {"text": "A. K. Basu", "label": "OTHER_PERSON", "start_char": 40859, "end_char": 40869, "source": "ner", "metadata": {"in_sentence": "We will first consider the oral evidence of A. K. Basu and then examine how far the certificate Ex.", "canonical_name": "A. K. Basu"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 41401, "end_char": 41406, "source": "regex", "metadata": {"statute": null}}, {"text": "A. K.\n\nBasu", "label": "WITNESS", "start_char": 42852, "end_char": 42863, "source": "ner", "metadata": {"in_sentence": "Not a word\n\nwas said about it by A. K. Basu in his evidence and apart from A. K.\n\nBasu, no other witness was examined on behalf of the Bank."}}, {"text": "M. A. K. Basu", "label": "OTHER_PERSON", "start_char": 43450, "end_char": 43463, "source": "ner", "metadata": {"in_sentence": "79 lacs and that figure could not, therefore, have been collected by M. A. K. Basu, from the income-tax assessment order."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 44288, "end_char": 44292, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 44425, "end_char": 44430, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 44439, "end_char": 44453, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 44675, "end_char": 44680, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 44822, "end_char": 44836, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 6", "label": "PROVISION", "start_char": 44940, "end_char": 44949, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 45156, "end_char": 45161, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 32", "label": "PROVISION", "start_char": 45575, "end_char": 45580, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 45872, "end_char": 45882, "source": "regex", "metadata": {"statute": null}}, {"text": "do not find anything in the Income-tax Act or in the Payment of Bonus Act", "label": "STATUTE", "start_char": 46012, "end_char": 46085, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 32", "label": "PROVISION", "start_char": 47505, "end_char": 47515, "source": "regex", "metadata": {"statute": null}}, {"text": "Indutrial Tribunal", "label": "COURT", "start_char": 47905, "end_char": 47923, "source": "ner", "metadata": {"in_sentence": "There can, therefore, be no doubt that the certificate issued by the Income-tax Officer was not admissible in evidence to prove the depreciation admissible under sub-section ( 1) of C section 32 and ordinarily we would have refused to rely upon it and directed the Industrial Tribunal to arrive at a fresh decision after giving opportunity to the Bank to prove its claim for depreciation by leading evidence, but we find that the certificate of the Income-tax Ollicer was admitted in evidence without any objection on the part of the workmen and at no stage of the hearing before the Indutrial Tribunal, it was contended on behalf of the workmen that it was an inadmissible piece of D evidence."}}, {"text": "Tn- E dustrial Tribunal", "label": "COURT", "start_char": 48498, "end_char": 48521, "source": "ner", "metadata": {"in_sentence": "We do not, in the circumstances see why reason to interfere with the decision of the Tn- E dustrial Tribunal in regard to the amount of depreciation deductible under section 6, clause (a)."}}, {"text": "section 6", "label": "PROVISION", "start_char": 48579, "end_char": 48588, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 48636, "end_char": 48650, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 48971, "end_char": 48985, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 49575, "end_char": 49589, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 49980, "end_char": 49985, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Regulation Act", "label": "STATUTE", "start_char": 50006, "end_char": 50028, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11(2)(b)(ii)", "label": "PROVISION", "start_char": 50329, "end_char": 50344, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Regulation Act, 1949", "label": "STATUTE", "start_char": 50352, "end_char": 50380, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "3rd February, 1969", "label": "DATE", "start_char": 50469, "end_char": 50487, "source": "ner", "metadata": {"in_sentence": "13.48 lacs on the ground that it represented the amount deposited by the Bank with the Reserve Bank of India under s. 11(2)(b)(ii) of the Banking Regulation Act, 1949 and produced in support of this claim, a certificate of the Reserve Bank of India dated 3rd February, 1969 confirming that the Bank had deposited security adequate to fulfil the requirements s. 11 (2 )(b )(ii) of the Banking Regulation Act, 1949 in respect of the accounting year 1966."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 50572, "end_char": 50577, "source": "regex", "metadata": {"linked_statute_text": "the Banking Regulation Act, 1949", "statute": "the Banking Regulation Act, 1949"}}, {"text": "Banking Regulation Act, 1949", "label": "STATUTE", "start_char": 50598, "end_char": 50626, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Reserve Bank of\n\nlncEa", "label": "ORG", "start_char": 51141, "end_char": 51163, "source": "ner", "metadata": {"in_sentence": "with the Reserve Bank of\n\nlncEa during that accounting year was only Rs."}}, {"text": "s. 11", "label": "PROVISION", "start_char": 51636, "end_char": 51641, "source": "regex", "metadata": {"statute": null}}, {"text": "Banking Regulation Act, 1949", "label": "STATUTE", "start_char": 51662, "end_char": 51690, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "A K. Basu", "label": "OTHER_PERSON", "start_char": 52034, "end_char": 52043, "source": "ner", "metadata": {"in_sentence": "On' the other hand, the evidence given by A K. Basu on behalr of the Bank clearly showed that the Bank had deposited with the Reserve Bank of India securities adequate to fulfil the requirements of s. 11(2)(b)(ii) of the Banking Regulation Act, 1949 and this statement made by the witness was sought to be supported by the certificate issued by the Reserve Bank of India.", "canonical_name": "A. K. Basu"}}, {"text": "s. 11(2)(b)(ii)", "label": "PROVISION", "start_char": 52190, "end_char": 52205, "source": "regex", "metadata": {"linked_statute_text": "the Banking Regulation Act, 1949", "statute": "the Banking Regulation Act, 1949"}}, {"text": "Banking Regulation Act, 1949", "label": "STATUTE", "start_char": 52213, "end_char": 52241, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 52811, "end_char": 52825, "source": "regex", "metadata": {"linked_statute_text": "the Banking Regulation Act, 1949", "statute": "the Banking Regulation Act, 1949"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 53889, "end_char": 53903, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 55479, "end_char": 55493, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 56728, "end_char": 56742, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 59474, "end_char": 59488, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 60220, "end_char": 60234, "source": "regex", "metadata": {"statute": null}}, {"text": "K. C. Sen", "label": "JUDGE", "start_char": 61275, "end_char": 61284, "source": "ner", "metadata": {"in_sentence": "These words were first defined in the award made by Mr. K. C. Sen in 1949 in regard to banks and the' definition he gave was that 'working funds' consisted of \"paid-up\" capital, reserves and deposits\".", "canonical_name": "K. C.\n\nSen"}}, {"text": "Reserve Bank of India Act", "label": "STATUTE", "start_char": 61789, "end_char": 61814, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 62086, "end_char": 62100, "source": "regex", "metadata": {"statute": null}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 62423, "end_char": 62437, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_149_159_EN", "year": 1976, "text": "NARHARI SHIVRAM SHET NARVEKAR v.\n\nPANNALAL UMEDIRAM\n\nJanuary 16, 1976\n\n(R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.J\n\n('ode of Civil Procedure-Ss. 38 and 39-Transfer of a decree dated 29-6-1960 passed by the Bombay lligh Court to the Goa Court for execution- T¥hether it is a \"foreign decree' within the rneaning of sec. 2(6), C.P.C. and whether the High Court a \"foreign court\" within the n1eaning of s. 2(5) especially \"'hen the parties subjected themselves to the jurisdiction of that Court by prosecuting their case upto a certain stage. , ('onstitution of India-Art. 261 (3 )-Meaning of the word \"according to law\"-Whether they refer to the \"law in force\" during the pendency of the appeal or the \"law in force\" on the date of transfer of the decree for execution-\n\nScope of Art. 261(3 ).\n\nDecree-Executability of a decree is not a vested right-Extension of the provisions of Civil Procedure Code to a State later on does not affect the decree.\n\nJn the Civil Suit No. 203 of 1955, on the original side of the Bombay High , Court, filed by the decree-holder /respondent against the appellant/judgmentdebtor for recovery of certain amount of money, summons were served on the judgment-debtor who after filing his written staten1ent absented himself, and did not take any further part in the proceedings of the Court..1. resulting in a\n\ndecree dated 29-6-1960. for Rs. 65,953.79.\n\nOn 20-12-1961. Goa became a part of India and was made a Union Territory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on 27-3-1962.\n\nThe decree-holder applied to the Bornbay High Court for transferring the decree to Goa Court for execution and by t.n order dated 28-8-1963 the decree was transferred to the Goa Court for execution. The execution application before the Executing Cou1t at Panjim filed on 21-1-1964 was dismissed on 26-4-1965, holding that the decree transferred to it by the Bombay High Court was not executable.\n\nAn appeal was preferrfd to the Additional Judicial Commissioner on 1-6-1965 and the appellant/ Judg1nent-debtor filed his reply.\n\nDuring the pendency of the appeal, the Code of Civil Procedure was extended to Goa on 15-6-1966 by the Goa, Daman and Diu (Extension of the Code of Civil Procedure and Arbitration) Act (30) of 1965 and repealing the Portu.(?uese Code. The Additional Judicial Commissioner by its order dated 28-6-1967 held that in view of Art. 261(3) of -the Constitution, the decree passed by the Bombay High Court could not be treated as. nullity and, \\Vas therefore, executable .\n\nOn appeal by certificate, the appellant/judgment-debtor contended ( 1) that the decree passed by the Bombay High Court qua Goa Court was a nullity being a decree of a foreign court. Even if the decree was not a nullity it could be executed by a Goa court if the original decree had been appn1Yed bv the Goa Court under s. 50 of the Portuguese Code; (2) that the Bombay High Court transferring _the decree for execution to the Gon Court under ss. 38 and 39 of the C. P. C. was without jurisdiction inasmuch as the C. P. C. had not been ap, plied to Goa when the order of transfer was passed: (3) that as the provisions of the C.P.C. were applied to Goa after the order of the Executing Court \\vas passed and a vested right had accrued to the appellant/judgment-debtor. the decree continued to be inexecutable and could not be validated by Art. 261 (3) of the Constitution.\n\nThe respondent/decree-holder coritended (i) that inasmuch as the judgmentdebtor had anpeared and participated in the suit for some time the decree passed by the Bombay High Court could not be said tO\\ be a nullity (ii) that as the C.P .C. was made applicable while the appeal was pending before the Additional Judicial Commissiorler, Goa the decree became clearly executable and the order of transfef of the decree by the Bombay High Court stood validated: and (iii) that in view of the provisions of Art. 261(3) of the Constitution of Jrtdia, there was no bar to the execution of the' decree, which was passed by a court which was in the territory of India.\n\nA Dismissing the appeal, the Court,\n\nJIELD : ( 1) Where a party appears before the court, the decree of the court, even if it is a foreign court, is not a nullity. [154-D]\n\nRaj Rajendra Sardar Maloji Marsingh Rao Shitole v. Sri Shankar Saran and .1 others, L1963] 2 S.C.R. 577, distinguished and held not applicable.\n\nShaligra1n v. Dau/at Rani, [1963] 2 S.C.R. 574 and Lalji Raja & Sons v.\n\n\n(2) The right of the judgment-debtor to pay up the decree passed against him cannot be said to be a vested right, nor can the question of executability of the decree be regarded as a substantive vested right of the judgment-<1ebtor.\n\nA t<Ji'tiorari, the execution proceedingsr being purely a matter of procedure it is well-settled that any change in law which is made during the pendency of the cause \\vould be deen1ed lo be retro-active in operation and the Appellate Court is bound to take notice of the change in law. The Additional Judicial Commiss1Jner was competent to take notice of the change in the law. [154 E--F,\n\n155 Gl\n\n\nothers, A.T.R. 1959 S.C. 577, 579 and Jose De Costa and another v. Bascora #--- Sedashiva Sinai Naroornin and others, A.I.R. 1975 S.C. 1843, 1849, fo11owed.\n\n(3) The proposition adumbrated v:iz., that the executability of the decree v.as a vested right which could not be taken av.1ay by the applicability of the Code of Civil Procedure to Goa during the pendency of the appeal is wrong,\n\nsnce the executability of the decree could not be considered to be a vested right.\n\n[155 F-G]\n\n\n(4) The contention thatj as the Code of Civil Procedure was not applicable to Goa at the tirne when the Bombay High Court passed the order transferring the decree to the Goa Court, the order of transfer was absolutely Without jurisuiction WflS wrong. [156 C-Dl\n\nAs the decree was passed by the Bombay High Court, s. 38 of the Code of Civil Procedure would clearly apply and the decree passed by the Bombay High Court was not a foreign decree. It is true that at the time when the Bombay 1-ligh Court passed the order of transfer, the Code of Civil Procedure had not been applied to Goa.\n\nBut, that does not put the respondent/decree-holder out of Court.\n\nThe decree could be transferred and was valid and executable. 'But, because of infirmity, it could not be executed so long as the C.P.C.- was not made applicable to Goa. Thus, the only bar \\vhich stood in the \\Vay of the execution of the decree was the non-applicability of the provisions of the C.P.C. to Goa. This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment the Code of Civil Procedure \\vas applied to Goa on 15-6-1966. [156 D-F]\n\nHELD FURTHI;:R: (5) The instant case is a fit case in which the doctrine of eclipse would apply and he wall or the bar which separated Bombay from Goa having disappeared, there was iio impediment in the execution of a decree.\n\nThe decree lay dormant only so far as no bridge \\Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code of Civil Procedure to Goa the decree became at once executable. [156 F-G]\n\n(6) Jn the instant case, the decree passed by the Bombay High Court having been passed by a Court of competent jurisdiction and not being a nullity because the judgment-debtor had appeared and participated in the proceedings of the Court to some extent, and the order of transfer under s. 38 of the Code of Civil Procedufe also not having suffered from any inherent lack of jurisdiction, the decree became enforceable and executable as soon as the Code of Civil Procedure \\vas applied tO Goa.\n\n[157 E-F}\n\nBhaRwan Shankar v. Rajara1n Bapu Vithal, A.J.R. 1951 Born. 125, 127, A approved.\n\n(7) Art. 261(3) of the Constitution enjoins that a decree shall be executable in any part of the territory of India, according to law. In the instant case, the decree was passed by the Bombay High Court after the Constitution came into force and Art. 261 (3) would apply to the decree passed by the Bombay High Court. The Article would also _apply to Goa because at the time when the application for execution was made in Goa Court, the Constitution had already been made applicable to that State also. (158 C-D]\n\n(8) It is true that at the time when the Executing Court dismissed the suit of the decree-holder /respondent, the Code of Civil Procedure had not been <lpplied and the Portuguese Code continued to apply but after the application of the Code of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965; the Portu~ guese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions oi s. 4 of the Act.\n\nThus, when the Civil Procedure Code was made applicable to Goa during the pendency of the appeal, the appellate Court, namely, the Additional J udiciul Commissioner was bound to decide the matter in accordance with the law that was in force.\n\nHence, the contention the matter in accordance with the law that waS1 inforce.\n\nHence, the contention that the words \"according to law\" in Art. 261(3) would mean that the decree v.ould be executable only in accordance with the law in force in the Portuguese Code is not correct. [158 B-F]\n\n[Jose De Costa and another v. Bascore Sadashiva Sinai Narcornin and 01/iers, .-\\.1.R. 1975 S.C. 1843, 1849 followed.]\n\nOvrL APPELLATE JURISDICTION : Civil Appeal No. 909 of 1968.\n\n(From the judgment and order dated the 28th June, 1967 of the Judicial Commissioner's Court of Goa, Daman and Diu in Civil Appeal No. 105 of 1965).\n\nB. N. Lokur and A. G. Ratnaparkhi for the appellant.\n\nD. V. Patel and P. N. Bhardwaj for the respondent.\n\nThe Judgment of the Court was delivered by-\n\nFAzAL Au, J.\n\nThis is a judgment debtor's appeal on a certificate of fitness granted by the Additional Judicial Commissioner, Goa, Daman & Diu and arises under the following circumstances.\n\nThe decree holder/respondent had brought a suit on the original side of the Bombay High Court being Suit No. 203 of 1956 against the appellant/judgment debtor for recovery of certain amount of money. The Bombay High Court passed a decree for Rs. 65,953.79 on June 29, 1960. In the suit brought by the decree-holder/respondent summons were served on the defendant/ judgment debtor who filed his written statement and thereafter absented himself and did not take any part in the proceedings of the Court.\n\nOn December 20, 1961 Goa became a part of India and was made a Union Territory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on March 27, 1962. Thereafter the decree-holder respondent applied to the Bombay High Court for transferring the decree to Goa Court for execution.\n\nThis prayer was allowed by the Bombay High Court and by its order dated August 28, 1963 the decree was transferred\n\n11-390 SCT/76\n\nto the Goa Court for execution.\n\nIn pursuance of the order of 11c Bombay High Court the decree-holder filed an execution suit before the Executing Court at Panjim on Janumy 21, 1964. The Executing Court however by its order dated April 26, 1 %5 held that the decree transferred to it by the Bombay High Court was not executable and accordingly dismissed the execution.\n\nThereafter the decree-holder filed a memo of appeal before the Additional Judicial Commissioner on June I, 1965 and the appeal was admitted on June 5, 1965. On February 24, 1967 the judgment debtor/appellant filed his reply. While the appeal was pending before the Additional Judicial Commissioner the Code of Civil Procedure was extended to Goa on June 15, 1966.\n\nAccordingly tlie Additional Judicial Commissioner by its order dated June 28, 1967 held that the decree was executable and he accordingly remitted the case to the Executing Court for proceeding in accordance with the law.\n\nThe Additional Judicial Commissioner also held that in view of Art. 261(3) of the Constitution of India the decree passed by the Bombay High Court could not be treated to be a nullity and was, therefore, clearly executable.\n\nIn support of the appeal Mr. B. N. Lokur submitted three main contentions before us :\n\n(I) that the decree passed by the Bombay High Court qua Goa Court was a nullity being a decree of a foreign Court.\n\nEven if the decree was not a nullity it could be executed by a Goa Court if the original decree had been appro\\eci by the Goa Court under s. 50 of the Portuguese Code;\n\n(2) that the order of the Bombay High Court transferring the\n\ndecree for execution to the Goa Court under ss. 38 & 39 of the Code of Civil Procedure was without jurisdiction inasmuch as the Code of Civil Procedure had not been applied to Goa when the order of transfer was passed; and\n\n(3) that as the provisions of the Code of Civil Procedure\n\nwere applied to Goa after the order of the Executing Court was passed and a vested right had accrued to the appellantljudgmcnt debtor the decree continued to be inexecutable and could not be validated by Art. 261 ( 3) of the Omstitution of India.\n\nMr. D. V. Patel appearing for the respondent/decree-holder submitted that as the judgment-debtor had appeared and had participated in the suit for some time the decree passed by the Bombay High Court could not be said to be a nullity. Secondly it was contended that as the Code of Civil Procedure was made applicable while the appeal was pending before the Additional Judicial Commissioner, Goa, the decree became clearly executable and the order of transfer of the decree by the Bombay High Court stood validated.\n\nThirdly it was argued that in view of the provisions of Art. 261 (3) of the Constitution of India there was no bar to the execution of the decree which was passed by a Court which was in the territory of India.\n\nThe sheet-anchor of the argument of the learned counsel for the appellant/judgment-debtor, that the decree passed by the Bombay\n\nNARllARl v. PANNALAL (Faal Ali, !.) 153\n\nHigh Court was a nullity either on the ground that it was passed by A a foreign Court or on the ground that the transfer was invalid under s. 38 of the Code of Civil Procedure, was the decision of this Court in Raj Rajendra Sardar Maloji Marsingh Rav Slzito/e v. Sri Shankar\n\nSmw1 and Ors.(I).\n\nIn that case it appears that the appellant had instituted a suit in the Court in Gwalior State in May 1947.\n\nThe' respondents did not appear before the Court and the Gwalior Court passed a decree ex parte in November 1948. On September 14, 1951 B the Gwalior Court transferred the decree for execution to Allahabad. as a result of which the appellant before the Supreme Court filed an application for execution of the decree before the Allahabad Courl.\n\nIt was mainly contended before this Court that the decree being that of a foreign Court was a nullity and the execution application was nm nlaintainablc.\n\nJn these peculiar circun1stanccs this Court, after considering the entire Jaw on the subject, concluded as follows : C\n\n\"Our conclusion therefore is that the Allahabad Court had no power to execute the deem; either under section 38 or under ss. 43 or 44 of the Code of Civil Procedure.\n\nTherefore, even if the decree was not a foreig11 decree, the decree-holder's application for execution was rightly dismissed.\" D\n\nAn analysis of Shitole's case (supra)_ would clearly show that the facts in that case arc clearly distinguishable from the facts in the present case and there are indeed a large number of distinguishing features in the case indicated above which arc not at all applicable to the present case. In the first place the decree in Shitole's case( 1) was admittedly passed by the Gwalior Court in I 94 7 when Gwalior being a princely State the Court which passed the decree was undoubtedly a foreign Court.\n\nSecondly, the judgment-debtors/defendants did not appear before the Gwalior Court at all as a result of which an ex parte decree was passed.\n\nAccording to Private International Law it is well settled that an ex parte decree of a foreign Court is a nullity if the party against whom a decree is passed docs not appear at all and does not take part in the proceedings of the Court.\n\nThirdly, it would appear that the provisions of Art. 261 (3) of the Constitution would not apply to the facts of Shitole's case(') because the constitutional provisions not being retrospective they could not apply to decrees passed before the coming into force of the Constitution. ln view of these circumstances therefore it cannot be said that Shito/e's case(') referred to above is of any assistance to the appellant in deciding the issues involved in this case.\n\nOn the other hand the decision in Slzaligrum v. Daulat Ram(') appears to be directly in point so far as the facts in the present case arc concerned. In that case also a decree was passed by the Bombay High Court which was in the territory of India and to which the provisions of the Code of Civil Procedure applied. The appellant appeared before the Court and applied for leave to defend and thereafter absented himself.\n\nThe decree was thereafter transferred to the Court H\n\n(I) [196.3] 2 S.C.R. 577.\n\n\nof District Judge, Bhir in Hyderabad State. This Court held that the decree was executable and observed as follows :\n\n\"A person who appears in obedience to the process of a foreign Court and applies for leave to defend the suit without objecting to the jurisdiction of the Court when he is not compellable by law to do so must be held to have voluntarily submitted to jurisdiction of such Court Shaikh A tham Sahib v. David Sahib [1909] I.L.R. 32 Mad. 469. Therec\n\nfore it cannot be said that this decree suffered from the defects which a foreign ex-parte decree without such submission would suffer from. The order for transfer was made at a time when the Indian Code of Civil Procedure became applicable to the whole of India including the former territories of Hyderabad State.\"\n\nIn Lalji Raja & Sons v. Firm Hansraj Nathuram(I) this Court reiterated the view taken in Shaligram's case (supra). It was also pointed out in the aforesaid case that where a party appears before the Court the decree of the Court even if it is a foreign Court is not D a nullity.\n\nLearned counsel appearing for the appellant however submitted that since the Code of Civil Prqcedure was not applicable to Goa the decree became inexecutable and this being a vested right could not be taken away by the application of the Code of Civil Procedure to Goa E during the pendency of the appeal before the Additional Judicial Commissioner. It seems to us that the right of the judgment-debtor to pay up the decree passed against him cannot be said to be a vested ) right, nor can be question of executability of the decree be regarded as a substantive vested right of the judgment-debtor. A fortiorari the execution proceedings being purely a matter of procedure it is well F settled that any change in law which is made during the pendency of the cause would be deemed to be retro-active in operation and the Appellate Court is bound to take notice of the change in law.\n\nIll Mohan/al Chunilal Kothari v. Tribhowan Haribhai Tamboli(') it was clearly ruled by this Court that the Appellate Court was b.ound to apply the law as it was found on the date of the judgment. In this G connection this Court observed as follows :\n\n\"But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence, the Court was bound to apply the law as it was found on the date of the judgment. Hence, there is no question of taking away any vested rights in the landlords.\"\n\n(!) [19711 3 S.C.R. 815\n\n(2) [19631 2 S.C.R. 707, 715-716.\n\nTo the same effect is the decision of this Court in Gummalapura A Taggina Matada Kotturuswami v. Setra Veeravva and others(') where this Court observed as follows :\n\n\"It is well settled that an appellate Court is entitled to take into consideration any change in the law (vide the case of Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri\n\n-1940 FCR 84)\" B\n\nA similar view was taken by a recent decision of this Court in Jose De Costa and another v. Bascora Sadashiva Sinai Narcornin and others(') where this Court observed as follows :\n\n\"Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two wellcstablished principles.\n\nThe first is that \"while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence ai the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendmcnt\" (see Delhi Cloth and General Mills Co. Ltd. v. lnco111e-tax Commr.-54 Ind.\n\nApp. 421 (AIR 1927 PC 242). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit.\"\n\nIn these circumstances, therefore, we arc unable to accede to the contention of the appellant that the Additional Judicial Commissioner was not competent to take notice of the change in the law .\n\nAs regards the argument of the learned counsel for the appellant\n\nthat the exccutability of the decree was a vested right which could F not be taken away by the applicability of the Code of Civil Procedure to Goa during the pcndency of the appeal, the decision of this Court in Lalji Raja & Sons' case (supra) is a clear authority againstthe proposition adumbrated by the learned counsel for the appellant. In that case this Court appears to have considered this point in all its comprehensive aspects and was of the_opinion that the executabi!ity of the decree could not be considered to be a vested right.\n\nIn this con- G gection this Court made the following observations :\n\n\"Therefore the question for decision is whether the nonexecutability of the decree in the Morena court under the law in force in Madhva Bharat before the extension of 'the Code' can be said to be a right accrued under the repealed law. We do not think that even by straining the language H of the provision it can be said that the non-executability of\n\n(I) A.i~R. (1959)-S:C~ 577, 579\n\n(2) A.l.R.1975S.C.1843, 1849.\n\na decree within a particular territory can be corn;.idcred as a privilege. . . . . . . . . . . . . . . . . . . . . . . All that has happened in view of the extension of 'the Code' to the whole of India in 1951 is that the decree which could have been executed only by courts in British India arc now made executable in the whole of India.\n\nThe change made is one relating to procedure and jurisdiction ................... It was tk invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors ..... . . . . . . . . . . . . . By the extension of the 'the Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute the decree:·\n\nIt was then argued that as the Code of Civil Procedure was not applicable to Goa at the time when the Bombay High Court passed the order transferring the decree to the Goa Court, the order of. transfer was absolutely without jurisdiction.\n\nWe are. however, unable to agree with this contention. To begin with, as the decree was passed by the Bombay High Court, s. 38 o[ the Code of Civil Procedure would clearly apply because the decree passed by the Bombay High Court was not a foreign decree. It is true that at the time when the Bombay High Court passed the order of transfer, the Code of Civil Procedure bad not been applied to Goa.\n\nBut that does not put the respondent! decree-holder out of Court.\n\nThe decree could be transferred and was valid and executable. But because of an impediment or an infirmity it could not be executed so long as the Code of Civil Procedure was not made applicable to Goa. Thus the only bar which stood in the way of the execution of the decree was the non-applicability of the provisions of the Code of Civil Procedure to Goa. This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment the Code of Civil Procedure was applied to Goa on June 15, 1966. It is common ground that this was done during the pendency of the appeal before the Additional Judicial Commissioner passed the impugned order on June 28, 1967.\n\nIn these circumstances, therefore, it seems to us that this is a fit case in which the doctrine of eclipse would apply and the wall or the bar which separated Bombay from Goa having disappeared there was no impediment in the execution of the decree.\n\nThe decree lay Jormant only so far as no bridge was built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code of Civil Procedure to Goa the decree became at once executable.\n\nIn Bhagwan Shankar v. Rajaram Bapu Vithal( 1) Chagla, C.J. as he then was, while delivering the opinion of the Full Bench of the Bombay High Conrt, observed as follows :\n\n\"Therefore, as far as this particular decree was concerned, as the defendant, we are assuming, did not submit to the\n\n(!) A.l.R. 1951 Born. 125. 127.\n\nNARHARl \\'. PANNALAL (Fa::.al Ali, J.)\n\njurisdiction of the Sholapur Court, quae the Akalkot Court, the judgment of the Sholapur Court was a foreign judgment passed by a Court not of competent jurisdiction & therefore the decree could not be executed in the Akalkot Court so long as the Sholapur Court continued to be a foreign Court. 13ut once it is conceded that the decree was not a nullity & it was valid & binding as far as the Sholapur Court was concerned. then there is 110 difficulty, with respect. in understanding & appreciating the judgn1e11t rhich ue lnne to consider in this Full Bench, because if the charac/er of the Akalkol Court changes & if the status of the defendanl alters hecause of that facl, then the i111pedi111e111 which was initially tliere in the decree being enforced in the Akalkot Court disappears & the decree which was unenforceable till that change came aboul becomes enforceable & executable in the\n\nAkalkot Court.\n\nThis is not in any way violating private international law.\n\nPrivate international law remains the same. But under the circumstances of the case the Shoiapur Court no longer being a foreign Court quae the Akalkot Court, the question of private international law does not arise at all.\n\nThe decree is then being executed under the Municipal Law & clearly under the Municipal Law the decree is executable as it has been passed by a Court of competent jurisdiction.\"\n\n15 7\n\nIt would appear therefore that an idcutical phenomenon had taken place in the case before the Bombay High Court and the Full Bench held that the moment the decree became executable and enforceable the status of the defendant/judgment-debtor was altered and the decree became executable. On a parity of reasoning, therefore, in the present case also the decree passed by the Bombay High Court having been passed by a Court of competent jurisdiction and not being a nullity because the judgment-debtor had appeared and participated iu the proceedings of the Court to some extent, and the order of transfer under s. 3 8 of the Code of Civil Procedure also not having suffered from any inherent lac, k of jurisdiction, the decree became. enforceable and executable as soon as the Code of Civil Procedure was applied to Goa. As we have indicated above it was the duty of the Appellate Court, namely the Additional Judicial Commissioner, to take note of the change in law, namely, the applicability of the Code of Civil Procedure to Goa and the repeal of the Portuguese Code which was in force before the provisions of the Code of Civil Procedure were applied. The Additional Judicial Commissioner was, therefore, fully justified in taking the view that the decree was executable and the bar of inexecutability came to an end, when the provisions of the Code of Civil Procedure were applied to Goa.\n\nMr. Patel appearing for the respondent submitted an alternative argument that even if the transfer of the decree under s. 38 of the Code of Civil Procedure was not valid, under the Portuguese Code\n\nthere was no provision which required transfer of the decree to that Court before the same could be executed. Counsel for the appellant objected to this argument on the ground that it was never raised at\n\nany stage of the case and being a question of fact as to whether or not there was any such provision in the Portuguese Code it should not be entertained. In these circumstances, we do not think it necc'- sary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us. ' Finally it appears that this case is clearly covered by the principle' contained in Art. 261 (3) of the Constitution of India which rum thus :\n\n\"Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of ~ecution anywhere within that territory according to law.\n\nThis is a constitutional provision which enjoins that a decree shall be executable in any part of the territory of India according to law.\n\nIt is obvious that in the instant case the decree was passed by the Bombay High Court after the Constitution came into force and this Article\n\nwould, therefore, clearly apply to the decree passed by the Bombay High Court.\n\nThe article would also apply to Goa because at the time when the application for execution was made in a Goa Court, the Constitution had already been made applicable to that State also.\n\nMr. Lokur counsel for the appellant, however, submitted that the words 'according to law' in Art. 261 (3) would clearly show that the decree would be executable only in accordance with the law in force, i.e. the Portuguese Code. It is true that at the time when the executi11g Court dismissed the suit of the decree-holder/respondent the Code of Civil Procedure had not been applied and the Portuguese Code co11tinued to apply but after the application of the Code of Civil Proc<:- dure by virtue of the Goa, Daman and Diti (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965 (Act 30 of 1965J the Portuguese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions of s. 4 of the Act. Thus when the Code of Civil Procedure wai made applicable to Goa during the pendency of the appeal, the Appellate Court, namely, the Additional Judicial Commissioner, was bound to decide the matter in accordance with the law that was in force, namely, the Code of Civil Procedure.\n\nIn Jose Da Costa's case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows :\n\n\"Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from 15-6-1966.\n\nIf that be the correct position, there is no legal hurdle in the way of the appellant to the reagitation in this Court of the issue as to prescription left undecided by the court below.\n\n• * * *\n\nTo sum up, since on and from 15-6-1966 the Portuguese Jaw relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under\n\nthat repealed law within the meaning of the first proviso to S. 4 (I) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article I 36, the pica of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner.\n\nWe therefore negative the preliminary 0bjection ., raised by the respondents.\"\n\nFor these reasons, therefore, we find ourselves in complete agreement with the view taken by the Additional Judicial Commissioner 'and hold that the decree passed by the Bombay High Court was clearly exeuctablc. The Executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commis- 'Sioner.\n\nThe appeal fails and is accordingly dismissed but in view of the somewhat uncertain legal position we leave the parties to bear thir respective costs in this Court.\n\nAppeal dismissed.\n\nS.R", "total_entities": 147, "entities": [{"text": "NARHARI SHIVRAM SHET NARVEKAR", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "NARHARI SHIVRAM SHET NARVEKAR", "offset_not_found": false}}, {"text": "PANNALAL UMEDIRAM", "label": "RESPONDENT", "start_char": 34, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "PANNALAL UMEDIRAM", "offset_not_found": false}}, {"text": "January 16, 1976", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "NARHARI SHIVRAM SHET NARVEKAR v.\n\nPANNALAL UMEDIRAM\n\nJanuary 16, 1976\n\n(R. S. SARKARIA AND S. 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"C.P.C", "label": "STATUTE", "start_char": 6527, "end_char": 6532, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 6653, "end_char": 6680, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "15-6-1966", "label": "DATE", "start_char": 6704, "end_char": 6713, "source": "ner", "metadata": {"in_sentence": "This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment the Code of Civil Procedure \\vas applied to Goa on 15-6-1966. ["}}, {"text": "Bombay", "label": "GPE", "start_char": 6861, "end_char": 6867, "source": "ner", "metadata": {"in_sentence": "156 D-F]\n\nHELD FURTHI;:R: (5) The instant case is a fit case in which the doctrine of eclipse would apply and he wall or the bar which separated Bombay from Goa having disappeared, there was iio impediment in the execution of a decree."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7130, "end_char": 7157, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 38", "label": "PROVISION", "start_char": 7500, "end_char": 7505, "source": "regex", "metadata": {"linked_statute_text": "Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code", "statute": "Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7658, "end_char": 7685, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 261(3)", "label": "PROVISION", "start_char": 7805, "end_char": 7816, "source": "regex", "metadata": {"linked_statute_text": "Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code", "statute": "Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code"}}, {"text": "Art. 261", "label": "PROVISION", "start_char": 8047, "end_char": 8055, "source": "regex", "metadata": {"linked_statute_text": "Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code", "statute": "Vas built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of the Code"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8425, "end_char": 8452, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8547, "end_char": 8574, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 8625, "end_char": 8652, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 8853, "end_char": 8857, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 261(3)", "label": "PROVISION", "start_char": 9253, "end_char": 9264, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "B. N. Lokur", "label": "LAWYER", "start_char": 9733, "end_char": 9744, "source": "ner", "metadata": {"in_sentence": "B. N. Lokur and A. G. Ratnaparkhi for the appellant.", "canonical_name": "B. N. Lokur"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 9749, "end_char": 9766, "source": "ner", "metadata": {"in_sentence": "B. N. Lokur and A. G. Ratnaparkhi for the appellant."}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 9787, "end_char": 9798, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and P. N. Bhardwaj for the respondent.", "canonical_name": "D. V. Patel"}}, {"text": "P. N. Bhardwaj", "label": "LAWYER", "start_char": 9803, "end_char": 9817, "source": "ner", "metadata": {"in_sentence": "D. V. Patel and P. N. Bhardwaj for the respondent."}}, {"text": "FAzAL Au", "label": "JUDGE", "start_char": 9884, "end_char": 9892, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by-\n\nFAzAL Au, J.\n\nThis is a judgment debtor's appeal on a certificate of fitness granted by the Additional Judicial Commissioner, Goa, Daman & Diu and arises under the following circumstances."}}, {"text": "December 20, 1961", "label": "DATE", "start_char": 10581, "end_char": 10598, "source": "ner", "metadata": {"in_sentence": "On December 20, 1961 Goa became a part of India and was made a Union Territory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on March 27, 1962."}}, {"text": "March 27, 1962", "label": "DATE", "start_char": 10726, "end_char": 10740, "source": "ner", "metadata": {"in_sentence": "On December 20, 1961 Goa became a part of India and was made a Union Territory of India by the Constitution (Twelfth Amendment) Act, 1962 passed on March 27, 1962."}}, {"text": "August 28, 1963", "label": "DATE", "start_char": 10944, "end_char": 10959, "source": "ner", "metadata": {"in_sentence": "This prayer was allowed by the Bombay High Court and by its order dated August 28, 1963 the decree was transferred\n\n11-390 SCT/76\n\nto the Goa Court for execution."}}, {"text": "Janumy 21, 1964", "label": "DATE", "start_char": 11169, "end_char": 11184, "source": "ner", "metadata": {"in_sentence": "In pursuance of the order of 11c Bombay High Court the decree-holder filed an execution suit before the Executing Court at Panjim on Janumy 21, 1964."}}, {"text": "April 26, 1 %", "label": "DATE", "start_char": 11233, "end_char": 11246, "source": "ner", "metadata": {"in_sentence": "The Executing Court however by its order dated April 26, 1 %5 held that the decree transferred to it by the Bombay High Court was not executable and accordingly dismissed the execution."}}, {"text": "June I, 1965", "label": "DATE", "start_char": 11472, "end_char": 11484, "source": "ner", "metadata": {"in_sentence": "Thereafter the decree-holder filed a memo of appeal before the Additional Judicial Commissioner on June I, 1965 and the appeal was admitted on June 5, 1965."}}, {"text": "June 5, 1965", "label": "DATE", "start_char": 11516, "end_char": 11528, "source": "ner", "metadata": {"in_sentence": "Thereafter the decree-holder filed a memo of appeal before the Additional Judicial Commissioner on June I, 1965 and the appeal was admitted on June 5, 1965."}}, {"text": "February 24, 1967", "label": "DATE", "start_char": 11533, "end_char": 11550, "source": "ner", "metadata": {"in_sentence": "On February 24, 1967 the judgment debtor/appellant filed his reply."}}, {"text": "While the appeal was pending before the Additional Judicial Commissioner the Code", "label": "STATUTE", "start_char": 11598, "end_char": 11679, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "June 15, 1966", "label": "DATE", "start_char": 11722, "end_char": 11735, "source": "ner", "metadata": {"in_sentence": "While the appeal was pending before the Additional Judicial Commissioner the Code of Civil Procedure was extended to Goa on June 15, 1966."}}, {"text": "June 28, 1967", "label": "DATE", "start_char": 11807, "end_char": 11820, "source": "ner", "metadata": {"in_sentence": "Accordingly tlie Additional Judicial Commissioner by its order dated June 28, 1967 held that the decree was executable and he accordingly remitted the case to the Executing Court for proceeding in accordance with the law."}}, {"text": "Art. 261(3)", "label": "PROVISION", "start_char": 12024, "end_char": 12035, "source": "regex", "metadata": {"linked_statute_text": "While the appeal was pending before the Additional Judicial Commissioner the Code", "statute": "While the appeal was pending before the Additional Judicial Commissioner the Code"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 12043, "end_char": 12064, "source": "regex", "metadata": {}}, {"text": "B. N. Lokur", "label": "LAWYER", "start_char": 12215, "end_char": 12226, "source": "ner", "metadata": {"in_sentence": "In support of the appeal Mr. B. N. Lokur submitted three main contentions before us :\n\n(I) that the decree passed by the Bombay High Court qua Goa Court was a nullity being a decree of a foreign Court.", "canonical_name": "B. N. Lokur"}}, {"text": "s. 50", "label": "PROVISION", "start_char": 12527, "end_char": 12532, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "ss. 38 & 39", "label": "PROVISION", "start_char": 12664, "end_char": 12675, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12679, "end_char": 12706, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12744, "end_char": 12771, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12874, "end_char": 12901, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 261", "label": "PROVISION", "start_char": 13107, "end_char": 13115, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "D. 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Patel"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 13420, "end_char": 13447, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Additional Judicial Commissioner, Goa", "label": "COURT", "start_char": 13508, "end_char": 13545, "source": "ner", "metadata": {"in_sentence": "Secondly it was contended that as the Code of Civil Procedure was made applicable while the appeal was pending before the Additional Judicial Commissioner, Goa, the decree became clearly executable and the order of transfer of the decree by the Bombay High Court stood validated."}}, {"text": "Art. 261", "label": "PROVISION", "start_char": 13723, "end_char": 13731, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 13743, "end_char": 13764, "source": "regex", "metadata": {}}, {"text": "s. 38", "label": "PROVISION", "start_char": 14188, "end_char": 14193, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 14197, "end_char": 14224, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Gwalior State", "label": "GPE", "start_char": 14425, "end_char": 14438, "source": "ner", "metadata": {"in_sentence": "In that case it appears that the appellant had instituted a suit in the Court in Gwalior State in May 1947."}}, {"text": "Gwalior Court", "label": "COURT", "start_char": 14510, "end_char": 14523, "source": "ner", "metadata": {"in_sentence": "The' respondents did not appear before the Court and the Gwalior Court passed a decree ex parte in November 1948."}}, {"text": "September 14, 1951", "label": "DATE", "start_char": 14570, "end_char": 14588, "source": "ner", "metadata": {"in_sentence": "On September 14, 1951 B the Gwalior Court transferred the decree for execution to Allahabad."}}, {"text": "Allahabad", "label": "GPE", "start_char": 14649, "end_char": 14658, "source": "ner", "metadata": {"in_sentence": "On September 14, 1951 B the Gwalior Court transferred the decree for execution to Allahabad."}}, {"text": "Supreme Court", "label": "COURT", "start_char": 14706, "end_char": 14719, "source": "ner", "metadata": {"in_sentence": "as a result of which the appellant before the Supreme Court filed an application for execution of the decree before the Allahabad Courl."}}, {"text": "Allahabad Court", "label": "COURT", "start_char": 15111, "end_char": 15126, "source": "ner", "metadata": {"in_sentence": "Jn these peculiar circun1stanccs this Court, after considering the entire Jaw on the subject, concluded as follows : C\n\n\"Our conclusion therefore is that the Allahabad Court had no power to execute the deem; either under section 38 or under ss."}}, {"text": "section 38", "label": "PROVISION", "start_char": 15174, "end_char": 15184, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 43", "label": "PROVISION", "start_char": 15194, "end_char": 15200, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 15210, "end_char": 15237, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shitole", "label": "OTHER_PERSON", "start_char": 15385, "end_char": 15392, "source": "ner", "metadata": {"in_sentence": "D\n\nAn analysis of Shitole's case (supra)_ would clearly show that the facts in that case arc clearly distinguishable from the facts in the present case and there are indeed a large number of distinguishing features in the case indicated above which arc not at all applicable to the present case.", "canonical_name": "Shitole"}}, {"text": "Gwalior", "label": "GPE", "start_char": 15744, "end_char": 15751, "source": "ner", "metadata": {"in_sentence": "In the first place the decree in Shitole's case( 1) was admittedly passed by the Gwalior Court in I 94 7 when Gwalior being a princely State the Court which passed the decree was undoubtedly a foreign Court."}}, {"text": "Art. 261", "label": "PROVISION", "start_char": 16301, "end_char": 16309, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Shito", "label": "OTHER_PERSON", "start_char": 16599, "end_char": 16604, "source": "ner", "metadata": {"in_sentence": "ln view of these circumstances therefore it cannot be said that Shito/e's case(') referred to above is of any assistance to the appellant in deciding the issues involved in this case.", "canonical_name": "Shitole"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 16999, "end_char": 17026, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hyderabad", "label": "GPE", "start_char": 17251, "end_char": 17260, "source": "ner", "metadata": {"in_sentence": "of District Judge, Bhir in Hyderabad State."}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 17888, "end_char": 17911, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shaligram", "label": "OTHER_PERSON", "start_char": 18096, "end_char": 18105, "source": "ner", "metadata": {"in_sentence": "In Lalji Raja & Sons v. Firm Hansraj Nathuram(I) this Court reiterated the view taken in Shaligram's case (supra)."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18521, "end_char": 18548, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "1940 FCR 84", "label": "CASE_CITATION", "start_char": 20122, "end_char": 20133, "source": "regex", "metadata": {}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 21651, "end_char": 21678, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lalji Raja", "label": "OTHER_PERSON", "start_char": 21751, "end_char": 21761, "source": "ner", "metadata": {"in_sentence": "As regards the argument of the learned counsel for the appellant\n\nthat the exccutability of the decree was a vested right which could F not be taken away by the applicability of the Code of Civil Procedure to Goa during the pcndency of the appeal, the decision of this Court in Lalji Raja & Sons' case (supra) is a clear authority againstthe proposition adumbrated by the learned counsel for the appellant."}}, {"text": "Madhva Bharat", "label": "OTHER_PERSON", "start_char": 22280, "end_char": 22293, "source": "ner", "metadata": {"in_sentence": "In this con- G gection this Court made the following observations :\n\n\"Therefore the question for decision is whether the nonexecutability of the decree in the Morena court under the law in force in Madhva Bharat before the extension of 'the Code' can be said to be a right accrued under the repealed law."}}, {"text": "Morena court", "label": "COURT", "start_char": 23055, "end_char": 23067, "source": "ner", "metadata": {"in_sentence": "The change made is one relating to procedure and jurisdiction ................... It was tk invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors ..... . . . . . . . . . . . . ."}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 23476, "end_char": 23503, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 38", "label": "PROVISION", "start_char": 23810, "end_char": 23815, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 23819, "end_char": 23846, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 24029, "end_char": 24056, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 24297, "end_char": 24324, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 24476, "end_char": 24503, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 24623, "end_char": 24650, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 25277, "end_char": 25304, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bombay High Conrt", "label": "COURT", "start_char": 25480, "end_char": 25497, "source": "ner", "metadata": {"in_sentence": "In Bhagwan Shankar v. Rajaram Bapu Vithal( 1) Chagla, C.J. as he then was, while delivering the opinion of the Full Bench of the Bombay High Conrt, observed as follows :\n\n\"Therefore, as far as this particular decree was concerned, as the defendant, we are assuming, did not submit to the\n\n(!)"}}, {"text": "Fa::.al Ali", "label": "JUDGE", "start_char": 25695, "end_char": 25706, "source": "ner", "metadata": {"in_sentence": "PANNALAL (Fa::.al Ali, J.)\n\njurisdiction of the Sholapur Court, quae the Akalkot Court, the judgment of the Sholapur Court was a foreign judgment passed by a Court not of competent jurisdiction & therefore the decree could not be executed in the Akalkot Court so long as the Sholapur Court continued to be a foreign Court."}}, {"text": "Sholapur Court", "label": "COURT", "start_char": 25733, "end_char": 25747, "source": "ner", "metadata": {"in_sentence": "PANNALAL (Fa::.al Ali, J.)\n\njurisdiction of the Sholapur Court, quae the Akalkot Court, the judgment of the Sholapur Court was a foreign judgment passed by a Court not of competent jurisdiction & therefore the decree could not be executed in the Akalkot Court so long as the Sholapur Court continued to be a foreign Court."}}, {"text": "Akalkot Court", "label": "COURT", "start_char": 25758, "end_char": 25771, "source": "ner", "metadata": {"in_sentence": "PANNALAL (Fa::.al Ali, J.)\n\njurisdiction of the Sholapur Court, quae the Akalkot Court, the judgment of the Sholapur Court was a foreign judgment passed by a Court not of competent jurisdiction & therefore the decree could not be executed in the Akalkot Court so long as the Sholapur Court continued to be a foreign Court."}}, {"text": "Akalkol Court", "label": "COURT", "start_char": 26305, "end_char": 26318, "source": "ner", "metadata": {"in_sentence": "in understanding & appreciating the judgn1e11t rhich ue lnne to consider in this Full Bench, because if the charac/er of the Akalkol Court changes & if the status of the defendanl alters hecause of that facl, then the i111pedi111e111 which was initially tliere in the decree being enforced in the Akalkot Court disappears & the decree which was unenforceable till that change came aboul becomes enforceable & executable in the\n\nAkalkot Court."}}, {"text": "Shoiapur Court", "label": "COURT", "start_char": 26773, "end_char": 26787, "source": "ner", "metadata": {"in_sentence": "But under the circumstances of the case the Shoiapur Court no longer being a foreign Court quae the Akalkot Court, the question of private international law does not arise at all."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 27705, "end_char": 27709, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 27715, "end_char": 27742, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 27867, "end_char": 27894, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 28091, "end_char": 28118, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 28208, "end_char": 28235, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 28439, "end_char": 28466, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Patel", "label": "OTHER_PERSON", "start_char": 28493, "end_char": 28498, "source": "ner", "metadata": {"in_sentence": "Mr. Patel appearing for the respondent submitted an alternative argument that even if the transfer of the decree under s. 38 of the Code of Civil Procedure was not valid, under the Portuguese Code\n\nthere was no provision which required transfer of the decree to that Court before the same could be executed."}}, {"text": "s. 38", "label": "PROVISION", "start_char": 28608, "end_char": 28613, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 28617, "end_char": 28644, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 261", "label": "PROVISION", "start_char": 29329, "end_char": 29337, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 29349, "end_char": 29370, "source": "regex", "metadata": {}}, {"text": "Lokur", "label": "OTHER_PERSON", "start_char": 30123, "end_char": 30128, "source": "ner", "metadata": {"in_sentence": "Mr. Lokur counsel for the appellant, however, submitted that the words 'according to law' in Art."}}, {"text": "Art. 261", "label": "PROVISION", "start_char": 30212, "end_char": 30220, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 30453, "end_char": 30480, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 30657, "end_char": 30684, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 30899, "end_char": 30903, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 30926, "end_char": 30953, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 31168, "end_char": 31195, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jose Da Costa", "label": "OTHER_PERSON", "start_char": 31201, "end_char": 31214, "source": "ner", "metadata": {"in_sentence": "In Jose Da Costa's case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows :\n\n\"Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from 15-6-1966."}}, {"text": "S. 4", "label": "PROVISION", "start_char": 31914, "end_char": 31918, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_160_167_EN", "year": 1976, "text": "ST A TE BANK OF INDIA v.\n\nSHR[ N. SlJNDARA MONEY\n\nJanuary 16, 1976\n\n[Y. V. CHANDRACHUD. \\·. R. KRISHNA IYER AND A. C. Gl!PTA, JJ.J\n\nConstitution of India-Art. 133( l)-Sche111e of-Conditions preceden; for tlic issue of a certificate under in l'Xerci.H' of power under Art. 136 of ifle Constitution on such a ccrtific.alt'.\n\nJndt1.\\'lrial l)ispntcs Act, 19-l-7 (Act 14 of 1947)-St•ction 25F read with s.\\·. 2(oo) anti 25(B)(2)-Scupc of the co11cep1 of retre11clune11t under s. 2(00).\n\nStatutory COil.\\fruction of ,\\ocial welfare legislation-Guidelines.\n\nWords and p/rrases-.leanin.r: of the lvords ''.tennination ...... for any reason lvhatsoe1t•r\" includes _autornatic exti11guisl1111ent of service by rirtuc of a pre-en1ptivc pro\\ision to tenninate in the appointnient order itself.\n\nSection 25(F)(b) of the Jndustrial Disputes Act, 1947, provides that no workman employed in {lny industry \\Vho has been in continuous service for not less than one year under an employer shall be retrenched by that employer until he has been paid at the time of the refrcnchment, compensation which shall be equivalent to 15 days average pay for every completed year of service or any part thereof in excess of six months-.\n\nSection 2(00) of the Act de.fines 'retrcnch- 1nent' as meaning the termination by the employer of the service of a v1orkn1an for any reasons \\Vhatsoever, otherwise than as a punishment inflicted by \\Vay of disciplinary action. In the \"Hospital Jvfazdoor Sabha's\" the Supreme Court held that the statutory requirell}ent of the payment of compensation under s. 25(F)(b) of the Industrial Disputes Act, 1947 is a condition precedent for the retrenchment of a workman and any retrenchment \\Vithout payment at the time of the retrenchment makes the retrenchment order invalid and inoperatiYe.\n\nAs the aulomatic extinguishmcnt of his service consequent to the pre-en1;>tive provision in his appointment order as to the 'Jemporariness and the period of his cmploy111ent \\Va<; covered by the \\\\'ords \"termination ...... for any reasons whatsoever\" occurring ins. 2(00) of the Act, in an application under Art. 2~6 of the Constitution by the respondent claiming that by virtue of his deernecl continuous service of one year within the meaning of s. 25B(2) of the Industrial Disputes Act. he \\Vas entitled to be reinstated for non-compliance of s. 25F of the Act. The High Court of Madras, allowing .the. \\Vfit, made the rule nisi absolute. The \\\\Tit appeal filed by the appellant respondent also failed. However, the High Court granted a certificate under Art. 133(l)(c) of the Constitution.\n\nDisn1issing the appeals and negaliving the contentions of the aprellant, the Court.\n\nHELD : ( 1) The grant o.f a Constitutional passport to the Suprc1ne Court by the High Court is not a matter of easy insouciance but anxious advertenc~ to the dual vital requirements built into Art. 133(1) by specific an1endment. /.\\ substantial question of law of general importance is a sine quo non to certify Jitness for hearing by the apex court. Nay. more; the question, however, imp6r.·-\n\ntant and substantial, must be of such pervasive import and deep significance that in the High Court's judgn1ent it imperatively needs to be settled at the national level by the highe:it bench.\n\nFailure here stultifies the schen1e of the Article and floods this court \\Vith cases of lesser magnitude with illegitimate entry.\n\n[162 C-1']\n\nUnion of lndill v. Hafi.::. Mo/id. Said, JLR [1973] TI Delhi 673, 676, approved.\n\n(2) While exercising the vital po\\vers under Art. 136 the Supreme Court must have due regard to the constitutional limitations of Art. 133(1) and owe allegiance to those restraints save in exceptional cases. (163 A]\n\n• •\n\n(3) If the workman s\\vim~ into the harbour of s. 25f'--of the Industrial Dis- A pules Act. 1947, he cannot be retrenched Viithout payment, at the titne of retrenchment, compensation computed as prescribed therein read \\vith s. 25ll(2).\n\n[164 DJ\n\nState of Bo111bay and other.~ v. Hospital Ma:::.door Sublia <C: others [1960] (2) S.CR. 866, applied.\n\n( 4) Statutory construction, when courts consider \\\\'elf are legislation with an economic justice bias. cannot turn on cold print, glorified as grammatical construe- B tion, but on teleological purpose an<l protective intendment. Sections 25F, 25B aud 2(00), of the Industrial Disputes Act. 1947 ha\\'e a \\Yorkers' 111ission and the input of Part IV of the Constitution also underscores this benignant approach. \\Vhile canonsof tra1.1itional sanctity cnnnot wholly govern. courts ..:a::u1ot go hay- \\vire in interpreting provisions, ignoring the text and context. Words of multipk:\n\nimport have to he winno, Ye<l judicially to suit the social philosophy of the statute.\n\nDictionaries are not dictators of statutory construction '\"'here the benignant 1nood of a la\\v and. more en1phatically, the definition clause furnish a difi:'i.:rent denotation. Section 2 ( oo) is the master of the situation and t11~ Court cannot C truncate its amplitude. The won.ls \"for atiy reason whatsoever\" ins. 2(oo) of the Industrial Disputes Act are very wide and almost admit of no exception.\n\n[163 G, 164 H, 165 B, 166 BJ\n\n(5) A breakdo\\vn of s. 2(oo) unmis.takably expands the sen1antics of ret1u1chment. \"Termination ...... for any reason \\Vhatsoever\" are the key words.\n\nEvery termination spells retrenchment. A termination takes place \\\\here a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of D cu1nprehensive definition has been effectuated. Termination embraces not n1crely the act of termination by the employer, but the fact of !ermination ho\\vo;, oev<:r produced. Retrenchment is no longer terra incognita but area covered b1 an expansive definition. It means 'to end' conclude, cease'. That to write inlo the order of appointment the date of tern1ination confers '!10 n1oksha from s. 25F(b) is inferable \"from the proviso to s. 25F(l). A separate subsequent termination of the service is not the sole n1agnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as a postappoint- 11:. ment termination. Dexterity of diction cannot defeat the articulated conscience of the provision. [165 B-C. D. E, 166 CJ\n\nOb,., ervatio11 :.-Social justice has two sides and occasionally one party or the other makes myopic mistakes resulting in further litigation. [166 G] [The Court reiterated its vie'\"'s hel<l out in Trustees of Port, Bo111bay's case, nan1ely, where the law is not free from obscurity and needs this Court's pronouncement an<l one of the affected parties is weak, being a Vv'orl.;.er, the costs\n\nin1st come out of public funds and suggested the constitution by the State of a\n\nsuitors Fund'' which will take care of hardships and publi\\.: interest in the area or necessary litigation.]\n\nCIVIL APPELLATE JURISDfCTION : Civil Appeals Nos. 933 and 934 of 1975. -\n\nFrom the judgment and orders dated the 24th and 25th March, 1975 of the Madras High Court at Madras in writ appeal No. 231 of 1973 and writ petition No. 5062 of 1973.\n\nF. S. Nari\"\"\"'' MI s. I. N. Shroff and H. S. Parihar, for the appel- !ant.\n\nM. K. Rwnamurthi and J. Ra111a111urthi, for the respondent.\n\nThe Judgment 9f the Court was delivered by\n\nKRISHNA lYER, J.-The appellant employer, undaunted by a double H defeat at both tiers in the High Court, has appealed against the adverse judgments, by certificate, on the only ground that there was no rctrenchmem of the respondent-employee (within the meaning of\n\nA of s. 2(oo) of the.Industrial Disputes Act, 1947 (Act XIV of 1947) hereinafter called the Act) and, consequently the latter was ineligible to the statutory compensation the non-payment of which, along with the termination of service, nullified the termination itself.\n\nThe end result was that the Division Bench of the Court ruled that the respondent 'was entitled to retrenchment compensation' which, not having been paid, 'the termination would be invalid'.\n\nThe subtle B legal issue, substantial in its financial impact, is whether s. 25F read with s. 2 ( oo), vis a vis a short employment, casts a lethal spell on the cessation of service for non-compliance with the condition precedent set out in the provision.\n\nThe Certificate\n\nThe certificate issued by the High Court under Art.133 (1) is bad on its face. according to counsel for the respondent and the appeal consequently incompetent.\n\nWe are inclined to agree that the grant of a constitutional passport to the Supreme Court by the High Court is not a matter of easy insouciance but anxious advertence to the dual vital requirements built into Art. 133 (I) by specific amendment. , Failure here stultifies the scheme of the Article and floods this Court with cases of lesser magnitude with illegitimate entry.\n\nA substantial question of law of general importance is a sine qua non to certify fitness for hearing by the apex court. Nay, more; the question, however important and substantial, must be of such pervasive import and deep significance that. in the High Court's\n\njudgment it imperatively needs to be settled at the national level by the highest bench.\n\nThe crux of the matter has been correctly set out in a decision(') of the Delhi High Court in words which find our approval :\n\n\"A certificate can be granted only if the case involves a question of law :-\n\n(i) which is not only substantial but is also of general importance; and\n\n(ii) the said question, in our opinion, needs to be decided by the Supreme Court.\n\nIt has to be noted that all the above requirements should be satisfied before a certificate can be granted. It means that it is not sufficient if the case involves a substantial question of law of general importance but in addition to it the High Court should be of the opinion that such question needs to be decided by the Supreme Court.\n\nFurther, the word 'needs' suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such a necessity can be said to exist when, for instance, two views are possible regarding the question and the High Court takes one of the said views.\n\nSuch a necessity can also said to exist when a different view has been expressed by another High Court.\n\n(!) Union of India v. Hafiz Mohd. Said: ILR [19731 II Delhi 673, 676.\n\nIt is but fair to add an implied but important foot note that A while exercising the wider power under Art. 136 this Court must have due regard to the constitutional limitations on Art. 133(1) and owe allegiance to those restraints save in exceptional cases.\n\nThis view of the certificate would have put the lid on this appeal but on hearing counsel we feel that the omission of the High Court to assess the case explicitly from this angle does not disable us from 8, granting special leave, if applied for.\n\nSo much so counsel have proceeded to argue on the merits, the penumbra! area of industrial law covered by the subject matter being one which cannot be left in legal twilight.\n\nThe facts\n\nOne of the two employees involved in these appeals has been re-absorbed in service and his case is therefore of lesser import, but the other is still out in the cold ad his legal fate falls for examination in the matrix of facts which we proceed to state.\n\nThis respondent was appointed as cashier, off and on, by the State Bank of India between July 31 , 1973 and August 29, 1973.\n\nThe intermittent breaks notwithstanding, his total number of days of employment answered the test of 'deemed' continuous service within s. 258 (2) and both sides accept that fact situation.\n\nBut the order of appointment. which bears in its bosom the 'good bye' to the employee after a few days, calls for construction in the light of s . 2 ( oo) and s. 25F and we may as well read it here\n\n\"(I) The appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the bank's discretion;\n\n(2) The employment, unless terminated earlier, will automaticallv cease at the expiry of the period i.e.,\n\n18-11-1972.\"\n\nThis nine days' employment, tacked on to what has gone before, F has ripened to a continuous service for a year on the antecedent arithmetic of 240 days of broken bits of service.\n\nThe le11al issue The skiagram of the employment order must now be studied to ascertain which of the rival meanings counsel have pressed deserves preference.\n\nStatutory construction, when courts consider welfare legislation with an economic justice bias, cannot turn on cold print glorified as grammatical construction but on teleological purpose and protective intendment.\n\nHere s. 25F, 25B and 2 ( oo) have a workers' mission and the input of Part IV of the Constitution also underscores this benignant approach.\n\nWhile canons of traditional sanctity cannot wholly govern, courts cannot go haywire in interpreting provisions, ignoring the text and context.\n\nWith these guidelines before us, we seek to decode the implications of the order of appointment.\n\nBut before doing so, an analysis of the legal components of s. 25F will facilitate the diagnostic task.\n\n164 Sl; PREME COURT REPORTS\n\n[J 976] 3 S.C.R.\n\nA The leading case on this facet of law is The Hospital Mazdoor\n\nSabha( 1). Gajendragadkar, J. (as he then was) observed:\n\n\"Section 25F(b) provides that no workman employed in any industry who has been in continuous service for not Jess than one year under an employer shall be retrenched by that employer until he has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days' aYeragc pay for every completed year of service or any part thereof in excess of six months.\n\nClauses (a) and ( c) of the said section prescribe similar conditions but we are not concerned with them.\n\nOn a plain reading of s. 25F(b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman.\n\nThe section provides that no workman shall be retrenched until the condition in question has been satisfied.\n\nIt is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchment invalid .... failure to comply with the said provision renders the impugned orders invalid a.nd inoperative.\"\n\nWithout further ado, we reach the conclusion that if the workman swims into the harbour of s. 25F, he cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed therein read with s. 25B(2).\n\nBut, argues the appellant, all these obligations flow only out of retrenchment, not termination outside that species of snapping employment.\n\nWhat, then, is retrcnchm~.1t? The key to this vexed question is to be found in s. 2 ( oo) which reads thus :\n\n\"2 ( oo) \"retrenchment\" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include-\n\n(a) voluntary retirement of the workman; or\n\n(b) retirement of the workman on reaching the age of supera-annuation if the contract of employment between the employer and the workman concerned contains .\" stipulation in that behalf; or\n\n( c) termination of the service of a workman on the ground of continued ill-health;\n\nfor any reason whatsoever-very wide and almost admitting of no exception.\n\nStill, the employer urges that when the order of appointment carries an automatic cessation of service, the period of ci;1ployment works itself out by efflux of times, not by act of employer. ---- - -- -----~\n\n(1) [1960] 2 S.C.R. 866, 871-872.\n\n' •\n\nSuch C•\\scs arc outside the concept of 'retrenchment' and cannot entail the burdensome conditions of s. 25F. Of course, that a nine-days' employment, hedged in with an express condition of temporariness and automat'c cessation, may look like being in a different street (if we may use a colloquialism) from telling a man off by retrenching him.\n\nTo retrench is to cut down.\n\nYou cannot retrench without trenching or cutting.\n\nBut dictionaries are not dictators o! statutory construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation.\n\nSection 2 ( oo) is the master of the situation and the Court cannot truncate its amplitude.\n\nA hreak-down of s. 2(oo) unmistakably expands the semantics of retrenchment. 'Termination. . . for any reason whatsoever' are the key words.\n\nWhatever the reason, every termination srells retrenchment.\n\nSo the sole question is-has the employee's service been terminated?\n\nVerbal apparel apart, the substance is decisive.\n\nA termination 'takes place where a term expires either by the active step of the master of the running out of the stipulated term.\n\nTo protect the weak against the strong this policy of comprehensive definitio11 has been effectuated. Termination embraces not merely the\n\nact of termination by the employer, but the fact of termination howsoever produced.\n\nMay be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of s .25F ands .2(oo). Without speculat- , ing on possibilities, we may agree that 'retrenchment' is no longer\n\nterra incognita but area covered by an expansive definition. It means 'to end, conclude, cease'.\n\nIn the present case the employment ceased, concluded, ended on the expiration of nine days-automatically may be, but cessation all the same.\n\nThat to write into the order of appointment the date of termination confers no moksha from s. 25F(b) is inferable from the proviso to s. 25F(l ).\n\nTrue, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract s. 25F and automatic extinguishment of service\n\nby effluxion of time cannot be suflicient.\n\nAn English case R. v.\n\nSecretary of State(') was relied on where Lord Denning MR observed :\n\n\"I think that the word 'terminate' or 'termination' is by itself ambiguous. It can refer to either of two things-either to termination by notice or to tcr1ninatio11 by effluxion of time. lt is often used in that dual sense in landlord and tenant and in n1astcr and servant cases.\n\nBut there are several indications in this paragraph to show that it refers here onlv to termination by notice.\" ·\n\nBuckley L.C., concurred and said :\n\n\"In my judgment the words are not capable of bearing that meaning. As counsel for the Secretary of State has pointed out, the verb 'terminate' can be used either transitively or -- -----\n\n(!) {1973] 2 All E.R. 103.\n\nintransitively. A contract niay be said to terminate when it comes to an end by eflluxiou of time, or it may be said to be terminated when it is determined at notice or otherwise bv some act of one of the parties. Here in my judgment the word 'terminated' is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to end merely by effluxion of time.\"\n\nWords of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate. subsequent determination is not the sole magnetic pull of the provision.\n\nA pre-emptive provision to terminate is struck by the same vice as the post-appointment termination.\n\nDexterity of diction cannot defeat the articulated conscience of the provision.\n\nWhat follows ? Had the State Bank known the !aw and acted on it, hall-a-month's pay would have concluded the story.\n\nBut that did not happen.\n\nAnd now, some years have passed and the Bank has to pay, for no service rendered.\n\nEven so, hard cases cannot make bad law.\n\nRe-instatement is the necessary relief that follows.\n\nAt what point ? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw where he to be appointed in the same post today de nova.\n\nAs for benefits, if any, flowing from service he will be rankbelow all permanent employees in that cadre and will be deemed to be a temporary hand upto now.\n\nHe will not be allowed to claim any advantages in the matter of seniority or other priority inter se among temporary employees on the ground that his retrenchment is being declared invalid by this Court.\n\nNot that we are laying down any general proposition of law, but make this direction in the special circumstances of the case.\n\nAs for the respondent's emoluments, he will have to pursue other remedies, if any.\n\nWe substantially dismiss the appeal (C.A. 934 of 1975) subject to the slight modification made above. There was some intervening suggestion !or settlement of the dispute but it fell through. We are persuaded to make the observation based on that circumstance that social justice has two sides and, occasionally, one party or the other makes myopic mistakes resulting in further litigation.\n\nSubject to the above observations, the appeal is dismissed.\n\nThe parties will bear their costs throughout, although, in cases like this, where the law is not free from obscurity and needs this Court's pronouncement and one of the affected parties is weak, being a worker, the costs must come out of public funds as suggested in Trustees of\n\nPort, Bombay(f) .. The State, we hope, will constitute a snitors' fund\n\n(1) [1974]4S.C.C. 710.\n\nwhich will take care of hardships and public interest in the area of necessary litigation.\n\nIn C.A. 933 of 1975 the respondent has been re-employed by the\n\n• appellant although in !!is case also we declare, for reasons already given and subject to the same terms till his absorption that the retrenchment is invalid. The costs, in this appeal, will be borne by each of the B • parties.\n\nS.R.\n\nAppeal dismissed.\n\n!2--L390SCl/76", "total_entities": 70, "entities": [{"text": "ST A TE BANK OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "STATE BANK OF INDIA", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD. \\·. R. KRISHNA IYER", "label": "JUDGE", "start_char": 69, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 132, "end_char": 153, "source": "regex", "metadata": {}}, {"text": "Art. 133( l)", "label": "PROVISION", "start_char": 154, "end_char": 166, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 267, "end_char": 275, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 2(00)", "label": "PROVISION", "start_char": 472, "end_char": 480, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 25(F)(b)", "label": "PROVISION", "start_char": 784, "end_char": 800, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Jndustrial Disputes Act, 1947", "label": "STATUTE", "start_char": 808, "end_char": 837, "source": "regex", "metadata": {}}, {"text": "Section 2(00)", "label": "PROVISION", "start_char": 1209, "end_char": 1222, "source": "regex", "metadata": {"linked_statute_text": "the Jndustrial Disputes Act, 1947", "statute": "the Jndustrial Disputes Act, 1947"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 1476, "end_char": 1489, "source": "ner", "metadata": {"in_sentence": "In the \"Hospital Jvfazdoor Sabha's\" the Supreme Court held that the statutory requirell}ent of the payment of compensation under s. 25(F)(b) of the Industrial Disputes Act, 1947 is a condition precedent for the retrenchment of a workman and any retrenchment \\Vithout payment at the time of the retrenchment makes the retrenchment order invalid and inoperatiYe."}}, {"text": "s. 25(F)(b)", "label": "PROVISION", "start_char": 1565, "end_char": 1576, "source": "regex", "metadata": {"linked_statute_text": "the Jndustrial Disputes Act, 1947", "statute": "the Jndustrial Disputes Act, 1947"}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 1584, "end_char": 1613, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 2", "label": "PROVISION", "start_char": 2106, "end_char": 2112, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 25B(2)", "label": "PROVISION", "start_char": 2246, "end_char": 2255, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 2263, "end_char": 2286, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 2344, "end_char": 2350, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 2367, "end_char": 2387, "source": "ner", "metadata": {"in_sentence": "The High Court of Madras, allowing .the."}}, {"text": "Art. 133(l)(c)", "label": "PROVISION", "start_char": 2556, "end_char": 2570, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 2871, "end_char": 2882, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "apex court", "label": "COURT", "start_char": 3017, "end_char": 3027, "source": "ner", "metadata": {"in_sentence": "substantial question of law of general importance is a sine quo non to certify Jitness for hearing by the apex court."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 3537, "end_char": 3545, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 3622, "end_char": 3633, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 25", "label": "PROVISION", "start_char": 3760, "end_char": 3765, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25", "label": "PROVISION", "start_char": 3938, "end_char": 3943, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 25F, 25B", "label": "PROVISION", "start_char": 4293, "end_char": 4310, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 4329, "end_char": 4352, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2", "label": "PROVISION", "start_char": 4911, "end_char": 4920, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 5064, "end_char": 5087, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(oo)", "label": "PROVISION", "start_char": 5187, "end_char": 5195, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F(b)", "label": "PROVISION", "start_char": 5936, "end_char": 5945, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F(l)", "label": "PROVISION", "start_char": 5980, "end_char": 5989, "source": "regex", "metadata": {"statute": null}}, {"text": "F. S. Nari", "label": "PETITIONER", "start_char": 7125, "end_char": 7135, "source": "ner", "metadata": {"in_sentence": "F. S. Nari\"\"\"'' MI s. I. N. Shroff and H. S. Parihar, for the appel- !"}}, {"text": "I. N. Shroff", "label": "LAWYER", "start_char": 7147, "end_char": 7159, "source": "ner", "metadata": {"in_sentence": "F. S. Nari\"\"\"'' MI s. I. N. Shroff and H. S. Parihar, for the appel- !"}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 7164, "end_char": 7177, "source": "ner", "metadata": {"in_sentence": "F. S. Nari\"\"\"'' MI s. I. N. Shroff and H. S. Parihar, for the appel- !"}}, {"text": "M. K. Rwnamurthi", "label": "JUDGE", "start_char": 7201, "end_char": 7217, "source": "ner", "metadata": {"in_sentence": "M. K. Rwnamurthi and J. Ra111a111urthi, for the respondent."}}, {"text": "J. Ra111a111urthi", "label": "LAWYER", "start_char": 7222, "end_char": 7239, "source": "ner", "metadata": {"in_sentence": "M. K. Rwnamurthi and J. Ra111a111urthi, for the respondent."}}, {"text": "KRISHNA lYER", "label": "JUDGE", "start_char": 7306, "end_char": 7318, "source": "ner", "metadata": {"in_sentence": "The Judgment 9f the Court was delivered by\n\nKRISHNA lYER, J.-The appellant employer, undaunted by a double H defeat at both tiers in the High Court, has appealed against the adverse judgments, by certificate, on the only ground that there was no rctrenchmem of the respondent-employee (within the meaning of\n\nA of s. 2(oo) of the."}}, {"text": "s. 2(oo)", "label": "PROVISION", "start_char": 7576, "end_char": 7584, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 7592, "end_char": 7621, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 8108, "end_char": 8114, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act, 1947", "statute": "Industrial Disputes Act, 1947"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8125, "end_char": 8129, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act, 1947", "statute": "Industrial Disputes Act, 1947"}}, {"text": "Art.133", "label": "PROVISION", "start_char": 8355, "end_char": 8362, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act, 1947", "statute": "Industrial Disputes Act, 1947"}}, {"text": "Art. 133", "label": "PROVISION", "start_char": 8678, "end_char": 8686, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 9271, "end_char": 9287, "source": "ner", "metadata": {"in_sentence": "The crux of the matter has been correctly set out in a decision(') of the Delhi High Court in words which find our approval :\n\n\"A certificate can be granted only if the case involves a question of law :-\n\n(i) which is not only substantial but is also of general importance; and\n\n(ii) the said question, in our opinion, needs to be decided by the Supreme Court."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 10456, "end_char": 10464, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 133(1)", "label": "PROVISION", "start_char": 10534, "end_char": 10545, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "State Bank of India", "label": "ORG", "start_char": 11367, "end_char": 11386, "source": "ner", "metadata": {"in_sentence": "This respondent was appointed as cashier, off and on, by the State Bank of India between July 31 , 1973 and August 29, 1973."}}, {"text": "July 31 , 1973", "label": "DATE", "start_char": 11395, "end_char": 11409, "source": "ner", "metadata": {"in_sentence": "This respondent was appointed as cashier, off and on, by the State Bank of India between July 31 , 1973 and August 29, 1973."}}, {"text": "August 29, 1973", "label": "DATE", "start_char": 11414, "end_char": 11429, "source": "ner", "metadata": {"in_sentence": "This respondent was appointed as cashier, off and on, by the State Bank of India between July 31 , 1973 and August 29, 1973."}}, {"text": "s. 258", "label": "PROVISION", "start_char": 11568, "end_char": 11574, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 11782, "end_char": 11788, "source": "regex", "metadata": {"statute": null}}, {"text": "18-11-1972", "label": "DATE", "start_char": 12095, "end_char": 12105, "source": "ner", "metadata": {"in_sentence": "2 ( oo) and s. 25F and we may as well read it here\n\n\"(I) The appointment is purely a temporary one for a period of 9 days but may be terminated earlier, without assigning any reason therefor at the bank's discretion;\n\n(2) The employment, unless terminated earlier, will automaticallv cease at the expiry of the period i.e.,\n\n18-11-1972.\""}}, {"text": "s. 25F, 25B and 2", "label": "PROVISION", "start_char": 12669, "end_char": 12686, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 13107, "end_char": 13113, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajendragadkar", "label": "JUDGE", "start_char": 13275, "end_char": 13289, "source": "ner", "metadata": {"in_sentence": "Gajendragadkar, J. (as he then was) observed:\n\n\"Section 25F(b) provides that no workman employed in any industry who has been in continuous service for not Jess than one year under an employer shall be retrenched by that employer until he has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days' aYeragc pay for every completed year of service or any part thereof in excess of six months."}}, {"text": "Section 25F(b)", "label": "PROVISION", "start_char": 13323, "end_char": 13337, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F(b)", "label": "PROVISION", "start_char": 13835, "end_char": 13844, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 14466, "end_char": 14472, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25B(2)", "label": "PROVISION", "start_char": 14598, "end_char": 14607, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 14831, "end_char": 14835, "source": "regex", "metadata": {"statute": null}}, {"text": "[1960] 2 S.C.R. 866", "label": "CASE_CITATION", "start_char": 15684, "end_char": 15703, "source": "regex", "metadata": {}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 15821, "end_char": 15827, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 16320, "end_char": 16329, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(oo)", "label": "PROVISION", "start_char": 16429, "end_char": 16437, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F(b)", "label": "PROVISION", "start_char": 17669, "end_char": 17678, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F(l )", "label": "PROVISION", "start_char": 17712, "end_char": 17722, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25F", "label": "PROVISION", "start_char": 17895, "end_char": 17901, "source": "regex", "metadata": {"statute": null}}, {"text": "Secretary of State(')", "label": "RESPONDENT", "start_char": 18010, "end_char": 18031, "source": "ner", "metadata": {"in_sentence": "An English case R. v.\n\nSecretary of State(') was relied on where Lord Denning MR observed :\n\n\"I think that the word 'terminate' or 'termination' is by itself ambiguous."}}, {"text": "Denning", "label": "OTHER_PERSON", "start_char": 18057, "end_char": 18064, "source": "ner", "metadata": {"in_sentence": "An English case R. v.\n\nSecretary of State(') was relied on where Lord Denning MR observed :\n\n\"I think that the word 'terminate' or 'termination' is by itself ambiguous."}}, {"text": "Buckley", "label": "JUDGE", "start_char": 18476, "end_char": 18483, "source": "ner", "metadata": {"in_sentence": "Buckley L.C., concurred and said :\n\n\"In my judgment the words are not capable of bearing that meaning."}}]}
{"document_id": "1976_3_168_177_EN", "year": 1976, "text": "16 8\n\nSTATE OF TAMIL NADU\n\nPY ARE LAL MALHOTRA ETC.\n\nJanuary 19. 1976\n\n[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, .TJ.]\n\nCp1.1:!11l Sah:s Tr:x Act-Secs. 14-15-Tainil Nadu Sales Tax Act Sec. 2(j)-- Prvlubll101.1 Gf.fll!ltst 1_n1posi11g tax at n1ore than one stage-Whether all categories\n\naud sub 11cn1.~ of iron and steel to be treated as one conunodity-Words & Fhra.Hs-Mea11i11;.: of \"that is lo say.\"\n\nl he respondents are dealers under the Tamil Nadu Sales Tax 1\\ct.\n\nSection 14 <?f te Central ale~ Tax Act declares certain goods enumerated therein of\n\nspec1a~ importance 1n inter-state trade or commerce. The list of goods given at scnal No. IV reads as under :-\n\n(iv) Iron and Steel, that is to say-\n\n(a) pig iron and iron scrap\n\n{ b) iron plares solJ in the :-:ame fonn in which they are directly pro~\n\nduced by the rolling mill;\n\n( c) steel scrap, steel ingots, steel billets, steel bars and rods,\n\n(d) (i) steel plates l\n\n(ii) steel sheets, 1\n\n(iii) sheet bars and tin bars, j\n\n(iv) rolled steel sections, J\n\n(v) tool alloy steel,\n\nsold in the same form in which they are dirtctly produced by the rolling\n\nmill.\n\nThe said clause JV \\vas amended by the Central Sales Tax Amendment Act, Act 61 of 1972 by which certain more entries were added.\n\nSection 15 of the Central Sales Tax Act provides that the tax payable under a St<lre Law on sale or purchase of declared goods shall not be levied at more\n\nlhn vnc stage.\n\nRespondents used to purchase iron scrap and thereafter used to convert them into :.teel rounds, flats, plates etc.\n\nThe scrap was already subject to tax once.\n\nThe respondents contended that the entry Iron & Steel was wide enough to ii'1clude scrap as well as the steel rounds, flats, plates, etc. made out of the scrap which wa~ subject to t;:ix once and that, therefore, the sale of the steel rounds, flats, plates, etc., c1nnot be subjected to tax again under the Tamil Nadu Sales Tax AcL The High Court accepted the , contention of the respondents.\n\nJ\\llowing an appeal by certificate,\n\nHELD : I. The intention was to consider each sub-item in clause IV as a separate taxable commcxlity for purposes of sales tax.\n\nThe object was not to lay down that all the categories or sub-items of goods specified separately were to be viewed as a single saleable commodity called iron and steel for purposes of determining a starting point for a series of sales. The note against subdivision of Clause IV makes it dear that even each sub-category of a sub-iten1 retains. its identity as a commercially separate item for purposes of sales tax so long as it retains the sub-division. f171G, 172B-Cl\n\nThe eXpression 'that is to say' is en1ployed to make it clear and fix the meaning of words to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word 'includes' is generally employed. The precise meaning of the words\n\nthat is to say' must vary with the context. The purpos.e of the expression in a sales tax law would be to indicate the types of goods each of which would constitute a separate class for a series of sales. ll72f-H, 173B]\n\nThe chemical composition of iron and steel, cannot afford a clue to the meaning of iron and steel.\n\nSales Tax Law taxes sales of goods and is not a .taxation on sales of substance out of which goods are made.\n\nWe prefer to follow the more natural and normal inter_pretation which follows plainly from\n\nthe fact of separate specification numbering of each item.\n\nState of Madhya B\n\nPrade.h v. Hira Lal; (1966) 17 STC 313-315 distinguished. The case of Devidas applied. fl 7JC. E~Fl\n\nIt has not been shown to, us that any provision of the Tarnilnadu Sales Tax Act violates section 15 of the Central Sales Tax Act enacted in accordance with Article 286(3) of the Constitution.\n\nSection 2(j) of the Tamil Nadu Act -defines J:?.Oods and section 4 imposes charge in respect of tax on declared goods.\n\nThe Tamilnadu Act borrows clause (IV) of sectio11 14 of the Central Sales Tax Act.\n\n[176 C-HJ C\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 58-59 and 880-883 of 1971.\n\nFrom the Judgment and Order dated 10-4-1970 of the Madras High Court in Writ Petition Nos. 437 /67 and 520/68 and Tax Cases Nos. 135-138 of 1970 respectively.\n\nP. Ram Reddy, A. V. Rangam and Miss A. Subhashini, for the Appellant in C.As. 58-59 /71.\n\nSachin Chandra Chaudhury and Mrs. S. Gopalakrishnan for Respondent.\n\nGobind Das. P. H. Parekh and Miss Manju Jetley for the Inter-\n\nvener (M/s Durga Steel).\n\nE The Judgment of the Court was delivered by\n\nBEG, J.-The two Civil Appeals Nos. 58-59 of 1971 arise out of a judgment of a Division Bench of the Madras High Court dismissing two Writ Petitions filed against notices issued by a Commercial Tax Officer showing institution of Sales tax assessment proceedings in respect of certain iron and steel goods for the assessment year F 1965-66 in Writ Petition No. 437 of 1967 and for the assessment year 1966-67 ill Writ Petition No. 520 of 1968.\n\nThe High Court of Madras. had certified the cases as fit for appeal to this Court under Article 132 and 133(1)(a) and (c) of the Constitution. Although, the Writ Petitions had been dismissed on the ground that they involve an investigation into the question of fact whether the iron and steel scrap, out of which the manufactured goods, sought to be subjected G to Sales tax, had been made, were already taxed or not, yet, the State of Tamil Nadu was aggrieved by the decision of the Madras High Court holding that the manufactured goods, said to consist of \"st; el rounds, flat,, angles, plates, bars\" or similar goods in other forms and shapes. could not be taxed again if the material out of which thev were made had already been subjected to sales' tax once an iron and steel scrap as both were \"Iron and steel''.\n\nIt was possible to leave H the assessing authorities free to decide all the questions which they had jurisdiction to consider.\n\nBut, it appears that the Madras High Court thought it proper to decide the question as the Sales' tax\n\n• A\n\nauthorities had already adopted the view, in other cases, that such goods, though co_vered by the broad genus \"Iron and Steel\", were separately taxable commodities because each kind of \"Iron and Steel\" goods was a commercially different and separately taxable species or category.\n\nMoreover, this very question was also before the High Court in regular revision petitions under the Tamil Nadu Sales Tax Act (hereinafter referred to as 'the Taniil Nadu Act').\n\nCivil Appeals Nos. 880-883 of 1971 arise out of four petitions for revision under the provisions of the Tamil Nadu Act for the years l 964-65 aud 1965-66, which were allowed by the Madras High Court setting aside assessment orders by following its judgment and decision mentioned above given on 24-6-1970 on Writ Petitions Nos. 437 of 1967 and 520 of 1968. The Madras High Court had also granted C certificates of fitness for appeal to this Court under Article 132 read with Article 133(1) (a) (c) in the four cases before it on revision petitions.\n\nHence, six cases were connected and heard together by us.\n\nThe same question of law, decided by the Madras High Court on 1 grounds contained in one judgment, under appeal in Civil Appeals\n\nNos. 58-59 of 1971 before this Court, arise in all of them.\n\nAll the six cases before us relate to what are known as \"declared goods\"• under Section 14 of the Central Sales Tax Act (hereinafter referred to as 'the Central Act'). It was claimed, on behalf of the dealers, sought to be assessed in each case, that, by reason of the restrictions imposed by Section 15 of the Central Act, the levy of tax under the Tamil Nadu Act was not permissible.\n\nSection 14 of the Central Act declares certain goods enumerated there to be \"of special importance in inter-State trade or commerce\".\n\nThe list of goods given there at No. (iv), as it stood in 1968, was :\n\n\"(IV) Iron and Steel, that is to say-\n\n(a) 'pig iron and iron scrap\n\n(b) iron plates sold in the same form in which they are directly :Produced by the rolling mill;\n\n(c) steel scrap, steel ingots, steel billets, steel bars and rods;\n\n(d) (i) steel plates l\n\n(ii) steel sheets, Id th ' h. h h\n\n(iii) sheet bars and tin bars, sc_:i in e same 1orm in w. 1c t. ~¥.are\n\n(iv) rolled steel sections, J directly produced by the rolhng m1ll, ( v) tool alloy steel, ·\n\nBy the Central Sales Tax (Amendment) Act 61 of 1972, clause (iv) was redrafted.\n\nIt now reads as follows :\n\n\"(iv) iron and steel, that is to say-\n\n(i) pig iron and cast iron includiug ingot, moulds, bottom plates, iron scrap, cast iron scrap, runuer scrap and iron skull scrap;\n\n(ii) steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes);\n\n(iii) skelp bars, tin bars, sheet bars, bee-bars and sleeper bars;\n\n(iv) steel bars (rounds, rods, squares, flats, octagone and A hexagone, plain and ribbed or twister, in coil from as well as straight lengths) : ( \\') steel structurals (angles, joints, channels, tees, sheet piling\n\nsections, sect10ns or any other rolled sections); \\vi) sheets, hoops, strips and. skelj), both black and galvanised, hot and cold rolled, plam and corrugated, in all qualities. in straight lengths and in coil form, as rolled and in rivetted condition;\n\n(vii) plates both plain and chequered in all qualities;\n\n(viii) discs, rings, forgings and stl cijsting8;\n\n(ix) tool, alloy and special steels of any of the above categories;\n\n(x) steel melting scrap in all forms including steel skull, turnings and borings;\n\n(xi) steel cubes, both welded and seamless, of all diameters and lengths, including tube fittings; txii) tin-plates, both hot dipped and electrolytic and tin-free plates; - ·\n\n(xiii) fish plate bars, bearing plate bars, crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails-heavy arid crane rails;\n\n(xiv) wheels, tyres, axles and wheel sets;\n\n(xv) wire rods and wires-rolled, drawn, galvanised, alumanised, tinned or coated such as by copper;\n\n(xvi) defectives, rejects, cuttings or end pieces of any of the above categories\"; It will be seen that \"Iron and Steel\" is now divided into 16 categories which clearly embrace widely different commercial commodities, from mere scrap iron and left overs of processes of manufacturing to\n\n' 1wires\" and \"wheels, tyres, axles, and wheel sets\".\n\nSome of the enumerated items like \"melting scrap\" or \"tool alloys\" and \"special steels\" could serve as raw material out of which other goods are made and others are definitely varieties of manufactured goods. If the subsequent amendment only clarifies the original intentions of Parliament, it would appear that heading 4 in Section 14, as originally worded, was also meant to enumerate separately taxable goods and not just to illustrate what is just one taxable substance, \"Iron and Steel\". The reason given, in the statement of objects and reasons of the 1972 Act, for an elucidation of the \"definition\" of iron and steel, was that the \"definition\" had led to varying interpretations by assessing authorities and the courts so _that a comprehensive list of specified declared iron and steel goods would remove ambiguity. The Select Committee, which recommended the amendment, called each specified category \"a sub-item\" falling under \"Iron and Steel\".\n\nApparently, the intention was to consider each \"sub-item\" as a separate taxable commodity for purposes of Sales' tax. Perhaps some items could overlap, but no difficulty arises in cases before us due to this feature.\n\nAs we have\n\npointed out, the statement of reasons for amendment spoke of Section\n\ni'4(iv) as a \"definition\" of \"Iron and. Steel\". A definition is expected to be exhaustive.\n\nIts very terms may, however, show that it is not meant to be exhaustive. For example, a purported definition may say that the term sought to be defined \"includes\" what it specifies, but, in that case, the definition itself is not complete.\n\nAlthough, we have looked at the subsequent amendment of 1972 in order to find an indication of the original intention, because subsequent history of legislation is not irrelevant, yet, we think that, even if we confine our attention to Section 14 as it originally stood at the relevant time, with which we are concerned in the cases before us, the object was not to lay down that all the categories or sub-items of goods, as specified separately even before the amendment of 1972, were to be viewed as a single saleable commodity called \"Iron and Steel\" for purposes of determining a starting point for a series of sales. On the other hand, the note against the brackets in front of the five smaller sub divisions of (d) makes it clear that even each sub-category of a sub-item retains its identity as a commercially separate item for pw;- pose of sales tax so long as it retains the sub-division. The more natural and normal meaning of such a mode of listing special or declared kinds of goods seems to us to be that the object of specification was to enumerate only those categories of items, each of which was to serve as a new starting point for a series of sales, which were to be classed as \"declared\" goods. If one were to state the meaning in different words, it would seem to us to be : \"Iron and Steel goods of various types enumerated below\".\n\nWhat we have inferred above also appears to us to be the significance and effect of the use of words \"that is to say\" in accordance with their normal connotation and effect.\n\nThus, in Stroud's Judicial Dictionary, 4th Edu. Vol. 5, at page 2753, we find:\n\n\"THAT. IS TO SAY. (1) 'That is to say' is the com-' mencement of an ancillary clause which explains the meaning of the principal clause. It has the following properties:\n\n(1) it must not be contrary to the principal clause: (2) it must neither increase nor diminish it; (3) but where the principal clause is general in terms it may restrict it : see this explained with many examples, Stukeloy v.\n\nButler Hob. 171\"; The quotation, given above, from Stroud's Judicial Dictionary shows that, ordinarily, the expression \"that is to say\" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word \"includes\" is generally employed. In unusual cases, depending upon the context of the words \"that is to say\", this expression may be followed by illustrative instances. In Megh Raj & Anr. v. Allah Rakhia & Ors.(') the words\n\n\"that is to say\", with reference to a general category \"land\" were held to introduce \"the most geenral concept\" when followed, inter alia, by the words : \"Rights in or over land.\" We think that the precise meaning ot the words \"that is to say\" must vary with the context, where,\n\n(!)A.LR. !947 P.C. 7?,.\n\nas in Megh Raj's case (supra), the amplitude of legislative power to A\n\nenact provisions with regard to \"land and rights over it was meant to be indicated, the expression was given a wide scope because it came after the word \"land\" and then followed \"rights over land\" as an explanation on \"land\".\n\nBoth were wide classes.\n\nThe object of using them or subject-matter of legislation was, obviously, to lay down a wide power to legislate.\n\nBut, in the context of single point sales' tax, subject to special conditions w11en imposed on seprate categories B: o[ speeitied goods, the expression wc\\s apparently employed to specifically e•aumerate separate categories of goods on a given list.\n\nThe purpose of such specification and enumeration in a tatule dealing with sales' tax at a single point in a series of sales would, very naturally, be to i:iclicaw the types of goods each of which would constitute a separate class for a series of sales.\n\nOtherwise, the listing itself loses all meaning, and would be without any purpose behind it.\n\nC Learned Counsel appearing foran intervener argued that the chemical position of iron and steel affords a clue to the meaning of \"Iron and Steel\" as used in Section 14 of the Central Act. We are unable to agree that this could be what Parliament or any legis'1ature would be thinking of when enumerating items to be taxed as commercial goods.\n\nThe ordinary meaning to be assigned to a taxable item i'1 a list of speci- D lied items is that each item so specified is considered as a separately taxable item for purposes of single point taxation in a series of sales unless the contrary is shown.\n\nSome ccinfusion bas arisen because the separate items are all listed under one heading \"Iron and Steel\".\n\nIf the object was to make iron and steel taxable as a substance, the entry could have been : \"Goods of Iron and Steel.\" Perhaps even this would not have been clear enough.\n\nThe entry to clearly have E that meaning would have to be : \"Iron and Steel irrespective of change of form shape or character of goods made out of them\". This is the very unusual meaning which the respondents would like us to adopt. If that was the meaning, sales' tax law itself would undergo a change from being a law which normally taxes sales of \"goods\" to a law which taxes sales of substances out of which goods are made. We, however, prefer the more natural and normal interpretation which F follows plainly from the fact of separate specification and numbering of each item.\n\nThis means that each item so specified forms >a separate species for each series of sales although they may all belong to the genus : \"Iwa and Steel.\" Hence, if iron and steel \"plates\" are melted and converted into \"wire\" and then sold in the market, such wire would only be taxable once so long as it retains its identity as a commercial goods belonging to the category \"wire\" made of either iron or steel.\n\nG The mere fact that the substance or raw material out of which it is made has also been taxed in some other form, when it was sold as a separate commercial commodity, would make up difference for purposes of the iaw of sales' tax.\n\nThe object appears to us to be to tax sales of goods of each variety and not the sale of the substance out of which they are made.\n\nAs we all know, sales' tax law is intended to tax sales of different\n\ncommecial commodities and not to tax the production or manufacture of partlcular substances out of which these commodities may have\n\nA . been made. As soon as separate commercial commodities emerge or come into existence, they become separately taxable goods or entities tor purposes of sales' tax.\n\nWhere commercial goods, without ch.rage of their identity as such goods, are merely subjected to some processing or finishing or are merely jointed together, they may remain commercially the same goods which cannot be taxed again, in a series sales,\n\nso Jong as they retain their identity as goods of a particular type.\n\nIn State of Madhya Bharat v. Hirala/( 1) this Court held that a dealer, who bought some scrap iron loc_ally and imported some iron plates from outside and then converted the material into bars, flats and plates, by rolling them in his mills, and then sold them, was still entitled to exemption given to iron and steel from sales tax.\n\nBut, in that case, the language of the provision giving the exemption justified this interpretation.\n\nThe exemption was given to a sale by either an importer or a purchaser of \"goods prepared from any metal other than gold or silver.\" In other words, the question was whether exemption was given to the substance out of which goods were made.\n\nIn that context, it had become necessary to exami; ae whether the exemption from sales' tax was meant for all goods made out of a particular substance, or for goods as separate commercial commodities.\n\nThis Court held that the raw material from which the goods were made was decisive for the purposes of the exemption given.\n\nThis Court said (at p. 315) :\n\n\"A comparison of the said two Notifications brings out the distinction between raw materials of iron and steel and the goods prepared from iron and steel; while the former is exempted from tax, the latter is taxed.\n\nTherefore, iron and steel used as raw material focmanufacturing other goods are exempted from taxation.\n\nSo long as iron and steel continue to be raw materials, they enjoy the exemption. Scrap iron purchased by the responde1at was merely re-rolled into bars, fiats and plates.\n\nThey were processed for convenience of sale.\n\nThe raw materials were only re-rolled to give them attractive and accep!'able forms.\n\nThey did not in the process lose their character is iron and steel.\n\nThe dealer sold 'Iron and steel' in the shape of bars,· fiats and plates and the customer purchased 'iron and steel' r.1 that shape.\n\nWe, therefore, hold that the bars, fiats and plates sol\\! by the assessee.are iron and steel exempted under the Notification.\" The law to be interpreted in Hirala's case (supra) was entirely different.\n\nJn interpreting it, this Court did observe that u mere change of the form of a substance excepted from sales' tax did not matter. The language of the notifications involved there made it clear that the exemption was for the metal used.\n\nIn the cases before us now the object of single point taxation is the commerical commodity and not the substance out of which it is made.\n\nEach commercial commodity here becomes a separate object of taxation in series of sales of that commercial commodity so long •as it retains its identity as that commodity. . .\n\nWe think that the correct rule to apply in the cases before us is the one laid down by this Court in Devi Dass Copa/ Krishan & Ors. v.\n\n(!) [1966[ 17 S.T.C. 313, 3J5.\n\nThe State of Punjab & Ors.( 1) where Subba Rao, C.J., speaking for a Constitution Bench of this Court, said at (p. 44 7).\n\n\"Now coming to Civil Appeals Nos. 39 to 43 of 1965, the first additioml point raised is that when iron scrap is converted into rolled steel it does not involve the process of manufacture.\n\nIt is contended that the said conversion does not involve any process of manufacture, but the scarp is made into a better marketable commodity.\n\nBefore the High Court this contention was not pressed.\n\nThat apart, it is clear that scrap iron ingots undergo a vital change in the process of manufacture and are converted into a different commodity, viz., rolled steel sections.\n\nDuring the process the scarp iron loses its identity and becomes a new marketable commodity.\" The process is certainly one of manufacture.\n\nIt is true that the question whether goods to be taxed have been subjected to a manufacturing process so as to produce a new marketable commodity, is the decisive test in determining whether an excise duty is Ieviable or not on certain goods.\n\nNo doubt, in the law dealing with the sales tax, the taxable event is the sale and not the manufacture of goods.\n\nNevertheless, if the question is whether a new commercial commodity has comeTtito existence or not, so that its sale is a new taxable event, in the Sales' Tax law, it may also become necessary to consider whether a manufacturing process, which has altered the identity of the commercial commodity, has taken place. The law of sale tax is also concerned with \"goods\" of various descriptions.\n\nIt, therefore, becomes necessary w determine when they cease to be goods of one taxable description and become those of a commercially different category and description.\n\nIt appears tQ us that the position has been simplified by the amendment of the law, as indicated above, so that each of the categories falling uader \"Iron and Steel\" constitutes a new species of commercial commodity more clearly new.\n\nIt follows that when one commercial . commodity is transformed into another, it becomes a separate commodity for purposes of sales t, ax. ·\n\n/ We think that the Madras High Court had committted an error in appl)ing Hiralal's case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act.\n\nOn the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron & Steel Rolling Mills v. State of Punjab(2).\n\nSection 15 of the Central Act places certain restrictions and conditions upon State enactments imposing Sales tax. It says :\n\nEvery sales tax law of a State shall, in so for as it imposes or authorises the imposition of a tax on the sale or\n\n(1) (1967) 20 S.T.C. 430 at 447.\n\n(2) (1961) 12 S.T.C. p. 590\n\nA purchase of declared goods, be subject to the following restrictions and conditions, namely :\n\n(a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed three per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage;\n\n(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods arc sold in the course of inter-State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter- State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such condition as may be provided in any law in force in that State\".\n\nIt has not been shown to us that any provision of the Tamil Nadu Sales Tax Act violates Section 15 of the Central Act enacted in accordance with Article 266 ( 3) of the Constitution.\n\nSection 3 of the Tamil Nadu Act levies taxes on sales and purchases of \"goods\" as defined in Section 2 (j) of the Act :\n\n\" ( j) 'goods, means all kinds of movable property (other than newspapers, actionable claims, stocks and shares and securities) and includes all materials, commodities, and articles (including these to be used in the fitting out, improvement or repair of movable property), and all growing crops grass or things attached to, or forming part of, the land which are agreed to be severed before sale or under the contract of sale;\"\n\nSection 4 of the Tamil Nadu Act lays down :\n\n\"4. Tax in respect of declared goods.-Notwithstanding anything contained in Section 3, the tax under this Act shall be payable by a dealer or the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the Second Schedule on the turnover in such goods in each year, whatever be the quantum _of turnover in that year\".\n\nItem 4 of the second schedule specifies the rates of tax in accordance with the Central Act.\n\nIt reproduces Section 14(iv) of the Central Act. On an amendment of Section 14(iv) of the Central Act, serial No. 4 of the second schedule of the Tamil Nadu Act was also correspondingly ainended so as to reproduce the sixteen items found in Section 14(iv) of the Central Act.\n\nHence, the decision of these cases really depends on an interpretation of Section 14 of the Central Act which we have already given above.\n\nOther provisions only fortify our conclusion.\n\n\\ ~\n\nThe result is that we allow these appeals. We set aside the orders of the High Court and restore the orders of the assessing authorities in cases giving rise to Civil Appeals Nos. 880-883 of 1971.\n\nIn cases 'Out of which Civil Appeals Nos. 58-59 of 1971 arise, we set aside the judgment of the High Court but maintain its order dismissing the Wnt Petitions and order that the assessing authorities will now proceed to determine such question of fact and law as still survive for determination after the decision given above of the question considered by us.\n\nThe parties will bear their own costs.\n\nP.H.P.\n\nAppeals allowed.", "total_entities": 61, "entities": [{"text": "8\n\nSTATE OF TAMIL NADU", "label": "PETITIONER", "start_char": 3, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "STATE OF TAMIL NADU", "offset_not_found": false}}, {"text": "PY ARE LAL MALHOTRA ETC", "label": "RESPONDENT", "start_char": 27, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "PYARE LAL MALHOTRA ETC", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 89, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 100, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Tainil Nadu Sales Tax Act", "label": "STATUTE", "start_char": 180, "end_char": 205, "source": "regex", "metadata": {}}, {"text": "Sec. 2(j)", "label": "PROVISION", "start_char": 206, "end_char": 215, "source": "regex", "metadata": {"linked_statute_text": "Tainil Nadu Sales Tax Act", "statute": "Tainil Nadu Sales Tax Act"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 491, "end_char": 501, "source": "regex", "metadata": {"linked_statute_text": "Tainil Nadu Sales Tax Act", "statute": "Tainil Nadu Sales Tax Act"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 1271, "end_char": 1281, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 1289, "end_char": 1310, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Madhya B", "label": "RESPONDENT", "start_char": 3520, "end_char": 3537, "source": "ner", "metadata": {"in_sentence": "State of Madhya B\n\nPrade.h v. Hira Lal; (1966) 17 STC 313-315 distinguished."}}, {"text": "section 15", "label": "PROVISION", "start_char": 3729, "end_char": 3739, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 3747, "end_char": 3768, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 286(3)", "label": "PROVISION", "start_char": 3796, "end_char": 3810, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(j)", "label": "PROVISION", "start_char": 3833, "end_char": 3845, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 3890, "end_char": 3899, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 4013, "end_char": 4034, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madras High Court", "label": "COURT", "start_char": 4179, "end_char": 4196, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated 10-4-1970 of the Madras High Court in Writ Petition Nos."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 4288, "end_char": 4300, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, A. V. Rangam and Miss A. Subhashini, for the Appellant in C.As."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4302, "end_char": 4314, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, A. V. Rangam and Miss A. Subhashini, for the Appellant in C.As."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 4324, "end_char": 4337, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, A. V. Rangam and Miss A. Subhashini, for the Appellant in C.As."}}, {"text": "Sachin Chandra Chaudhury", "label": "LAWYER", "start_char": 4378, "end_char": 4402, "source": "ner", "metadata": {"in_sentence": "Sachin Chandra Chaudhury and Mrs. S. Gopalakrishnan for Respondent."}}, {"text": "S. Gopalakrishnan", "label": "LAWYER", "start_char": 4412, "end_char": 4429, "source": "ner", "metadata": {"in_sentence": "Sachin Chandra Chaudhury and Mrs. S. Gopalakrishnan for Respondent."}}, {"text": "Gobind Das. P. H. Parekh", "label": "LAWYER", "start_char": 4447, "end_char": 4471, "source": "ner", "metadata": {"in_sentence": "Gobind Das."}}, {"text": "Manju Jetley", "label": "LAWYER", "start_char": 4481, "end_char": 4493, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh and Miss Manju Jetley for the Inter-\n\nvener (M/s Durga Steel)."}}, {"text": "BEG", "label": "JUDGE", "start_char": 4582, "end_char": 4585, "source": "ner", "metadata": {"in_sentence": "E The Judgment of the Court was delivered by\n\nBEG, J.-The two Civil Appeals Nos."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 5029, "end_char": 5049, "source": "ner", "metadata": {"in_sentence": "The High Court of Madras."}}, {"text": "Article 132 and 133(1)(a)", "label": "PROVISION", "start_char": 5113, "end_char": 5138, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Tamil Nadu", "label": "ORG", "start_char": 5452, "end_char": 5471, "source": "ner", "metadata": {"in_sentence": "Although, the Writ Petitions had been dismissed on the ground that they involve an investigation into the question of fact whether the iron and steel scrap, out of which the manufactured goods, sought to be subjected G to Sales tax, had been made, were already taxed or not, yet, the State of Tamil Nadu was aggrieved by the decision of the Madras High Court holding that the manufactured goods, said to consist of \"st; el rounds, flat,, angles, plates, bars\" or similar goods in other forms and shapes."}}, {"text": "24-6-1970", "label": "DATE", "start_char": 6835, "end_char": 6844, "source": "ner", "metadata": {"in_sentence": "880-883 of 1971 arise out of four petitions for revision under the provisions of the Tamil Nadu Act for the years l 964-65 aud 1965-66, which were allowed by the Madras High Court setting aside assessment orders by following its judgment and decision mentioned above given on 24-6-1970 on Writ Petitions Nos."}}, {"text": "Article 132", "label": "PROVISION", "start_char": 6993, "end_char": 7004, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 7015, "end_char": 7029, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 7420, "end_char": 7430, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 7438, "end_char": 7459, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 15", "label": "PROVISION", "start_char": 7633, "end_char": 7643, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 7727, "end_char": 7737, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax (Amendment) Act", "label": "STATUTE", "start_char": 8399, "end_char": 8432, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Parliament", "label": "ORG", "start_char": 10673, "end_char": 10683, "source": "ner", "metadata": {"in_sentence": "If the subsequent amendment only clarifies the original intentions of Parliament, it would appear that heading 4 in Section 14, as originally worded, was also meant to enumerate separately taxable goods and not just to illustrate what is just one taxable substance, \"Iron and Steel\"."}}, {"text": "Section 14", "label": "PROVISION", "start_char": 10719, "end_char": 10729, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 12219, "end_char": 12229, "source": "regex", "metadata": {"statute": null}}, {"text": "Stroud", "label": "OTHER_PERSON", "start_char": 13522, "end_char": 13528, "source": "ner", "metadata": {"in_sentence": "Thus, in Stroud's Judicial Dictionary, 4th Edu."}}, {"text": "Megh Raj", "label": "OTHER_PERSON", "start_char": 14864, "end_char": 14872, "source": "ner", "metadata": {"in_sentence": "as in Megh Raj's case (supra), the amplitude of legislative power to A\n\nenact provisions with regard to \"land and rights over it was meant to be indicated, the expression was given a wide scope because it came after the word \"land\" and then followed \"rights over land\" as an explanation on \"land\"."}}, {"text": "Section 14", "label": "PROVISION", "start_char": 16054, "end_char": 16064, "source": "regex", "metadata": {"statute": null}}, {"text": "Hirala", "label": "OTHER_PERSON", "start_char": 20842, "end_char": 20848, "source": "ner", "metadata": {"in_sentence": "The law to be interpreted in Hirala's case (supra) was entirely different.", "canonical_name": "Hiralal"}}, {"text": "State of Punjab", "label": "RESPONDENT", "start_char": 21614, "end_char": 21629, "source": "ner", "metadata": {"in_sentence": "The State of Punjab & Ors.("}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 21647, "end_char": 21656, "source": "ner", "metadata": {"in_sentence": "1) where Subba Rao, C.J., speaking for a Constitution Bench of this Court, said at (p. 44 7)."}}, {"text": "Hiralal", "label": "OTHER_PERSON", "start_char": 23811, "end_char": 23818, "source": "ner", "metadata": {"in_sentence": "/ We think that the Madras High Court had committted an error in appl)ing Hiralal's case (supra) to the decision of cases now before us which turns really on a correct interpretation of Section 14 of the Central Act.", "canonical_name": "Hiralal"}}, {"text": "Section 14", "label": "PROVISION", "start_char": 23923, "end_char": 23933, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab High Court", "label": "COURT", "start_char": 24049, "end_char": 24066, "source": "ner", "metadata": {"in_sentence": "On the question now before us, we approve of the reasoning adopted by a Division Bench of the Punjab High Court in Devgun Iron & Steel Rolling Mills v. State of Punjab(2)."}}, {"text": "Section 15", "label": "PROVISION", "start_char": 24128, "end_char": 24138, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 25393, "end_char": 25403, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 266", "label": "PROVISION", "start_char": 25450, "end_char": 25461, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 25489, "end_char": 25498, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 25582, "end_char": 25591, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4", "label": "PROVISION", "start_char": 26040, "end_char": 26049, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 26161, "end_char": 26170, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 26347, "end_char": 26362, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14(iv)", "label": "PROVISION", "start_char": 26568, "end_char": 26582, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14(iv)", "label": "PROVISION", "start_char": 26622, "end_char": 26636, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14(iv)", "label": "PROVISION", "start_char": 26795, "end_char": 26809, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 26905, "end_char": 26915, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_178_185_EN", "year": 1976, "text": "KRISHNA BUS SERVICE LTD. v.\n\nSMT. MANGLI & ORS.\n\nJanuary 21, 1976\n\n[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]\n\nNegligence-Vicarious responsibility of the manage111ent in fatal u11ury cases-Presu1nption when arises-Liability is on both the rash and _negligent driver and the 1nanagen1ent since the driver acted \"in the course of its e1n~ ployn1ent\".\n\nDuty to care-Absence of explanation by the defendflnts affords reasonable eride11ce towards contributory ne1diJzence.\n\nC Maxin1-Res ipsa loquitur-Applies to fatal accident cases 011 road.\n\nSecond appeal-Reappraisal of evidence on record by Supre111c Coun only in exceptional cases lvhere injustice would result.\n\nOne of the buses belonging to the appellant, DLB 5749, driven by\n\n\"HS\" enroute to Hissar, while negotiating a turn in village Kheri Siadh overturned, causing the death of \"LWS\" and injuries to many. At the time of the fatal accident, the bus was over-loaded with passengers and goods, driven by ''HS''\n\nat an excessive speed despite protests by the passengers while negotiating a turn.\n\nA suit for damages was filed by the legal heirs of deceased \"LWS\" against the driver and the appellant, the liability of the appellant arising out of the fact of its negligence in employing such a rash and negligent driver who 'was responsible for the accident acting in the course of its employment. The appellant took the plea of \"vis major\", there being rain on the fateful day and the breaking of the tie-rod of the vehicle when it fell into a pit and making the bus out of the controi of the driver.\n\nThe suit was dismissed fixing the \"quantum damnificatus\" at Rs. 34,210/- applying the principle of \"quaritum meruit\" and on appeal the Punjab and Haryana High Court held that the accident \\Vas due to negligence attributable to the driver or both the driver and the appellant and decreed the suit, basing on the cogent and trustworthy evidence of P.Ws. 5, 6 and 8 to these facts (i) Overload of the bus with goods and passengers;\n\n(ii) Wetness and slippery nature of the road d'ue to drizzling\n\n(iii) The expert report of the mechanic to the effect that the \"tie-rod\" of the vehicle \\vas only '; opened\" (dismantled) but not broken a.nd the bad conditions of the foot-brake and hand brakes; (iv) Factum of negotiating a turn and passing through the habitation of village Kheri; (v) Zig-zag movement nf the bus and the fast speed at which the bus was driven despite protests and shouts of the passengers; (vi) The actual1 speed of the bus at 30 miles per hour at the time of the accident and (vii) Over turning of the bus resulting in the death of \"LWS\" on the spot and injuries to many. The High Court, drawing an adverse inference against the appellant and the driver for non-appearance in the witness box held that \"inasmuch as bues in sol, lnd road worthy condition and driven with ordinary care do not normally overtime, and in this case the bus did overturn, the principle of \"res ipsa loquitur\" applied.\" The High Court also awarded a decree for Rs. 21,600/- with proportionate cost as damages against the appellant and the driver limiting the liabiilty of Rs. 2,000/- onJy against the insurance company.\n\nOn appeal by certificate the appellant contended (i) that it was wrong to assume that over-turning of the bus was \"res ipsa loquitur\";\n\n(ii) that it was wrong to shift the onus on the appellant to show that they were not negligent and (iii) that in the absence of specific assignment of the reasons by the witnesses in their evidence the sudden breaking' of the tie rod was the cause of the accident and hence a vis major\".\n\nDismissing the appeal, the Court,\n\n)-..\n\nHELD : ( 1) Ordinarily in second appeal, it is not necessary for the court to A reappraise the evidence on record because the first appellate court is supposed to be the final court of fact. rt 82El\n\n(2) Buses in sound road worthy condition, driven with ordinary care. do not normally over-turn. It would be for the driver who had special knowledge of the relevant facts to explain why the vehicle over-turned.\n\nThe maxim \"res ipsa /oquitur\" v.:ould be attracted in such a case. In the present case, the defendants failed to rebut the presumption of negligence that arose frorn the manifest circumstances of the case. [184 C-D]\n\nShya111 Sundar and others v. State of Rajastlian, A.I.R. 1974, S.C. 890, not applicable.\n\nBarkwav v. South Wales Transport Co. Ltd. [1948] 2 All. E.R. 460, applied.\n\n(3) Viewed in the light of the other circumstances, in the in:sitant case, like overloading, negotiating of a turn near the village habitation on a slippery road\n\na duty was cast on the driver to go dead slow.\n\nA speed of 25 to 30 miles per C hour, in these conditions and in this situation, at the turning of the road would be imprudently excessive.\n\n[184A-B] ( 4) Had the bus been properly maintained in a sound road worthy condition and used with due care and driven with due Caution, the tie-rod should not have broken loose by the fall of the wheel in a pit hardly six inches deep, particularly when the upward thrust of the water in the pit would have largely absorbed the shock of the fall.\n\nThe pit was in the kacha berm and not right in the mettled portion. The driver could have with ordinary care and diligence avoided it.\n\nThus, the breaking of the tierod-assuming it did break-was, at best, a neutral circumstance. [ 184 B-Cl\n\n(5) In the instant case the driver was admittedly an employee of the appellant-company, and at the relevant time he was acting in tho course of his em ployment.\n\nThe vehicle was the property of the appellant-company under whnse managetnent defendaht 3 was working at the material time. It is well settled that where in an action for negligence the thing causing fatal injury to the deeased and consequent pecuniary loss to the plaintiff, is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events, does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose fro1n want of care. The appellant con1pany was, therefore, fully liable for the negligent act of their emplovee and the injury resulting therefrom.\n\n{185 D-F] ·\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 971 of 1968\n\nFrom the judgment and decree dated the 10-5-1965 of the Punjab High Court at Chandigarh in R.F.A. No. 181 of 1957.\n\nS. K. Mehta, K. R. Nagaraja and P. N. Puri for the appellant.\n\nV. M. Tarkunde, !. P. Agarwal and Miss Manik Tarkunde for respondents 1-6.\n\nThe Judgment of the Court was delivered by\n\nSARKIRIA, J.-This appeal on certificate is directed against a judgment of the High Court of Punjab and Haryana awarding to the plaintiff-respondents a decree for Rs. 21,600.\n\nIt arises out of these facts:\n\nOn January 21, 1955, Lala Wazir Singh deceased, a retired H Divisional Engineer (Railways) was travelling from Delhi to Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company).\n\nOn the way, the vehicle went out of order.\n\nLala Wazir Singh and some other passengers were then transferred to another bus No. DLB 5749 belonging to the same Company. This bus was being driven by Harbans Singh, defendant 3 (Respondent 8 hercm) who was an employee of the Company, acting under its directions and instructions.\n\nWhen at about 3 p.m., this bus was negotiating a turn in village Kheri Sadh, a few miles from Rohtak, it overturned, causing the death of Lala Wazir Singh, at the spot and injuries to several other passengers.\n\nThe widow, the sons, the daughters, the grandsons and granddaughters of the deceased instituted a suit in the court of the Subordinate Judge, 1st Class, Rohtak for the recovery of Rs. 50,000 as damages for the loss caused to them on account of his death.\n\nThe Company was impleaded as defendant No. 1, the Insurance Company was joined as defendant No. 2 and the driver of the bus as defendant 3.\n\nIt was alleged that the accident causing the death of Lala Wazir Singh, occurred on account of the negligence of defendants 1 and 3.\n\nThe bus, it was pleaded, wa~ not in proper order; it was overloaded with passengers and goods, and despite these facts, defendant 3 drove it at a very high speed while it was negotiating a turn.\n\nThe liability of the employer Company was sought to be fixed on the ground that it was negligent in employing such a 1:ash and negligent driver and that the accident occurred when defendant 3 was acting in the course of its employment.\n\nIn their written statement presented on July 16, 1956, the Company admitted that the bus involved in the accident belonged to it and at the time of the accident it was driven by their employee, defendant 3.\n\nIn regard to the allegations of negligence, the Company replied:\n\n\"The accident alleged by the plaintiffs was not due to any negligent or careless driving of Harban> Singh Driver of the vehicle owned by the defendant but was vis major.\n\nThere was rain on that day and the front was slippery.\n\nThe bus overturned and the death of the said Wazir Chand (Singh) was in no case the result of overturning of the Bus.\"\n\nWhile finding that the death of Lala Wazir Singh had occurretl on account of injuries sustained by him in the accident in question, the trial court held that the accident took place \"on account of the breaking of the tie-rod of the vehicle due to which the bus went out of the control of the driver\".\n\nThe tie-rod, according to the trial court, broke becanse the front left wheel of the vehicle while it was negotiating a turn, fell into a pit.\n\nThe court further held that the vehicle was not overloaded and its speed at the time of the accident was not more than 20 or 25 miles per hour, and as such, was not excessive.\n\nOn these premises, the trial court concluded that the plaintiffs had failed to prove that the accident involving fatal injuries to the deceased, was due to rash or negligent driving by defendant No. 3.\n\nIt further held that in case Issues 1 and 2, were decided in favour of the plaintiffs, the maximum damages awardable to them would be Rs. 34,210, i.e., the amount of pension which the deceased would have earned, bad he been alive for 9 years and 2 months after the accident.\n\nOn these findings, the trial. court dismissed the suit leaving the parties to bear their own costs.\n\nAggrieved, the plaintiffs preferred an appeal to the High . Court.\n\nThe Division Bench who heard the appeal, has. after appraising the evidence on record, reversed the findings of the trial court and held that \"the accident was due to negligence attributable to defendant 3 or both defendm; its l and 3\".\n\nThis finding of negligence recorded by the High Court is based on facts appearing in the evidence of PWs .. 5, 6 and 8 who were found by it to be entirely trustworthy.\n\nThese facts are : (i) The bus was overloaded with goods and . passengers.\n\nThere were 60 or 62 passengers including 10 or 12 children, in it (vide PWs 5 and 6) .\n\n(ii) It was drizzling; the road was wet and slippery (vide P.Ws. 5 and 6); (iii) The tie-rod of the bus was not found broken but only \"opened\" (dismantled) when it was examined by the expert motor mechanic, PW 8, on the day following the accident The hand brake and the foot-brakes were also found in a bad condition; (iv) At the time of the accident the bus was negotiating a tum and passing through the habitation of village Kheri; (v) Immediately before the • accident the bus was making a zig-zag movement and was being driven at fast speed despite the protests and shouts of the passengers asking the driver to slow down; (vi) the speed of the bus at the material time, according to PW 6, was about 30 miles per hour; (vii) The bus overt\\1me<l as a result of which Lala Wazir Singh died at the spot '\\ and other passengers, including PW 5, received serious injuries.\n\n, The High Court further reinforced its finding with an adverse .... inference against the defendants drawn from the fact that the driver (defendant 3) who knew best the relevant facts, did not appear in the witness-stand to explain the circumstances in which the accident\n\noccurred.\n\nIn this connection it observed : ·\n\n\"Buses do not, in such circumstances, normally and in the ordinary course, turn turtle. . The transaction . thus speaks for itself : in other. words res ipsa loquitur and in the absence of explanation by defendant No. 3 and his employer, defendant NC). 1 the established facts and circumstances accompanying the fatal injury caused to the deceased clearly raise a presumption or. at least permit an ·\n\ninference of negligence on the part of defendant No. 3 The Court below was thus clearly wrong in negativing negligence on the part of defendant No. 3.\n\nI would accordingly reverse the conclusion of the court below on this point and hold that the accident was due to the negligence of defendant No. 3 and was not inevitable which could not be obviated by ordinary care, caution and skill on his part.\"\n\nOn the above .facts and the premises, the High Court concluded !hat the accident was due to the negligence of the driver and was \"not inevitable which could not be obviated by ordinarv ca••. caution and skill on his part\". In the result,_ it awar9ed a decree for Rs. 21,600\n\nA as damages against defendants 1 and 3 proportionate costs, limiting the liability of the Insurance Company, defendant No. 2 to Rs. 2,000 only, plus proportionate costs.\n\nHence this appeal.\n\nIt is an undisputed fact that Lala Wazir Singh died in the bus accident on 21.1.1955. It is further common ground that the bus while negotiating a turn, had overturned causing fatal injuries to the deceased, and that at the relevant time it was being driven by Harbans Singh defendant, an employee of the appellant Company. It is also admitted that the bus belonged to the appellant-company.\n\nThe only issue in controversy is, whether the accident involving the death of L. Wazir Singh, was caused due to the negligence of defendant 1 or both defendants 1 and 3.\n\nMr. Mehta, appearing for the appellant contends that the High Court while conceding that the plaintiffs' witnesses were not -able to assign the reason for the accident, wrongly spelled out negligence on the part of the driver from the bald circumstance that the bus had overturned.\n\nIt is submitted that the High Court committed an error of law inasmuch as it assumed that the overturning of the bus was res ipsa loquitur and had shifted the burden on the defendants to show that the accident and the consequent death of L. Wazir Singh was not due to their negligence. It is submitted that res ipsa loquitur is merely a Latin phrase and does not convey any legal principle.\n\nReliance has been placed on this Court's decision in Shyam Sunder and ors. v. State of Rajasthan(\\).\n\nMr. Mehta further maintains that the trial court had correctly held on the basis of evidence on record, that the accident occurred due to the sudden breaking of the tie-rod and not due to any negligence on the part of the driver.\n\nTo us, none of these contentions appears to be well founded.\n\nOrdinarily, in Second Appeal it is not necessary for this Court to reappraise tbe evidence on record because the first appellate court is supposed to be the final court of fact.\n\nNevertheless, on the insistence of the Counsel for the appellant, we have examined the evidence on the record.\n\nWe have no hesitation in holding, in agreement with the High Court, that the evidence rendered by PWs 5, 6 and 8 was reliable and cogent enough to establish facts which, in their totality, unerringly point to the conclusion that the accident was due to the negligence of the driver, defendant No. 3.\n\nKali Ram, PW 5, was one of the passengers in the ill-fated bu~.\n\nHe, also, received injuries in the accident.\n\nFor treatment of his injuries be remained in hospital for twenty days.\n\nHe was therefore supposed to have personal knowledge and experince of the circumstances in which the accident occurred.\n\nHe testlfied that the bus was overloaded, and the driver unheeding the protests and shouts of the passengers to go slow, was driving it at a fast seed.. He further stated now near village Kheri, the vehicle after makmg zig-zag movements overturned causing the death of one passenger at the spot and injuries to the witness and other passengers.\n\n(I) A!R 1974 SC 890.\n\nSubedar Ram Kishan, PW 6, is a retired Army Officer and knows motor-driving.\n\nHis house is just near the place of the accident.\n\nAccording to his estimate, the speed of the bus, while it was negotiating the turn, just before the accident, was 30, miles per hour and it was moving in a zig-zag manner, being not in the control of the driver.\n\nJn cross-examination, the witness accepted a suggestion put by the defence, and stated that in his presence, the driver had told the police that the accident had occurred due to the breaking of the tie-rod. The witness further conceded that there was pit by the side of the road, but repelled the suggestion that the tie-rod could be broken by a sudden jerk at the turning.\n\nRaghbir Singh PW 8 was a motor mechanic.\n\nHe examined the bus at the site on the 22nd January.\n\nAccording to him, the tie-rod had not broken down, but had been \"opened\", implying that it had been subsequently tampered with.\n\nThe witness found that the handbrake and foot-brakes of the vehicle were in a bad condition.\n\nHe did not find the pipe of the hydraulic foot-brake in a broken condition.\n\nFor its finding that the accident had taken place on account of the breaking of the tie-rod of the vehicle, the trial court sought support from the evidence of PW 5 and DW 6.\n\nIt is manifest that correctly read, the evidence of PW 6 does not justify that conclusion.\n\nThe mere fact that sometime after the accident during police investigation, the driver came out with the story that the accident occurred due to the breaking of the tie-rod, was no ground to believe, without demu,·, that such breaking was the cause of the accident.\n\nThe evidence of the expert, DW 6, was dogmatic and worthless.\n\nHis opinion was not based on an examination of the vehicle and was rightly rejected by the High Court.\n\nOn the other hand, the testimony of PW 8 who bad examined the vehicle one day after the accident: was quite convincing, and it could reasonably lead to the conclusion that the tie-rod of the vehicle had been tampered with an untied sometime after the accident.\n\nThe defendants led oral evidence to prove that near the place of the accident, there was a pit in the road, and when the bus was negotiating a turn, its front wheel fell in that pit, and as a result of this fall, the tie-rod end of the steering wheel broke loose and the bus went out of control.\n\nIn the first place, DWs 2 and 3, who were examined to substantiate this story, did not say that the wheel of the bus had fallen in that pit. Secondly, the story of this pit and the breaking of the tierod, was not even faintly adumbrated in the written statement.\n\nIt was subsequently developed as an after-thought.\n\nEven if it is assumed for the sake of argument that one wheel\n\nof the bus had fallen into the pit, and the resultant shock broke the tie-rod causing the vehicle to go out of control, then also that would not, when viewed in the light of the other circumstances of the case negative the inference of negligence on the part of defendants l and H 3.\n\nThe pit was according to Gordhan, DW 2, hardly four feet in\n\nJ3-L390SCJ/76\n\nlength and 6 inches deep.\n\nIt was not in the mettled part of the road bl!t in the kacha berm.\n\nThe bus was negotiating a turn. There, the road runs through the habitation of a village.\n\nIt was drizzling and the road v.as wet and slippery. The speed of the bus at the relevant time, according to PW 6, was 30 miles per hour, and according io DWs 2, 4 and 5, Jt was 25 miles per hour.\n\nThe bus was overloaded.\n\nIn these peculiar circumstances, a duty was cast on the driver Lo go dead slow.\n\nA speed of 25 to 30 miles per hour, in these conditions and in this situation, at the turning uf th~ road, would be jrnprlidcntiy excessive.\n\nHad the bus been properly maintained in a sound 'roadworthy condition, and used with due care and driven with due caution, the tic-rod should not have broken loose by the fall of the wh.cel in a pit hardly six inches deep, particularly when the upward truust of the water in the pit would have largely absorbed the shock of the fall.\n\nThe pit was in the kacha berm and not right in the mettled portion.\n\nThe driver could have with ordinary care and diligence avoided it.\n\nThus, the breaking of the tie-rod-assuming it did break -was, at best, a neutral circumstance.\n\nAs rightly pointed out by the High Court, buses in sound 'roadworthy condition, driven with ordinary care, do not norm,; lly overturn.\n\nIt would be for the driver who had special knowledge o! the. relevant facts to explain why the vehicle overturned.\n\nThe maxim res ipsa loquitur would be attracted to such a case.\n\nDefendants 1 and 3 had failed to rebut the presumption of negligence that arose from the manifest circumstances of the case. ·\n\nIn Barkway v. South Wales Transport Co. Ltd. (1) a motor omni- E bus loaded with passengers was passing through a village when the off-side front tyre burst; the omnibus went over to the off-side of the road, mounted the pavement, crashed into some railings, and feU down an embankment, killing four of the passengers, including the plaintiff's husband.\n\nOn these facts, Asquith L.J. summarised the position as to the onus of proof thus :\n\n\"If the defendants' omnibus leave the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event .is caused by negligence on the part of the defendants, and tlie plaintiff succeeds unless the defendants can rebut this presumption,\n\n(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of this omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral even consistent, and equally consistent, with negligence or due diligence on the part of the defendants.\n\nWhen a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale.\n\nThe depressed scale will remain down.\n\nThis is the effect of the decision in Laurie v. Raglan Building Co. Ltd., where not a tyre-burst but a skid was involved.\n\n(1)(1948] 2 All-E-.-R-:460.\n\n(iii) To displace the prcsumpticm, the defendants must go further and prove (or it mnst emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.\"\n\nThe above observations apply with greater force to the facts of the present case.\n\nSh yam Sunders case (supra), cited by Mr. Mehta docs not advance his case.\n\nThere, the radiator of the vehicle was getting heated frequently and the driver was pouring water therein alter every 6 or\n\n7 miles of journey.\n\nIt took the vehicle 9 hours to cover a distance c of 70 miles and thereafter it suddenly caught fire.\n\nOn these facts this Court, speaking through Mathew J ., held that there was some defect in the mechanism and the driver was negligent in putting the vehicle -0n the road.\n\nSince the driver could not explain tl)c cause of the accident which was within his exclusive knowledge and it was not possible for the plaintiff to give any evidence as to the cause of the accident, the maxim res ipsa /oquitur was attracted to the case.\n\nComing back to the instant case, it may be observed that the driver was admittedly an employee of the appellant-Company, and at the relevant time he was acting in the course of his employment.\n\nThe vehicle was the property of the appellant-Company, under whose management defendant 3 was working at the material time.\n\nIt is well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff, is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.\n\nThe appellant-Company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.\n\nNo other point has been argued before us.\n\nl n the light of all that has been said above, the appeal fails and is hereby dismissed with costs.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 38, "entities": [{"text": "KRISHNA BUS SERVICE LTD", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "KRISHNA BUS SERVICE LTD", "offset_not_found": false}}, {"text": "MANGLI & ORS", "label": "RESPONDENT", "start_char": 34, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "MANGLI & ORS", "offset_not_found": false}}, {"text": "January 21, 1976", "label": "DATE", "start_char": 49, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "January 21, 1976\n\n[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 68, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 87, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Kheri Siadh", "label": "GPE", "start_char": 793, "end_char": 804, "source": "ner", "metadata": {"in_sentence": "One of the buses belonging to the appellant, DLB 5749, driven by\n\n\"HS\" enroute to Hissar, while negotiating a turn in village Kheri Siadh overturned, causing the death of \"LWS\" and injuries to many."}}, {"text": "Punjab and Haryana High Court", "label": "COURT", "start_char": 1695, "end_char": 1724, "source": "ner", "metadata": {"in_sentence": "34,210/- applying the principle of \"quaritum meruit\" and on appeal the Punjab and Haryana High Court held that the accident \\Vas due to negligence attributable to the driver or both the driver and the appellant and decreed the suit, basing on the cogent and trustworthy evidence of P.Ws."}}, {"text": "Kheri", "label": "GPE", "start_char": 2330, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "5, 6 and 8 to these facts (i) Overload of the bus with goods and passengers;\n\n(ii) Wetness and slippery nature of the road d'ue to drizzling\n\n(iii) The expert report of the mechanic to the effect that the \"tie-rod\" of the vehicle \\vas only '; opened\" (dismantled) but not broken a.nd the bad conditions of the foot-brake and hand brakes; (iv) Factum of negotiating a turn and passing through the habitation of village Kheri; (v) Zig-zag movement nf the bus and the fast speed at which the bus was driven despite protests and shouts of the passengers; (vi) The actual1 speed of the bus at 30 miles per hour at the time of the accident and (vii) Over turning of the bus resulting in the death of \"LWS\" on the spot and injuries to many."}}, {"text": "S. K. Mehta", "label": "OTHER_PERSON", "start_char": 6453, "end_char": 6464, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and P. N. Puri for the appellant."}}, {"text": "K. R. Nagaraja", "label": "OTHER_PERSON", "start_char": 6466, "end_char": 6480, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and P. N. Puri for the appellant."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 6485, "end_char": 6495, "source": "ner", "metadata": {"in_sentence": "S. K. Mehta, K. R. Nagaraja and P. N. Puri for the appellant."}}, {"text": "V. M. Tarkunde", "label": "LAWYER", "start_char": 6516, "end_char": 6530, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde, !."}}, {"text": "P. Agarwal", "label": "LAWYER", "start_char": 6535, "end_char": 6545, "source": "ner", "metadata": {"in_sentence": "P. Agarwal and Miss Manik Tarkunde for respondents 1-6."}}, {"text": "Manik Tarkunde", "label": "LAWYER", "start_char": 6555, "end_char": 6569, "source": "ner", "metadata": {"in_sentence": "P. Agarwal and Miss Manik Tarkunde for respondents 1-6."}}, {"text": "SARKIRIA", "label": "JUDGE", "start_char": 6636, "end_char": 6644, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKIRIA, J.-This appeal on certificate is directed against a judgment of the High Court of Punjab and Haryana awarding to the plaintiff-respondents a decree for Rs."}}, {"text": "Lala Wazir Singh", "label": "PETITIONER", "start_char": 6863, "end_char": 6879, "source": "ner", "metadata": {"in_sentence": "It arises out of these facts:\n\nOn January 21, 1955, Lala Wazir Singh deceased, a retired H Divisional Engineer (Railways) was travelling from Delhi to Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company).", "canonical_name": "Lala Wazir Singh"}}, {"text": "Delhi", "label": "GPE", "start_char": 6953, "end_char": 6958, "source": "ner", "metadata": {"in_sentence": "It arises out of these facts:\n\nOn January 21, 1955, Lala Wazir Singh deceased, a retired H Divisional Engineer (Railways) was travelling from Delhi to Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company)."}}, {"text": "Hissar", "label": "GPE", "start_char": 6962, "end_char": 6968, "source": "ner", "metadata": {"in_sentence": "It arises out of these facts:\n\nOn January 21, 1955, Lala Wazir Singh deceased, a retired H Divisional Engineer (Railways) was travelling from Delhi to Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company)."}}, {"text": "Krishna Bus Service Ltd.", "label": "ORG", "start_char": 6995, "end_char": 7019, "source": "ner", "metadata": {"in_sentence": "It arises out of these facts:\n\nOn January 21, 1955, Lala Wazir Singh deceased, a retired H Divisional Engineer (Railways) was travelling from Delhi to Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company)."}}, {"text": "Lala Wazir Singh", "label": "PETITIONER", "start_char": 7107, "end_char": 7123, "source": "ner", "metadata": {"in_sentence": "Lala Wazir Singh and some other passengers were then transferred to another bus No.", "canonical_name": "Lala Wazir Singh"}}, {"text": "Harbans Singh", "label": "RESPONDENT", "start_char": 7260, "end_char": 7273, "source": "ner", "metadata": {"in_sentence": "This bus was being driven by Harbans Singh, defendant 3 (Respondent 8 hercm) who was an employee of the Company, acting under its directions and instructions.", "canonical_name": "Harbans Singh"}}, {"text": "Kheri Sadh", "label": "GPE", "start_char": 7456, "end_char": 7466, "source": "ner", "metadata": {"in_sentence": "When at about 3 p.m., this bus was negotiating a turn in village Kheri Sadh, a few miles from Rohtak, it overturned, causing the death of Lala Wazir Singh, at the spot and injuries to several other passengers."}}, {"text": "Rohtak", "label": "GPE", "start_char": 7485, "end_char": 7491, "source": "ner", "metadata": {"in_sentence": "When at about 3 p.m., this bus was negotiating a turn in village Kheri Sadh, a few miles from Rohtak, it overturned, causing the death of Lala Wazir Singh, at the spot and injuries to several other passengers."}}, {"text": "Subordinate Judge, 1st Class, Rohtak", "label": "COURT", "start_char": 7725, "end_char": 7761, "source": "ner", "metadata": {"in_sentence": "The widow, the sons, the daughters, the grandsons and granddaughters of the deceased instituted a suit in the court of the Subordinate Judge, 1st Class, Rohtak for the recovery of Rs."}}, {"text": "July 16, 1956", "label": "DATE", "start_char": 8606, "end_char": 8619, "source": "ner", "metadata": {"in_sentence": "In their written statement presented on July 16, 1956, the Company admitted that the bus involved in the accident belonged to it and at the time of the accident it was driven by their employee, defendant 3."}}, {"text": "Harban> Singh", "label": "RESPONDENT", "start_char": 8932, "end_char": 8945, "source": "ner", "metadata": {"in_sentence": "In regard to the allegations of negligence, the Company replied:\n\n\"The accident alleged by the plaintiffs was not due to any negligent or careless driving of Harban> Singh Driver of the vehicle owned by the defendant but was vis major.", "canonical_name": "Harbans Singh"}}, {"text": "Wazir Chand", "label": "OTHER_PERSON", "start_char": 9112, "end_char": 9123, "source": "ner", "metadata": {"in_sentence": "The bus overturned and the death of the said Wazir Chand (Singh) was in no case the result of overturning of the Bus.\""}}, {"text": "21.1.1955", "label": "DATE", "start_char": 13568, "end_char": 13577, "source": "ner", "metadata": {"in_sentence": "It is an undisputed fact that Lala Wazir Singh died in the bus accident on 21.1.1955."}}, {"text": "Harbans Singh", "label": "RESPONDENT", "start_char": 13754, "end_char": 13767, "source": "ner", "metadata": {"in_sentence": "It is further common ground that the bus while negotiating a turn, had overturned causing fatal injuries to the deceased, and that at the relevant time it was being driven by Harbans Singh defendant, an employee of the appellant Company.", "canonical_name": "Harbans Singh"}}, {"text": "L. Wazir Singh", "label": "OTHER_PERSON", "start_char": 13964, "end_char": 13978, "source": "ner", "metadata": {"in_sentence": "The only issue in controversy is, whether the accident involving the death of L. Wazir Singh, was caused due to the negligence of defendant 1 or both defendants 1 and 3."}}, {"text": "Mehta", "label": "OTHER_PERSON", "start_char": 14061, "end_char": 14066, "source": "ner", "metadata": {"in_sentence": "Mr. Mehta, appearing for the appellant contends that the High Court while conceding that the plaintiffs' witnesses were not -able to assign the reason for the accident, wrongly spelled out negligence on the part of the driver from the bald circumstance that the bus had overturned."}}, {"text": "Kali Ram", "label": "WITNESS", "start_char": 15719, "end_char": 15727, "source": "ner", "metadata": {"in_sentence": "Kali Ram, PW 5, was one of the passengers in the ill-fated bu~.\n\nHe, also, received injuries in the accident."}}, {"text": "Subedar Ram Kishan", "label": "WITNESS", "start_char": 16391, "end_char": 16409, "source": "ner", "metadata": {"in_sentence": "Subedar Ram Kishan, PW 6, is a retired Army Officer and knows motor-driving."}}, {"text": "Raghbir Singh", "label": "WITNESS", "start_char": 17108, "end_char": 17121, "source": "ner", "metadata": {"in_sentence": "Raghbir Singh PW 8 was a motor mechanic."}}, {"text": "Gordhan", "label": "OTHER_PERSON", "start_char": 19454, "end_char": 19461, "source": "ner", "metadata": {"in_sentence": "The pit was according to Gordhan, DW 2, hardly four feet in\n\nJ3-L390SCJ/76\n\nlength and 6 inches deep."}}, {"text": "Asquith L.J.", "label": "JUDGE", "start_char": 21520, "end_char": 21532, "source": "ner", "metadata": {"in_sentence": "On these facts, Asquith L.J. summarised the position as to the onus of proof thus :\n\n\"If the defendants' omnibus leave the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event .is caused by negligence on the part of the defendants, and tlie plaintiff succeeds unless the defendants can rebut this presumption,\n\n(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of this omnibus leaving the road is a tyre-burst, since a tyre-burst per se is a neutral even consistent, and equally consistent, with negligence or due diligence on the part of the defendants."}}, {"text": "Sh yam Sunders", "label": "PETITIONER", "start_char": 22972, "end_char": 22986, "source": "ner", "metadata": {"in_sentence": "Sh yam Sunders case (supra), cited by Mr. Mehta docs not advance his case."}}, {"text": "Mathew", "label": "JUDGE", "start_char": 23340, "end_char": 23346, "source": "ner", "metadata": {"in_sentence": "On these facts this Court, speaking through Mathew J .,"}}]}
{"document_id": "1976_3_186_201_EN", "year": 1976, "text": "A C.l.T., PUNJAB. HARYANA, J & K, H.P. & UNION TERRITOR\\\n\nOF CHANDIGARH\n\nPANIPAT WOOLLEN & GENERAL MILLS. CO. LTD.\n\nCHANDIGARH\n\nJanuary 21, l 976\n\n[R. S. SARKAR!A AND S. MURTAZA FAZAL ALI, JJ.)\n\nIncome Tox Act (II of 1922), s. 10(2) (xv)-Scope of-Payment under agreen1e11t between assessee and selling agent to the /Wter-Whether pernzissible\n\ndeduction~ or a1no1111t to divi.Yion of profits between the two.\n\nPractice-Power of High Court to go outside staten1e11t df case subn1itted' by Tribunal.\n\nIn 1952, the asscsseecompany installed a new plant by raising a loan from the Industrial Finance Corporation, and appointed a sole selling agent of its. product. Jn 1953, the assessee changed the selling agent, and entered into an agreement with another selling agent.\n\nUnder the agreement, the agent was to make advances and finance the assessee.\n\nUnder cl. 7(1) of the agreement, the agent \\Vas to get a commission at the rate of 1!% orr the net proceeds of the sales of ail its goods; and 50% commission on the net profits of the ne\\v plant (the net profits being ascertained after deducting all the manufacturing costs, interest, insurance, etc.). The selling agent advanced 2 sums of money in the assessment years 1956·57 and 1957·58 rspcctively, ancl received, during those 2 years, two sums as their 50% commission on the net profits of the new plant.\n\nThe assessee claimed, in its returns for those 2 years, that the amounts paid as commission to the selling agent were expenses incurred' to earn profit and could. therefore, be deducted under s. 10(2)(xv) lncome Tax Act, 1922~ but the Jncome Tax Officer disallowed the claim.\n\nOn appeal, the Appellate Assistant Commissioner held in favour of the assessee, but the Tribunal, on further appeal, held that the agreement between the assessee and the selling agent amounted to a ioint venture for the distribution of profits between the two, after the profits were ascertained, and upheld the contention of the Revenue that the two sums were not legal deductions withins. l0'(2}(xv).\n\nOn reference, the High Court held in favour of the assessee.\n\nAllowing the appeal to this Court,\n\nF HELD: (l)(a) In order to fall withins. 10'(2)(xv) the deduction claimec!\n\nmust an1ount to an expenditure lNhich was 1aid out or expended wholly and exclusively for the1 purpose of the business, profession or vocation; and' this dependS\". upon the facts of each case; and\n\n[191 G-H]\n\n(b) In order to determine the reasonableness of the expenditure, the test of cornn1ercial expediency would have to be adjudged from the point of vie\\v of the businessm:ln :1nd not of the Income Tax Department. [191-H-192A]\n\n(2) Jt is we11-sett1ed that the Court, in order to construe_ an_ agreement has. to look to the substance or the essence of it rather than to its form.\n\nA party cannot escape the consequences of law merely by d'escribihg an agreernent in a\n\nparticular form. though, in essence and substnnce. it may be a different tran saction. r194 G~Hl\n\n(a) Clause 3 of the agreement requires not onry consultation by the assessee with the selling agent, but also the consent, forthe programme of manufacture of the product. that is. if the agent withholds its consent. it could veto the programmi of mai1ufacture.\n\nSuch a Iimitti'on praced on the power of the assesseeis not in consonance with a pure and simple contract of agency.\n\n[192 F-G}\n\n(b) Under cl. 6(1) the selling agent would have to make a full and complete investment for the working of the new plant to ttie fiJllCst possible capacity\n\n' •\n\nC.I.T. v. PANIPAT WOOLLEN MILLS 187\n\nincluding wa, ges, power, stores, repairs etc.\n\nThis is more in consonance \\Vith\n\nA . .a partnership than an agency.\n\n[193 C-DJ\n\n(c) Clause 6(ii) provides that the plant should be\n\nommencement and the termination of the agreement. the role of a simple selling agent.\n\n[193 D-E]\n\noverhauled before the This is also beyond\n\n(cl) Sub-clauses (viii) and (ix) of cl. 6 show that any damage to the goods in transit would have to be debited to the account of the new plant and that such accounts would have to be maintained separately. The object of these sub- B .clauses is that the selling agent should be in a position to ascertain the net profits and control the working of the ne\\v plant. fl93El\n\n(e) An analysis of the terms of cl. 7(i) shows that the selling agent \\\"'as able to secure most liberal and profitable terms.\n\nWhile it is difficult to lay do\\vn any rule of universal application as to \\Vhat percentage of profit would be con- .sistent with the payment in lieu of services, the conduct of the selling agent, in the present case, in sharing half of the net profits is not consistent with payments made to <igents for services rendered. Taking the totality of the provisions of C the agreement, the. percentage of profits and the manner in which it is to be determined is n1ore consistent with the position cf the selling agent as a partner than as an agent. f194 A-Cl\n\n(f) In cl. 7 there is also provision for the selling agent sharing the loss incurred by the assessee, by deducting 50% o.f the !oss from its remuneration. and for a lumµ sum deduction of Rs. 50,000 /- towards depreciation etc., for determining the net profit or loss position. Clause 7(iv) provides for a separate -commission account to be m'aintained by the selling agent and for payment of D commission every 6 months. Having regard to the terms and conditions of the agreement, the view taken by the Tribunal that the tWo sums were not legally deductible under s. 10(2) (xv) was correct. By contributing to the investments. by controlling the manufacturing programme, by sharing to the extent of 5() per cent in the net profits ascertained in the manner stipulated in the agreen1ent, and above all, by agreeing to share 50 per cent of the losses which are to be deducted from the commission of the agent, the selling agent has actually contributed to a joint venture and became completely equated with the assessee, and, E therefore, the agreement between the two is really a sort of a partnership and has been given the cloak and colour of an agency to conceal the real intent and purpose of the commercial venture; and it must be construed as an agreement for division of profits in specified proportions. [194 C-D, F; 195 E-G: 201 E-Fl\n\nBritish Sugar Manufacturers Ltd. v. Harris (Inspector of Taxes), 7 I.T.R. 101, applied.\n\n(3) The decision in Dltaram1'iI's case (43 J.T.R. 7) is distinguishable.\n\n(195 G-H] F\n\n(a) In that case it was not agreed between the assessee and the trust. which -a.greed to advance a loan to him, that the profits would be. ascertained after deducting the net expenses as in the agreement in the present case.\n\n[196 B-C]\n\n(b) While the contract was to be carried on in accordance with the policy \"Settled between the assessee and the trust, in that case, it did not give any veto power to the trust to torpedo the contract.\n\nIn the present case, the agreement gave to the selling agents controlling power at every stage in the programme of G manufacture and even at the stage of the sale of the products, by requiring the consent of the selling agent. fl96 C-DJ ( c) Not only was there no provision in Dliaran1vir's case under which the trust was to share the loss, but there was an express provision to the contrary.\n\nTherefore, the payment of interest at the rate of 6 per cent on the loan advanced 1o the assessee by the trust and a percentage in the profits, in that case, is quite consistent with a remuneration in lieu of services lent and would amount to an expenditure incurred by the assessee, wholly and exclusively for the purpose H of the business which was conducted by the assessee.\n\n[196 D-EJ ( 4) In the present case, it is difficult to hold that commercial expediency dictated the assessee to allow itself to be completely overshadowed by its selling\n\nagent. so as to pay them not only for the services rendered but allow them to share profits, control the manufacture of goods and to share the losses. The test of commercial expediency cannot be r¢.uced to the shape of a ritualistic formula.\n\nThe test merely means that the Court will place itself in the position of a businessman and find ollt lYhether the expenses incurred could be said to have been laid out for the purpose of the business, or whether the transaction was merely a subterfuge for the purpose of sharing or dividing the profits ascertained in a particular manner. In the ultimate analysis1 the matter \\\\'Ou!d depend on the intention of the parties as spelt out from the terms for the agreement or the surrounding circumsnces, the nature or character of the trade or venturep the purpose for which the expenses are incurred and the object which is s;:ught\n\nto be achieved for incurring those expenses. lf the expenses incurred amount to a profit of an enduring nature, they niay be treated as capital expenditure;\n\nv; heas, if the expenses merely serve to promote or increase the commercial activity, they. may amountto an expenditu_re which is incurred for the purpose of the business.\n\n[1961; I-197D]\n\nI. K. Woollen Manufacturers v. Commissioner Of lnco1ne TaxJ U.P. [1969]1 .s.C.R. 525, distinguished.\n\nCom1nissioner of Income Tax, Kera/a v. Travancore Sugar and Che1nical:1 -Ltd., 88 I.T.R. 1, 10; Commissioner of Income Tax, Bombay v. Poona Electric\n\nSupply Co. Ltd., 49 I.T.R. 913, 924 and lamshedpur Motor Accessories Stores\n\nv. Commissioner of Income Tax, Bihar & Orissa. 95 I.T.R. 6_64, 672 referred to.\n\n(5) The High Court is not -entitled to go behind the Statement of the case submitted by the Tribunal.\n\nBut, in the present case. in interpreting the agree-· ment, the High Court relied upan what it called surrounding circumstances, namely. that the assessee was a losing concern from its inception, that it was in such a bad shape that it had to get rid of its fust selling agent_ because, it caused considerable embarrassment to the assessee while the second selling: agent \\Vas prepared to give the assessee advantageous terms; that the selling agnt had no other connection than a business connection with the assessee; and that because of the death of one of the promoters of the assessee, who commanded credit in the money market, the assessee was not able to raise money from the banks. But, these facts were not found by the Tribunal nor was there any\n\n\\\\'arrant for any of the assumptions. [198G-199C] ·\n\nCo1nmissioner of Incomf!'-Tax, Poona v. Manna 'Ran1ji and Company, 86 I.T.R. 29, 37, followed.\n\n(6) The facts found by the Tribunal and those mentioned in its Staterue_nt of the case to the High Court, lead to the inescapable conclusion that the agreement is nothing but a joint venture to divide the profits after they are ascertained~ and hence, the payments to the se1Iing agent cannot, in any sense, he , deemed to be expenses incurred by the as5esse-e for the purpose of its business or for earning profits.\n\nPondicherry Railway -Co.~ Ltd. v. Commissioner of /11con1e Tax, Madras.\n\nAI.R. 193LP.Ci 165, 170, referred to. ·\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 622 & 623 of 1971.\n\nAppeals by special leave from -the judgment and order dated the 20-1-1970 of the Punjab and Haryana High Court at Chandigarh in I.T. Reference No. 2 of 1965.\n\nB. B. Ahuja and S. P. Nayar, for the appellants.\n\nA, N. Goyal, for the respondent\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.-These are appeals by the Revenue by special leave against the order of the High Court of Punjab & Haryana dated\n\n~ , /'\n\n' •\n\nJanuary 20, 1970 answering the questions referred to the High Court A by the Tribunal in favour of the assesseeslrespondents and against the Revenue.\n\nThe appeal arises. in the following circumstances.\n\nM/s. Panipat Woollen & General Mills Co. Ltd.-hereafter referred to as 'the assessee Company' had two Departments-( 1) for spinning of yarn from raw and waste wool and (2) for spinning of B yarn from imported wool tops. The second Department which carried on the operations of spinning of yarn from imported wool tops was started some time in the year 1952. Weaving operations were, however, carried on in both these Departments. One of the Departments was known as M/s. Panipat Woollen Mills, Kharar while the other one was known as Mis. Navin Woollen Mills.\n\nIt is said that the assessec Company was running at a constant loss as a result of which c in 1952 the assessee Company decided to instal a plant for manufacture of worsted yarn from imported wool tops by raising a loan of Rs. 7 lakhs from the Industrial Finance Corporation. The plant went into production in September 1952. The assessee Company appointed M/s. Murlidhar Chiranjilal as the sole selling agents for the worsted yarn on payment of 2 % commission. Subsequently on December 15, 1953 the assessec Company entered into an agreement with Mis. , D Saligram Premnath under which the latter were appointed as the sole. selling agents on certain specified conditions, the important of which being that the agents were to finance the assessee Company to the extent of Rs. 2,50,000/- and the assessee Company agreed to pay 6% interest on the advances to be made by the agents and further agreed to pay 2 % commission on the net proceeds of sales of goods in India.\n\nBefore expiry of this agreement, another agreement was entered into E by the assessce Company with the agents on October 20, 1955 under which the agents were to get 6% interest on all the advances made by them, l:i-% commission on net sales and 50% commission on net sales of the worsted plant.\n\nWhat is more was that the agents agreed to a deduction of 50% of the loss incurred by the assessee Company from their remuneration.\n\nThere were a number of other conditions with which we shall deal later.\n\nThe selling agents M/s. Saligram F Premnath advanced a sum of Rs. 6,26,8471and Rs. 8,71,8731and received Rs. 37,157/- and Rs. 73,7871as 50% commission on the net profits of the worsted plant in the course of two years, namely, assessment years 1956-57 ending on March 31, 1956 and 1957-58 ending on March, 31, 1957.\n\nThe assessee Company accordingly in its return for the year 1956-57 claimed the amount of Rs. 37,157/- and Rs. 73,7871for the assessment year 1957-58 as a deduction c;; under the provisions of s. 10(2) (xv) of the Income-tax Act, 1922. ' The case of the assessee was that the two amounts mentioned above being in the nature of commission paid to the selling agents would be deemed expenses incurred by the Company in order to earn profits and would, therefore, fall within the ambit of s. 10(2) (xv) of the Income-tax Act, 1922-hereafter referred to as 'the Act'.\n\nThe Income-tax Officer, however, disallowed the deduction and held that the , deduction claimed was actually a division of profits after the profits Jiad come into existence and had been ascertained, and therefore could not be claimed as a valid deduction under the provisions of the Act.\n\n190 SuPREME COURT REPORTS\n\n[1976) 3 S.C.R.\n\nThe assessee Company went up in appeal to the Appellate Assistant Commissioner who accepted the plea of the assessee Company and held that the payment was a permissible deduction as it was incurred for the purpose of the assessee's trade in order to facilitate the business of the assessec.\n\nThe Revenue then went up in appeal before the Tribunal which after considering the facts and the law on the subject upheld the contention of the Revenue and held that the sums in question were not legal deductions as contemplated under s. 10(2)(xv) of the Act but amounted to application of profits after they were earned.\n\nThe Tribunal further held that the agreement dated October 20, 1955 amounted to a joint venture for the distribution of profits between the assessee Company and the selling agents after the profits were ascertained.\n\nThe assessee Company then approached the Tribunal for making a reference to the High Court and the Tribunal accordingly referred the !oilowing two questions to the High Court for its opinion :\n\n\"l. Whether on the facts and in the circumstances of the case, the Tribunal rightly held that the sums of Rs. 37,157/- \\ and Rs. 73,787 /- were chargeable to tax in the hands of the A assessce Company in the assessment years 1956-57 and 1957-58 respectively?\n\n2. Whether on the facts and in the circumstances of the case, the Tribunal rightly disallowed the assessee Company's claim for deduction of the payment of Rs. 37,157 /- and Rs. 73,787/-, under sec. 10(1) and Sec. 10(2)(xv) of the Income-tax Act, 1922, in the assessment years 1956- 57 and 1957-58 respectively?\"\n\nE The High Court by its i.udgment dated January 20, 1970, answered both the questions in favour of the assessee Company and held that the payments in question amounted to a legitimate deduction under s. 10(2)(xv) of the Act, and the Tribunal was wrong in disallowing the same.\n\nThereafter the appellant moved the High Court for grant o( leave to appeal to the Supreme Court which having been rejected the appellant filed a petition for special leave.\n\nThe special leave F having been granted, the appeal is now before us.\n\nThe High Court in reversing the order of the Tribunal mainly relied on what it described as the surrounding circumstances under which the alleged payments were made to the selling agents by the assessee Company as spelt out from the agreement entered into by the assessee Company with the selling agents. The main point which was argued before the Tribunal as also before the High Court was that the cumulative effect of the interpretation of the various clauses of the agreement dated October 20, 1955 unmistakably revealed that in the garb of an agency the parties entered into a joint venture for distributing the net profits, after being ascertained , between themselves and that is why there was an express provision in the agreement by which the agents agreed to share the losses to the extent of 50% which were to be deducted from the remuneration payable to the agents.\n\nThe Tribunal held that the agreement amounted to a joint venture resulting in division of net profits and therefore the amount paid to the agents could not be claimed by the assessee Company as a deduction under\n\ns. 10(2)(xv) of the Act, as it was not incurred for the purpose of the business or for earning profits.\n\nThe High Court held that the mere fact that the agents agreed to share the profits and the losses would not take the case of the assessee beyond the ambit of s.\n\n10(2)(xv) of the Act in order to show that the payments made to the agents were not expenses incurre.d for the purpose of the business.\n\nThe High Court laid special emphasis on the fact that the Revenue could not examine the question of the commercial expediency of the businessman to incur expenses or earn profits in a particular manner.\n\nThe High Court accordingly found that the agreement per se was a contract of agency and not a joint venture and accordingly the High Court accepted the plea of the assessee Company.\n\nIn support of the appeal Mr. Ahuja, the learned standing counsel for the Revenue submitted the following two points before us :\n\n(1) In the first place it was submitted that there being an express provision in the agreement dated October 20, 1955 by which the agents agreed to share losses which was a provision peculiar to the present transaction and was not at all covered by any authority cited before the Tribunal or the High Court, that itself was proof positive of the fact that the transaction amounted to a joint venture with a view to division of profits; and\n\n(2) It was argued that the High Court had exceeded its jurisdiction in travelling beyond the agreed statement of the case framed by the Tribunal and had relied on certain\n\nmaterials which were not at all found by the Tribunal in its E order nor were those materials mentioned in the statement of the case.\n\nMr. A. N. Goyal counsel for the assessee Company has, however. submitted that the view taken by the High Court is absolutely correct and t.he facts of the present case are clearly covered by the decision of this Court in Dharamvir Dlu'r v. Commissioner of Income-tax, Bihar & Orissa( 1 ). A number of other cases have also been cited at the Bar and we shall refer to the same after marshalling the facts found in the present case.\n\nBefore comin~ to the. facts it may be necessary to mention that there can be no dispute with respect to the two important propositions;\n\n(I) that in order to fall within s. 1 O (2) (xv) of the Ac~ the dedu.ct10n claimed must amount to an expenditure which was laid out or expended wholly and exclusively for\n\nte purpose of the business, profession or vocation. This will naturally depend upon the facts of each case.\n\n(2) that in order to determine the question of reasona?lene.ss of the expenditure,. the test of commercial expedienc) wo1;'1d have to be adjudged from the point of view H of the busmessman and not of the Income-tax Depart- (!) 42 l.T.R. 7.\n\nA ment.\n\nWith this preface we now proceed to deal with the facts of the present case on the basis of which the questions of law referred to the High Court and answered in favour of the assessee Company arise.\n\nTo begin with, it is conceded by the learned standing counsel for the Revenue that the asscssee Company was running at a loss as a result of which it had to raise a loan of several lakhs of rupees franc the Industrial Finance Corporation. It was perhaps for this reason that the assessec Company entered into an agreement with the new selling agents M/s Saligram Premnath who were prepared to give to the assessee Company better and more profitable terms.\n\nThe main question to be determined is as to whether or not the agreement dated October 20, 1955 read as a whole amonnts to a joint venture for the . purpose of division of profits.\n\nIn order to decide this question it may be necessary to refer to some important portions of the second agreement which alone is relevant for the purpose of deciding this point. We might mention, however, that so far as the first agreement is concerned the terms thereof do not make out a case of joint venture but appear to be iu cousonance with the agreement being one of an agency simpliciter.\n\nIt is the second agreement that in our opinion appears to change the eutire complexion of the case.\n\nThis agreement is set out at p. 17 of the Paper Book and consists of ten main clauses.\n\nThe agreement was to enurc for a period of two years to commence from January I, 1956 or the date on which manufacturing actually starts under the agreement whichever is later.\n\nThis is provided in clause 2 of the agreement. It was further provided that the period of the agency could be extended further by mutual consent. Clause 3 (ii) runs thus :\n\n\"Programme for the manufacture of goods will be made from time to time by the Company in consultation and with the consent of the Agents.\"\n\nF It may be noticed that this clause requires not only consultation with the agents for the progn1111n1c of 1nanufacture of goods but a tacit consent of the agents.\n\nTn other words, if the agents withheld their consent, they could veto the programme of manufacture.\n\nSuch a limitation placed on the power of the assessee Company does not appear to us to be in consonance with a pure and simple contract of G agency.\n\nClause 6 which deals with financial arrangements may be extracted thus :\n\n\"(i) The Agents shall invest full amount for the working of the Worsted Plant to the full possible capacity beginning from the purchase of tops to the completion of the yarn sales including wages, power, stores, and repairs and mamtenance etc.\n\nSuch mvestments and expenses incurred on tops, manufacturing, bank charges, transport, insurance and octroi will be debited to the account of the Company.\n\n (ii) Before the beginning of the arrangements under this A Agreement, the Machinery of the Worsted Plant will be overhauled and similarly before this arrangement ends the Machinery will be overhauled.\n\nx x x x x\n\n(viii) In case of any loss or damage to the toi:s or goods in transit or in godowns, the same will be debited to the account of the Worsted Plant.\n\n(ix) The accounts of lhe Worsted Plant will be maintained separately in an office situated near the Worsted Plant and the Agents will have free access to the account books.\n\nx x x x\n\nSub-clause (i) clearly contemplates lhat the agents would have to make lull and complete investment for the working of the worsted plant to the fullest possible capacity including wages, power, stores, repairs and maintenance etc.\n\nThis provision appears to be more in consonance with the terms of a person who is a partner in a venture rather than one who is a mere agent. Further more, sub-clause\n\n(ii) provides that before the agreement starts the machinery of the worsted plant would be overhauled and would be again overhauled before the agreement ends.\n\nThis provision also has its own importance and appears to be beyond the role of the selling agents simpliciter.\n\nSub-clauses (viii) and (ix) extracted above clearly show that the damage to the tops or goods in transit would have to be debited to the account of the worsted plant and such accounts would have to be maintained separately.\n\nThe obvious object is that the agents should be in a position to ascertain the net profits and control the working of the worsted plant. Clause 7 is the most important clause of this agreement, which, in our opinion, clearly shows that the agreement in essence and in purport is a sort of a partnership or a joint venture rather than a contract of agency. Sub-clause (i) of clause 7 runs thus :\n\n\"7. Conunission\n\n(i) The Agents shall be allowed a commission at !}% (one and a quarter per cent) on the net proceeds of sales of all goods.\n\nSuch commission shall be chargeable upon money actually credited to the Company, and not on outstanding debts, if any. Besides, Agents will get 50% (fifty per cent) commission on the net profits of the Worsted Plant.\n\nThe net profits will be ascertained after deducting all the manufacturing expenses, interest, insurance, depreciation and selling commission etc.\n\nFor ailowina annual depreciation in the value of the machinery and buildings and mterest on the value of machinery, bdldings and commencmg from the date on which manufacturing actually starts under this Agreement, a lump sum of Rs. 50,000/- has been agreed to be deducted for determining the net profits or loss\n\n194 SUPREME COURT RE; i'ORTS\n\n[1976] 3 S.C.R.\n\nposition. In case of net Joss, if any, there will be a deduction of 50% (fifty per cent) of such loss from the Agent's Account.\" Analysing the terms of this sub-clause it would appear that the agents have been able to secure most liberal and profitable terms.\n\nTo begin with they were to get a commission at the rate of one and a quarter per cent on the net proceeds of sales of all goods.\n\nThere can be no objection to this.\n\nSecondly, the agents will get 50% commission on the net profits of the worsted plant.\n\nThe net profits would have to be ascertained after deducing all the manufacturing costs, interest, insurance etc.\n\nThe conduct of the agen.ts in sharing half of the net profits does not appear to us to be consistent with the payments made to the agents for services rendered.\n\nIt is difficult to Jay down any rule of universal application as to what percentage of profit would be consistent with the payment in lieu of services but taking the totality of the provisions of the agreement it seems to us that the percentage of profits and the manner in which it is to be -determined is more consistent with the position of a partner than that of an Agent.\n\nFinally the provision for sharing the loss incurred by the Company and for a lump sum deduction of Rs. 50,000/- is totally inconsistent with a contract of agency. Further more, sub-clause (iv) of clause 7 provides as under :\n\n\"(iv) The commission account will be maintained separately by the Agents and the commission will be payable to the Agents by the Company every six months.\n\nIn the same way, the amount of Rs. 25,000/- for six months as provided in sub-clause (i) above, will be paid to the Company every half-year within ten days.\n\nThe profit and loss account of the Worsted Plant will be made every six months within ten days and the adjustments will be made accordingly by actual payments, as the case may be, within ten days.\" The above sub-clause clearly provides for a separate commission account to be maintained by the agents and the commission to be paid every six months.\n\nConsequently the agents agreed to pay a sum of Rs. 25,000/- for six months every half year within ten days.\n\nWe might further mention here that the provision in the agreement regarding sharing of the loss is absolutely peculiar to this particular agreement and there is not a single authority, which has, in spite of such a provision, held that the transaction does not amount to a joint venture or a division of profits.\n\nThe provision regarding the consent of the agents to the sales and the programme of manufacture is also pertinent in order to determine whether the transaction amounted to a joint venture in the garb of a contract of agency. It is well settled that the Court in order to construe an agreement has to look to the substance or the essence of it rather than to its form. A party cannot escape the consequences of law merely by describing an agreement in a particular form though in essence and in substance it may be a different transaction.\n\nIn .these circumstances, therefore, if we construe the agreement as a sort of a joint venture or a transaction like a partnership which has been given the form and appearance d a contract of agency, the law must have its course.\n\nOur attention has been drawn by the learned counsel for the Revenue to a decision in British Sugar Manufacturers Ltd. v. Harris\n\n(Inspector of Taxes )( 1), where Greene, M. R. clearly observed that where a person contributes to some sort of joint adventure which ultimately results in division of profits, it could not be construed as a remuneration for services.\n\nIn this connection, Greene, M. R. observed as follows :\n\n'rt is not cash that passes in exchange for these profits, it is services; and the badge of such a contract is remuneration for services, and therefore the first thing that this remuneration would certainly not be is a share of profits purchased by the employee. x x x I can conceive of a case where a person contributes to some sort of joint adventure services, while others contribute perhaps capital, land, plant, and goods, arranging between themselves (it may be something short of a partnership) that nobody shall get anything until the pool of profits is ascertained, and then they shall divide it up between them in specified proportions. That, it seems to me would be a real agreement for division of profits, because there would be one profit fund only. There would not be two 'profit' funds to be ascertained for different purposes.\"\n\nThese observations seem to us to cover the facts of the instant case: Having regard to the terms and conditions of the agreement detailed and analysed above, there can be no doubt that the agents by contribnting to the investments and by sharing the profits as also the losses have actually contributed to a joint venture and ultimate division of the profits with the principals and the agreement must be construed as an agreement for division of the profits in specified proportions as mentioned therein.\n\nTt is true that in the aforesaid case on the facts found the Court held that the transaction did not amount to a joint venture but it was clearly pointed out in the judgment that there is a very thin line of distinction between a contract for payment of a share of profits simpliciter and a payment of remuneration which is deductible in truth from the profits divisible. We, therefore, find ourselves in complete agreement with the observations made by Greene, M. R., which aptly apply to the facts of the present case on the basis of the various clauses of the agreement dated October 20, 1955.\n\nThe High Court, however. appears to have relied upon the decision in Dharamvir Dhir's case (supra). The facts. of that case appear to be clearly distinguishable from those of the present case.\n\nWhat had happened in Dharamvir Dhir's case was that the assessee was an employee of the firm earning a particular salary. The. employee entered into a coal raising contract with a coal company and as he did not have the necessary funds he persuaded a oublic charitable trust to advance to him sums upto 1 ! lakhs on payment of\n\n(l) 7 I. T. R. IOI,\n\ninterest at 6 per cent. and share ll/16ths of the profits of the , businc'5.\n\nThe assessee agreed that the coal raising contract would be carried on in accordance with the policy settled between him and. the trust and the trust could withdraw its money at any time. It is, therefore, clear that in the first place the agenl, namely, the trust, agreed to finance the assessee by giving him a lorn of Rs. l t lakhs at 6 per cent interest.\n\nThis was undoubtedly permissible.\n\nThe trust was. also to get ll/16th of the profits of the business. It was, however, not agreed between the parties that the profits would be ascertained after deducting the net expenses as mentioned in the agreement before us.\n\nIt is true that the contract was to be carried on in accordance with the policy settled between the assessee and the trust but that did not give any veto power to the trust to tarpedo the contract. In the instant case the agreement clearly provided !or the consent of the agents not only at the beginning of the manufacture of the yarn by the plant to he installed by the assessee Company but at every stage in the programme of manufacture. Even at the stage of the sale of the products the consent of the agents was necessary.\n\nIn other words, the agents were given a complete controlling power so far as the manufacture and sale of the products of the assessee Company were concerned.\n\nNo such stipulation is to be found in Dharamvir Dhir' s case (supra).\n\nFinally, not only there was no provision in Dharamvir Dhir's case under which the trust was to share the losses but there was an express provision to the contrary, namely, that the trust was not liable for any loss. Thus the mere payment of interest at the rate of 6 per cent. on the Joan advanced to the asscssec and a percentage in the profits of the business would be quite consistent with a remuneration in lieu of services lent and would certainly amount to an expenditure incurred by the assessee wholly and exclusively for the purpose of the business which was conducted by the assessee.\n\nThe same, however, cannot be said of the present case. It was on the peculiar facts of the Dharamvir Dhir's case that this Court observed as follows:\n\n\"On the facts proved in the present case the trust agreed to finance the business of the appellant on the terms set out in the agreement and there is nothing to show that he could have m.ade any better arrangements or wonld not have lost the contract if he had failed to enter into the agreement, i.e. the agreement to pay the amounts in dispute.\n\nTherefore, in a commercial sense, the payments were an expenditure wholly and exclusively laid ou_l for the purpose of the business.\"\n\nG It may be mentioned that this Court had considered the decisio;,. in the British Sugar Manufacturers Ltd.'s case (supra) and had approved of the same.\n\nGreat stress was laid by counsel for the assessee Company on the fact that this Court could not go behind the commercial expediency which had to be determined from the point of view of a businessman.\n\nH Even so whatever be the commercial considerations, it is djfficult to hold that the commercial expediency dictated the assessee Company to allow itself to he completely overshadowed by its selling agents so as to pay them not only for the services rendered but also allow them\n\nto share profits control the manufacture of the goods and the pro- A gramme thereof and also to share the losses. The test of commercial expediency cannot be reduced in the shape of a ritualistic formula, nor can it be put in a water-tight compartment so as to be contined in a strait jacket.\n\nThe test merely means that the Court will place itself in the position of a businessman and find out whether the expenses incurred could be said to have been laid out for the purpose of the business or the transaction was merely a subterfuge for the B purpose of sharing or dividing the profits ascertained in a particular manner.\n\nIt seems to us that in ultimate analysis the matter would depend on the intention of the parties as spelt out from the terms of the agreement or the surrounding circumstances, the nature or character of the trade or venture, the purpose for which the expenses are incurred and the object which is sought to be achieved for incurring those expenses.\n\nIf the expenses incurred amount to a profit of art C enduring nature they may be treated as capital expenditure, wheres if the expenses merely serve to promote or increase the commercial activity they may amount to an expenditure which is incurred for the purpose of the business.\n\nReliance was also placed by counsel for the assessee Companv on the decision in J. K. Woollen Manufacturers v. Commissioner of D Income Tax, U.P.(' ), where this Court observed as follows:\n\n\"The question as to whether an amount claimed as expenditure was laid out or expended wholly or exclusively for the purpose of business, profession or vocation as required und,.r Section 10(2) (xv) of the Income Tax Act has to be decided on the facts and in the light of the circumstances of each particular case. x x x x In our opinion, neither the High Court nor the Appellate Tribunal has applied the proper legal test in this case. As pointed out by this Court in C.l.T. Bombay v. Walchand and Co. Private Ltd., 1967-65 ITR 381= (AIR 1967 SC\n\n1435) in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the Income Tax Department. It is, of course, open to the Appellate Tribunal to come to a conclusion either that the alleged payment is not real or that it is not incurred by the assessee in the character of trader or it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it. But it is not the function of the Tribunal to determine the remuneration which in their view should be paid to an employee of the assessee.\"\n\nTt w?uld appear that in the aforesaid case the only question was regardmg the qu.antum of remuneration to be given to the General Manager and this Court observed that the businessman must be given complete freedom t°, fix the terms of his employees after taking an\n\n(I) [1969] I. S. C.R. 525.\n\nA overall view of the situation.\n\nThis was not at all a case where an agreement like the present one was entered into between the assessee Company and its agents.\n\nOn the other hand in Commissioner of Income-tax, Kera/a v. Travancore Sugars and Chemicals Ltd.('), this Court added a word of caution that the test of commercial expediency ._ should not be applied in a mechanical manner and observed as •\n\nB follows :\n\n'In considering the nature of the expenditure incurred in the discharge of ari obligation under a contract or a statute or a decree or some similar binding covenant, one must avoid being caught in the maze of judicial decisions rendered on different facts and which always present distinguishing features for a comparison with the facts and circumstances of C the case in hand. Nor would it be conducive for clarity or for reaching a logical result if we were to concentrate on the facts of the decided cases with a view to match the colour of that case with that of the case which requires determination. The surer way of arriving at a just conclusion would be to first ascertain hy reference to the document under which the obligation for incurring the expenditure is created D and thereafter to apply the principle embalmed in the decisions of those facts.\n\nJudicial statements on the facts of a particular case can never assist courts in the construction of an agreement or a statute which was not considered in those judgments or to ascertain what the intention of the legislature was.\n\nWhat we must look at is the contract or the statute or the decree, in relation to its terms, the obliga- E tion imposed and the purpose for which the transaction was entered into.\"\n\nThe learned counsel for the assessee Company relied on the aforesaid case because the question whether the transaction amounted to a joint venture appears to have been raised but it appears that this point had been given up when the case was sent on remand and was therefore F not decided.\n\nIn these circumstances, the decision in the aforesaid case does not appear to be of any assistance to the assessee Company.\n\nThe Tribunal had interpreted the agreement keeping into account the tests of commercial expediency and we find ourselves in complete agreement with the view taken by the. Tribunal. The High Court on the other hand relied upon what it called the surrounding circum- G stances that the asscssee Company was a losing concern from its inception and had to get rid of the previous selling agents M/s Murlidhar Chiranjilal because they caused considerable embarrassment to the assessee Company.\n\nWhile the standing counsel for the Revenue has admitted that the Company was running at some Joss there was no evidence that the Company was in such a bad shape that it Imel to get rid of the first selling agents because the selling agents were ! 1 causing embarrassment to it.\n\nThe High Court then relied on the fact that the first agency which was entered into with M/s Murlidhar\n\n(I) 88 l.T.R. 1, 10.\n\nChiranjilal in 1953 also resulted in loss as a result of which the second agreement dated October 20, 1955 was entered into.\n\nThis does not appear to be of much consequence. The High Court then relied on the fact that the agents had no other connect10n with the assessee Company except that of the business connection. The High Court further found that the promoter of the assessee Company Mr.\n\nDesh Bandhu Gupta had a stature which enabled him to borrow loans from the Banks on personal security and as he died in an air crash the credit of the Company went down and it was not able to raise money from the Banks.\n\nThere is absolutely no warrant for these facts referred to by the High Court which are neither mentioned in the agreed statement of the case submitted by the Tribunal to the High Court nor in the order of the Tribunal. It is well settled that the High Court is not entitled to go behind the statement of the case.\n\nIn Commissioner of Income-tax, Poona v. Manna Ramji and Company(') this Court observed as follows :\n\n\"In this respect we are of the view that the Tribunal is the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this Court to lay down the law applicable to the facts found.\n\nNeither the High Court nor this Court has jurisdiction to go behind or to question the statement of facts made by the Tribunal.\n\nThe statement of case is binding on the parties and they are not entitled to go behind the facts of the Tribunal in the statement.\n\nWhen the question referred to the High Court speaks of 'on the facts and circumstances of the case', it means on the facts and circumstances found by the Tribunal and not on the facts and circumstances as may be found by the High Court.\"\n\nIn Commissioner of Income-tax, Bombay v. Poona Electric Supply Co. Ltd.( 2 ) the Bombay High Court observed as follows :\n\n\"It is true that the Electricity Act exercises control on the business of the licensee, but the control that is exercised by reason of the aforesaid proviso is to compel the assessec to distribute part of its clear profits if it is found that 'clear profits' are in excess of the reasonable return as contemplated under the Act.\n\nThat, in our opinion, would only amount to apportionment or distribution of the profits after they have been earned. It cannot, therefore, be said that the amount set apart for the purpose of distribution amongst the consumers is not chargeable to tax on the ground that it represents over-charge.\"\n\nThis case however was decided on its own facts and has no application to the facts in the instant case.\n\nIJ.\n\nl_lli.ance was also pl.aced by counsel for .the assessee Company on H a D1v1Slon Bench deciion of the Patna High Court in Jamshedpur\n\n(!) 86 l.T.R. 29, 37.\n\n(2) 49 I.T.R. 9\\3, 924.\n\n14-L 390 SCI/76\n\nMotor Accessories Stores v. Commissioner of Income-tax, Bihar & Orissa(') where Untwalia, CJ., as he then was, observed as follows:\n\n\"'That position being accepted the matter as to what amount was payable to Parikh ought to have been adjudged from the assessee's point of view and not from the department or Tribunal's point of view. It has to be emphaSlse<l that unless there is a limitation put by the law on the amount of expenditure a lesser amount than the amount expended cannot be allowed merely because the assessing authority thinks that the assessee could have managed by paying a lesser amount as a prudent businessman. The test of prudence by substituting its own view in place of the businessman's has not been approved by the Supreme Court in the decisions referred to above.\"\n\nHerc also the observations were confined only to the question that the test of prudence was to be determined from the point of view of the businessman.\n\nJamshedpur Motor Accessories Stores' case (supra) was also concerned regarding the quantum of the payment of commission and does not appear to be useful in deciding the point at issue in the present case.\n\nSome other decisions were cited at the Bar but they have no bearing on the issue and it is not necessary for us to refer to them.\n\nWhat is, therefore, important to us is that no decision has been cited before us which takes the view that even though under the contract of agency the selling agents who agreed to make substantial investments in the assessee Company and got interest on the loans apart from the commission they also shared profit to the extent of 50% as also Joss to that extent and had complete controlling power in the manufacturing programme or the sale of the products and yet t11e transaction would be one of agency simpliciter and not a joint venture. On the facts found by the Tribunal and those mentioned in the statement of the case as discussed above leads to the inescapable conclusion that the present contract of agency really amounts to a transaction by which substantial investments had been made by the selling agents with a view to control the manufacturing programme and the agents had also agreed to share the profits and losses equally.\n\nThis is, therefore, nothing but a joint venture to divide the profits after the same are ascertained and cannot in any sense be deemed to be expenses incurred by the assessee Company for the purpose of its business or for that matter for earning profits.\n\nIn fact in Pondicherry Railway Co. Ltd. v. Commissioner of Income-tax, Madras('),\n\nLord Macmillan pointed out that a payment out of nrofits and cunditional on profits being earned cannot be legitimately described as a payment made to earn profits. It assumes that profits have first come into existence.\n\nBut profits on their coming into existence attract tax at that point and the Revenue is not concerned with the subsequent\n\n(I) 95 l.T.R. 6€4. 672.\n\n'2) A.T.R. 1931 P.C. 165, 170.\n\napplication of the profits.\n\nIn this connection the Privy Council ob- A served as follows :\n\n\"It is claimed for the company that when it makes over to the Colonial Government their half of the net profits it is making an expenditure incurred solely for the purpose of earning its own profits.\n\nThe Court below has unanimously negatived this contention and in their Lordships' opinion has rightly done so.\n\nA payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence.\n\nBut profits on their coming into .existence attract tax at that point and the revenue is not concerned with the subsequent application of the profits. \" \" \" But the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance Society v.\n\nStyles- .(1892) A.C. 309-at p. 315, is of general application unaffected by the specialities. of the English tax system :\n\n' ...... But when once an individual or a company has\n\nin that proper sense ascertained what are the profits of his business or his trade, the destination of those profits or the D .charge which has been made on those profits by previous :agreement or otherwise is perfectly immaterial.\n\nThe tax is payable upon the profits realised and the meaning to my mind i£ rendered plain by the words payable out of profits'.\n\nThus in short by controlling the manufacturing programme, sharing to the extent of 50 % in the net profits ascertained in the manner E ,; tipulated in the agreement and above all for sharing 50 % of the losses which are to be deducted from the commission of the aents the agents become completely equated with the proprietors of the -firm\n\nitself and therefore the contract of agency is really a sort of a partner- • hip and has been given the cloak and colour of an agency to conceal\n\nthe real intent and purposi; of the commercial venture.\n\nIn view of the decisions referred to above and the peculiar facts of the present case we are satisfied that the view taken by the Tribunal that the payments in question were not legally deductible under s. 10(2) (xv) of the Act was correct.\n\nThe vie'Y taken by the High Court that the amounts in question were deductible under s. 10(2) (xv) appears to be legally erroneous and cannot be upheld.\n\nFor the reasons given above, the appeals are allowed and the G judgmen\\ of the High Court is set aside and that of the Tribunal is restored and the two questions referred to the High Court are answered against the assessee Company and in favour of the Revenue: In view of the peculiar f\\lcts of the present case, we leave the parties to bear their own costs in this Court.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 73, "entities": [{"text": ", PUNJAB. HARYANA, J & K, H.P. & UNION TERRITOR\\\n\nOF CHANDIGARH", "label": "PETITIONER", "start_char": 8, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "C.l.T., PUNJAB HARYANA, J & K, H.P. & UNION TERRITORY OF CHANDIGARH", "offset_not_found": false}}, {"text": "PANIPAT WOOLLEN & GENERAL MILLS. CO. LTD.\n\nCHANDIGARH", "label": "RESPONDENT", "start_char": 73, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "PANIPAT WOOLLEN & GENERAL MILLS. CO. LTD.\n\nCHANDIGARH", "offset_not_found": false}}, {"text": "January 21, l 976", "label": "DATE", "start_char": 128, "end_char": 145, "source": "ner", "metadata": {"in_sentence": "CHANDIGARH\n\nJanuary 21, l 976\n\n[R. S. SARKAR!A AND S. MURTAZA FAZAL ALI, JJ.)"}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 167, "end_char": 192, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Income Tox Act", "label": "STATUTE", "start_char": 195, "end_char": 209, "source": "regex", "metadata": {}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 224, "end_char": 232, "source": "regex", "metadata": {"linked_statute_text": "Income Tox Act", "statute": "Income Tox Act"}}, {"text": "cl. 7(1)", "label": "PROVISION", "start_char": 853, "end_char": 861, "source": "regex", "metadata": {"linked_statute_text": "Income Tox Act", "statute": "Income Tox Act"}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 1550, "end_char": 1562, "source": "regex", "metadata": {"statute": null}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 1570, "end_char": 1583, "source": "regex", "metadata": {}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 2988, "end_char": 2996, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 6(1)", "label": "PROVISION", "start_char": 3385, "end_char": 3393, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6(ii)", "label": "PROVISION", "start_char": 3706, "end_char": 3718, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 6", "label": "PROVISION", "start_char": 3931, "end_char": 3936, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7(i)", "label": "PROVISION", "start_char": 4300, "end_char": 4308, "source": "regex", "metadata": {"statute": null}}, {"text": "cl. 7", "label": "PROVISION", "start_char": 4959, "end_char": 4964, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7(iv)", "label": "PROVISION", "start_char": 5229, "end_char": 5241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 5516, "end_char": 5524, "source": "regex", "metadata": {"statute": null}}, {"text": "Dltaram1'iI", "label": "OTHER_PERSON", "start_char": 6404, "end_char": 6415, "source": "ner", "metadata": {"in_sentence": "(3) The decision in Dltaram1'iI's case (43 J.T.R. 7) is distinguishable."}}, {"text": "Dliaran1vir", "label": "OTHER_PERSON", "start_char": 7188, "end_char": 7199, "source": "ner", "metadata": {"in_sentence": "fl96 C-DJ ( c) Not only was there no provision in Dliaran1vir's case under which the trust was to share the loss, but there was an express provision to the contrary."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 11256, "end_char": 11267, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and S. P. Nayar, for the appellants."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 11272, "end_char": 11283, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and S. P. Nayar, for the appellants."}}, {"text": "A, N. Goyal", "label": "LAWYER", "start_char": 11306, "end_char": 11317, "source": "ner", "metadata": {"in_sentence": "A, N. Goyal, for the respondent\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.-These are appeals by the Revenue by special leave against the order of the High Court of Punjab & Haryana dated\n\n~ , /'\n\n' •\n\nJanuary 20, 1970 answering the questions referred to the High Court A by the Tribunal in favour of the assesseeslrespondents and against the Revenue.", "canonical_name": "A, N. Goyal"}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 11383, "end_char": 11391, "source": "ner", "metadata": {"in_sentence": "A, N. Goyal, for the respondent\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.-These are appeals by the Revenue by special leave against the order of the High Court of Punjab & Haryana dated\n\n~ , /'\n\n' •\n\nJanuary 20, 1970 answering the questions referred to the High Court A by the Tribunal in favour of the assesseeslrespondents and against the Revenue."}}, {"text": "Panipat Woollen & General Mills Co. Ltd.-hereafter", "label": "PETITIONER", "start_char": 11730, "end_char": 11780, "source": "ner", "metadata": {"in_sentence": "M/s. Panipat Woollen & General Mills Co. Ltd.-hereafter referred to as 'the assessee Company' had two Departments-( 1) for spinning of yarn from raw and waste wool and (2) for spinning of B yarn from imported wool tops.", "canonical_name": "PANIPAT WOOLLEN & GENERAL MILLS. CO. LTD.\n\nCHANDIGARH"}}, {"text": "Panipat Woollen Mills, Kharar", "label": "ORG", "start_char": 12196, "end_char": 12225, "source": "ner", "metadata": {"in_sentence": "One of the Departments was known as M/s. Panipat Woollen Mills, Kharar while the other one was known as Mis."}}, {"text": "Mis. Navin Woollen Mills", "label": "ORG", "start_char": 12259, "end_char": 12283, "source": "ner", "metadata": {"in_sentence": "One of the Departments was known as M/s. Panipat Woollen Mills, Kharar while the other one was known as Mis."}}, {"text": "Industrial Finance Corporation", "label": "ORG", "start_char": 12530, "end_char": 12560, "source": "ner", "metadata": {"in_sentence": "7 lakhs from the Industrial Finance Corporation."}}, {"text": "Murlidhar Chiranjilal", "label": "OTHER_PERSON", "start_char": 12648, "end_char": 12669, "source": "ner", "metadata": {"in_sentence": "The assessee Company appointed M/s. Murlidhar Chiranjilal as the sole selling agents for the worsted yarn on payment of 2 % commission."}}, {"text": "December 15, 1953", "label": "DATE", "start_char": 12764, "end_char": 12781, "source": "ner", "metadata": {"in_sentence": "Subsequently on December 15, 1953 the assessec Company entered into an agreement with Mis. ,"}}, {"text": "D Saligram Premnath", "label": "OTHER_PERSON", "start_char": 12841, "end_char": 12860, "source": "ner", "metadata": {"in_sentence": "D Saligram Premnath under which the latter were appointed as the sole."}}, {"text": "India", "label": "GPE", "start_char": 13248, "end_char": 13253, "source": "ner", "metadata": {"in_sentence": "2,50,000/- and the assessee Company agreed to pay 6% interest on the advances to be made by the agents and further agreed to pay 2 % commission on the net proceeds of sales of goods in India."}}, {"text": "October 20, 1955", "label": "DATE", "start_char": 13369, "end_char": 13385, "source": "ner", "metadata": {"in_sentence": "Before expiry of this agreement, another agreement was entered into E by the assessce Company with the agents on October 20, 1955 under which the agents were to get 6% interest on all the advances made by them, l:i-% commission on net sales and 50% commission on net sales of the worsted plant."}}, {"text": "Saligram F Premnath", "label": "OTHER_PERSON", "start_char": 13782, "end_char": 13801, "source": "ner", "metadata": {"in_sentence": "The selling agents M/s. Saligram F Premnath advanced a sum of Rs.", "canonical_name": "Saligram F Premnath"}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 14268, "end_char": 14276, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 14289, "end_char": 14309, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 14561, "end_char": 14569, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 14582, "end_char": 14602, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 15502, "end_char": 15514, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "sec. 10(1)", "label": "PROVISION", "start_char": 16454, "end_char": 16464, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 10(2)(xv)", "label": "PROVISION", "start_char": 16469, "end_char": 16483, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 16491, "end_char": 16511, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 16774, "end_char": 16786, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 16934, "end_char": 16947, "source": "ner", "metadata": {"in_sentence": "Thereafter the appellant moved the High Court for grant o( leave to appeal to the Supreme Court which having been rejected the appellant filed a petition for special leave."}}, {"text": "s. 10(2)(xv)", "label": "PROVISION", "start_char": 18189, "end_char": 18201, "source": "regex", "metadata": {"statute": null}}, {"text": "s.\n\n10(2)(xv)", "label": "PROVISION", "start_char": 18452, "end_char": 18465, "source": "regex", "metadata": {"statute": null}}, {"text": "Ahuja", "label": "OTHER_PERSON", "start_char": 19009, "end_char": 19014, "source": "ner", "metadata": {"in_sentence": "In support of the appeal Mr. Ahuja, the learned standing counsel for the Revenue submitted the following two points before us :\n\n(1) In the first place it was submitted that there being an express provision in the agreement dated October 20, 1955 by which the agents agreed to share losses which was a provision peculiar to the present transaction and was not at all covered by any authority cited before the Tribunal or the High Court, that itself was proof positive of the fact that the transaction amounted to a joint venture with a view to division of profits; and\n\n(2) It was argued that the High Court had exceeded its jurisdiction in travelling beyond the agreed statement of the case framed by the Tribunal and had relied on certain\n\nmaterials which were not at all found by the Tribunal in its E order nor were those materials mentioned in the statement of the case."}}, {"text": "A. N. Goyal", "label": "LAWYER", "start_char": 19861, "end_char": 19872, "source": "ner", "metadata": {"in_sentence": "Mr. A. N. Goyal counsel for the assessee Company has, however.", "canonical_name": "A, N. Goyal"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 20459, "end_char": 20463, "source": "regex", "metadata": {"statute": null}}, {"text": "Saligram Premnath", "label": "OTHER_PERSON", "start_char": 21512, "end_char": 21529, "source": "ner", "metadata": {"in_sentence": "It was perhaps for this reason that the assessec Company entered into an agreement with the new selling agents M/s Saligram Premnath who were prepared to give to the assessee Company better and more profitable terms.", "canonical_name": "Saligram F Premnath"}}, {"text": "clause 2", "label": "PROVISION", "start_char": 22581, "end_char": 22589, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 22707, "end_char": 22715, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 23291, "end_char": 23299, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 25346, "end_char": 25354, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 25583, "end_char": 25591, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 7", "label": "PROVISION", "start_char": 27837, "end_char": 27845, "source": "regex", "metadata": {"statute": null}}, {"text": "Greene", "label": "JUDGE", "start_char": 29886, "end_char": 29892, "source": "ner", "metadata": {"in_sentence": "Our attention has been drawn by the learned counsel for the Revenue to a decision in British Sugar Manufacturers Ltd. v. Harris\n\n(Inspector of Taxes )( 1), where Greene, M. R. clearly observed that where a person contributes to some sort of joint adventure which ultimately results in division of profits, it could not be construed as a remuneration for services."}}, {"text": "Dharamvir Dhir", "label": "OTHER_PERSON", "start_char": 32166, "end_char": 32180, "source": "ner", "metadata": {"in_sentence": "appears to have relied upon the decision in Dharamvir Dhir's case (supra)."}}, {"text": "British Sugar Manufacturers Ltd.", "label": "ORG", "start_char": 35405, "end_char": 35437, "source": "ner", "metadata": {"in_sentence": "in the British Sugar Manufacturers Ltd.'s case (supra) and had approved of the same."}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 37592, "end_char": 37605, "source": "regex", "metadata": {"statute": null}}, {"text": "AIR 1967 SC\n\n1435", "label": "CASE_CITATION", "start_char": 37947, "end_char": 37964, "source": "regex", "metadata": {}}, {"text": "Chiranjilal", "label": "OTHER_PERSON", "start_char": 41992, "end_char": 42003, "source": "ner", "metadata": {"in_sentence": "Chiranjilal in 1953 also resulted in loss as a result of which the second agreement dated October 20, 1955 was entered into."}}, {"text": "Desh Bandhu Gupta", "label": "OTHER_PERSON", "start_char": 42387, "end_char": 42404, "source": "ner", "metadata": {"in_sentence": "The High Court further found that the promoter of the assessee Company Mr.\n\nDesh Bandhu Gupta had a stature which enabled him to borrow loans from the Banks on personal security and as he died in an air crash the credit of the Company went down and it was not able to raise money from the Banks."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 43829, "end_char": 43846, "source": "ner", "metadata": {"in_sentence": "In Commissioner of Income-tax, Bombay v. Poona Electric Supply Co. Ltd.( 2 ) the Bombay High Court observed as follows :\n\n\"It is true that the Electricity Act exercises control on the business of the licensee, but the control that is exercised by reason of the aforesaid proviso is to compel the assessec to distribute part of its clear profits if it is found that 'clear profits' are in excess of the reasonable return as contemplated under the Act."}}, {"text": "Electricity Act", "label": "STATUTE", "start_char": 43891, "end_char": 43906, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jamshedpur", "label": "GPE", "start_char": 44732, "end_char": 44742, "source": "ner", "metadata": {"in_sentence": "l_lli.ance was also pl.aced by counsel for .the assessee Company on H a D1v1Slon Bench deciion of the Patna High Court in Jamshedpur\n\n(!)"}}, {"text": "Commissioner of Income-tax, Bihar & Orissa(')", "label": "RESPONDENT", "start_char": 44837, "end_char": 44882, "source": "ner", "metadata": {"in_sentence": "14-L 390 SCI/76\n\nMotor Accessories Stores v. Commissioner of Income-tax, Bihar & Orissa(') where Untwalia, CJ.,"}}, {"text": "Untwalia", "label": "JUDGE", "start_char": 44889, "end_char": 44897, "source": "ner", "metadata": {"in_sentence": "14-L 390 SCI/76\n\nMotor Accessories Stores v. Commissioner of Income-tax, Bihar & Orissa(') where Untwalia, CJ.,"}}, {"text": "Parikh", "label": "OTHER_PERSON", "start_char": 45017, "end_char": 45023, "source": "ner", "metadata": {"in_sentence": "as he then was, observed as follows:\n\n\"'That position being accepted the matter as to what amount was payable to Parikh ought to have been adjudged from the assessee's point of view and not from the department or Tribunal's point of view."}}, {"text": "Jamshedpur Motor Accessories Stores", "label": "ORG", "start_char": 45754, "end_char": 45789, "source": "ner", "metadata": {"in_sentence": "Jamshedpur Motor Accessories Stores' case (supra) was also concerned regarding the quantum of the payment of commission and does not appear to be useful in deciding the point at issue in the present case."}}, {"text": "Macmillan", "label": "OTHER_PERSON", "start_char": 47377, "end_char": 47386, "source": "ner", "metadata": {"in_sentence": "In fact in Pondicherry Railway Co. Ltd. v. Commissioner of Income-tax, Madras('),\n\nLord Macmillan pointed out that a payment out of nrofits and cunditional on profits being earned cannot be legitimately described as a payment made to earn profits."}}, {"text": "Halsbury", "label": "OTHER_PERSON", "start_char": 48572, "end_char": 48580, "source": "ner", "metadata": {"in_sentence": "But the principle laid down by Lord Chancellor Halsbury in Gresham Life Assurance Society v.\n\nStyles- .(1892) A.C. 309-at p. 315, is of general application unaffected by the specialities."}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 49905, "end_char": 49913, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(2)", "label": "PROVISION", "start_char": 50029, "end_char": 50037, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_202_227_EN", "year": 1976, "text": "KALE & OTHERS\n\nDEPUTY DIRECTOR OF CONSOLIDATION & ORS.\n\nJanuary 21, 1976\n\n[V. R. KRISHNA IYER, R. S. SARKARIA ANDS. MURTAZA FAZAL ALI, JJ.J\n\nFamily arrangement-Its object and purpose-Principle governirrg-1/ should be registered-Oral arrangement-If permitted-If would operate as an estoppel.\n\nRet:istration Act. s. 17(1)(b)-Family arrangement if should be compu[..; sorily reRistered.\n\n(A) The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the. family.\n\nA family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth, instead of concentrating the same in the hands of a few, is a milestone in the administration of social justice. Where by consent of the parties a matter has been settled, the courts have leaned in favour of upholding such a fan1ily arrangement instead of disturbing it on technical or trival grounds.\n\nWhere the courts find that the family arrangement suffers from a legal lacuna or a formal defect, the rule of estoppel is applied to shut out the plea of the person who. being a party to the family arrangement, seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. [208 F-H: 209 A-Bl\n\n(B) (i) The family settlement must be bona fide so as to resolve family disputes; (ii) It must be voluntary and not induced by fraud, coercion or undue influence; (iii) It may be even oral, in which case no~· registration is necessary;\n\n(iv) Registration is necessary only if the terms are reduced to writing but where the memorandum has been prepared after the family arrangement either for the purpose of record or for information of court, the memorandum itself does not create or extinguish any rights in immovable property and, therefore. does not fall within the mischief of s. 17(2) of the Registration Act and is not compulsorily registrable; (v) The parties to the family arrangement must have some antecedent title, claim or interest, 'even a possible claim in the property which is acknowledged by the parties to the settlement. But, even where a party has no title and the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then, the antecedent title must be assumed and the family arrangement will be upheld by the courts; (vi) Where bona fide disputes are settled by a bona fide family arrangement, such family arrangement is final and binding on the parties to settlement. f209 G-H; 210 A-El\n\nLala Khunni Lal & Ors v. Kunwar Gobind Krishna Narain and Anr. _L.R. 38 I.A. 87. 102: Mt. Hiran Bibi and others v. Mt. Sohan Bibi, A.LR. 1914 P.C. 44; Sahu Madho Das and others v. Pand_it Mukand Ram and another [1955] 2 S.C.R. 22, 42-43; Ran1 Charan Das v. Girijanandini Devi & Ors. [19651 3 S.C.R. 841, 850-851; Tek Bohodur Bhujil v. Devi Singh Bhujil and others, A.l.R. 1966 S.C. 292, 295; Maturi Pullaiah and Anr. v. Maturi Narasimham and Ors. A.I.R. 1966 SC 1836; Krishna Biharilal v. Gulabchand and others. [1971] Supp. SCR 27, 34 and S. Shanmugam Pillai and others v. K. Shanmugam Pillai .and others. [1973] 2 S.C.C. 312, fOllowed.\n\nRam Gopal v. T.ulshi Ram and another, A.l.R. 1928 All. 641 649; Sitalrt Baksh Singh and others v. Jang Bahadur Singh and others, A.I.R. 1933 Oudh 347, 348-349; M.st.\n\nKalawati v. Sri Krishna Prasad and others, l.L.R. 19 Lucknow 57. 67: Bakhtawar v. Sunder Lal and others. A.LR. 1926 All. 173, 175; and Awadh Narain Sinf!h and others v. Narain Mishra and others, A.I.R. 1962:\n\nPatna 400, app:r_aved.\n\nKALE V. DIRECTOR CONSOLIDATION 203\n\nOn the death of the father the family consisted of two unmarried daughters A (respondents 4 and 5) and appellant no. 1 (son of the married eldest daughter, appellant No. 2).\n\nAfter the marriage of respondents 4 and 5 the property left behind by the father was mutated in the name of appellant no. 1 who, under s. 36 of the U.P. Tenancy Act;, 1939, was the sole heir.\n\nEventually, however, the parties arrived at a family settlement allotting khatas\n\n5 and 90 to the appellant No. 1 and khatas 53 and 204 to respondents 4 and 5.\n\nThis family arrangement was not registered. The revenue records were, however, corrected.\n\nAt the time of revision of records under the U.P. Consolidation of Holdings Act, 1953 appellant No. 1 found that he was shown as having B one-third share in all the properties: The Consolidation Officer removed his name from the records and substituted the names of the sisters namely appellant No. 2 and respondents 4 and 5.\n\nOn appeal the Settlement Officer restored the names of appellant no. 1 in respect of khatas 5 and 90 and of respondents 4 and 5 in respect of khatas 53 and 204 which was in accordance with the family arrangement. The Deputy Director of Consolidation reversed this finding. The High Court dismissed the appellants' appeal.\n\nOn further appeal to this Court, it was contended that (i) the High Court C erred in rejecting the compromise on the ground that it wa~ not registered but that in view of the oral family arrangement no question ef registration -of the compromise arose and (ii) eVen if the compromise was unregistered it would operate clearly as estoppel against respondents 4 and 5.\n\nAllowing the appeal,\n\nHELD : The Deputy Director of Consolidation as well as the High Court was wrong in taking the view that in the absence of registration the family D arrangement could not be sustained.\n\nThe High Court also erred in not giving effect to the doctrine of estoppel. r217 Cl\n\n(I) (a) In the instant case the facts clearly show that a compromise or family arrangement had taken place orally before the petition was filed for mutation of the names of the parties.\n\n(b) The word family canpot be construed in a narrow sense so as to be confined only to persons who have a legal title to the property. When the talks for compromise took place .. appellant No. 1 was a prospective heir and a mem\"' ber of the family.\n\nSecondly respondents 4 and 5 relinquished their claims in favour of the appellant in respect of Khatas 5 and 90.\n\nThe appellant would, therefore, be deemed to have antecedent title which was acknowledged by respondents 4 and 5. [217Gl ( c) There can be no doubt that the family arrangement was bona fide.\n\nAt no sta2e of the case had the respondents raised the issue of bona fides. [218D]\n\n(d) The allegation of fraud and undue influence must first clearly be pleaded and then proved by clear and cogent evidence.\n\nIn the present case, there was neither pleading nor proof of this fact by respondents 4 and 5.\n\nRespondents Nos. 4 and 5 who were parties to the family arrangement and, .who, having been benefited thereunder, would be precluded from assailing the same.\n\n[219A]\n\nRani Gouda A nnagouda & others v. Bhausaheb and others, L.R. 54 I.A. 396, Teferred to.\n\n(2) Assuming that the family arrangement was compulsorily registrable, a family arrangement being binding on the parties to it, would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. In the present case respondents Nos. 4 and 5 would be estopped from denying the existence of the family arrangement or from questioning its validity. r223 Fl\n\nKanhai Lal;_. Brij Lal and Anr., L.R. 45 I.A. 118, 124; Dhiyan Singh and Anr . . v: l11Na_I K1shore and Anr., [1952] S.C.R. 478; Rani ('haran /)as v. Girjall nand1111 L>tr1 &- Ors. {1965] 3 S.C.R. 841, 850-851; Krishna Biharilal v. Gulabchand and others, [1971] Supp. S.C.R. 27, 34 and S. Shanmugam Pillai and others v. K. ShanmuKam Pillai & Others. [1973) 2 S.C.R. 312, referred to.\n\nSVPREME COURT REPORTS\n\n\nA Rachcha v. Mt. Mendha A.I.R. 1947 All. 177 and Chief Controlling Reve11ue\n\nAuthority v.\n\nSn11. Satyawati Sood and others, A.LR. 1972 Delhi 171, held inapplicable .\n\n.htlr. .Justice Sarkaria concurred \\\\'ith majority view that the family arrangement was binding, but reserved his opinion with regard to the alternative pro- , position, that assuming the family arrangement was compulsorily fe:gistrable under s. 17 ( 1) (b) of the Registration Act, it could be used to raise an estoppel against any of the parties to the suit. [227El\n\nCIVJL APPELLATE JURISDJCTJON : Civil Appeal No. 37 of 1968.\n\nAppeal by special leave from the judgment and order dated • 17-5-1966 of the Allahabad High Court in Special Appeal No. 640 of 1965.\n\nR. K. Garg, S. C. Agrawala and V. J. Francis, for the appellants.\n\nB. D. Sharma, for respondents Nos. 4 and 5\n\nThe Judgment of V. R. Krishna Iyer and S. Muataza Fazal Ali, JJ. was delivered by Fazal Ali, J. R. S. Sarkaria, J. gave a separate Opinion. ·\n\nFAZAL ALI J. This is an appeal by special leave against the judgment of the Allahabad High Court dated May 17, 1966 by which the appeal against the decision of a Single Judge of the High Court rejecting the writ petition of the appellants had been dismissed.\n\nAn application for granting a certificate for\" leave to appeal to this Court was made by the appellant before the High Court which was also dismissed by order of the High Court dated August 7, 1967.\n\nThe case had a rather chequered career and the disputes between the parties were sometimes settled and sometimes re-opened.\n\nIn order, however, to understand the poirit involved in the present appeal, it may be necessary to enter into the domain of the contending claims of the respective parties put forward before the Revenue Courts from time to time.\n\nTo begin with the admitted position is that one Lachman the last propositor was the tenant and the tenure holder of the property in dispute which consists of 19. 73 acres of land contained in Khatas Nos. 5 & 90 and 19.24 acres of land comprising Khatas Nos. 53 & 204.\n\nLachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Mrisamat Ram Pyari.\n\nMusamat Tikia was married during the life time of Lachman and the appellant No. 1 Kale is the son of Musamat Tikia. Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter's son Kale.\n\nUnder the U.P. Tenancy Act, 1939 which applied to the parties only unmarried daughters inherit the property.\n\nThe first round of dispute appears to have arisen soon after the death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman.\n\nHar Pyari and Ram Pyari appear to have been parties to that dispute and the Panchayat Adalat after making local enquiries held that Har Pyari having been married had lost her right in the estate and Ram\n\nKALE v. mRECTOR CONSOLIDATION (Fazal Ali, !.) 205\n\nPyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale.\n\nIn the year 1952 the U.P. Zammdari Abolit1on and Land Reforms Act, 1950 was made applicable to the tenure holders also.\n\nThis Act was further amended on October 10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under the statute, ''unmarried daughter\" was substituted by \"daughter\"\n\nonly.\n\nAccording to the appellant in this Court as also in the High Court Ram Pyari respondent No. 5 was married on February 25, 1955 and thereafter the appellant filed a petition before the Naib' Tahsildar, Hasanpur, for expunging the names of respondents 4 and 5 from the disputed Khatas because both of the daughters having been married ceased to have any interest in the property. It was therefore prayed that the appellant was the sole heir to the estate of Lachman under s. 36 of the U.P. Tenancy Act, 1939, he alone should be mutated in respect of the property of Lachman.\n\nBy order dated December 5, 1955 the Naib Tahsildar, Hasanpur, accepted the contention of the appellant and expunged the names of respondents 4 & 5 from the Khatas in dispute and substituted the name of the appellant Kale.\n\nSoon thereafter on January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge.\n\nWhile this application oE respondents 4 & 5 was pending adjudication the Revenue Court was informed that talk of compromise was going on between the parties which ultimately culminated in a compromise or a family arrangement under which the appellant Kale was allotted Khatas Nos. 5 & 90 whereas respondents 4 & 5 were allotted Khatas Nos. 53 & 204 as between them.\n\nA petition was filed on August 7, 1.956 before the Revenue Court informing it that a compromise had been arrived at and in pursuance thereof the names of the parties may be mutated in respect of the Khatas which had been allotted to them.\n\nThis petition was signed by both the parties and ultimately the Assistant Commissioner, I Class, passed an order dated March 31, 1957 mutating the name of the appellant Kale in respect of Khatas Nos. 5 & 90 and the names of respondents 4 & 5 in respect of Khatas Nos. 53 and 204.\n\nThereafter it is not disputed that the parties remained in possession of the properties allotted to them and paid land revenue to the Government.\n\nThus it would appear that the cjispute between the parties was finally settled and both the parties accepted the same and took benefit thereunder. This state of affairs continued until the year 1964 when proceedings for revision of the records under s. 8 of the\n\nU.P.\n\nConsolidation of Holdings Act, 1953 were started in the village Hasanpur where the properties were situated in the course of which respondents 4 & 5 were entered in Form C.H. 5 as persons claiming co-tenure holders to the extent of 2/3rd share with the appellant Kale who was entered in the said form as having 1 /3rd share in all the .Khatas. In view of this sudden change of the entries which were obviously contrary to. the mutation made in pursuance of the family arrangement entered mto between the parties in 1956, the appellant\n\nKale filed his objections before the Assistant Consolidation Officer for changing the entries in respect of those Khatas.\n\nAs the Assistant Consolidation Officer found that the dispute was a complicated one he by his order dated May 7, 1964 referred the matter to the Consolidation Officer.\n\nIt migl_it be mentioned here that when the proceedings for revision of the records were started, while the appellant filed his objections, respondents 4 & 5 seem to have kept quiet and filed no objections at all. In fact under s. 9 (2) of the U. P.\n\nConsolidation of Holdings Act, 1953, the respondents cou\\d have filed their objections, if they were aggrieved by the entries made on the basis of the compromise. Sub-section (2) of s. 9 of the U.P. Cousolidation of Holdings Act runs thus :\n\n\"Any person to wh~ a notice under sub-section ( 1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file, before the Assis-\n\n...\n\ntant Consolidation Officer, objections in respect thereof . \\ disputing the correctness or nature of the entries in the re- ....,_ cords or in the extract furnished therefrom, or in the Statement of Principles, or the need for partition.\"\n\nThis is a very important circumstance which speaks volumes against the conduct of the respondents which will be referred to in detail in a later part of our judgment and seems to have been completely brushed aside by all the Courts.\n\nThe Consolidation Officer to whom the dispute was referred, by his order dated July 27, 1964, framed a number of issues, and after trying the suit, removed the name of the appellant Kale from Khatas 5 & 90 and substituted the names of appellant No. 2 Musamat Tikia and those of respondents 4 & 5.\n\nWe might also mention here that )- for the first time respondents 4 & 5 raised a dispute before the Consolidation Officer denying that the appellant Kale was the grandson of Lachman.\n\nThe Consolidation Officer framed an issue on this question and after taking evidence clearly found that the objection raised by respondents 4 & 5 was absolutely groundless and that the appellant Kale was undoubtedly the grandson of . Lachman.\n\nThe Consolidation Officer pointed out that even before the Panchayat Adalat as also in the mutation petition which was filed before the Naib Tahsildar respondents 4 & 5 never disputed that the appeHant Kale was the grandson of Lachman being the son of his daughter Musamat Tikia who is appellant No. 2.\n\nThereafter the appellant and the respondents 4 & 5 filed an appeal before the Settlement Officer who by his order dated November 28, 1964, restored the mutation made by the Naib Tahsildar on the basis\n\nJ' of the compromise, namely the appellant was mutated in respect of Khatas Nos. 5 & 90 and respondents 4 & 5 in respect of Khatas Nos. 53 & 204.\n\nThereaftter respondents 4 & 5 filed a revision petition before the Deputy Director of Consolidation who by his order dated January 22, 1965, reversed the order of the Settlement Officer and expunged\n\nthe name of the appellant Kale from Khatas Nos. 5 & 90 and recorded the name of respondent No. 5 Musamat Ram Pyari in respect of these Khatas on the ground that she was the sole tenure holder in respect of those Khatas.\n\nTherefater the appellant Kale and his mother Musamat Tikia appellant No. 2 filed a writ petition in the Allahabad High Court against the order of the Deputy Director of Consolidation.\n\nThe writ petition was heard in the first instance by a Single Judge who dismissed the petition upholding the order of the Deputy Director of Consolidation. The appellant then filed a special appeal to the Division Bench of the Allahabad High Court which also affirmed the judgment of the Single Judge and dismissed the appeal-hence this appeal by special leave.\n\nIn support of the appeal Mr. Garg appearing for the appellants submitted two points of law before us.\n\nIn the first place he argued that the grounds on which the Courts below have not given effect to the family arrangement arrived at between the parties in 1956 culminating in the mutation in 1957 are not legally sustainable. 'fhe High Court took an erroneous vi_ew of the law in rejecting the compromise on the ground that it was not registered.\n\nIt was argued that an oral family arrangement bad already taken place earlier and a petition before the Naib Tabsildar was merely for the information of the Court for the purpose of mutation of the names of the parties in pursuance of the compromise and, therefore, no question of registration of the compromise in this case arose.\n\nSecondly it was contended that even if the compromise was unregistered it would undoubtely operate as a c)ear estoppel against the respondents 4 & 5 who having taken benefit thereunder and having remained in possession of the lands for more than seven years cannot be allowed to revoke the compromise.\n\nMr. Sharma learned counsel appearing for the respondents raised the following contentions before us :\n\n(1) that the appellants never pleaded any oral family arrangement; {2) that the family arrangement relied upon by the appellants was not bona fide and was fraudulent as the consent of respondents 4 & 5 was obtained by fraud or undue influence;\n\n.( 3) that the appellants themselves gave a complete go bye to the family arrangement in the. case which they made out before the Revenue Courts and have merely taken advantage of a stray observation made by the Deputy Director of Consolidation; ( 4) that the petition filed before the N aib Tahsildar embodied and as such the terms and conditions of the compromise was compulsorily registrable under the Registration Act, and being unregistered it was inadmissible in evidence; {5) that at any rate the family arrangement was not proved by the appellants as a fact;\n\n( 6) that the dectrine of estoppel would not apply because the family arrangement being compulsorily registrable there can be no estoppel against the statute; and\n\n(7) that the findings of the Revenue Courts being essentially findings of fact, this Court would not interfere, unless there was a sufficient error of law apparent on . the face of the record.\n\nBefore dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all.\n\nBy virtue of a family settlement or c arrangement members of a family des.cending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family.\n\nThe family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.\n\nIn this connection, Kerr in his valuable treatise \"Kerr O on Fraud\" at p. 364 makes the following pertinent observations regard-· ing the nature of the family arrangement which may be extracted thus :\n\n\"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements.\n\nFamily arrangements are governed by l) special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an. error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the. points on which their rights actually depend.\"\n\nThe object of the arrangement is to protect the family from long drawn litigation er perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.\n\nToday when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour.\n\nA family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the adm'nistration of social justice. That is why the term \"family\" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title. a sembfance of a claim or even if they have a spes successionise so that future disputes are sealed for ever and the family instead of fighting claims inter 5e and wasting time, money and energy on such fruitle.ss or futik litigation is able to devote its attention to more constructive work in the larger\n\n- 'l\"\n\ninterest of the country.\n\nThe Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds.\n\nWhere the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into servii:e and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.\n\nThe law in England on this point is almost the same.\n\nIn Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made :\n\nA family arrangement is an agreement between mm bers of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.\n\nThe agreement may be implied from a long course o[ dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term \"family arrangement\" is applied.\n\nFamily arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, cop.siders what in the broadest view of the matter is most for the interest of families, and bas regard to considerations which, in dea!ing with transactions between persons not members of the same fam; ly. would not be taken into account.\n\nMatters wh'ch would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of\n\nfam~Jy arrangements\".\n\nIn other words to put the binding effect and the essentials of a family settlement in a concretised. form, the. matter may be reduced into the form of the following propositions :\n\n( 1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair\n\nand equitable division or allotment of properties bet- G\n\n(2)\n\nween the various n1e1nbers of the family;\n\nThe said settlement must be not be induced by fraud, influence;\n\nvoluntary and should coercion or undue\n\n(3) The family arrangement may be even oral in which\n\ncase no registration is necessary; ( 4) It is well-settled that registration would be necessary only if the terms of the family arrangement are\n\nreduced into writing.\n\nHere also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been\n\nmade either for the purpose of the record or for information of the court for making necessary mutation.\n\nIn such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of s. 17 (2) of the Registration Act and is, therefore, not compulsorily registrable;\n\n(5) The members who may be parties to the family. arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.\n\nEven if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;\n\n( 6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.\n\nThe principles indicated above have been clearly enunciated and /- adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.\n\nF In Lala Khu1111i Lal & Ors. v. Kunwar Gobind Krishna Narain •\n\nand Anr.( 1) the statement of I.aw regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council.\n\nIn this connection the High Court made the foHowing observations which were adopted hy the Privy Council :\n\nThe learned judges say as follows :\n\n\"The true character of the transaction appears to us to have been a settlement between the several members of the family of thek disputes, each one relinquishing all claim in respect of all property in dispute other than that falling ILl his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to thm respectively. It was in this light, rather than. as confemng a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that\n\n(I) L R. 38 I. A. 87. 102.\n\n.,,\n\nit is the duty of the Courts to uphold and give full effect to such an arrangement.\"\n\nTheir Lordships have no hesitation in adopting that view.\"\n\nThis decision was fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi and others v. Mt. Sohan Bibi(!).\n\nIn Sahu Madho Das and others v.\n\nPandit Mukand Ram and another(') this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J ., speaking for the Court, observed as follows :\n\n\"It is well settled that compromise or family arrangement is based on the assumption that there is an antecedent c titte of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person D receiving it under the family arrangement.\n\nIt is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that E ocing about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might iuin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties F resides in only one of their number (provided he or she had ·\n\nclaimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.\" In Ram Charan Das v. Girjanandini Devi & Ors. (3), this Court G observed as follows :\n\n\"Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family.\n\nThe word 'family' in the context is not to be understood in a narrow sense of being a group of persons who __ are r:cognised in law as having a right of succession or H\n\n(I} A.LR. 1914 P. C. 44.\n\n\nhaving a claim to a share in the property in dispute ....... .\n\nThe consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst p•rsons bearing relationship with one another.\n\nThat consideration having been passed by each of the disputants the settlement consisting of recogintion of the right asserted by each other cannot be permitted to be impeached thereafter.\"\n\nIn Tek Bahadur Bhujil v. Debi Singh Bhujil and Others(!) it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing.\n\nIt was also held that a document which was no more than a memorandum of what had been agreed to did not require registration.\n\nThis Court had observed thus :\n\n\"Family arrangement as such can be arrived at orally.\n\nIts terms may be recorded in writing as a memorandum o! what had been agreed upon between the parties.\n\nThe memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future.\n\nJt is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.\"\n\nSimilarly in Maturi Pullaiah and Anr. v. Maturi Narasimham and Ors. (2) it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court.\n\nSiffiilarly it was also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement.\n\nIn this connection this Court observed as follows :\n\n\"It will be seen from the said passage that a family arrangement resolves family dispntes, and that even disputes based npon ignorance of parties as to their rights may afford a sufficient ground to sustain it.\n\n• • * •\n\nBriefly stated, though conflict of legal claims in pNie'enti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.\n\nEven bona fide disputes, present or possible, which may not involve legal claims will suffice.\n\nMembers of a joint Hindu family may, to maintain peace or to bring about harmony in the family, - --- ---- ----------\n\n(1) A.T.R. 1966 S.C. 292. 295.\n\n(2) AlR 1966!S.C. 1836\n\n' •\n\nKALE I'. D; R'ECTOR CONSOLJDATION (Fazal Ali, J.) 213\n\nenter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it.\" ·\n\nIn Krishna Bihari/al v. Gulabchand and others(') it was pointed\n\nom tha: the word 'family' had a very w .ac connotaMn and cou!d not B • be confined only to a group of persons who were recognised by law as hav:ng a right of succession or clacming to have a share.\n\nThe Court then observed :\n\n\"To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all\n\nbelong to one family.\n\nAs observed by this Court in Ralll Charan Das v. Girjanandini Devi and Ors.-[1965] 3 SCR 841 at pp. 850 & 851-the word \"family\" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement-- see Ramcharan Das's case.\n\nThe courts lean strongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all.\"\n\nIn a recent decision of this Court in S.\n\nShanmugam Pillai and others v. K. Shanmugam Pillai & Others(\") the entire case law was discussed and this Court observed as follows :\n\n\"If in the interest of the family proj:lerties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same.\n\nThe courts generally lean in favour of family arrangements. * * * * Now turning to the plea of family arrangement, as observed by this Court in Sahu Madho Das and Others v.\n\nPandit Mukand Ram and Another-[19551 2 SCR 22the courts lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all.\n\nAs observed in that case the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.\n\nIn Maturi Pullaiah and Another v. Maturi Narasimham\n\nand Others-AIR, 1966 SC 1836this Court held that al- H though conflict of legal claims in praesenti or in future is -- -- - (I) [1971] Supp. SCR 27, 34. r2) [197312sec112.\n\ngenerally a condition for the validity of family arrangements, it is not necessarily so.\n\nEven bona fide dispute,; present or possible, which may not involve legal claims would be sufficient.\n\nMembers of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it.\"\n\nThus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it.\n\nThe central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds.\n\nA full bench of the Allahabad High Court in Ramgopal v. Tulshi Ram and another(') has also taken the view that a family arrange- D ment could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary.\n\nIn this connection the full bench adumbrated the following propositions in answering the reference :\n\n\"We would, therefore return the reference with a state- E ment of the following general propositions :\n\nWith reference to the first question : (I) A family arrangement can be made orally.\n\n(2) If made orally, there being no document, no question of registration arises.\n\nWith reference to the second question :\n\n(3) If though it could have been made orally, it was in fact reduced to the form of a \"document'', registration (when the value is Rs. 100 and upwards) is necessary.\n\n( 4) Whether the terms have been \"reduced to the form of a document\" is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.\n\n(5) If the terms were not \"reduced to the form of a document\", registration was not necessary (even though the valne is Rs. 100 or upwards); and, while the writing cannot be nsed as a piece of evidence for what it may be worth, H e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining condnct.\n\n(l) AIR 1928 All. 641, 649.\n\n)II\n\n(6) If the terms were \"reduced to the form of a document\" and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document.\"\n\nSimilarly in Sita/a Baksh Singh and others v. Jang Bahadur Singh and other (') it was held that where a Revenue Court merely gave effect to the compromise, the order of the Revenue Court did not require registration. In this connection the following observations were made:\n\n\"In view of this statement in para 5 of the plaint it is hardly open to the plaintiffs now to urge that Ex. 1, the compromise, required registration when they themselves admit that it was embodied in an order of the Revenue Court and that it was given effect to by the Revenue Court ordering mutation in accordance with the terms of the compromise. * * *\n\n* We hold that as the Revenue Court by its proceedings gave effect to this compromise, the proceedings and orders of the Revenue Court did not require registration.\" Similarly in a later decision of the same Court in Mst. Kalawati v. Sri Krishna Prasad and others (2) it was observed as follows :\n\n'\"Applying this meaning to the facts of the present case, it seems to us that the order of the mutation court merely stated the fact of the compromise having been arrived at bet.\n\nween the parties and did not amount to a declaration of will.\n\nThe order itself did not cause a change of legal relation to the property and therefore it did not declare any right in the property.\" The same view was taken in Bakhtawar v.\n\nSunder Lal and others( 3), where Lindsay, J., speaking for the Division Bench observed as follows :\n\n\"It is reasonable to assume that there was a bona fide dispute between the parties which was eventually composed, each party recognizing an antecedent title in the other.\n\nIn this view of the circumstances I am of opinion that there was no necessity to have this petition registered. It does not in my opinion purpor' to create, assign, limit, extingu!Sh or declare within the meaning of these expressions as used in S. I 7 ( 1) (b) of the Registration Act. It is merely a recital of fact by which the Court is informed that the parties have come to an arrangement.\" Similarly the Patna High Court in Awadh Narain Singh and others\n\n~· Narain Mishrq and others(') pointed out that a compromise petition not embodying any terms of agreement but merely conveying informatio~_ tohe_Court that family arrangement had already been\n\n(1) A.LR. 1933 Oudh 347, 348-349.\n\n(2) l.L.R. 19 Lucknow 57, 67. (]) A.LR. 1926 All. 173. 175.\n\n(4) AIR 1962 Patna 400. 15-390SCl/76\n\nA arrived at between the parties did not require registration and can be looked into for ascertaining the terms of family arrangement. This is what actually seems to have happened in the present case when the mutation petition was made before the Assistant Commissioner.\n\nThis Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an B estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. We shall deal with this point a little later when we consider the arguments of the respondents on the question of the estoppel.\n\nIn the light of the decisions indicated above, we shall now try to apply the principles laid down by this Court and the other Courts to the facts of the present case. c\n\nIt would be seen that when the name of appellant No. 1 Kale was mutated in respect of the Khatas by the Naib Tehsildar by his order dated December 5, 1955 which is mentioned at p. 4 of the Paper Book respondents 4 & 5 filed an application for setting aside that order on the ground that they had no knowledge of the proceedings.\n\nSubsequently a compromise was entered into between the parties a reference to which was made in the compromise petition filed before the Revenue Court on August 7, 1956. A perusal of this compromise petition which appears at pp. 15 to 18 of the Paper Book would clearly show two things-(!) that the petition clearly and explicitly mentioned that a compromise had already been made earlier, and (2) that after the allotment of the Khatas to the respective parties the parties shall be permanent owners thereof. The opening words of the petition may be extracted thus :\n\n\"It is submitted that in the above snit a compromise has been made mutually between the parties.\" It would appear from the order of the Assistant Commissioner, 1st Class, being Annexure 4 in Writ Petition before the High Court, appearing at p. 19 of the Paper Book that the parties sought adjournment from the Court on the ground that a compromise was being made.\n\nIn this connection the Assistant Commissioner, Ist Class, observed as follows :\n\n\"On 11th January 1956 Mst. Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed oil 5th December 1955.\n\nOn this application he summoned the parties and an objection was filed against the restoration application. The parties sought adjournment on the ground that a compromise was being made.\n\nThe parties filed compromise before the Naib Tehsildar according to which two lists were drawn, one of these is to be entered in the name of Kale and the other in the name of Har Piari and Ram Piari.\" This shows that even before the petition was filed before the Assistant Commissioner informing him that a compromise was being made, the\n\nparties had a clear compromise or a family arrangement in contemplation for which purpose an adjournment was taken.\n\nThese facts coupled together unmistakably show that the compromise or family arrangement must have taken place orally before the petition was filed before the Assistant Commissioner for mutation of the names of the parties in pursuance of the compromise.\n\nThe facts of the present case are therefore clearly covered by the authorities of this Court and the other High Courts which laid down that a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the Court for its information for mutation of names is not compulsorily registrable and therefor can be used in evidence of the family arrangement and is final and binding on the parties.\n\nThe Deputy Director of Consolidation respondent No. 1 as. also the High Court were, therefore, wrong in taking the view that in absence of registration the family arrangement could not be sustained.\n\nWe might mention here that in taking this view, the High Court of Allahabad completely overlooked its own previous decisions on this point which were definitely binding on it.\n\nThis, therefore, disposes of the first contention of the learned counsel for the respondents that as the family arrangement having been reduced into the form of a document which was presented before the Assistant Commissioner was unregistered it is not admissible and should be excluded from consideration.\n\nIt was then contended by the respondents that the family arrangement was not bona fide for two reasons:\n\n(1) that it sought to give property to the appellant No. I Kale who was not a legal heir to the estate of Lachman, because in view of the U.P. Land Reforms (Amendment) Act E 20 of 1954 Mst. Ram Piari even after being married could retain the property, and so long as she was there the appellant had no right; and\n\n(2) that the family arrangement was brought about by\n\n1> fraud or undue influence.\n\n'--\n\nAs regards the first point it appears to us to be wholly untenable F in law. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word 'family' cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property.\n\nEven so it cannot be disputed that the appellant Kale being the grandson of Lachman and therefore a reversioner at the time when the talks for compromise took place was undoubtedly a prospective heir and G also a member of the family.\n\nSince respondents 4 & 5 relinquished their claims in favour of the appellant Kale in respect of Khatas 5 & 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by respondents 4 & 5.\n\nApart from this there is one more important consideration which clearly shows that the family arrangement was undoubted! Y a\n\nbona fide settlement of disputes.\n\nUnder the family arrangement. as H referred to in the mutation petition the respondents 4 & 5 were given absolute and permanent rights in the lands in dispute.\n\nIn 1955 wen the compromise is alleged to have taken place the Hindu Suceess10n\n\nAct, 1956, was not pa.ssed and respondents 4 & 5 would have only a limited interest even if they had got the entire property which would ultimately pass to the appellant Kale after their death.\n\nThe respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners.\n\nAt that time they did not know that the Hindu Succession Act would be passed a few months later.\n\nFinally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter's son the appellant Kale in equal shares and was, therefore, both fair and equitable. ln fact if respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law.\n\nWe have, therefore to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out their differences.\n\nHaving regard to the circumstances indicated above, we cannot conceive of a more just and equitable division of the properties than what appears to have been done by the family arrangement.\n\nIn these circumstances, therefore, it cannot be said that the family settlement was not bona fide Moreover respondents 4 & 5 had at no stage raised the issue before the Revenue Courts or even before the High Court that the settlement was not bona fide.\n\nThe High Court as also respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.\n\nThere is yet one more intrinsic circumstance which shows that the E compromise was an absolutely bona fide transaction. It would appear that at the time of the compromise respondent 5 Ram Pyari was faced with a situation when her marriage in 1955 was not so far proved. If she was absolutely certain that her marriage had taken place in 1955 she would not have agreed to the terms at all.\n\nOn the other hand if she thought that she might not be able to prove that her marriage took place in 1955 and if it was shown that she had married before 1955 F then she would be completely disinherited and would get nothing at all with the result that the appellant Kale would get the entire property.\n\nOn the other hand the appellant must have similarly thought that a bird in hand is worth two in the bush.\n\nSo long as Ram Pyari was alive he would not be able to enjoy the property and would have to wait till her death.\n\nIt was, therefore, better to take half of the property immediately as a permanent tcnnre holder and give the half to the G daughters of Lachman, namely, Har Pyari and Ram Pyari.\n\nThus nnder the terms of the compromise both the parties got substantial benefits and it was on the whole a very fair and equitable bargain. In these circumstances, therefore, the parties struck a just balance and a fair and beneficial settlement which put an end to their disputes.\n\nH Coming to the second plank of attack against the family settlement that it was brought about by duress or undne influence or fraud, there is not an iota of evidence or a whisper of an allegation by respondents 4 & 5 either in the Revenue Courts or in the High Court.\n\nEven before respondent No. 1, where respondents 4 & 5 were the petitioners\n\nthey never questioned the compromise on the ground that it was A fraudulent on a point of fact.\n\nIt is well settled that allegations of fraud or undue influence must first clearly be pleaded and then proved by clear and cogent evidence.\n\nThere was neither pleading nor proof of this fact by respondent 4 & 5. Moreover, it may be mentioned that ,. even in their objections before the Assistant Commissioner for setting aside the previous mutation made in favour of the appellant Kale the only ground taken by the respondents 4 & 5 was that the order was B passed without their knowledge.\n\nLastly the petition filed before the Assistant Commissioner for mutating the lands in pursuance of the compromise was signed by both the parties who were major and who knew the consequences thereof.\n\nIn these circumstauces, therefore, the argument of the learned counsel for the respondents that the compromise was fraudulent appears to be a pure after-thought and is not at all justified by any evidence.\n\nThis contention must therefore be C overruled.\n\nIt was also suggested by Mr. Sharma that before the Revenue Courts the appellant Kale tried to show by producing a false Kutumb Register that respondent No. 5 Ram Pyari was married before 1955 so that being a married daughter she may be deprived of her inheritance and the Revenue Courts found that this register was not proved to be genuine.\n\nThis, however, does not amount to a plea of fraud but is a matter of Cl(idence.\n\nOn the other hand even the respondents 4 & 5 had taken the stand before the Revenue Courts when they filed their joint written statement in 1965 that the appellant was not the grandson of Lachman a fact which they admitted clearly before the Panchayat Adalt as also before the Assistant Commissioner when they filed the mutation petition.\n\nThe Revenue Courts clearly held that this plea was totally unfounded and was completely disproved.\n\nThus even assuming the argument of Mr. Sharma to be correct, both parties being in pari delicto none of them could be allowed to take advantage of their wrong.\n\nIn fact Mr. Garg counsel for the appellants was fair enough to give up this plea and clearly conceded before !he High Court as also in this Court that Musamat Ram Pyari\n\nwas married in 1955 as found by the Revenue Courts.\n\nAnother contention that was advanced before us by counsel for the respondents was that an oral family arrangement was never pleaded before the Revenne Courts ilnd that the appellants relied mainly on the mutation petition as embodying the terms and conditions of the compromise.\n\nIn our opinion this contention, apart from being untenable, is not factually correct.\n\nThe disputes between the appellant Kale and respondents 4 & 5 arose only after the Naib Tehsildar had, on the application of the appellant, mutated his name in respect of the Khata Numbers in dispute.\n\nAn application was filed by respondents 4 & 5 for setting aside that order. Thereafter both the parties, namely, the appellant and respondents 4 & 5 obtained adjournment from the Court on the gronnd that they were going to compromise the dispute.\n\nSubsequently the mutation petition was filed which was signed by both the parties.\n\nJu the Revenne Courts therefore it was the mutation petition alone which formed the pleadings of the parties and therefore it was obvious that the family arrangement was pleaded by\n\nA the appellant at the first possible opportunity.\n\nThe family arrangement was again relied upon before the Consolidation Officer in Annexure-5 to the writ petition the relevant portion which appears at p. 25 of the Paper Book and runs thus : ·\n\n\"The parties contested the suit in the panchayat. They contested it in tahsil also.\n\nThe plaintiff produced a copy thereof.\n\nHe produced a copy of a compromise in which the defendant gave half of the land to Kale, treating him as dheota of Lachman, although no party now remembers about that compromise.\"\n\nIn the final Revenue Court i.e., before the Director of Consolidation as also before the High Court the compromise was very much relied upon by the appellant and a finding against the appellant was given both by respondent No. 1 and by the High Court as a result of which this appeal has been filed before this Court.\n\nIt was suggested by the respondents that Respondent No. 1 had merely made a stray observation in his order.\n\nThis does not appear to be correct, because respondent No. 1 has proceeded on the footing that a compromise was there but it could not be given legal effect because it contravened some provisions of the law.\n\nIn this connection the order of respondent No. 1 reads thus:\n\n\"Even the orders passed in the mutation proceedings on the basis of compromise could not maintain as since the mutation proceedings were of summary nature and the compromise of the parties, even if accepted, was against the provisions of law, as either Smt. Ram Pyari could succeed or Kale alone could be deemed to be the successor of Lachman; the last male tenant.\n\nThere was no question of both the parties sharing the land in between them on the basis of a compromise made against the provisions of law.\"\n\nRespondent No. 1 also indicated in his order that the compromise had taken place before the Naib Tehsildar as alleged by the appellant.\n\nLastly both the Single Judge and the Division Bench also have proceeded on the basis that there was in fact a comoromise between the parties but have refused to give effect to the compromise because the same was not registered.\n\nIn these circumstances, therefore, the contention of the respondents 4 and 5 on this score must be overruled,\n\nIt was then arued that the appellants have adduced na evidence to prove that there was actually a family arrangement between the parties.\n\nWe are, however, unable to agree with this corrtention.\n\nThere are four important circumstances from which the famiiy arrangement can be easily inferred.\n\nThese are :\n\n(1) that the parties took adjournment from the Court intimating to it that a compromise was under contemplation ;\n\n(2) that a petition for mutation was filed before the Court of Assistant Commissioner clearly alleging that a compromise or a family arrangement had already taken place' and that mutation should be )Dade accordingly ;\n\n(3) that in pursuance of the compromise both the parties took benefit under the same and continued to remain in possession of the properties allotted to them for full seven years and did not raise any objection at any stage before any authority during this period regarding the validity of the compromise; and\n\n(4) that even though the U.P. Consolidation of Holdings Act, 1953 contained an express provision for filing of an objection under s. 9(2) when the proceedings for correction of the entries were taken respondents 4 & 5 filed no objection whatsoever and filed their additional written statement at a much later stage.\n\nThus from the actings and dealings of the parties in the course of several years a family arrangement can clearly be inferred in this case.\n\nFinally the respondents never took any objection before any of the Courts that no family arrangement had as a matter of fact taken place between the parties.\n\nThe only objection centred round the admissibility of the document said to have embodied the terms of the compromise.\n\nThis contention, therefore, cannot be accepted.\n\nIt was then submitted that even the appellant had given a go bye D to the compromise and seems to have forgotten all about it.\n\nThis is also factually incorrect.\n\nAs indicated earlier right from the Court of the Consolidation Officer npto the High Court the appellant has always been relying mainly on the compromise entered into between the parties.\n\nAnother argument advanced by counsel for the respondents was that the family arrangement was not valid because the appellant had E absolutely no title to the property so long as Mst. Ram Pyari was in lawful possession of the property as the sole heir to Lachman, and if under the family arrangement any title was conveyed to the appellant, the said conveyance can only be by a registered instrument under the provisions of the Registration Act and the Transfer of Property Act.\n\nThis argument also, in our opinion, suffers from a serious misconception.\n\nWe have already pointed out that this Court F has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee.\n\nIn such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title: In fact a similar argument was advanced before this Court in Tek G Bahadur Bhujil's case, (supra) relying on certain observations made by Bose, J., in Sahu Madho Das's case, (supra) but the argument was repelled and this Court observed as follows :\n\n\"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement.\n\nThe observations are : H It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent\n\ntitle of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively. * * * * * * \"These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement.\n\nThey simply mean that it is to be assumed that the parties to the .arrangement had au antecedent title of some sort and that the agreement clinches and defines what that title is.\" The observations of this Court in that case, therefore, afford complete answer to the argument of the learned counsel for the respondents on this point.\n\nFurthermore the Privy Council in somewhat identical circumstances upheld the family settlement in Ramgouda Annagouda & others v.\n\nBhausaheb and Others('). In that case there were three parties to the settlement of a dispute concerning the property of the deceased person.\n\nD These were the widow of the deceased, the brother of the widow and . the son-in-law of the widow.\n\nIt was obvious, therefore, that in presence of the widow neither her brother nor her son-in-law could be regarded as the legal heirs of the deceased.\n\nYet having regard to the near relationship which the brother and the son-in-law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one.\n\nIn the instant case also putting the case of respondents 4 & 5 at the highest, the position is that Lachman died leaving a grandson and two daughters.\n\nAssuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement.\n\nIn the instant case also it would appear that the appellant Kale and Mst. Har Piari had no subsisting interest in the property so long as Mst. Ram Piari was alive.\n\nRam Piari in view of the amendment in law by the U.P.\n\nLand Reforms (Amendment) Act, 20 of 1954, continued to be an heir even after her marriage but Mst. Har Piari ceased to be the heir after her marriage which bad taken place before the amendment.\n\nNevertheless the three children of Lachman in order to bring complete harmony to the family and to put an end to all future disputes decided to divide the property each getting a share in the same.\n\nThe appellant Kale got Khatas Nos. 5 & 90 and Mst. Har Pari's share was placed along with Mst. Ram Piari in the other Khatas.\n\nThis the appellant and Har Piari & Ram Piari also enjoyed full benevolence under the family arrangement.\n\nWe cannot think of a fairer arrangement than this by which not only the property was divided amongst the children of Lachman but even the spirit of the law, which wiped out the invidious distinction between the married and nnmarried daughters by the U.P. Act 20 of 1954, was followed. The facts of the present case, therefore, as we have already indicated, are\n\n(I) L.R. 54 I.A. 396.\n\n...\n\n!r; ALE v. DIRECTOR CONSOLIDATION (Fazal Ali, J.) 223\n\n()n all fours with the facts in Ramgouda Annagouda's case (supra).\n\nA The Privy Council further held in Ramgouda Annagouda's case that Ramgouda being a party to benefit by the transaction was precluded from questioning any part of it.\n\nOn a parity of reasoning, therefore, the respondents 4 & 5 who were parties to the family arrangement .- and having been benefited thereunder would be precluded from assailing the same.\n\nFor these reasons, therefore, the contention of the learned counsel for the respondents on this point also must be over- H rnled.\n\nW c might mention here that the learned counsel for the respondents relied on two decisions of the Patna High Court in Brahmanath Singh .& Ors. v. Chandrakali Kuer and another (1) and Mst. Bibi Aziman .and another v. Mst. Saleha and others (') for the proposition that unless a party to a settlement had an antecedent title the family settle- C ment would not be valid.\n\nIn view, however, of the decisions of this Court and of the Privy Council the authority of the Patna High Court on this point is considerably weakened and cannot be treated as a good • law.\n\nThe Patna High Court also held that where the document itself contains or embodies the terms of the family settlement it will be compulsorily registrable but not when it speaks of the past.\n\nIn view of\n\nour finding that the mutation petition before the Assistant Commis- D sioner was merely a memorandum of the family arrangement, the authority of the Patna High Court does not appear to be of any assistance to the respondents.\n\nRebutting the arguments of the learned counsel for the appellant, Mr. Sharma for the respondents, contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute.\n\nIn the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case.\n\nAssuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.\n\nThis principle has been established by several decisions of this Court as also of the Privy Council.\n\nIn Kanhai Lal v. Brij Lal and Anr.( 3) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows :-\n\n\"Kanhai Lal was a party to that compromise.\n\nHe was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he\n\n(!) AIR 1961 Pat. 79.\n\n(2) AIR 1963 Pat. 62.\n\n(3) LR. 45 I.A. 118, 124.\n\nA has hitherto enjoyed.\n\nIn their Lordships' opinion he is bound by it, and cannot now claim as a reversioner.')\n\nThis Court in Dhiyan Singh and Anr. v. fugal Kishore and Anr. ( 1) \\ observed as follows :\n\n\"We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitrator makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they .need not have done so if the present contentions are correct. * * * • Even if the arbitrator was wholly wrong and even if he had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide.\n\nThat, in our opinion is a representation of an existing fact or set of facts.\n\nEach would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst. Mohan Dei an absolute interest in the suit property.\"\n\nIn view of the principle ennnciated in the aforesaid case it is obvious that respondents 4 & 5 would be cstopped from denying the existence of the family arrangement or from questioning its validity.\n\nIn Ram Charan Das's case (supra) while dwelling on the point of the family arrangement this Court observed as follows :\n\n\"It seems to us abundantly clear that this document was in substance a family arrangement and, therefore, was binding on all the parties to it.\n\nMoreover it was acted upon by them. x x x x In our ooinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal.\"\n\nAt p. 851 this Court pointed out that as the settlement consisted of recognition of the right asserted by each other none of the parties could G be permitted to impeach it thereafter.\n\nTo the same effect is the decision of this Court in Krishna Biharilal's case (supra), where the doctrine of estoppel was discussed, and while referring to the previous cases of this Court, it was observed as follows :\n\n\"In Dhyan Singh's case -[1952] SCR 4 78-this Court H ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the\n\n(I) [1952] S.C.R. 478.\n\nvalidity of the award or from going behind the award in a sub- A sequent litigation.\n\nIn T. V. R. Subbu Chetty's Family Charities v. M. Raghava Muda/iar and Ors.-[1961] 3 SCR 624-this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens.\n\nAt the time of B the compromise Lakshmichand and Ganeshilal were the nearest presumptive reversioners.\n\nThey must be deemed to have known their rights under law.\n\nUnder the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties.\n\nThey cannot be now permitted to resile from the compromise and claim a right C inconsistent with the one embodied in the compromise.\" Finally in a recent decision of this Court in S. Shanmugam Pillai' s case (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows :\n\n\"Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They J) have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles.\n\nWe would hesitate to narrow down their scope.\n\n• • * * As observed by this Court in T. V. R. Sub bu Chetty' s Family Charities' case (supra), that if a person having full knowledge of his right as a possible reversioner eners into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.\"\n\nIn these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5.\n\nRespondent No. I as also the High Court, therefore, committed substantial error of law in not giving effect tothe doctrine of estoppel as spelt out by this Court in so many cases.\n\nThe learned counsel for the respondents placed reliance upon a number of authorities in Rachcha v. Mt. Mendha,(1) Chief Controlling Revenue Authority v. Smt. Satyawati Sood and others(2) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same\n\nFinally it was contended by the respondents that this Court should n\".t interfere because there was no error of law in the judgment of the High Court or that of Respondent No. !. This argument is only stated to be rejected. ---------- ---\n\n(!) AIR 1947 All. 177.\n\n(2) AIR 1972 Delhi 171.\n\nIn view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained.\n\nSimilarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court.\n\nThe High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it.\n\nThe High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement.\n\nIn Shyam Sunder and others v. Siya Ram and another (1) it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title. The High Court observed as follows :\n\n\"The decision in Ram Gopal v. Tulshi Ram,-AIR 1928 All. 641 (FB )-is clear that such a recital can be relied upon as a piece of evidence.\n\n• • * * It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence. x x x To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title.\"\n\nOn a careful consideration of the facts and the circumstances and the law discussed above, we are clearly of the opinion that the orders of the High Court as also that of Respondent No. 1 suffer from a substantial error of law resulting in serious injustice to the appellant by re-opening a dispute which bad been settled almost seven to eight years before the proceedings for re-opening the same were started.\n\nIn not interfering to correct the clear error of law committed by Respondent No. I, the High Court failed to exercise jurisdiction vested in it by law, and, therefore, the order of the High Court itself was legally erroneous and cannot be sustained.\n\nThe contentions raised by the appellant are well founded and mnst prevail, while the contentions advanced by the respondent fail.\n\nIn these circumstances, therefore, the appeal is allowed, the judgment of the High Court is set aside and by a writ of certiorari the order of Respondent No. 1 dated January 22, 1965 is hereby quashed. The\n\n(!) AIR 1973 All. 382, 389.\n\nKALE v. DIRECTOR CONSOLIDATION (Sarkaria, J.) 227\n\norder of the Settlement Officer dated November 28, 1964 which actually gave effect to the compromise is hereby restored and the Revenue authorities are directed to attest the mutation in the names of the appellant and respondents 4 & 5 in accordance with the family arrangement entered into between the parties referred to in this case.\n\nIn the peculiar circumstances of the case there will be no order as to costs.\n\nSARKARIA J.\n\nI am at one with my learned Brother, that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of Respondent 1 quashed, the order dated November 28, 1964 of the Settlement officer restored, and the Revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the prties and acted upon for several years.\n\nI further agree that the family settlement arrived at by the parties was oral, and the petition filed by them on August 7, 1956 before the Assistant Commissioner was merely an information of an already completed oral transaction. In other words, the petition was only an intimation to the Revenue court or authority that the matters in dispute between the parties had been settled amicably between the members of the family, and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement.\n\nSince the petition did not itselt create or declare any rights in immovable property of the value of Rs. 100 or upwards, it was not hit bys. 17(l)(b) of the Registration Act, and as such was not compulsorily registrable. The rest of the reasoning in the judgment of my learned Brother has also rhy concurrence except that I will reserve my opinion with regard to the alternative proposition, whether this petition-assuming it was compulsorily registrable under s. 17 ( 1) (b) of the Registration Act-could be used to raise an estoppel against any of the parties hereto. Decision of this point, in my opinion, is unnecessary for the disposal of this case.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 132, "entities": [{"text": "KALE & OTHERS", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "KALE & OTHERS", "offset_not_found": false}}, {"text": "DEPUTY DIRECTOR OF CONSOLIDATION & ORS", "label": "RESPONDENT", "start_char": 15, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "DEPUTY DIRECTOR OF CONSOLIDATION & ORS", "offset_not_found": false}}, {"text": "January 21, 1976", "label": "DATE", "start_char": 56, "end_char": 72, "source": "ner", "metadata": {"in_sentence": "January 21, 1976\n\n[V. R. KRISHNA IYER, R. S. SARKARIA ANDS."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 75, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "V. R. KRISHNA IYER", "offset_not_found": false}}, {"text": "R. S. SARKARIA ANDS. MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 95, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 17(1)(b)", "label": "PROVISION", "start_char": 311, "end_char": 322, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17(2)", "label": "PROVISION", "start_char": 1952, "end_char": 1960, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 1968, "end_char": 1984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "L.R. 38 I.A. 87", "label": "CASE_CITATION", "start_char": 2712, "end_char": 2727, "source": "regex", "metadata": {}}, {"text": "[1955] 2 S.C.R. 22", "label": "CASE_CITATION", "start_char": 2859, "end_char": 2877, "source": "regex", "metadata": {}}, {"text": "s. 36", "label": "PROVISION", "start_char": 4033, "end_char": 4038, "source": "regex", "metadata": {"statute": null}}, {"text": "Consolidation of Holdings Act, 1953", "label": "STATUTE", "start_char": 4393, "end_char": 4428, "source": "regex", "metadata": {}}, {"text": "L.R. 54 I.A. 396", "label": "CASE_CITATION", "start_char": 6923, "end_char": 6939, "source": "regex", "metadata": {}}, {"text": "Kanhai Lal", "label": "PETITIONER", "start_char": 7393, "end_char": 7403, "source": "ner", "metadata": {"in_sentence": "r223 Fl\n\nKanhai Lal;.", "canonical_name": "Kanhaiyalal"}}, {"text": "L.R. 45 I.A. 118", "label": "CASE_CITATION", "start_char": 7426, "end_char": 7442, "source": "regex", "metadata": {}}, {"text": "1965] 3 S.C.R. 841", "label": "CASE_CITATION", "start_char": 7575, "end_char": 7593, "source": "regex", "metadata": {}}, {"text": "[1973) 2 S.C.R. 312", "label": "CASE_CITATION", "start_char": 7743, "end_char": 7762, "source": "regex", "metadata": {}}, {"text": "Satyawati Sood", "label": "RESPONDENT", "start_char": 7899, "end_char": 7913, "source": "ner", "metadata": {"in_sentence": "Satyawati Sood and others, A.LR."}}, {"text": "Sarkaria", "label": "JUDGE", "start_char": 7985, "end_char": 7993, "source": "ner", "metadata": {"in_sentence": ".Justice Sarkaria concurred \\\\'ith majority view that the family arrangement was binding, but reserved his opinion with regard to the alternative pro- , position, that assuming the family arrangement was compulsorily fe:gistrable under s. 17 ( 1) (b) of the Registration Act, it could be used to raise an estoppel against any of the parties to the suit. [", "canonical_name": "Sarkaria"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 8212, "end_char": 8217, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 8234, "end_char": 8250, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "CIVJL APPELLATE JURISDJCTJON", "label": "PETITIONER", "start_char": 8338, "end_char": 8366, "source": "ner", "metadata": {"in_sentence": "227El\n\nCIVJL APPELLATE JURISDJCTJON : Civil Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 8476, "end_char": 8496, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated • 17-5-1966 of the Allahabad High Court in Special Appeal No."}}, {"text": "R. K. Garg", "label": "OTHER_PERSON", "start_char": 8533, "end_char": 8543, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agrawala and V. J. Francis, for the appellants."}}, {"text": "S. C. Agrawala", "label": "LAWYER", "start_char": 8545, "end_char": 8559, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agrawala and V. J. Francis, for the appellants."}}, {"text": "V. J. Francis", "label": "LAWYER", "start_char": 8564, "end_char": 8577, "source": "ner", "metadata": {"in_sentence": "R. K. Garg, S. C. Agrawala and V. J. Francis, for the appellants."}}, {"text": "B. D. Sharma", "label": "LAWYER", "start_char": 8600, "end_char": 8612, "source": "ner", "metadata": {"in_sentence": "B. D. Sharma, for respondents Nos."}}, {"text": "V. R. Krishna Iyer", "label": "JUDGE", "start_char": 8660, "end_char": 8678, "source": "ner", "metadata": {"in_sentence": "4 and 5\n\nThe Judgment of V. R. Krishna Iyer and S. Muataza Fazal Ali, JJ.", "canonical_name": "V. R. KRISHNA IYER"}}, {"text": "S. Muataza Fazal Ali", "label": "JUDGE", "start_char": 8683, "end_char": 8703, "source": "ner", "metadata": {"in_sentence": "4 and 5\n\nThe Judgment of V. R. Krishna Iyer and S. Muataza Fazal Ali, JJ."}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 8726, "end_char": 8735, "source": "ner", "metadata": {"in_sentence": "was delivered by Fazal Ali, J. R. S. Sarkaria, J. gave a separate Opinion. ·", "canonical_name": "Fazal Ali"}}, {"text": "R. S. Sarkaria", "label": "JUDGE", "start_char": 8740, "end_char": 8754, "source": "ner", "metadata": {"in_sentence": "was delivered by Fazal Ali, J. R. S. Sarkaria, J. gave a separate Opinion. ·", "canonical_name": "R. S. SARKARIA"}}, {"text": "FAZAL ALI", "label": "JUDGE", "start_char": 8787, "end_char": 8796, "source": "ner", "metadata": {"in_sentence": "FAZAL ALI J. This is an appeal by special leave against the judgment of the Allahabad High Court dated May 17, 1966 by which the appeal against the decision of a Single Judge of the High Court rejecting the writ petition of the appellants had been dismissed.", "canonical_name": "Fazal Ali"}}, {"text": "August 7, 1967", "label": "DATE", "start_char": 9230, "end_char": 9244, "source": "ner", "metadata": {"in_sentence": "An application for granting a certificate for\" leave to appeal to this Court was made by the appellant before the High Court which was also dismissed by order of the High Court dated August 7, 1967."}}, {"text": "Lachman", "label": "PETITIONER", "start_char": 9650, "end_char": 9657, "source": "ner", "metadata": {"in_sentence": "To begin with the admitted position is that one Lachman the last propositor was the tenant and the tenure holder of the property in dispute which consists of 19.", "canonical_name": "Lachman"}}, {"text": "Lachman", "label": "PETITIONER", "start_char": 9871, "end_char": 9878, "source": "ner", "metadata": {"in_sentence": "Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Mrisamat Ram Pyari.", "canonical_name": "Lachman"}}, {"text": "Musamat Tikia", "label": "PETITIONER", "start_char": 9941, "end_char": 9954, "source": "ner", "metadata": {"in_sentence": "Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Mrisamat Ram Pyari.", "canonical_name": "Musamat Tikia"}}, {"text": "Musamat Har Pyari", "label": "RESPONDENT", "start_char": 9956, "end_char": 9973, "source": "ner", "metadata": {"in_sentence": "Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Mrisamat Ram Pyari.", "canonical_name": "Musamat Har Pyari"}}, {"text": "Mrisamat Ram Pyari", "label": "OTHER_PERSON", "start_char": 9978, "end_char": 9996, "source": "ner", "metadata": {"in_sentence": "Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Mrisamat Ram Pyari."}}, {"text": "Musamat Tikia", "label": "PETITIONER", "start_char": 9999, "end_char": 10012, "source": "ner", "metadata": {"in_sentence": "Musamat Tikia was married during the life time of Lachman and the appellant No.", "canonical_name": "Musamat Tikia"}}, {"text": "Kale", "label": "PETITIONER", "start_char": 10081, "end_char": 10085, "source": "ner", "metadata": {"in_sentence": "1 Kale is the son of Musamat Tikia.", "canonical_name": "Kale"}}, {"text": "Har Pyari", "label": "PETITIONER", "start_char": 10220, "end_char": 10229, "source": "ner", "metadata": {"in_sentence": "Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter's son Kale.", "canonical_name": "Har Pyari"}}, {"text": "Ram Pyari", "label": "RESPONDENT", "start_char": 10234, "end_char": 10243, "source": "ner", "metadata": {"in_sentence": "Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter's son Kale.", "canonical_name": "Ram Pyari"}}, {"text": "Kale", "label": "PETITIONER", "start_char": 10275, "end_char": 10279, "source": "ner", "metadata": {"in_sentence": "Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter's son Kale.", "canonical_name": "Kale"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 10297, "end_char": 10314, "source": "regex", "metadata": {}}, {"text": "Prem Pal", "label": "OTHER_PERSON", "start_char": 10568, "end_char": 10576, "source": "ner", "metadata": {"in_sentence": "The first round of dispute appears to have arisen soon after the death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman."}}, {"text": "Har Pyari", "label": "PETITIONER", "start_char": 10674, "end_char": 10683, "source": "ner", "metadata": {"in_sentence": "Har Pyari and Ram Pyari appear to have been parties to that dispute and the Panchayat Adalat after making local enquiries held that Har Pyari having been married had lost her right in the estate and Ram\n\nKALE v. mRECTOR CONSOLIDATION (Fazal Ali, !.)", "canonical_name": "Har Pyari"}}, {"text": "Pyari", "label": "PETITIONER", "start_char": 10929, "end_char": 10934, "source": "ner", "metadata": {"in_sentence": "205\n\nPyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale."}}, {"text": "Land Reforms Act, 1950", "label": "STATUTE", "start_char": 11127, "end_char": 11149, "source": "regex", "metadata": {}}, {"text": "10, 1954", "label": "DATE", "start_char": 11239, "end_char": 11247, "source": "ner", "metadata": {"in_sentence": "This Act was further amended on October 10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under the statute, ''unmarried daughter\" was substituted by \"daughter\"\n\nonly."}}, {"text": "Ram Pyari", "label": "RESPONDENT", "start_char": 11459, "end_char": 11468, "source": "ner", "metadata": {"in_sentence": "According to the appellant in this Court as also in the High Court Ram Pyari respondent No.", "canonical_name": "Ram Pyari"}}, {"text": "s. 36", "label": "PROVISION", "start_char": 11862, "end_char": 11867, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act, 1950", "statute": "Land Reforms Act, 1950"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 11880, "end_char": 11897, "source": "regex", "metadata": {}}, {"text": "December 5, 1955", "label": "DATE", "start_char": 11981, "end_char": 11997, "source": "ner", "metadata": {"in_sentence": "By order dated December 5, 1955 the Naib Tahsildar, Hasanpur, accepted the contention of the appellant and expunged the names of respondents 4 & 5 from the Khatas in dispute and substituted the name of the appellant Kale."}}, {"text": "Hasanpur", "label": "GPE", "start_char": 12018, "end_char": 12026, "source": "ner", "metadata": {"in_sentence": "By order dated December 5, 1955 the Naib Tahsildar, Hasanpur, accepted the contention of the appellant and expunged the names of respondents 4 & 5 from the Khatas in dispute and substituted the name of the appellant Kale."}}, {"text": "January 11, 1956", "label": "DATE", "start_char": 12208, "end_char": 12224, "source": "ner", "metadata": {"in_sentence": "Soon thereafter on January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge."}}, {"text": "Musamat Har Pyari", "label": "RESPONDENT", "start_char": 12250, "end_char": 12267, "source": "ner", "metadata": {"in_sentence": "Soon thereafter on January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge.", "canonical_name": "Musamat Har Pyari"}}, {"text": "Naib Tahsildar", "label": "RESPONDENT", "start_char": 12336, "end_char": 12350, "source": "ner", "metadata": {"in_sentence": "Soon thereafter on January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge.", "canonical_name": "Naib Tahsildar"}}, {"text": "August 7, 1.956", "label": "DATE", "start_char": 12863, "end_char": 12878, "source": "ner", "metadata": {"in_sentence": "A petition was filed on August 7, 1.956 before the Revenue Court informing it that a compromise had been arrived at and in pursuance thereof the names of the parties may be mutated in respect of the Khatas which had been allotted to them."}}, {"text": "March 31, 1957", "label": "DATE", "start_char": 13198, "end_char": 13212, "source": "ner", "metadata": {"in_sentence": "This petition was signed by both the parties and ultimately the Assistant Commissioner, I Class, passed an order dated March 31, 1957 mutating the name of the appellant Kale in respect of Khatas Nos."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 13757, "end_char": 13761, "source": "regex", "metadata": {"statute": null}}, {"text": "Consolidation of Holdings Act, 1953", "label": "STATUTE", "start_char": 13776, "end_char": 13811, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 14831, "end_char": 14835, "source": "regex", "metadata": {"statute": null}}, {"text": "Consolidation of Holdings Act, 1953", "label": "STATUTE", "start_char": 14854, "end_char": 14889, "source": "regex", "metadata": {}}, {"text": "s. 9", "label": "PROVISION", "start_char": 15036, "end_char": 15040, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act, 1953", "statute": "Consolidation of Holdings Act, 1953"}}, {"text": "Cousolidation of Holdings Act", "label": "STATUTE", "start_char": 15053, "end_char": 15082, "source": "regex", "metadata": {}}, {"text": "July 27, 1964", "label": "DATE", "start_char": 15887, "end_char": 15900, "source": "ner", "metadata": {"in_sentence": "The Consolidation Officer to whom the dispute was referred, by his order dated July 27, 1964, framed a number of issues, and after trying the suit, removed the name of the appellant Kale from Khatas 5 & 90 and substituted the names of appellant No."}}, {"text": "Musamat Ram Pyari", "label": "RESPONDENT", "start_char": 17484, "end_char": 17501, "source": "ner", "metadata": {"in_sentence": "5 Musamat Ram Pyari in respect of these Khatas on the ground that she was the sole tenure holder in respect of those Khatas.", "canonical_name": "Musamat Har Pyari"}}, {"text": "Garg", "label": "OTHER_PERSON", "start_char": 18185, "end_char": 18189, "source": "ner", "metadata": {"in_sentence": "In support of the appeal Mr. Garg appearing for the appellants submitted two points of law before us."}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 19245, "end_char": 19251, "source": "ner", "metadata": {"in_sentence": "Mr. Sharma learned counsel appearing for the respondents raised the following contentions before us :\n\n(1) that the appellants never pleaded any oral family arrangement; {2) that the family arrangement relied upon by the appellants was not bona fide and was fraudulent as the consent of respondents 4 & 5 was obtained by fraud or undue influence;\n\n.("}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 19994, "end_char": 20010, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kerr", "label": "OTHER_PERSON", "start_char": 21230, "end_char": 21234, "source": "ner", "metadata": {"in_sentence": "In this connection, Kerr in his valuable treatise \"Kerr O on Fraud\" at p. 364 makes the following pertinent observations regard-· ing the nature of the family arrangement which may be extracted thus :\n\n\"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements."}}, {"text": "England", "label": "GPE", "start_char": 23824, "end_char": 23831, "source": "ner", "metadata": {"in_sentence": "The law in England on this point is almost the same."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 26404, "end_char": 26409, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 26421, "end_char": 26437, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "I.aw", "label": "OTHER_PERSON", "start_char": 27619, "end_char": 27623, "source": "ner", "metadata": {"in_sentence": "1) the statement of I.aw regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council."}}, {"text": "L R. 38 I. A. 87", "label": "CASE_CITATION", "start_char": 28422, "end_char": 28438, "source": "regex", "metadata": {}}, {"text": "Bose", "label": "JUDGE", "start_char": 28916, "end_char": 28920, "source": "ner", "metadata": {"in_sentence": "In Sahu Madho Das and others v.\n\nPandit Mukand Ram and another(') this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J .,"}}, {"text": "[1965] 3 SCR 841", "label": "CASE_CITATION", "start_char": 34660, "end_char": 34676, "source": "regex", "metadata": {}}, {"text": "Ramcharan Das", "label": "PETITIONER", "start_char": 35084, "end_char": 35097, "source": "ner", "metadata": {"in_sentence": "If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement-- see Ramcharan Das's case.", "canonical_name": "Ram Charan Das"}}, {"text": "Lindsay", "label": "JUDGE", "start_char": 40630, "end_char": 40637, "source": "ner", "metadata": {"in_sentence": "The same view was taken in Bakhtawar v.\n\nSunder Lal and others( 3), where Lindsay, J., speaking for the Division Bench observed as follows :\n\n\"It is reasonable to assume that there was a bona fide dispute between the parties which was eventually composed, each party recognizing an antecedent title in the other."}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 41138, "end_char": 41154, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Patna High Court", "label": "COURT", "start_char": 41279, "end_char": 41295, "source": "ner", "metadata": {"in_sentence": "Similarly the Patna High Court in Awadh Narain Singh and others\n\n~· Narain Mishrq and others(') pointed out that a compromise petition not embodying any terms of agreement but merely conveying informatio~ toheCourt that family arrangement had already been\n\n(1) A.LR."}}, {"text": "Awadh Narain Singh", "label": "OTHER_PERSON", "start_char": 41299, "end_char": 41317, "source": "ner", "metadata": {"in_sentence": "Similarly the Patna High Court in Awadh Narain Singh and others\n\n~· Narain Mishrq and others(') pointed out that a compromise petition not embodying any terms of agreement but merely conveying informatio~ toheCourt that family arrangement had already been\n\n(1) A.LR."}}, {"text": "Narain Mishrq", "label": "OTHER_PERSON", "start_char": 41333, "end_char": 41346, "source": "ner", "metadata": {"in_sentence": "Similarly the Patna High Court in Awadh Narain Singh and others\n\n~· Narain Mishrq and others(') pointed out that a compromise petition not embodying any terms of agreement but merely conveying informatio~ toheCourt that family arrangement had already been\n\n(1) A.LR."}}, {"text": "August 7, 1956", "label": "DATE", "start_char": 42980, "end_char": 42994, "source": "ner", "metadata": {"in_sentence": "Subsequently a compromise was entered into between the parties a reference to which was made in the compromise petition filed before the Revenue Court on August 7, 1956."}}, {"text": "11th January 1956", "label": "DATE", "start_char": 43845, "end_char": 43862, "source": "ner", "metadata": {"in_sentence": "In this connection the Assistant Commissioner, Ist Class, observed as follows :\n\n\"On 11th January 1956 Mst."}}, {"text": "Har Piari", "label": "PETITIONER", "start_char": 43868, "end_char": 43877, "source": "ner", "metadata": {"in_sentence": "Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed oil 5th December 1955.", "canonical_name": "Har Pyari"}}, {"text": "Ram Piari", "label": "RESPONDENT", "start_char": 43882, "end_char": 43891, "source": "ner", "metadata": {"in_sentence": "Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed oil 5th December 1955.", "canonical_name": "Ram Pyari"}}, {"text": "Naib Tahsildar", "label": "JUDGE", "start_char": 43944, "end_char": 43958, "source": "ner", "metadata": {"in_sentence": "Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed oil 5th December 1955.", "canonical_name": "Naib Tahsildar"}}, {"text": "5th December 1955", "label": "DATE", "start_char": 44061, "end_char": 44078, "source": "ner", "metadata": {"in_sentence": "Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed oil 5th December 1955."}}, {"text": "Naib Tehsildar", "label": "ORG", "start_char": 44309, "end_char": 44323, "source": "ner", "metadata": {"in_sentence": "The parties filed compromise before the Naib Tehsildar according to which two lists were drawn, one of these is to be entered in the name of Kale and the other in the name of Har Piari and Ram Piari.\""}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 45671, "end_char": 45694, "source": "ner", "metadata": {"in_sentence": "We might mention here that in taking this view, the High Court of Allahabad completely overlooked its own previous decisions on this point which were definitely binding on it."}}, {"text": "I Kale", "label": "PETITIONER", "start_char": 46266, "end_char": 46272, "source": "ner", "metadata": {"in_sentence": "I Kale who was not a legal heir to the estate of Lachman, because in view of the U.P. Land Reforms (Amendment) Act E 20 of 1954 Mst."}}, {"text": "Land Reforms (Amendment) Act", "label": "STATUTE", "start_char": 46352, "end_char": 46380, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "At that time they did not know that the Hindu Succession Act", "label": "STATUTE", "start_char": 48209, "end_char": 48269, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 49608, "end_char": 49624, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Musamat Ram Pyari", "label": "RESPONDENT", "start_char": 53570, "end_char": 53587, "source": "ner", "metadata": {"in_sentence": "he High Court as also in this Court that Musamat Ram Pyari\n\nwas married in 1955 as found by the Revenue Courts.", "canonical_name": "Musamat Har Pyari"}}, {"text": "Consolidation of Holdings Act, 1953", "label": "STATUTE", "start_char": 57944, "end_char": 57979, "source": "regex", "metadata": {}}, {"text": "s. 9(2)", "label": "PROVISION", "start_char": 58044, "end_char": 58051, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act, 1953", "statute": "Consolidation of Holdings Act, 1953"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 59478, "end_char": 59494, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 59503, "end_char": 59527, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Tek G Bahadur Bhujil", "label": "OTHER_PERSON", "start_char": 60109, "end_char": 60129, "source": "ner", "metadata": {"in_sentence": "In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title: In fact a similar argument was advanced before this Court in Tek G Bahadur Bhujil's case, (supra) relying on certain observations made by Bose, J., in Sahu Madho Das's case, (supra) but the argument was repelled and this Court observed as follows :\n\n\"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement."}}, {"text": "Sahu Madho Das", "label": "OTHER_PERSON", "start_char": 60199, "end_char": 60213, "source": "ner", "metadata": {"in_sentence": "In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title: In fact a similar argument was advanced before this Court in Tek G Bahadur Bhujil's case, (supra) relying on certain observations made by Bose, J., in Sahu Madho Das's case, (supra) but the argument was repelled and this Court observed as follows :\n\n\"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement."}}, {"text": "Har Piari", "label": "PETITIONER", "start_char": 62657, "end_char": 62666, "source": "ner", "metadata": {"in_sentence": "Har Piari had no subsisting interest in the property so long as Mst.", "canonical_name": "Har Pyari"}}, {"text": "Ram Piari", "label": "PETITIONER", "start_char": 62748, "end_char": 62757, "source": "ner", "metadata": {"in_sentence": "Ram Piari in view of the amendment in law by the U.P.\n\nLand Reforms (Amendment) Act, 20 of 1954, continued to be an heir even after her marriage but Mst.", "canonical_name": "Ram Pyari"}}, {"text": "Land Reforms (Amendment) Act", "label": "STATUTE", "start_char": 62803, "end_char": 62831, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Har Pari", "label": "PETITIONER", "start_char": 63248, "end_char": 63256, "source": "ner", "metadata": {"in_sentence": "Har Pari's share was placed along with Mst.", "canonical_name": "Har Pyari"}}, {"text": "L.R. 54 I.A. 396", "label": "CASE_CITATION", "start_char": 63796, "end_char": 63812, "source": "regex", "metadata": {}}, {"text": "Ramgouda Annagouda", "label": "OTHER_PERSON", "start_char": 63907, "end_char": 63925, "source": "ner", "metadata": {"in_sentence": "r; ALE v. DIRECTOR CONSOLIDATION (Fazal Ali, J.) 223\n\n()n all fours with the facts in Ramgouda Annagouda's case (supra)."}}, {"text": "Ramgouda", "label": "OTHER_PERSON", "start_char": 63979, "end_char": 63987, "source": "ner", "metadata": {"in_sentence": "A The Privy Council further held in Ramgouda Annagouda's case that Ramgouda being a party to benefit by the transaction was precluded from questioning any part of it."}}, {"text": "Ram Dei", "label": "OTHER_PERSON", "start_char": 66778, "end_char": 66785, "source": "ner", "metadata": {"in_sentence": "He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he\n\n(!)"}}, {"text": "Kirpa", "label": "OTHER_PERSON", "start_char": 66840, "end_char": 66845, "source": "ner", "metadata": {"in_sentence": "He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he\n\n(!)"}}, {"text": "LR. 45 I.A. 118", "label": "CASE_CITATION", "start_char": 67055, "end_char": 67070, "source": "regex", "metadata": {}}, {"text": "Brijlal", "label": "OTHER_PERSON", "start_char": 68081, "end_char": 68088, "source": "ner", "metadata": {"in_sentence": "Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst."}}, {"text": "Mohan Dei", "label": "OTHER_PERSON", "start_char": 68186, "end_char": 68195, "source": "ner", "metadata": {"in_sentence": "Mohan Dei an absolute interest in the suit property.\""}}, {"text": "Ram Charan Das", "label": "PETITIONER", "start_char": 68445, "end_char": 68459, "source": "ner", "metadata": {"in_sentence": "In Ram Charan Das's case (supra) while dwelling on the point of the family arrangement this Court observed as follows :\n\n\"It seems to us abundantly clear that this document was in substance a family arrangement and, therefore, was binding on all the parties to it.", "canonical_name": "Ram Charan Das"}}, {"text": "Gopinath", "label": "OTHER_PERSON", "start_char": 68852, "end_char": 68860, "source": "ner", "metadata": {"in_sentence": "x x x x In our ooinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal.\""}}, {"text": "Ram Charan Das", "label": "PETITIONER", "start_char": 68903, "end_char": 68917, "source": "ner", "metadata": {"in_sentence": "x x x x In our ooinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal.\"", "canonical_name": "Ram Charan Das"}}, {"text": "Kanhaiyalal", "label": "PETITIONER", "start_char": 68965, "end_char": 68976, "source": "ner", "metadata": {"in_sentence": "x x x x In our ooinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the present plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal.\"", "canonical_name": "Kanhaiyalal"}}, {"text": "Krishna Biharilal", "label": "OTHER_PERSON", "start_char": 69217, "end_char": 69234, "source": "ner", "metadata": {"in_sentence": "To the same effect is the decision of this Court in Krishna Biharilal's case (supra), where the doctrine of estoppel was discussed, and while referring to the previous cases of this Court, it was observed as follows :\n\n\"In Dhyan Singh's case -[1952] SCR 4 78-this Court H ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the\n\n(I) [1952] S.C.R. 478."}}, {"text": "Dhyan Singh", "label": "OTHER_PERSON", "start_char": 69388, "end_char": 69399, "source": "ner", "metadata": {"in_sentence": "To the same effect is the decision of this Court in Krishna Biharilal's case (supra), where the doctrine of estoppel was discussed, and while referring to the previous cases of this Court, it was observed as follows :\n\n\"In Dhyan Singh's case -[1952] SCR 4 78-this Court H ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the\n\n(I) [1952] S.C.R. 478."}}, {"text": "[1961] 3 SCR 624", "label": "CASE_CITATION", "start_char": 69746, "end_char": 69762, "source": "regex", "metadata": {}}, {"text": "Lakshmichand", "label": "OTHER_PERSON", "start_char": 70086, "end_char": 70098, "source": "ner", "metadata": {"in_sentence": "At the time of B the compromise Lakshmichand and Ganeshilal were the nearest presumptive reversioners."}}, {"text": "Ganeshilal", "label": "OTHER_PERSON", "start_char": 70103, "end_char": 70113, "source": "ner", "metadata": {"in_sentence": "At the time of B the compromise Lakshmichand and Ganeshilal were the nearest presumptive reversioners."}}, {"text": "Pattobai", "label": "OTHER_PERSON", "start_char": 70308, "end_char": 70316, "source": "ner", "metadata": {"in_sentence": "Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties."}}, {"text": "S. Shanmugam Pillai", "label": "OTHER_PERSON", "start_char": 70589, "end_char": 70608, "source": "ner", "metadata": {"in_sentence": "Finally in a recent decision of this Court in S. Shanmugam Pillai' s case (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows :\n\n\"Equitable principles such as estoppel, election, family settlement, etc."}}, {"text": "January 22, 1965", "label": "DATE", "start_char": 75493, "end_char": 75509, "source": "ner", "metadata": {"in_sentence": "1 dated January 22, 1965 is hereby quashed."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 76031, "end_char": 76039, "source": "ner", "metadata": {"in_sentence": "SARKARIA J.\n\nI am at one with my learned Brother, that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of Respondent 1 quashed, the order dated November 28, 1964 of the Settlement officer restored, and the Revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the prties and acted upon for several years.", "canonical_name": "Sarkaria"}}, {"text": "November 28, 1964", "label": "DATE", "start_char": 76225, "end_char": 76242, "source": "ner", "metadata": {"in_sentence": "SARKARIA J.\n\nI am at one with my learned Brother, that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of Respondent 1 quashed, the order dated November 28, 1964 of the Settlement officer restored, and the Revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the prties and acted upon for several years."}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 77187, "end_char": 77203, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 17", "label": "PROVISION", "start_char": 77491, "end_char": 77496, "source": "regex", "metadata": {"statute": null}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 77513, "end_char": 77529, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_228_236_EN", "year": 1976, "text": "THE STATESMAN LTD. v.\n\nTHEIR WORKMEN\n\nJanuary 22, 1976\n\n[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA. JJ.j\n\nIndustrial Di.pule-11/e; taf strike followed b_v lock-out-Lock-out not lifted despite the workers' conciliatory attitude-Payment of lu1/f wages during strikt~ period-If reasonable.\n\nConstitution of India, 1950-Article 136-When the Court would interfere.\n\nEven when a bonus dispute was pending adjudication before the Industrial Tribunal, the workn1en of the appellant resorted to rude tactics to press their earlier charter of demands, which took the turn of an illegal and disorderly strike.\n\nThe management declared a lockout.\n\nOn the day following the declaration of lockout, thei workmen requested the management to lift the lockout proferring peaceful resumption of work and asking for an interim relief on their economic demands. The management did not agree to lift the lockout.\n\nEven tually, however, the lockout was lifted and the strike called off.\n\nOn the question of wages during the strike period, the Industrial Tribun<il, apportioning fault to hoth the p<1rties. directed that the mana_gcmcnt should pay half the wages to the employees during the strike period.\n\nDismissin.1?: the appeal,\n\nHELD : ( 1) There is much to be said in favour of the view of the Tribunal that the blameworthiness may be equally apportioned bet\\veen the parties. Where the strike is illegal and sequel of a lockout legal, the Court has to vie\\v the whole course of developments and not stop with examining the initial legitimacy.\n\nIf one side or other behaves unrea&onably or the overall interests of good industrial relations warrant the Tribunal making such directions regarding strike period was as will meet with justice, fairplay and pragmatic v1isdom, there is no error\n\nin doing so.\n\nThe power of the Tribunal is flexible.\n\n[236 F; 233 DE]\n\nIndia Marine Service, [19~3] 3 SCR 575, followed.\n\nJn the instant case there \\vas a pending industrial dispute when the Unions sprang a strike notice.\n\nThe strike being illegal, the lockout that follo\\ved, became a legal, defensive measure. But the management could not behave unreasonably merely because the lockout was born lawfully.\n\nIf, by subsequent conduct, the Unions had sho\\vn readiness to resume work peacefully, the refusal to restart the industry was not right and the initial legitimacy of the lockout lost its virtue by this blemished sequel. f232 G-Hl\n\n(2) In an appeal under Article 136 of the Constitution, this Court would interfere with the A\\vard under challenge only if extraordinary flaws or grave injusti...-:e or othet recognised grounds are made out.\n\n[231 EF]\n\nBcnf,!a[ Che111ical, [1959] Suppl. 2 SCR 136, 141; and Associated Cen1e11t Co111pa11ies Ltd., AIR 1972 SC 1552, 1554, followed.\n\nIn the instant case the direction of the Tribunal that the Company should pay tiffin allowance at the rate of 50 paise on working days to thoe. en1ployees in the staff canteen and that the members of the subordinate staff shoul.9be supplied with \\Vnrm coats did not call for interference.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 232 of 1970.\n\nAppeal by special leave. from the Award dated the 2-9-1969 of the 5th Industrial Tribunal, West Bengal, in Case No. 321 of 1967 published in the Calcutta Gazette dated the 16-10-1969.\n\n/\"•\n\nSTATESMAN LTD. v. WORKMEN (Krishna lyer, !.)\n\nS. Chaudhury and D. N. Gupta for the Appellant.\n\nKapil Sibbal for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nKRISH~A IYER, J. There is a tragic touch in processual protraction as this little /is lasting a whole decade pathetically illustrates.\n\nSuch lingering legal machinery is by-passed by both sides in practice largely because, by sheer slow motion, it denies relief when needed and drives parties to seek remedies by direct action or political intervention.\n\nWhat elegant alibi can there be for the routine charter of demands put forward in the middle of 1966, ripening into an industrial reference in Nov0mber 1966 after a flare-up of illegal strike and failure of conciliation, taking around 3 years for rendering a short award and a little over five years for reviewing it in this Court?\n\nLaw-makers whose vocal concern for industrial peace and constitutional promises for the working class is being put to the test by failure in the field will, we hope, alert themselves.\n\nLabour liation can be a course or dread where one side is weak, as here, and has not been able to hire legal services but has been made good by amicus curiae, and the othr side, regardless of cost, is anxious to settle so1ne principle, as counsel for the appellant impressed on us.\n\nWe now move into the area of facts which wears a jural apparel.\n\nThe narrative of necessary facts starts naturally with a bonus dispute in the Statesman Ltd (a newspaper with editions published in Calcutta and Delhi) which was referred to adjudication in September 1966 and was, admiltedly, pending at a time when the Calcutta workers reportedly resorted to rude tactics to press an earlier charter of demands presented to the management. On September 20, !966, events reached a crescendo of illegal and disorderly strike at midday with a reprisal of lock-out at mid-night so soon as the administrative officer, with police assistance, gained his freedom.\n\nEven in human affairs a storm is followed by a calm, may be. For, the two Unions, sobered, perhaps by this sudden action of the management wrote the very next day (21st September) to the employer requesting for lifting the lock-out, preferring peaceful resumption of work and requiring at least an interim relief on the 'economic' demands.\n\nThe letter speaks for itself and may be read presently. The employer was not ready to accept this assurance. The lock-out dragged on, despite the\n\nscming offer of the olive branch by Labour. .\n\nMistrust on both sides .is inevitable when estrangement vitiates relations and language is suspect when bitterness is the rule of interpretation.\n\nRight or wrong, the manag0ment took the view that the offer of good behaviour by the workers was conditional and not convincing, so that the lock-out was not lifted for several days.\n\nThe Deputy Commissioner of Labour, who had interceded to conciliate had unavailingly requested th~ Management to lift the lock-out and had found Labour insisting on some interim 'economic' relief as a ground for withdrawal of the strike.\n\nAt certain stages of conflict in th_is :vorld, fac.e-saving becomes more important than heart-searching.\n\nLife 1s not logic and presl!ge amends propriety.\n\nThe cold-war correspondence continued for a little while more,. each blaming the other, till at last the State, on November 4, 1966. referred six points of dispute to the Fifth Industrial Tribunal Calcutta, before whom the bonus dispute was already pending.\n\nBetter sense on both sides resulted in the termination of the strike and the closure, and work was resumed from November 8, 1966.\n\nThe award that followed upon the dispute was rendered on September 2, 1969, nearly three years after the reference of the dispute.\n\nOne is led to wondor why there should have been so much delay,. but the blame, if any, has to be shared between the State Government and the Tribunal.\n\nFor, after the Fifth Tribunal started the enquiry and examined a few witnesses, the State Government ordered transfer of the industrial dispute to another Tribunal and, not surprisingly, omitted to communicate promptly the factum of such transfer to the affected Tribunal.\n\nThus, although the order of transfer was made on March 31, 1967 the enquiry continued upto April 22, 1967.\n\nWhen actual notice of the transfer was received by the Fifth Tribunal on April 24, rep!tsentation was made by it about the enquiry having commenced and, naturally, Government re-transferred the dispute to the same Tribunal.\n\nAfter this minor episodo, of transfer and retransfer, the enquiry was c.ontinued and the award made.\n\nWe are now concerned only with three disputes.\n\nOf the three ismos, two deal with petty items like warm coats for the subordinate staff and canteen allowance for the employees' canteen staff-financially too negligible to engage the attention of this Court.\n\nThe other item, which is meaty enough to merit our verdict, relates to the wages during the period of work stoppage from September 20, 1966 to November 8, 1966. The Tribunal, considering, in its totality the facts and circumstances of the case, the share of blame on the part of each party the role of broad justice in producing industrial peace and advertence to the relevant materials on record, held 'that the coffir pany should pay half the wages to the employees during the period from September 20 to November 7, 1966.\n\nF The Management, disappointed by this direction. as we]] as the orders regarding warm coats and canteen allowance, has come directly to this Court securing special kave under Art. 136. -4\n\nEven though leave has been granted by this Court, the very width of its power under Art. 136 is a warning against its free-wheeling exercise save in grave situations. In Bengal Chemical ( 1) Subbarao, G J. (as he then was) pointed out that:\n\n\"The same principle should, therefore, be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of.\n\nIt would be illogical to apply two different standards at two different stages of the same case.\n\nThe same view was expressed by this Court in Pritam Singh v. State of Madras (1950 SCR 453), Hem Raj v. State of Ajmer (1954 SCR\n\n1153) and Sadhu Singlz v. State of Pepsu (AIR 1954 SC A 271)\".\n\nFrom this it follows that when awards of Industrial Tribunals are challenged in this Court, we have to apply those several tests which have become part of the self-imposed restraints on its special jurisdiction.\n\nWhat are these self-created trammels upon the exercise of this Court's power? The answer is furnished by this Court in the Associated Cement Companies Ltd.(l) Mathew J. followed Bengal Chemiwl (') (both these cases related to industrial awards challenged in appeal under Art. 136 of the Constitution), where this Court had observed :\n\n\"Though Art. 136 is couched in widest terms, it is necessary for this Court to exercise its discretionary jurisdiction only in cases where awards arc made in violation of the principles of natural justice causing substantial and grave injustice to parties or raising an important principle of industrial law requiring elucidation and final decision by this Court or disclosing such other exceptional or special circumstances which merit the consideration of this Court.\" The learned Judge endorsed the view in these words : 'The portion of the award with which we are concerned does not raise any important principle of law requiring elucidation and final decision by this Court.\n\nNor does it disclose any exceptional or special circumstances which merit decision by this Court. On a question like this, where the Tribunal. on a consideration of all the materials placed before it and having regard to the overall picture came to a conclusion. we do not think this Court should interfere.\" Circumspection and circumscription must therefore induce us to interfere with the award under challenge only if extraordinary flaws or grave injustioe or other recognised grounds are made out. This perspective is sufficient in itself to dispose of the two tiny items of dispute bearing on warm coats and canteen allowance.\n\nEven so, we will briefly refer to them.\n\nThe canteen staff claimed allowance of 50 paise per working day.\n\nThere are two canteens, one for officers and the other for the subordinate staff.\n\nWhile the staff of the Officers' canteen are drawincr the dietary allowance of 50 paise, the employees of the staff canten arc denied this paltry sum. There is no reasonable basis for this invidious treatment and we find no ground to interfere. with the Tribunal's direction that 'the company should pay tiffin allowance at the rate of 50 paise on working days to the employees in the staff canteen'. Of course, if they take free food from the canteen they will be indigible for the allowance since they cannot have both.\n\nEqually untenable is the grievance against warm coats supplied to the subordinate staff. It is common case that the management does supply warm coats to Jamadars, gate-darwans and inspectors but does not extend thi.s._r_Il1 facility to darwans and delivery peons Calcutta.\n\n(1) Al.l.R. 1972 S. C. 1552, 1554.\n\n16-LJ90 SCl/76\n\ncold does not spare either category and therefore no climatic distiction can be made between the two. True it is that in the charter of demands warm coats were claimod only for those employees. who delivered newspapers.\n\nEven so the dispute referred to the Tribunal is in wider terms and we arc satisfied that the award calls for no interference when it states 'that all the members of the subordinate staff should be supplied with warm coats'. Of course, it need hardly be said that these employees cannot claim warm jerseys over and above coats.\n\n1 he bone of contention between the parties bears upon the wages during the strike period. We have already indicated that the award crystalliZ<'S a discretionary conclusion reached after a survey of all the facts and animated by a sense of broad justice.\n\nThe Tribunal had something to say against the workers and the management and felt impelled to state :\n\n\"J find that both the parties were at fault.\n\nThat being the position I am of opinion that both the parties should be held responsible for the delay in the matter of the withdrawing of the lock-out.\n\nIn these circumstances, I am of opinion that the company should pay half the wages to the employees during the period from 20th September 1966 to 7th November 1966.\"\n\nCaptious criticisms apart, the conspectus of relevant circumstances more or less bears out the propriety of this direction.\n\nThe crucial issue is as to whether we have any material to castigate this conclusion as unconscionable or unjuristic, involving gross injustice, violating a well-established rule of law or otherwise attracting out special responsibility to declare the law in a twilit area of public importance to industrial life.\n\nWe will examine the pertinent circwnstances from this angle and it will be evident that the more we ponder the subject the more we are satisfied about the legal soundness and practical wisdom of the award, having in mind industrial peace as the goal.\n\nThe smouldering dispute between the Management and the workers apparently burst into flame on September 20, 1966. Going by tl1e Tribunal's reading of the situation there was a strike that day.\n\nThe pendency of certain types of proceedings before a Tribunal stamps a strike or lock-out with illegality (s. 24). Whiles. 23 prohibits strikes and Jock-outs when proceedings mentioned there are under way, s. 24\n\n(3) absolves a Jock-out of illegality if it is caused by an illegal strike.\n\nThere surely was a pending industrial dispute when the Unions sprang the strike.\n\nBeing therefore illegal, the lock-out that followed became a legal, defensive measure. So far is smooth sailing. But the management cannot behave unreasonably merely because the lock-out is born lawfully. If by subsequent conduct, imaginatively interpreted, tl1e Unions have shown readiness to resume work peacefully, the refusal to re-start the industry is not right and the initial legitimacy of the lockout loses its virtue by this blemished sequel. Nor can any management expect, as feelings run high, charge-sheets in criminal courts arc laid against workers and they are otherwise afl!ictcd by the pinch of\n\noTATESMAN LTD. v. WORKMEN (Krishna lyer, !.) 233\n\nunemployment, to get proof of good behaviour beyond their written word. Nor can they realistically insist that they abandon their demands !or better benefits before the lock-out is lifted.\n\nIn this hungry \"orid the weaker many cannot afford the luxury of finery in speech wnich the happier few can afford.\n\nIn the rough and tumble of industrial disputes conciliation is a necessary grace the stronger party, the soc1ally conscious management, must cultivate and huff a fia\\v it must cschw.\n\nIn the realistic temper of bargaining between two wings of an ind1.1stryboth managements and workers belong equally to the industry, for if one owns the other produces-a feeling of partnership must prevail to persuade the two sides to trust each rather than such to point flaws in the language used.\n\nSuch is the spirit of give and take which must inform industrial negotiation if peace and production are the bona fide end and national development the great concern.\n\nThis broad philosophical approach amply vindicates the justice of the Tribunals impugned award.\n\nTo appreciate this view, a flash back into the ev-nts aro\"nd and .after September 20, 1966 is helpful. The backdrop of law may be briefly recapitulated before going into factual details.\n\nIf the strike is illegal, wages during the period will ordinarily be negatived unless considerate circumstances constrain a different course.\n\nLikewise if the lock-out is illegal full wages for the closure ixriod shall have to b~ 'forked out', if one may use that expression. But in between lies a grey area of twilit law. Strictly speaking, the whole field is left to the judicious discretion of the Tribunal. Where the strike is illegal and the sequel of a lock-out legal, we have to view the whole course of developments and not stop with examining the initial legitimately. If one side or other behaves unreasonably or the over-all interests of good industrial relations warrant the Tribunal making such -directions regarding strike period wages as will meet with justice, !airplay and pragmatic wisdom, there is no error in doing so.\n\nHis power is llexible.\n\nWe are heartened and strengthened irr our approach by the decision in India Marine Service('). There the Court noted that 'the attitude -0! the company was a reasonable one and that it even proposed to the\n\nu!'ion and through it to its workmen that work should go on, that the -Oispute should be taken before the Conciliation Officer for conciliation and that in the meanwhile they were prepared to grant some interim xelief to the workmen. 'In our opinion', added the Court \"while the strike was unjustifiable, the lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its commencement its continuance for 53 days was wholly unreasonable and therefore, unjustified. In a case wh2re a strike is unjustified and is followed by a lock-out which has because of its long duration. become uniustified it would not be a proper course for an industrial tribunal to direct th2 payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the\n\n(!) (1963) 2 S.C.R. 575.\n\nworkmen would not be entitled to any wages at all. Similarly where the strike is justified and the lock-out is unjustified the workmen would be entilled to the entire wages for the period of strike and lock-out.\n\nWhere, however, a strike is unjustified and is followed by a lock-out which becomes unjustified, a caso for apportionment of blame arises.\n\nIn our opinion in the case before us the blame for the situation which resulted after the strike and the lock-out can be apportioned roughly half and hall between the company and its workers. In the circumstances we therefore direct that the workmen should get half their wages from November 14, 1958 to January 3, 1959 (both days inclusive).\"\n\nThe factual milieu surrounding the strike-lock-out complex, as neatly presented by Shri Kapil Sibbal, shows how the flow ol events exonerated the Unions of serious impropriety and the employer was trying to be too clever.\n\nWhen the workers struck, the Management put up a notice of closure wherein it was stated :\n\n\"The stay-in-strike resorted to by the workmen is unjustified and illegal in view of the pendency of the proceedings bdore the Fifth Industrial Tribunal and also violates the Code of Discipline.\n\nThe representatives of the Unions were made aware of this fact when the management met them to discuss their demands today.\n\nIn the circumstances, the 111anagen1ent has no option but to keep the establishment closed ulllil such time as the work- 1nen assure the n1anagen1ent of nor1na! and peaceful resun1ptioll of work.\"\n\n(emphasis, added) The simple insistence of the Management in the closure notice was an assurance from the workmen 'of normal and peaceful resumption of work'.\n\nNo sooner was this notice put up than the Unions responded constructively, moderating the usual tantrums they arc given to in an atmosphere of conflict. The very next day after the closure, i.e., on September 21, the Secretary of the Union wrote back a letter wherein he stated inter alia :\n\n\"While we deny the various allegations contained in your said Notice and hold you wholly liable for the development on 20-9-66 in suddenly advising your supervisory staff to stop all processes of work from 12.30 p.111. and creating a confusion amongst t.he workmen who were working an the time till then, presumably to prepare a ground for the illegal Lockout since some days past as peaceful and constitutional movement of lhe Unions was there to your dislike, we should tell you here and now that no useful purpose will be served by such black-mailing Notice far less the cause of the industrial peace and progress of a reputable concern like 'The Statesman' . ... \"\n\nx x x x \"You know more than anybody else that your are all peace loving people and have cooperated\n\nx workmen with you\n\nall along with respect and a\\1eclion.\n\nYou had never any occasion to find fault with them for any indisciplined conduct.\n\nOur Unions have also a long tradition of faithiul cooperation with the management in every hour of crisis and we are proud of our said lofty tradition.\n\nThere was no ob- struction in tbc movement of anybody at any stage on 20--9-66 as alleged or at all aqd the police ought not to have been invited in the offi_ce. Considering everything: Vle are o[ the opinion that no interest of the management or of the workmen will. be served by such acrimonious correspondence and any delay in the settlement of the outstanding disputes will make the situation more complex.\n\nYou are therefore requested to withdraw your aforesaid Notice, arrange an in1mcdiatc sitting with us and meet the genuine grievances of he e1nployces, if not in full at least as :an interim :Jrrangement and note in this context if any assurance is necessary that all along in the past the workmen will nzaintain peace and work 11or1nally and peacefully unless they are sllf/iciently provoked fnnn your end.\"\n\n(emphasis, added)\n\nlt is obvious that the tone of this reply is conciliatory and literally conforms to the demand for the assurance from the workmen of peaceful and normal resumption of work.\n\nIt is fair to infer that the receipt of this letter should have persuaded the Management in a spirit of goodwill, to lift the lock-out and give a trial to the workers' willingness. ls not a worker's word, until the contrary is proved, as good as his bond 9 Moreover, a strike is called oft when the strikers agree to come back to work. Curiously enough, the management struck a dis- cordant note in their letter two davs lat•cr.\n\nInstead of a favourable wesponse, the appellant recited the 'old facts and concluded :\n\n''We have no intention of keeping the oftice closed longer than is necessary, and as soon as the Managcn1ent is reasonably convinced that discipline and normal production will be maintained and that there will be no recurrence of the acts of indiscipline which led to the illegal strike and closure, we shall take steps to open the ot1icc.\"\n\nThe shift in stand is obvious. The first letter merely demanded of the workmeu an assurance of normal and peaceful resumption of work.\n\nWhen this was given the Management quietly tilted its stance and demanded that it should k 'reasonably convinced that disciipline and G normal production will be maintained and that there will be no recurrence of the acts of indiscipline' ..... The further letter of October 31, 1966 by the Union highlights the anxiety of the workers for resumption of work.\n\nOf course, the staying power of the workers is ltmited and wanes after a time. Naturally, they press the Management\n\nto withdraw the closure. The language of the letter Exhibit E-7 is tellingly temperate : H\n\n\"Assuming though not conceding even by any stretch of imagination that there was an illegal strike as alleged by\n\nyou and the lock-out for 41 days till date after the Unions .. unequivocal assurance of peace and cooperation given to you on behalf of the workmen in their letter dated 21-9-66 111 reply to your notice dated 20-9-66 where you asked for such an assurance. So far as the Unions' demands arc concerned.- they are only of incidental nature because of the suffering thrust upon the workers on account of the unproved Jock out.\n\nWe want peace and a cli111ate where lock-out and strike will be a matter of the past. In that spirit we have selected the least controversial 11 items out of all the items of demands for immediate settlement. Hope you will appreciate the same by entering into a negotiated settlement and we assur.e you that if necessary we shall not even fight the Bonus case before the Tribunal if on that item also you agree to settle.\"\n\nIt was mentioned by Shri Sibbal that there were charge-sheets against the workers at the instance of the Management which embittered ·..l :relations. There is also the reference in the evidence of the Deputy Conunissioner of Labour that the Management was unwilling to lift the lock-out when requested and the workers were unwilling to withdraw the strike without settlement of disputes.\n\nIn an escalating situation of D conflict, developments lead to deterioration of industrial quiet and we have to look at the whole picture with realism.\n\nThere was a minor ripple of disputation as to whether the evidence recorded by the Fifth Industrial Tribunal between the date when the transfer order was passed by the government and the re-transfer order was made could be read as evidence.\n\nThe Tribunal has come to the E same conclusion both by excluding and by including such evidence in his verdict. Shri Kapil Sibbal has fairly taken us through these materials to convince us that the verdict cannot be deflected by eliminating or reading the disputed testimony. We feel satisfied that there is much to be said in favour of the ultimate view taken by the Tribunal that blameworthiness may be equally apportioned between the parties. Had the Management reacted with goodwill when the workers the very next F day offered to be peaceful and resume work, the prolonged situation of cessation of work could have been saved.\n\nIt is therefore a case which attracts Indian Marine Service (supra). In that ease also this Court found it fair to direct that the workmen should get half the wages during the strike period.\n\nThe Tribunal's view is certainly not unreasonnable. May be, it is a just solution. We hope that both sides. after these long years, will bury the hatchet and work for the better G efficiency and greater status of a leading newspaper of India.\n\nHaving regard to the circumstances of the case, it is proper to direct that the appeal be dismissed but the parties wiIJ bear their respective costs. Before parting with this case we deem it our duty to record our appreciation of the thoroughness of preparation of Shri Kapil Sibbal,\n\na young advocate of promise, who has assisted the Court as amicus H curiae with precedential industry and persuasive felicity.\n\nP.B.R.\n\nAppeal dismissea.", "total_entities": 47, "entities": [{"text": "THE STATESMAN LTD", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "THE STATESMAN LTD", "offset_not_found": false}}, {"text": "THEIR WORKMEN", "label": "RESPONDENT", "start_char": 23, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "THEIR WORKMEN", "offset_not_found": false}}, {"text": "January 22, 1976", "label": "DATE", "start_char": 38, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "v.\n\nTHEIR WORKMEN\n\nJanuary 22, 1976\n\n[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 57, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 77, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "N. L. UNTWALIA", "label": "JUDGE", "start_char": 93, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 297, "end_char": 318, "source": "regex", "metadata": {}}, {"text": "Article 136", "label": "PROVISION", "start_char": 325, "end_char": 336, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "India Marine Service", "label": "ORG", "start_char": 1854, "end_char": 1874, "source": "ner", "metadata": {"in_sentence": "[236 F; 233 DE]\n\nIndia Marine Service, [19~3] 3 SCR 575, followed."}}, {"text": "Article 136", "label": "PROVISION", "start_char": 2445, "end_char": 2456, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "AIR 1972 SC 1552", "label": "CASE_CITATION", "start_char": 2735, "end_char": 2751, "source": "regex", "metadata": {}}, {"text": "S. Chaudhury", "label": "LAWYER", "start_char": 3358, "end_char": 3370, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury and D. N. Gupta for the Appellant."}}, {"text": "D. N. Gupta", "label": "LAWYER", "start_char": 3375, "end_char": 3386, "source": "ner", "metadata": {"in_sentence": "S. Chaudhury and D. N. Gupta for the Appellant."}}, {"text": "Kapil Sibbal", "label": "LAWYER", "start_char": 3407, "end_char": 3419, "source": "ner", "metadata": {"in_sentence": "Kapil Sibbal for the Respondents.", "canonical_name": "Kapil Sibbal"}}, {"text": "KRISH~A IYER", "label": "JUDGE", "start_char": 3486, "end_char": 3498, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISH~A IYER, J. There is a tragic touch in processual protraction as this little /is lasting a whole decade pathetically illustrates."}}, {"text": "Statesman Ltd", "label": "ORG", "start_char": 4785, "end_char": 4798, "source": "ner", "metadata": {"in_sentence": "The narrative of necessary facts starts naturally with a bonus dispute in the Statesman Ltd (a newspaper with editions published in Calcutta and Delhi) which was referred to adjudication in September 1966 and was, admiltedly, pending at a time when the Calcutta workers reportedly resorted to rude tactics to press an earlier charter of demands presented to the management."}}, {"text": "Calcutta", "label": "GPE", "start_char": 4839, "end_char": 4847, "source": "ner", "metadata": {"in_sentence": "The narrative of necessary facts starts naturally with a bonus dispute in the Statesman Ltd (a newspaper with editions published in Calcutta and Delhi) which was referred to adjudication in September 1966 and was, admiltedly, pending at a time when the Calcutta workers reportedly resorted to rude tactics to press an earlier charter of demands presented to the management."}}, {"text": "Delhi", "label": "GPE", "start_char": 4852, "end_char": 4857, "source": "ner", "metadata": {"in_sentence": "The narrative of necessary facts starts naturally with a bonus dispute in the Statesman Ltd (a newspaper with editions published in Calcutta and Delhi) which was referred to adjudication in September 1966 and was, admiltedly, pending at a time when the Calcutta workers reportedly resorted to rude tactics to press an earlier charter of demands presented to the management."}}, {"text": "September 20, !", "label": "DATE", "start_char": 5084, "end_char": 5099, "source": "ner", "metadata": {"in_sentence": "On September 20, !"}}, {"text": "November 4, 1966", "label": "DATE", "start_char": 6675, "end_char": 6691, "source": "ner", "metadata": {"in_sentence": "each blaming the other, till at last the State, on November 4, 1966."}}, {"text": "Fifth Industrial Tribunal Calcutta", "label": "COURT", "start_char": 6731, "end_char": 6765, "source": "ner", "metadata": {"in_sentence": "referred six points of dispute to the Fifth Industrial Tribunal Calcutta, before whom the bonus dispute was already pending."}}, {"text": "November 8, 1966", "label": "DATE", "start_char": 6931, "end_char": 6947, "source": "ner", "metadata": {"in_sentence": "Better sense on both sides resulted in the termination of the strike and the closure, and work was resumed from November 8, 1966."}}, {"text": "September 2, 1969", "label": "DATE", "start_char": 7007, "end_char": 7024, "source": "ner", "metadata": {"in_sentence": "The award that followed upon the dispute was rendered on September 2, 1969, nearly three years after the reference of the dispute."}}, {"text": "March 31, 1967", "label": "DATE", "start_char": 7557, "end_char": 7571, "source": "ner", "metadata": {"in_sentence": "Thus, although the order of transfer was made on March 31, 1967 the enquiry continued upto April 22, 1967."}}, {"text": "April 22, 1967", "label": "DATE", "start_char": 7599, "end_char": 7613, "source": "ner", "metadata": {"in_sentence": "Thus, although the order of transfer was made on March 31, 1967 the enquiry continued upto April 22, 1967."}}, {"text": "September 20, 1966", "label": "DATE", "start_char": 8322, "end_char": 8340, "source": "ner", "metadata": {"in_sentence": "The other item, which is meaty enough to merit our verdict, relates to the wages during the period of work stoppage from September 20, 1966 to November 8, 1966."}}, {"text": "September 20 to November 7, 1966", "label": "DATE", "start_char": 8692, "end_char": 8724, "source": "ner", "metadata": {"in_sentence": "The Tribunal, considering, in its totality the facts and circumstances of the case, the share of blame on the part of each party the role of broad justice in producing industrial peace and advertence to the relevant materials on record, held 'that the coffir pany should pay half the wages to the employees during the period from September 20 to November 7, 1966."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 8903, "end_char": 8911, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 9001, "end_char": 9009, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Bengal Chemical", "label": "ORG", "start_char": 9087, "end_char": 9102, "source": "ner", "metadata": {"in_sentence": "In Bengal Chemical ( 1) Subbarao, G J. (as he then was) pointed out that:\n\n\"The same principle should, therefore, be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of."}}, {"text": "Subbarao", "label": "JUDGE", "start_char": 9108, "end_char": 9116, "source": "ner", "metadata": {"in_sentence": "In Bengal Chemical ( 1) Subbarao, G J. (as he then was) pointed out that:\n\n\"The same principle should, therefore, be applied in exercising the power of interference with the awards of tribunals irrespective of the fact that the question arises at the time of granting special leave or at the time the appeal is disposed of."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 10185, "end_char": 10193, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 10257, "end_char": 10265, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "20th September 1966", "label": "DATE", "start_char": 13833, "end_char": 13852, "source": "ner", "metadata": {"in_sentence": "In these circumstances, I am of opinion that the company should pay half the wages to the employees during the period from 20th September 1966 to 7th November 1966.\""}}, {"text": "7th November 1966", "label": "DATE", "start_char": 13856, "end_char": 13873, "source": "ner", "metadata": {"in_sentence": "In these circumstances, I am of opinion that the company should pay half the wages to the employees during the period from 20th September 1966 to 7th November 1966.\""}}, {"text": "s. 24", "label": "PROVISION", "start_char": 14871, "end_char": 14876, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 14970, "end_char": 14975, "source": "regex", "metadata": {"statute": null}}, {"text": "November 13, 1958", "label": "DATE", "start_char": 18457, "end_char": 18474, "source": "ner", "metadata": {"in_sentence": "In our opinion', added the Court \"while the strike was unjustifiable, the lock-out when it was ordered on November 13, 1958, was justified."}}, {"text": "(1963) 2 S.C.R. 575", "label": "CASE_CITATION", "start_char": 19040, "end_char": 19059, "source": "regex", "metadata": {}}, {"text": "January 3, 1959", "label": "DATE", "start_char": 19719, "end_char": 19734, "source": "ner", "metadata": {"in_sentence": "In the circumstances we therefore direct that the workmen should get half their wages from November 14, 1958 to January 3, 1959 (both days inclusive).\""}}, {"text": "Kapil Sibbal", "label": "LAWYER", "start_char": 19848, "end_char": 19860, "source": "ner", "metadata": {"in_sentence": "The factual milieu surrounding the strike-lock-out complex, as neatly presented by Shri Kapil Sibbal, shows how the flow ol events exonerated the Unions of serious impropriety and the employer was trying to be too clever.", "canonical_name": "Kapil Sibbal"}}, {"text": "20-9-66", "label": "DATE", "start_char": 21165, "end_char": 21172, "source": "ner", "metadata": {"in_sentence": "The very next day after the closure, i.e., on September 21, the Secretary of the Union wrote back a letter wherein he stated inter alia :\n\n\"While we deny the various allegations contained in your said Notice and hold you wholly liable for the development on 20-9-66 in suddenly advising your supervisory staff to stop all processes of work from 12.30 p.111."}}, {"text": "20--9-66", "label": "DATE", "start_char": 22181, "end_char": 22189, "source": "ner", "metadata": {"in_sentence": "There was no ob- struction in tbc movement of anybody at any stage on 20--9-66 as alleged or at all aqd the police ought not to have been invited in the offi_ce."}}, {"text": "October 31, 1966", "label": "DATE", "start_char": 24388, "end_char": 24404, "source": "ner", "metadata": {"in_sentence": "When this was given the Management quietly tilted its stance and demanded that it should k 'reasonably convinced that disciipline and G normal production will be maintained and that there will be no recurrence of the acts of indiscipline' ..... The further letter of October 31, 1966 by the Union highlights the anxiety of the workers for resumption of work."}}, {"text": "21-9-66", "label": "DATE", "start_char": 24974, "end_char": 24981, "source": "ner", "metadata": {"in_sentence": "The language of the letter Exhibit E-7 is tellingly temperate : H\n\n\"Assuming though not conceding even by any stretch of imagination that there was an illegal strike as alleged by\n\nyou and the lock-out for 41 days till date after the Unions .. unequivocal assurance of peace and cooperation given to you on behalf of the workmen in their letter dated 21-9-66 111 reply to your notice dated 20-9-66 where you asked for such an assurance."}}, {"text": "Sibbal", "label": "OTHER_PERSON", "start_char": 25677, "end_char": 25683, "source": "ner", "metadata": {"in_sentence": "It was mentioned by Shri Sibbal that there were charge-sheets against the workers at the instance of the Management which embittered ·..l :relations."}}, {"text": "India", "label": "GPE", "start_char": 27497, "end_char": 27502, "source": "ner", "metadata": {"in_sentence": "after these long years, will bury the hatchet and work for the better G efficiency and greater status of a leading newspaper of India."}}]}
{"document_id": "1976_3_237_246_EN", "year": 1976, "text": "...\n\nI. N. SAKSENA\n\n\\-',\n\nTHE ST A TE OF MAD HY A PRADESH\n\nlanuury 23, 1976\n\n[A. N. RAY, CJ., M.H. BEG, R.S. SARKARIA AND P.N. SHINGHAL, JJ.]\n\nConstitution of India-Articles 245 & 246-Schedule seven-List II entrv 41---lnlerpretation of legislative entries-subsidiary or ancillary to subjeCt covered by e11trie.1-J11dicial function and legislative function-Whet!ier legi:-J- }ature can overrule a judicial pro1101111cen1e11t by a bare declaration-Whetlicr can remove basis of judicial pronouncement.\n\nThe appellant v, ias a District & Sessions Judge.\n\nBy a Memorandum dated 28-2-1963, the State Government raised the age of compulsory retirement for Government servants to 58 years. The said Memorandum, however, empowered the Government to retire a Government servant after he attains tilel age of 5 5 years. Thereafter, rules under the proviso to Article 309 of the Constitution were framed whereby the age of uperannuation was raised to 58 years. However the clause empowering the Government to retire a Government servant after the age of 55 years, was not incorporated in the said rules.\n\nThe appellant was retired from service after he completed 55 years and before he completed 58 years, The challenge to the said order of compulsory retirement succeeded in this Court. This cOu1t held on 23-1-1967 as under:\n\n\"The appellant will be deemed to have continued in the service of the Government in spite of that order. As. however. the appellant attained the age of 58 years, in August, 1966, it is. not possible now to direct that he should be put in service.\n\nBut he will be entitled to such benefits as may accrue now to him by virtue of the success of the\n\nY.Tit petition. The appellant will get his costs from the State throughout.\"\n\n'fhereafter, an Ordinance .was pron1ulgated Which later on became an Act of the fadhya Pradesh Legislature. The said Act validated the retirement of certain Government servants including the appellant, despite the judgment of this Court. The act was made effective from 1st March 1963 and it ernowered the Governn1ent to retire a Government servant on his attaining the age of 5? years.\n\nThe appellant again filed a Writ Petition in the High Court which was disn1issed.\n\nIn an appeal the appellant contended before this Court :\n\n1. The Act hris heen passed to OVLrrulc a decision of this Court which the legislature has no power to do.\n\n2. The 1natter having once been decided by the Supreme Court was barred by the principle of res judicata.\n\nThe Act gives naked PQ\\Ver to the authorities to retire r..ny employee after he attains the age of 55 years and provides no guidelines for the exercise of the power.\n\nA right of property being a judgment debt protected by Article 19(1)(f) of the Constitution, the impugned Act could not have expropriated without providing for any compensation. It is ultnt vi res Article 31 (2) of the Constitution.\n\n5. 1'he impugned Act is ultra vires the Constitution since it 5e'eks to validate. the retrment .of the appelant and others l!ke him by changing their service conditions with retrospective effect.\n\nIn doing so, the Legislature has H over-stepped the limits of legislative power.\n\nF.ve11 if the impugned Act is valid, on a proper construction it Jocs not vacate the decree of this Court. ...\n\nDismissing th~ appeal by certificate under Article 132(1) and 133(1)(a) to (c),\n\nHELD : 1. The decree of this Court is not a money decree raising a iudgme?t debt. lt is a declaratory decree declaring that the order compulsorily retiring the appellant was invalid. The further declaration that he would be entitled to such benefits as might accrue to him by virtue of the succes'> of the Writ Petition, was only incidental or anciliary, to the main relief and will fall or stand with the same.\n\n[242 G-H] •\n\n2. The distinction between a Legislative act and a Judicial act is well known though in some s-pecific instances the line which separates one category from the other !f13V not he easily discernible. Adjudication of the rights of the parties accC?rd1ng to Jaw enacted by the Legislature is a judicial function.\n\nIt is for the Legislature to lay down the law, prescribing norms of conduct which v.iU govern\n\npartcs and transactions and to require the court to give effect to that law. The Legislature ca1?-not br a. are dc.laration, without more, directly overrule, reverse or overnde a Judicial dec1s1on. It may at any time in exercise of the plenary po, vers conferred on it by Articles 245 and 246 of the Constitution render. a j_udicial decision ineffective by enacting a. valid law on a topic within\n\n1~ leg1slative e!d, fundamentally altering or changing with retrospective curative or neurahs1ng effect the conditions on which such decision is~ based.\n\nJudgments rn Indira Nehru Gandhi v. Raj Narain [1976] 2 S.C.R. 347 and Harl Si111th v. Military Estate Officer, [1973] 1 S.C:R. 516 followed. [243 A-Dl\n\nJn enacting the impugned Act the State Legislature derives its competence not only from Article 309 but also from Entry 41 of List II of the Seventh\n\nSchedule. It is \\Vell settled that the entries in these legislative lists are to be construed in their widet possible amplitude and each general word used in tiuch entries must be held to comprehend anciliary or subsidiary niatters.\n\nThe Le, gis- Jature has legislative competence not only to change the service conditions of Civil Servants \\vith retrospective effect but also to validate with retroactive force invalid executive orders retiring the servant~ because such validating legislation must be regarded as subsidiary or anciliary to the power of legislation on the subiect covered by Entry 41. 1245 A-Dl\n\nThe in1pugned Act by introducing a legal fiction on giving the said memorandum statutory status with effect from its inception, effectively cures the defects from which this Memorandum and the orders of retirement made thereunder were suffering.\n\nThus the said legislation removes or cures the dfcct which this Court found in the Memorandum which was the basis of the impugned orders of retirement. [246 A-Bl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 131 of 1971 and 350 of 1971.\n\n(From the Judgments and Orders dated 2-5-1970 of the Madhya Prade; h High Court in Misc. Petitions Nos. 504 and 92 of 1967 respectively).\n\nG. L. Sanghi, Bishamber Lal and M. lyngar for the Appellant (In CA 131/71).\n\n M. N. Phadke, S. S. Khanduja for the Appellant (In CA 350/71).\n\nl. N. Shroff for the Respondent (In both appeals).\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J. This appeal on certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the Appellant's writ petition under Art. 226 of the Constitution.\n\nThe appellant joined the service of the State Government as a A subordinate Judge in the year 1936.\n\nOn promotion, he was confirmed as District and Sessions Judge with effect from December 2, 1957.\n\nThe appellant attained the age of 55 years on August 22, 1965 which was the age of superannuation according to Fundamental Ruic 56 (Ch. IX) governing the Civil Services of the State. But prior to that on February 28, 1963, by a memorandum No. 433-259-1 (iii) /63, the State Government raised the age of compulsory retirement for govern- B ment servants to 5 8 years subject to certain exceptions.\n\nThe material part of the memorandum dated February 28, 1963, read as follows :\n\n\"5. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on 3 months notice without assigning any reasons ....... .\n\nA Government servant may also after attaining the age of 55 years voluntarily retire after giving 3 months notice to the appointing authority.\n\n6. These orders will have effect from the !st March 1963.\n\n7. Necessary amendments to the State Civil Service Regulations will be issued in due course.\"\n\nThereafter, by Government Notification dated November 29, 1963, F. R. 56 was amended on December 6, 1963 in exercise of the power under the Proviso to Article 309 of the Constitution, raising the age of compulsory retirement of the State Civil Servants to 58 years with effect from March !, 1963 but the clause in the aforesaid Memorandum, empowering the Go, vernment to retire servants above the age of 55 years by giving them three months' notice was not incorporated in the Rule.\n\nIn view of this memorandum, the appellant was allowed to continue in office after he had attained the age of 55 years.\n\nOn September 11, 1963, the respondent passed an order retiring the appellant from service with effect from December 31, 1963. To impugn this order, the appellant filed a Writ Petition in the High Court under Art. 226 of the Constitution on the ground that F. R. 56 as it stood a[ter the amendment of November 29, 1963, (published on 6-12-1963) did not contain any provision authorising the respondent to retire the appellant after the attainment of 55 years of age and that his retirement was contrary to Art. 311 (2) and Art. 14 of the Constitution.\n\nThe High Court dismissed the writ petition by its judgment dated April 30, 1964.\n\nThe appellant came up in appeal to this Court. During the pcndency of that appeal Saksena attained the age of 5 8 years.\n\nBy its judgment dated January 23, 1967, this Court quashed the impugned order of retirement holding that :\n\n\"The appellant will be deemed to have continued in the service of the Government in spite of that order. As, however, the appellant attained the age of 58 years, in August,\n\n1966, it is not possible now to direct that he should be put back in service. But he will be entitled to such benefits as may accrue now to him by virtue of the success of the writ petition. The appellant will get his costs from the State throughout.\"\n\nBefore the decision of that appeal (Civil Appeal No. 670 of 1965) however, the Governor had promulgated the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 under Art. 309 of the Constitution. These Rules were published in the Government Gazette of July 17, 1965. By a deeming clanse, these Rules were made effective from March 1, 1963. The age of retirement was thereby raised to 58 years and under r. 6 thereof, the appointing authority was empowered to retire a Government Servant on his attaining the age of SS year< on 3 months' notice without assigning any reason.\n\nBy r. 8, the aforesaid memorandum, dated February 28. l 963, was cancelled, and it was provided that notwithstanding the cancellation of that memorandum anything done or any action taken in pµrsuance of the directions contained in that memorandum shall be and shall always be deemed to have been done or to have been taken under the relevant provisions of these Rules.\n\nAt the hearing of the earlier appeal, these Rules were not brought to the notice of this Court.\n\nOn February 10, 1967, after the judgment by this Court, the State promulgated an Ordinance which was replaced on April 20, 1963 by the Madhya Pradesh Shaskiya Scvak Anivarya Sevanivitrika Vidhi- E manyatakaran Vidyayaktakaran Vidycyak Adhiniyam 1967 (Act 5 of\n\n1967) validating the retirement of certain Government servants, including that of the appellant, despite the judgment of this Court.\n\nUy virtue of this Act, the State is vested with a right not to pay the\n\ndues o[ the appellant from the date of his retirement (December 3, Ii.\n\n1963) onwards.\n\nSections 2 and 5 of the Act, which arc material for our purpose, read as follows :\n\n\"2. ( 1) The Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 replacing the provisions of the Government of Madhya Pradesh General Administration Department Memorandum No. 1433-258-1 (iii) /63, dated the 28th February 1963 (hereinafter referred to as the Memorandum) shall be deemed to have come into force with effect from the 1st March 1963.\n\n(2) Anything done or any action taken in pursuance of the directions contained in the memorandum shall be and shall always be deemed to have been done or taken under corresponding provisions of the aforesaid rules as if the aforesaid rules were in force on the date on which such thing was done or action was taken and shall now be called into\n\nquestion in any court on the ground that the provisions of the memorandum were not issued in the form of rules made by the Governor of Madhya Pradesh under Art. 309' of the Constitution and coul~ not therefore regulate the conditions of service of Government servai:its serving in connection with the affairs of the State.\"\n\n\"5. Notwithstanding any judgment, decree or order of any Court, all Government servants serving in connection with the affairs of the State who were compulsorily retired or purported to have been compulsorily retired in accordance with the memorandum as replaced by the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 referred lo in Section 2 during the period beginning with !st March, 1965 and ending on 15th July, 1965 shall be and shall aJways be deemed to have been validly retired in accordance with the condition of service applicable to them at the relevant time as if the provisions of Sections 2 and 3 had been in force at all material time when such retirement was ordered, as accordingly :\n\n(a) all notices served on such Government servants after their completion of age of 55 years shall be deemed to be and to have been issued in accordance with the rules governing their conditions of service; ( b) no suit or other proceedings shall be maintained or continued in any Court for any amount whatsoever as a payment towards salary for the period beginning with the date on which a Government servant had been compulsorily retired and ending on the date of his attainment of age of 58 years. ( c) no court shall enforce any decree or order directing the payment of any such amount referred to in clause (b) above.\" In substance, and effect, this Act has made provisions of the Compulsorily Retirement Rules, 1965 applicable from March 1, 1963.\n\nOn November 10, 1967, the appellant again moved the High Court by a writ petition ont of which the present appeal has arisen, challenging the validity of this Act, particularly of sections 2 and 5 extracted a hove.\n\nFour contentions were raised by him before the High Court : ( 1) that the Act has been passed to over-rule the decision of the Supreme Court which the Icgislaturn has no power to do; (2) that the statement of Objects and Reasons attached to the Bill when it was introduced, indicates that its main object was to avoid financial burden which would fall on the State on account of its having to pay arrears of pension etc. to a large number of officers who had been retired under the said memorandum which was treated to be a rule and which the Supreme Court held was not an effective rule but merely an executive instruction : ( 3) that the matter having once been decided by the Supreme Court, was barred by the prh1ciple of res judicata and ( 4)\n\nA that the Rules give naked power to the authorities fu relire any employee after he has attained the age of 55 years by giving him three \\ months' notice, and provide no guidelines for the exercise of this power. '\n\nTbc High Court negatived these contentions, dismissed the writ petition but granted a certificate under Art. 132 (I) and 133(1)(a) to ( c) of the Constitution.\n\nHence this appeal.\n\nThe contentions advanced before the High Court have been repeated before us with amplification and addition.\n\nIt is argued on behalf of the appellant : (i) that a right of property, being a judgment-debt, protected by Article 19 ( 1) ( f) of the Constitution, had been created by this Court's decree dated January 30,\n\n1967 in favour of the appellant and against the State. Since the impugned Act in effect, seeks to expropriate the appellant of that right without providing for any compensation, it is ultra vires Article 31 (2) of the Constitution, (ii) The impugned Act is ultra vires the Constitution inasmuch as it seeks to validate the retirement of the appcllaat, and others like him, by changing their service conditions with retrospective effect.\n\nIn so doing, the State legislature has overstepped the limits of legislative powers conferred on it by Article 309 of the Constitution.\n\nReliance has been placed on the decision of this Court in The Sta:e of Mysore v. Padamanabhacharya etc. (1) (iii) The impugned Act encroaches upon the judicial field inasmuch as it over-rules and makes unenforceable the decision, dated January 30, 1967 of this Court in Civil Appeal No. 670 of 1963 and in so doing. it vffcnds\n\nArticle 141. 142 and 144 of the Constitution, (iv) Even if the impugned Act is valid, els. (b) and ( c) of s. 5 of the Act, on a proper contruction, do not vacate the decree of this Court, requiring the respondent to pay to the appellant the pecuniary benefits resulting from the success of his earlier appeal (C. A. 670/65) in this Court.\n\nClause ( b) of s. 5 merely bars the maintenance or continuation of any proceeding for any amount as a payment towards salary.\n\nThe appellant is not seeking to maintain or continue any execution proceeding in court, for the reovcry of any amount towards salary, the decree being a declaratory one.\n\nNone of these contentions apcars to be tenable.\n\nA perusal of this Court's decree, dated January 30, 1967, (extracted above) would show that it is not a money decree, raising a judgment-debt. It is a declaratory decree, declaring that the respondents' order, dated September 11, 1963, compulsorily retiring the appellant was invalid, and consequently the appellant would be deemed to have\n\ncontinued in service till he attained the age of 58 years. The further declaration thac \"he will be entitled to such benefits as may accrue to him y virluc of the success of the writ petition\" was only incidental or ancilliary to the main relief and will fall or stand with the same.\n\nThis being the position, the decree did not create an indefeasible right\n\n[1966] I S.CR. 494.\n\nof property in favour of the appellant. We therefore do not find any A substance in the argument that the impugned Act seeks to acquire without payment of compensation property vesting in the appellant and is consequently unconstitutional.\n\nThe distinction be\\ween a \"legislative\" act and a \"judicial\" act is I well known, though in some specific instances the line which separates\n\none category from the other may not be easily discernible.\n\nAdjudi- B cation of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the court interprets and gives effect to the intent and mandate of the legisbturc as embodied in the statute.\n\nOn the other hand, it is for the kgislaturc to lay down the law, prescribing norms of conduct which - will .govern parties and transactions and to require the court to give effect to that law. c\n\nWhile, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly over-rule, reverse or over-ride a judicial decision, it may, at any time ii; exercise of the plenary powers conferred on it by Article 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based.\n\nAs pointed out by Ray CJ. in Indira Nehru Gandhi v. Raj Narain,( 1) the rendering inctfcctive o~ judgments or orders of competent courts and tribunals by changin.; their basis by legislative enactment is a well-known pattern of all validating Acts.\n\nSuch validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an t:ncroachment on judicial power.\n\nIn llari Singh v. Military Estate Officer,(') a Bench of seven learned Judges of this Court laid down that the validity of a validating law is to be judged by two tests. Firstly, whether the legislature possesses competence over the subject matter, and, secondly, whether by validation the legislature has removed the defect which the courts had found in the previous law. To these we may add a third : Whether it is consistent with the provisions of Part III of the Constitution.\n\nWe have noticed already, that the impugned provisions do not offencd Articles 19 and 31 or anything else in Part III of the Constitution.\n\nWe may now see whether the provisions in question satisfy the first\n\ntwo tests.\n\nG Mr. Sanghi's argument is that by virtue of the power conferred by Article 309, the State Legislature is not competent to pass a law validating retrospectively an invalid order of retirement of a State civi I\n\nservant, made by the State Government, or render ineffective a decree of this Court declaring invalid such an order.\n\nThe point sought to be made out is that the legislative power conferred on the State legislature by Article 309, is confined to regulating the recruitment and con- H ditions of service of the persons appointed to public services of the -- ---·----\n\n(1) [1976 2 S.C.R. 347.\n\n\nA State, and that the impugned provisions not being such regulatory provisions, arc ultra vires Article 309.\n\nJn Pmbl!l/110bhacharya's case (supra), which is the sheet anchor of this contention, the Court was considering the scope of Article 309 in the context of Rule 294(a) Note 4, of the Mysore Service Regulations.\n\nThere, the respondent was a teacher in a Government School.\n\nB He was ordered to be retired from service with effect from February 3, 1958 on attaining the age of 55 years. He challenged the validity of the order by a writ petition under Article 226 in the High Court and contended that rule 294 (a) having been amended in April 1955, the normal age of superannuation was fixed at 58 years, instead of 55 years.\n\nOn behalf of the State, it was canvassed that a notification of the Governor under Article 309 of the Constitution, issued on March C 25, 1959 had validated the action taken in retiring the respondent, and others upon their attaining the age of 5 5 years.\n\nWanchoo J. (as he then was), speaking for this Court held that such a rule cannot be made under the proviso to Article 309 of the ~\n\nConstitution, but was cautious enough to add :\n\n''We are expressing no opinion as to the power of the legislature to make a retrospective provision under Article 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with item 70 of List I of the Seventh Schedule or item 41 of List 1I of the Seventh Schedule.\n\nThe present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down that it shall be competent for the Governor or such person as he may direct in the case of services nd posts in connection with the affairs of the State to make rules regulating the_ recruitment, and the conditions of service of per_sons appointed, to such services and posts until provision in that behalf is made by or under an Act by the appropriate legislature. Under the proviso the Governor has the power to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts in connection with the affairs of the State.\n\nThe question is whether the notification of March 25, 1959 can be said to be $Uch a rule. We are of opinion that this notification cannot be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in connection with the affairs of the State.\"\n\nFrom what has been quoted above, it is clear that this Court advisedly did not express any opinion about the competency of the appropriate legislature to enact validating provisions of this type concerning the public servants serving in connection with the affairs of the State or the Central Government, as the case may be.\n\nIt is noteworthy that in enacting the impugned Act, the State legislature derives its competence not only from Article 309, but also from Entry 41 of List II of the Seventh Schedule. Indeed, within its allotted sphere, that is, with respect to any of the matters enumerated in List II of the Seventh Schedule the State legislature has, by virtue of Art. 246(3), exclusive, plenary powers of legislation.\n\nEntry 41 , List II, reads as under :\n\n\"41. State public services; State Public Service Commission.\"\n\nIt is well settled that the entries in these legislative lists in Schedule VII are to be construed in their widest possible amplitude, and each general word used in such Entries must be held to comprehend ancillary or subsidiary matters. Thus considered, it is clear that the scope of Entry 41 is wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309.\n\nThe area of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309.\n\nBy virtne of Articles 246, 309 and read with Entry 41, List II, therefore, the State legislature had legislative competence not only to change the service conditions of State Civil Servants with retrospective effect but also to validate with retrospective force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the snhject covered by Entry 41.\n\nThus the impugned provisions satisfy the first test.\n\nThis takes us to the second test, whether the impugned legislation removes or cures the defect which this Court had found in the Memorandum which was the basis of the impugned orders of retirement.\n\nFor reasons that follow, the answer to this question also must be in the affirmative.\n\nThe basis of this Court's decision dated January 30, 1967 in Civil Appeal 670 of 1965 was that the Government Memorandum dated Febrnary 28, 1963, in pursuance of which the impugned order of F retirement of I. N. Saksena had been passed on September 11, 1963, had not attained the status of a statutory rule framed under the proviso to Article 309 of the Constitution, but was merely an administrative instruction.\n\nThis provision in the Memorandum empowering the Government to retire a servant on his attaining the age of 55 years, after three months notice, was not incorporated in the statutory rules.\n\nOn the other hand the amendment made with effect from March J 963 G in Fundamental Rule 56, in exercise of its powers under Article 309 by the Government under notification dated December 6, 1963, had raised the age of retirement for State Government servants from 55 to 58 years. I. N. Saksena had therefore, by virtue of this amended statutory rule a right to remain in service upto the age of 58 years.\n\nThis right could not be taken away by mere executive instructions embodied in the Memorandum.\n\nMadhya Pradesh Act 5 of 1963 gives the said Memorandum the statutory status with effect from its very inception.\n\nBy introducing\n\nA a legal fiction the Act effectively cures tlie defect from which this Mcm1)randum and the orciers of retirement made thereunder were suffering.\n\nThus the second test was also satisfied. The conclusion is therefore inescapable that the impugned provisions were valid. Hence, the order, dated September 11, 1963, of Saksena's compulsory retirement became valid as the basis of this Court's judgment dated January 30, 1967 was removed.\n\nThere is no force in the fourth contention of Mr. Sanghi. Section 5, particularly Clauses (b) and (c), effectively vacate the p>cvious decree of this Court in favour of Saksena. For removing doubts, these clauses declare that this Court's decree will not be enforceable by initiating proceedings in any court thereon, in future.\n\nIn the light of the above discussion, it is abundantly clear that in enacting the impugned provisions, the legislature has not exceeded the limits of its legislative powers nor encroached on the judicial field.\n\nWe will close the discussion by noticing on.ly one decision out of the many that had been cited at the bar.\n\nIn Piare Dusada and Ors. v. The King Emperor,(1) the Governor- General by Ordinance repealed the Special Criminal Courts Ordinance II of 1942. There was a provision in the repealing Ordinance for confirmation and continuance of sentences of Special Courts and retrial of pending case. The appellant therein had been convicted and sentenced by Special Criminal Court which was held to have no jurisdiction to try the case by an order of a court. S.cction 3 (1) of the Special Criminal Courts (Repeal) Ordinance, 1943 conferred validity and full effectiveness on sentences passed by Special Criminal Conrts by conferring jurisdiction on them with retrospective effect. The Federal Court held that by promulgating the validating and repealing Ordinacc of 1943. the legislative authority had not attempted to do indirectly what it could not do directly or to exercise judicial power in the guise of legislation. It was further held that the Ordinance was not invalid on the ground that the legislative authority had validated by retrospective legislation proceedings held in courts which were void for want of jurisdiction as there was nothing in the Indian Constitution which precluded the legislature from doing so.\n\nThe ratio of the above decision applies with greater force to the present case.\n\nFor all the foregoing reasons, we negative all the contentions canvassed by Mr. Sanghi and dismiss this appeal leaving the parties to bear thc.ir own costs.\n\nCivil Appeal No. 350 of 1971\n\nSARKARIA, J.\n\nFor the reasons recorded in Civil Appeal No. 131 of 1971 entitled l. N. Saksena v. State of Madhya Pradesh, this appeal fails and is dismissed without any order as to costs.\n\nP.H.P.\n\nAppeals dismissed.\n\n(I) [1944] F.C.R. 61.", "total_entities": 102, "entities": [{"text": "I. N. SAKSENA", "label": "PETITIONER", "start_char": 5, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "I. N. SAKSENA", "offset_not_found": false}}, {"text": "THE ST A TE OF MAD HY A PRADESH", "label": "RESPONDENT", "start_char": 26, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "A. N. RAY, CJ.", "label": "JUDGE", "start_char": 78, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M.H. BEG", "label": "JUDGE", "start_char": 94, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R.S. SARKARIA", "label": "JUDGE", "start_char": 104, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 143, "end_char": 164, "source": "regex", "metadata": {}}, {"text": "Articles 245 & 246", "label": "PROVISION", "start_char": 165, "end_char": 183, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 848, "end_char": 859, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "23-1-1967", "label": "DATE", "start_char": 1295, "end_char": 1304, "source": "ner", "metadata": {"in_sentence": "This cOu1t held on 23-1-1967 as under:\n\n\"The appellant will be deemed to have continued in the service of the Government in spite of that order."}}, {"text": "1st March 1963", "label": "DATE", "start_char": 2011, "end_char": 2025, "source": "ner", "metadata": {"in_sentence": "The act was made effective from 1st March 1963 and it ernowered the Governn1ent to retire a Government servant on his attaining the age of 5?"}}, {"text": "Supreme Court", "label": "COURT", "start_char": 2425, "end_char": 2438, "source": "ner", "metadata": {"in_sentence": "The 1natter having once been decided by the Supreme Court was barred by the principle of res judicata."}}, {"text": "Article 19(1)(f)", "label": "PROVISION", "start_char": 2707, "end_char": 2723, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 2849, "end_char": 2859, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 132(1) and 133(1)(a)", "label": "PROVISION", "start_char": 3320, "end_char": 3348, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 245 and 246", "label": "PROVISION", "start_char": 4462, "end_char": 4482, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1976] 2 S.C.R. 347", "label": "CASE_CITATION", "start_char": 4789, "end_char": 4808, "source": "regex", "metadata": {}}, {"text": "Jn enacting the impugned Act", "label": "STATUTE", "start_char": 4895, "end_char": 4923, "source": "regex", "metadata": {}}, {"text": "Article 309", "label": "PROVISION", "start_char": 4983, "end_char": 4994, "source": "regex", "metadata": {"linked_statute_text": "Dl\n\nJn enacting the impugned Act", "statute": "Dl\n\nJn enacting the impugned Act"}}, {"text": "Seventh\n\nSchedule", "label": "PROVISION", "start_char": 5036, "end_char": 5053, "source": "regex", "metadata": {"linked_statute_text": "Dl\n\nJn enacting the impugned Act", "statute": "Dl\n\nJn enacting the impugned Act"}}, {"text": "G. L. Sanghi", "label": "OTHER_PERSON", "start_char": 6288, "end_char": 6300, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Bishamber Lal and M. lyngar for the Appellant (In CA 131/71)."}}, {"text": "Bishamber Lal", "label": "LAWYER", "start_char": 6302, "end_char": 6315, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Bishamber Lal and M. lyngar for the Appellant (In CA 131/71)."}}, {"text": "M. lyngar", "label": "LAWYER", "start_char": 6320, "end_char": 6329, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Bishamber Lal and M. lyngar for the Appellant (In CA 131/71)."}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 6366, "end_char": 6378, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, S. S. Khanduja for the Appellant (In CA 350/71)."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 6380, "end_char": 6394, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, S. S. Khanduja for the Appellant (In CA 350/71)."}}, {"text": "N. Shroff", "label": "LAWYER", "start_char": 6433, "end_char": 6442, "source": "ner", "metadata": {"in_sentence": "l. N. Shroff for the Respondent (In both appeals)."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 6526, "end_char": 6534, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J. This appeal on certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the Appellant's writ petition under Art."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 6677, "end_char": 6685, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "August 22, 1965", "label": "DATE", "start_char": 6953, "end_char": 6968, "source": "ner", "metadata": {"in_sentence": "The appellant attained the age of 55 years on August 22, 1965 which was the age of superannuation according to Fundamental Ruic 56 (Ch."}}, {"text": "February 28, 1963", "label": "DATE", "start_char": 7347, "end_char": 7364, "source": "ner", "metadata": {"in_sentence": "The material part of the memorandum dated February 28, 1963, read as follows :\n\n\"5."}}, {"text": "Necessary amendments to the State Civil Service Regulations", "label": "STATUTE", "start_char": 7824, "end_char": 7883, "source": "regex", "metadata": {}}, {"text": "Article 309", "label": "PROVISION", "start_char": 8067, "end_char": 8078, "source": "regex", "metadata": {"linked_statute_text": "Necessary amendments to the State Civil Service Regulations", "statute": "Necessary amendments to the State Civil Service Regulations"}}, {"text": "September 11, 1963", "label": "DATE", "start_char": 8523, "end_char": 8541, "source": "ner", "metadata": {"in_sentence": "On September 11, 1963, the respondent passed an order retiring the appellant from service with effect from December 31, 1963."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 8728, "end_char": 8736, "source": "regex", "metadata": {"linked_statute_text": "Necessary amendments to the State Civil Service Regulations", "statute": "Necessary amendments to the State Civil Service Regulations"}}, {"text": "6-12-1963", "label": "DATE", "start_char": 8853, "end_char": 8862, "source": "ner", "metadata": {"in_sentence": "226 of the Constitution on the ground that F. R. 56 as it stood a[ter the amendment of November 29, 1963, (published on 6-12-1963) did not contain any provision authorising the respondent to retire the appellant after the attainment of 55 years of age and that his retirement was contrary to Art."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 9025, "end_char": 9033, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 14", "label": "PROVISION", "start_char": 9042, "end_char": 9049, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Saksena", "label": "PETITIONER", "start_char": 9236, "end_char": 9243, "source": "ner", "metadata": {"in_sentence": "During the pcndency of that appeal Saksena attained the age of 5 8 years.", "canonical_name": "Saksena"}}, {"text": "January 23, 1967", "label": "DATE", "start_char": 9298, "end_char": 9314, "source": "ner", "metadata": {"in_sentence": "By its judgment dated January 23, 1967, this Court quashed the impugned order of retirement holding that :\n\n\"The appellant will be deemed to have continued in the service of the Government in spite of that order."}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 9983, "end_char": 9991, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "July 17, 1965", "label": "DATE", "start_char": 10069, "end_char": 10082, "source": "ner", "metadata": {"in_sentence": "These Rules were published in the Government Gazette of July 17, 1965."}}, {"text": "March 1, 1963", "label": "DATE", "start_char": 10142, "end_char": 10155, "source": "ner", "metadata": {"in_sentence": "By a deeming clanse, these Rules were made effective from March 1, 1963."}}, {"text": "February 28. l 963", "label": "DATE", "start_char": 10433, "end_char": 10451, "source": "ner", "metadata": {"in_sentence": "By r. 8, the aforesaid memorandum, dated February 28."}}, {"text": "February 10, 1967", "label": "DATE", "start_char": 10862, "end_char": 10879, "source": "ner", "metadata": {"in_sentence": "On February 10, 1967, after the judgment by this Court, the State promulgated an Ordinance which was replaced on April 20, 1963 by the Madhya Pradesh Shaskiya Scvak Anivarya Sevanivitrika Vidhi- E manyatakaran Vidyayaktakaran Vidycyak Adhiniyam 1967 (Act 5 of\n\n1967) validating the retirement of certain Government servants, including that of the appellant, despite the judgment of this Court."}}, {"text": "Sections 2 and 5", "label": "PROVISION", "start_char": 11414, "end_char": 11430, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965", "label": "RESPONDENT", "start_char": 11511, "end_char": 11568, "source": "ner", "metadata": {"in_sentence": "1) The Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 replacing the provisions of the Government of Madhya Pradesh General Administration Department Memorandum No."}}, {"text": "Madhya Pradesh", "label": "GPE", "start_char": 12332, "end_char": 12346, "source": "ner", "metadata": {"in_sentence": "(2) Anything done or any action taken in pursuance of the directions contained in the memorandum shall be and shall always be deemed to have been done or taken under corresponding provisions of the aforesaid rules as if the aforesaid rules were in force on the date on which such thing was done or action was taken and shall now be called into\n\nquestion in any court on the ground that the provisions of the memorandum were not issued in the form of rules made by the Governor of Madhya Pradesh under Art."}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 12353, "end_char": 12361, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 12865, "end_char": 12874, "source": "regex", "metadata": {"statute": null}}, {"text": "st March, 1965", "label": "DATE", "start_char": 12909, "end_char": 12923, "source": "ner", "metadata": {"in_sentence": "st March, 1965 and ending on 15th July, 1965 shall be and shall aJways be deemed to have been validly retired in accordance with the condition of service applicable to them at the relevant time as if the provisions of Sections 2 and 3 had been in force at all material time when such retirement was ordered, as accordingly :\n\n(a) all notices served on such Government servants after their completion of age of 55 years shall be deemed to be and to have been issued in accordance with the rules governing their conditions of service; ( b) no suit or other proceedings shall be maintained or continued in any Court for any amount whatsoever as a payment towards salary for the period beginning with the date on which a Government servant had been compulsorily retired and ending on the date of his attainment of age of 58 years. ("}}, {"text": "15th July, 1965", "label": "DATE", "start_char": 12938, "end_char": 12953, "source": "ner", "metadata": {"in_sentence": "st March, 1965 and ending on 15th July, 1965 shall be and shall aJways be deemed to have been validly retired in accordance with the condition of service applicable to them at the relevant time as if the provisions of Sections 2 and 3 had been in force at all material time when such retirement was ordered, as accordingly :\n\n(a) all notices served on such Government servants after their completion of age of 55 years shall be deemed to be and to have been issued in accordance with the rules governing their conditions of service; ( b) no suit or other proceedings shall be maintained or continued in any Court for any amount whatsoever as a payment towards salary for the period beginning with the date on which a Government servant had been compulsorily retired and ending on the date of his attainment of age of 58 years. ("}}, {"text": "Sections 2 and 3", "label": "PROVISION", "start_char": 13127, "end_char": 13143, "source": "regex", "metadata": {"statute": null}}, {"text": "Act has made provisions of the Compulsorily Retirement Rules, 1965", "label": "STATUTE", "start_char": 13890, "end_char": 13956, "source": "regex", "metadata": {}}, {"text": "November 10, 1967", "label": "DATE", "start_char": 13992, "end_char": 14009, "source": "ner", "metadata": {"in_sentence": "On November 10, 1967, the appellant again moved the High Court by a writ petition ont of which the present appeal has arisen, challenging the validity of this Act, particularly of sections 2 and 5 extracted a hove."}}, {"text": "sections 2 and 5", "label": "PROVISION", "start_char": 14169, "end_char": 14185, "source": "regex", "metadata": {"linked_statute_text": "Act has made provisions of the Compulsorily Retirement Rules, 1965", "statute": "Act has made provisions of the Compulsorily Retirement Rules, 1965"}}, {"text": "Tbc High Court", "label": "COURT", "start_char": 15170, "end_char": 15184, "source": "ner", "metadata": {"in_sentence": "Tbc High Court negatived these contentions, dismissed the writ petition but granted a certificate under Art."}}, {"text": "Art. 132", "label": "PROVISION", "start_char": 15274, "end_char": 15282, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 19", "label": "PROVISION", "start_char": 15569, "end_char": 15579, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "January 30,\n\n1967", "label": "DATE", "start_char": 15657, "end_char": 15674, "source": "ner", "metadata": {"in_sentence": "It is argued on behalf of the appellant : (i) that a right of property, being a judgment-debt, protected by Article 19 ( 1) ( f) of the Constitution, had been created by this Court's decree dated January 30,\n\n1967 in favour of the appellant and against the State."}}, {"text": "Article 31", "label": "PROVISION", "start_char": 15866, "end_char": 15876, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 16211, "end_char": 16222, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "January 30, 1967", "label": "DATE", "start_char": 16481, "end_char": 16497, "source": "ner", "metadata": {"in_sentence": "1) (iii) The impugned Act encroaches upon the judicial field inasmuch as it over-rules and makes unenforceable the decision, dated January 30, 1967 of this Court in Civil Appeal No."}}, {"text": "Article 141", "label": "PROVISION", "start_char": 16573, "end_char": 16584, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 16680, "end_char": 16684, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 16929, "end_char": 16933, "source": "regex", "metadata": {"statute": null}}, {"text": "therefore do not find any A substance in the argument that the impugned Act", "label": "STATUTE", "start_char": 18025, "end_char": 18100, "source": "regex", "metadata": {}}, {"text": "Article 245 and 246", "label": "PROVISION", "start_char": 19158, "end_char": 19177, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Ray", "label": "JUDGE", "start_char": 19455, "end_char": 19458, "source": "ner", "metadata": {"in_sentence": "As pointed out by Ray CJ."}}, {"text": "Articles 19 and 31", "label": "PROVISION", "start_char": 20395, "end_char": 20413, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Sanghi", "label": "OTHER_PERSON", "start_char": 20552, "end_char": 20558, "source": "ner", "metadata": {"in_sentence": "G Mr. Sanghi's argument is that by virtue of the power conferred by Article 309, the State Legislature is not competent to pass a law validating retrospectively an invalid order of retirement of a State civi I\n\nservant, made by the State Government, or render ineffective a decree of this Court declaring invalid such an order."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 20614, "end_char": 20625, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 20975, "end_char": 20986, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1976 2 S.C.R. 347", "label": "CASE_CITATION", "start_char": 21128, "end_char": 21146, "source": "regex", "metadata": {}}, {"text": "Article 309", "label": "PROVISION", "start_char": 21246, "end_char": 21257, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 21384, "end_char": 21395, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 21708, "end_char": 21719, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 21966, "end_char": 21977, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "March C 25, 1959", "label": "DATE", "start_char": 22009, "end_char": 22025, "source": "ner", "metadata": {"in_sentence": "On behalf of the State, it was canvassed that a notification of the Governor under Article 309 of the Constitution, issued on March C 25, 1959 had validated the action taken in retiring the respondent, and others upon their attaining the age of 5 5 years."}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 22140, "end_char": 22147, "source": "ner", "metadata": {"in_sentence": "Wanchoo J. (as he then was), speaking for this Court held that such a rule cannot be made under the proviso to Article 309 of the ~\n\nConstitution, but was cautious enough to add :\n\n''We are expressing no opinion as to the power of the legislature to make a retrospective provision under Article 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 22251, "end_char": 22262, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 22427, "end_char": 22438, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 22705, "end_char": 22713, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 22769, "end_char": 22785, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 22815, "end_char": 22831, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 309", "label": "PROVISION", "start_char": 22902, "end_char": 22910, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "March 25, 1959", "label": "DATE", "start_char": 23551, "end_char": 23565, "source": "ner", "metadata": {"in_sentence": "The question is whether the notification of March 25, 1959 can be said to be $Uch a rule."}}, {"text": "Central Government", "label": "ORG", "start_char": 24098, "end_char": 24116, "source": "ner", "metadata": {"in_sentence": "From what has been quoted above, it is clear that this Court advisedly did not express any opinion about the competency of the appropriate legislature to enact validating provisions of this type concerning the public servants serving in connection with the affairs of the State or the Central Government, as the case may be."}}, {"text": "Article 309", "label": "PROVISION", "start_char": 24250, "end_char": 24261, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 24304, "end_char": 24320, "source": "regex", "metadata": {"statute": null}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 24431, "end_char": 24447, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 246(3)", "label": "PROVISION", "start_char": 24488, "end_char": 24499, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Schedule VII", "label": "PROVISION", "start_char": 24711, "end_char": 24723, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 309", "label": "PROVISION", "start_char": 25045, "end_char": 25056, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 25176, "end_char": 25187, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Articles 246, 309", "label": "PROVISION", "start_char": 25203, "end_char": 25220, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "I. N. Saksena", "label": "PETITIONER", "start_char": 26191, "end_char": 26204, "source": "ner", "metadata": {"in_sentence": "The basis of this Court's decision dated January 30, 1967 in Civil Appeal 670 of 1965 was that the Government Memorandum dated Febrnary 28, 1963, in pursuance of which the impugned order of F retirement of I. N. Saksena had been passed on September 11, 1963, had not attained the status of a statutory rule framed under the proviso to Article 309 of the Constitution, but was merely an administrative instruction.", "canonical_name": "I. N. SAKSENA"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 26320, "end_char": 26331, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 309", "label": "PROVISION", "start_char": 26714, "end_char": 26725, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Madhya Pradesh Act", "label": "STATUTE", "start_char": 27092, "end_char": 27110, "source": "regex", "metadata": {}}, {"text": "Saksena", "label": "PETITIONER", "start_char": 27538, "end_char": 27545, "source": "ner", "metadata": {"in_sentence": "Hence, the order, dated September 11, 1963, of Saksena's compulsory retirement became valid as the basis of this Court's judgment dated January 30, 1967 was removed.", "canonical_name": "Saksena"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 27716, "end_char": 27725, "source": "regex", "metadata": {"linked_statute_text": "Madhya Pradesh Act", "statute": "Madhya Pradesh Act"}}, {"text": "Piare Dusada", "label": "OTHER_PERSON", "start_char": 28312, "end_char": 28324, "source": "ner", "metadata": {"in_sentence": "In Piare Dusada and Ors."}}, {"text": "[1944] F.C.R. 61", "label": "CASE_CITATION", "start_char": 30014, "end_char": 30030, "source": "regex", "metadata": {}}]}
{"document_id": "1976_3_247_254_EN", "year": 1976, "text": "GURBAKSH SINGH\n\nUNION OF INDIA & OTHERS\n\nJanuary 27, l'i76\n\n[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA, JJ.] 8\n\nBengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Dcliu-Sections 11, llA and 20-Scope of.\n\nSection 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi provides for assessment of tax. Section 1 lA provides for assessment or reassessment in case of escaped or under-assessment.\n\nSection 20 provides for appeals and revision.\n\nIn 1959 the assessee was assessed by the Sales Tax Officer for the assessment year 1955-56. The appellate authority remanded the matter holding that the assessment for the first two quarters \\Vas invalid having been made out of time.\n\nThe Sales Tax Officer passed a fresh assessment order in respect of the third and fourth quarter of the assessment year.\n\nIn July, 1960, the Commissioner under s. 20(3) revised the appellate order holding that no part of the assessment was barred by limitatjon and directed fresh assessment. Appellant's challenge; to the order of the CommiSioner and the assessment order by the a'isessing Ltuthority was unsuccessful in the High Court.\n\nOn appeal to this Court, it \\Vas contended : (i) that the revisional authority n1ust exercise his powers within the pericxl of four years prescribed under s. 11(2) (a) \\Vhether the order \\Vas a final order of assessment by him or a remand order for fresh assessment by the assessing authority: (ii) while exercising the\n\nrower of revision the Commissioner cannot ignore the period of limitation of three ycays._provieJ ins. llA; (iii) even when the Commissioner was exercising the revisional power under s. 20(3), his power is subject to the periods of limita- E tion p:ovidcd because, in ss. l l. 11 A and 20. the .authority mentionr.LI is the Co1nmissicner and (iv) the Revisional authority in the exercise of hi<> power suo 111oto mu:::t exercise it within a reasonable time and not after a long lapse of time.\n\nDismissing the appeals,\n\n1-fbLD : The Legislature has not provided any period within which an order is to be rn.ade by an appellant or revisional. authority or a court. [250 E] F\n\n. (l )(a) If the appeal.is filed in time for the exercise of the appellate power either to assess or to direct assessment under s. 20(2), there is no limitation of time. The limits of the revisional power in s. 20(3) are akin to the power of the \"ppellatc \"uthority in' 20(2). [250 FHl\n\n(b) No limitation has been provided for the suo 1noto exerci'Se of the revisional power similar to the one provided in rule 66(2) of the Delhi Sales Tax\n\nRule<; for filing an application in revision.\n\n[251 D] G\n\n( c) It will be wholly unreasonable-almost impossible-to say that all orders in appeal, revision or reference must be passed within four years of the end of the period of assessment and that otherwise they would be barred The contention that there would be anomaly because of s. 11 (2a) in that fr the apMllate or revisional authority made a remand order, the assessing authority could pass <I fresh assessment order within four years of the remand order whereas if the appellate or revisional authority itself passed an order of assessment. H .shout? e done within four yer.s; and that such an anomaly \\vould be avoided 1£ 1t was held that the rev1s1ng authority must exercise its powers within four years in all cases is not warranted by the language of the provision.\n\nFurther, it does not solve the anomaly because even if the order\n\nA of remand is made just on the last day of the period of four years it would be competent to the assessing authority to make afresh asscssn1ent within the further period of four years.\n\n[252 D; B-C]\n\n(d) The State of Orissa v. Debki Debi [15 STC, 153 (SC] is distinguishable because the period of limitation in that case applied to assessment made in exercise of the appellate or revisional power also; whereas in the present case there is no period of limitation for the exercise of appellate or revisional power. f252 Fl\n\n(2) While correcting a mistake in exercise of his revisional power the Comniissioner \\Vas merely setting right the illegality in the appellate order, nnd was not doing anything which the Sales Tax Officer was empowered to do under s. 1 J A au<l so was not bound by the period of limitation mentioned in that section. f253 Fl\n\nThe State of Kera/a v. K. M. Cheria Abdulla a11d Con1pany, 16 Sales Tax Cases, 87 5, referred to.\n\n(3) The order of assessment was that of the Sales Tax Officer acting as an officer to assist the Commissioner for the purpose of assessment.\n\nThe term \"'Comniissioner\" is merely descriptive and includes the various officers appointed under s. 3 to assist the Commissioner. There is a hierarchy of officer's and all l cannrit be treated as \"Commissioner\" for the purpose of different powers exer- cised by them. [253 G-Hl\n\n( 4) A:; sun1ing that the revisional power could not be exercised suo 1noto after a long and unreasonable delay, in the instant case there was no undue delay.\n\n\\Vhat is reasonable time will depend upon the facts of each case.\n\n[254 A\n\n8 B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 66_7-668 of 1975.\n\nFrom the Judgment and Order dated the 10-5-1973 of the Delhi High Court in Letter Patent Appeal Nos. 65 and 103 of 1969.\n\nF. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0. C. Mathur for the Appellant.\n\nG. L. Sanghi, R. N. Sachthey and Girish Chandra for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J. In these appeals by certificate the question for determination is whether the exercise of the power of revision under sub-section (3) of section 20 of the Bengal Finance (Sales Tax) Act,\n\n1941 as extended to the Union Territory of Delhi-hereinafter called the Act-is subject to the period of limitation provided in sub-section\n\n(2a) of section 11 or section llA of the said Act.\n\nThe requisite facts lie in a narrow compass and may usefully be stated at the outset.\n\nThe appellant who was carrying on the business of execution of building contracts was assesed to sales tax under the Act by the Sales Tax Officer for the year 1955-56 by an order of assessment made on November 23, 1959.\n\nThe appellant's appeal before the Assistant Commissioner of Sales Tax succeeded in part.\n\nHe held that the assessment for the first two quarters of the year 1955-56 was invalid having been made out of time.\n\nThe case was, ti)erefore, remanded to the Sales Tax Officer for a fresh assessment in respect of the 3rd and 4th\n\nGURHAKSH SINGH v. UNION ( Untwalia, J.) 24 9\n\nquarters of the year.\n\nThe Sales Tax Officer in pursuance of the appellate order of remand dated February 11, 1960 passed a fresh assessment order on March 21, 1960.\n\nThe Commissioner, however. after notice dated July 21, 1960 to the appellant, by his order dated July 29, 1960 revised the appellate order of the Assistant Commis- 'ioner in exercise of his power under section 20(3) of the Act.\n\nHe held that no part of the assessment for the year 1955-56 was barred an,;_ directed a fresh assessment to be made.\n\nA fresh assessment for all the four quarters was accordingly made by the Sales Tax Officer on September 24, 1960.\n\nThe appellant filed two writ petitions in the Delhi High Court challenging the order made in revision by the Commissioner and the fresh assessment order passed by the Sales Tax Officer in pursuance thereof.\n\nA learned single Judge of the High Court allowed the writ applications on April 2, 1969 and quashed the impugned orders. The respondents took up the matter in letters patent appeal and succeeded before a Bench of the High Court. Hence these appeals by the assessees\n\nMr. F. S. Nariman appearing for the appellant contended :\n\n(1) That the appellate and the revisional authorities must\n\nexercise their appellate or revisional power within the.\n\nD period prescribed under sub-section (2a) of section 11 of the Act. If their orders are final orders of assessment then directly they are exercising their powers under sub-sections ( 1) or (2) of section 11.\n\nIn case their orders are of remand for fresh assessment to the assessing authority then also they must pass their orders within the periods aforesaid although E under the proviso added in 1959 the assessing authority may have a further period of 4 years or 6 years, as the case may be, for passing a fresh assessment.\n\n(2) That the Commissioner while exercising the power in revision cannot overstep and ignore the period of limitation of 3 years provided in section I IA of the F Act.\n\n( 3) That the authority mentioned in sections I I, 11 A and 20( 3) being the Commissioner, the Commisioner s subject to the period of limitation provided m sections 11 and llA even when exercising the revisional power under section 20(3).\n\n( 4) That in any view of the matter the revisional authority must exercise the power in a reasonable manner and within a reasonable time.\n\nIt cannot exercise the power of revision, suo moto, after a long lapse of time at its sweet will and pleasure.\n\n. Under section 3. of the At,. a hierarchy of officers has been cons!Jtuted by the Chief Comnuss10ner-namely, the Commissioner of Sales Tax, Sales Tax Officers and others to assist him. Section 11 of the Act deals with assessment of tax.\n\nThe Sales Tax Officer\n\nexercising the powers as an officer to assist the Commissioner under section 11 (1) of the Act can proceed to assess the amount of the tax due from a registered dealer within 18 months of the expiry of a particular period.\n\nA dealer who has been liable to pay tax under the Act but has failed to get himself registered can be assessed to tax under sub-section (2).\n\nThen sub-section 2(a) says:\n\n\"No assessment under sub-section (1) shall be made after the expiry of four years and no assessment under subsection (2) shall be made after the expiry of six years from the end of the year in respect of which or part of which the assessment is made : \"\n\nA proviso was added to sub-section (2a) w.e.f. October 1, 1959\n\nC by the Amending Act of 1959 and it reads as follows :\n\n\"Provided that where such assessment is made in consequence of or to give effect to any order of an appellate or -1 revisional authority or. of a court, the period of four years\n\n\"\"I or six years, as the casemay be, shall be reckoned from the date of such order.\"\n\nIt is to be noticed that a period of limitation has been provided in section 11 (2a) and no assessment either under sub-section (I) er sub-section (2) can be made after the expiry of the specified period . . But where such an assessment is made by the assessing authority i'1\n\nconsequence of or to give effect to any order of an appellate er revisional authority or any order of a court made in reference, wt; t or in any other proceeding then under the proviso the period of limitation is to be reckoned from the date of such order.\n\nThe Legislature has not provided any period witbin which an order is to be n1ade bv an appellate or revisional authority or a court.\n\nObviously it would have been unpractical and unworkable to do so.\n\nSection 20 deals with an appeal, revision or review.\n\nI.f the appeal is filed in time the appellate authority in disposing of any appeal filed under sub-section (l) may-\n\n\"(a) confirm, reduce, enhance or annul the assessment, or;\n\n(b) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed.\"\n\nFor exercise of the appellate power in any of the manners mentioned above, there is no limitation of time.\n\nIf a.ssessn1ent can be reduced in appeal at any time it can be enhanced also without the fetter of . time.\n\nIf the assessment is set aside and the case remanded to the assessing authority to make a fresh assessment then the authority, because of the proviso to section 11 (2a), is obliged to make the fresh assessment within four years of the appellate order.\n\nSub-section (3) of section 20 reads thus : \"Subject to snch rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon\n\n} ... _ •\n\nI I\n\nGURBAKSH SINGH v. UNION (Untwalia, !.) 251\n\napplication or of his own motion may revise any assessment made or order passed under this Act or the rules thereunder by a person appointed under section 3 to assist him, and sub_iect as aforesaid. the Chief Commissioner may, in like manner, revise any order passed by the Commissioner.\"\n\nThe Commissioner can revise any assessment made or order passed under the Act including the order of the appellate authority.\n\nThe B limits of the revisional power are not circumscribed in sub-section ( 3), but it goes without saying that they will be akin to the power of the appellate authority as mentioned in sub-section (2). The revisional authority obviously, as pointed out by this Court in the case of The State of Kerahi v. K. M. Cheria Abdulla and Company(') should not trench upon the power expressly reserved by the Act or the rules to othe1 authorities and cannot ignore the limits inherent in exercise of C those powers. Section 11 A is one such power which deals with assessment and re-assessment of tax in case of an escaped assessment or under-assessment.\n\nExercise of that power is subject to the limitations provided therein.\n\nIn Rule 66(2) of the Delhi Sales Tax Rules, 1951 a period of limitation of 60 days has been provided for the filing of an application in revision which can be extended under the proviso appended to that rule on sufficient cause being shown. But no such D limitation has been provided for the suo moto, exercise of the revisional power.\n\nMr. Nariman very strongly relied upon the majority decision of this Court in The State of Orissa v. Debaki Debi and others (') and submitted that the power of revision exercised by.the Commissioners in this case beyond the period of four years prescribed in sub-section (2a) E of section 11 was illegal and ultra vireo'.\n\nA close scrutiny of the argument will result in its rejection.\n\nIn the Orissa ease all the orders made by the Collector in exercise of his power of revision under section 23 of the Orissa Sales Tax Act were passed later than 36 months from the expiry of the period in respect of which the assessment was made.\n\nThe High Court's view that they were in contravention of section 12(7) which was a power of assessment or re-assessment in case of an escaped or under-assessment was not upheld.\n\nBut it was found that the proviso to section 12( 6) was. in general trms. It was not only a proviso providing for the penod of hm1tat10n for the first assessment but it governed the assessment made in exercise of the appellate or the revisional\n\npowr. The min. ratio ecidendi of the case is that the proviso in\n\nsect10n 12(6) _is m reality an independent legislative provision unrelated to section 12(6).\n\nTherefore, its operation was not confined to assessment under section 12 but applied to any assessment made under the Act.. In the alterative it was also opined that assessment made m exercise of the rev1s1onal power was an assessment made\n\nune! section 1~. It was so said because if the appellate or the rev1s10nal authonty would have directed the assessing authority to make a fresh assessment it could do so only under section 12 and then it\n\n(1) 16 Sales Tax Cases, 875.\n\n(2) 15 Sales Tax Cases, 153.\n\nwould be subject to the period of limitation of 36 months. ft was pointed out in the majority decision of this Court that there would be an anomalous situation. If the appellate authority set aside the assessment and remanded it for fresh orders, no fresh assessment could be made because of the period of limitation. But if instead of doing so the appellate authority affected the same assessment there would be no bar of limitation.\n\nIn the present case iu view o[ the proviso added to section 11 (2a) the anomaly flows in the reverse direction. If the appellate or the revisional authority made a re111and order the asessing authority could pass a fresh order of assessment within 4 years of such order.\n\nBut if the higher authority itself revised the assessment then it would be barred by the rule of limitation provided in section 11 (2a).\n\nTo avoid such an anomaly Mr. Nariman suggested a construction to be put which neither solves the anomaly nor is warranted by the language of the provisions of the Act.\n\nCounsel submitted that in all cases the powers must be exercised within 4 years of the period in respect of which an assessment was being made on a registered dealer.\n\nIt will be wholly unreasonable-almost impossible--to say that all orders in appeal, revision or reference must be passed within four years of the end of the period of assessment. otherwise they will be barred. It does not solve the anomaly either.\n\nEven if the order of remand is made, say, just on the last day of the period of four years,· it will oe competent to the assessing authority to make a fresh assessment within the further period of four years. The ratio of the case in Debaki Debi's (supra) must be confined within its four corners and cannot be extended to the facts of the instant case.\n\nIn The Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy Cmmnissioner of sales Tax, Bombay ( 1) the decision of this Court in Debaki Debi's case was distinguished on the ground that the provision of limitation of 36 months in substance was not a real proviso to the section in which it was placed but was in fact a period of limitation for all orders of assessment made under any other provision of the\n\nOrissa Act, while in the Bombay Acts there was no such general provision prescribing a period of limitation for making an assessment.\n\nReference to the period of limitation in section 1 !A of the Bombay Act \\Vhich is a power of making _assessment or re-assessn1ent in case of an escaped or under-assessed assessments was also rejected.\n\nOur attention was also drawn to the decision of a single Judge of the Punjab High Court, Delhi Bench, in Sir Sabha Singlz & Compwzy\n\nv. Conunissioner of Sales Tax, Delhi (!.!) wherein foJlo\\ving the decision of this Court in Debaki Debi's case it was held that an order oi review made by the Commissioner under section 20( 4) of the Act in effect is an order of assessment under section 11 (I) and cannot be made after tbe expiry of the period prescribed under section 11(2a).\n\nThe learned Judge in the course of his judgment made it clear that he was concerned with the construction of the Act as it stood before 1959 and was not obliged to consider the effect of the proviso added to section 11 (2a) in 1959. It is not necessary to decide in this case whether without the aid of the proviso aforesaid the decision of the\n\n(I) 21 Sales fax Cases, 383.\n\n(2) 18 S. T. C. 416.\n\nGURBAKS!I SINGH v. UNION ( Untwa/ia, J.) 253\n\nlearned single Judge was correct or not but surely in face of the proviso it cannot hold good.\n\nIn Commissioner of Commercial Taxes, Biluir, Patna v. Sheodutta Prasad Chandeshwar Singh ( 1) the review proceedings initiated by the assessing authority was held to be barred under the proviso to section 13(6) of the Bihar Sales Tax Act, 1947.\n\nBut distinguishing the said decision another Bench of the Patna High Court held in Commissioner of Commercial Taxes, Bihar v. Ashoka Marketing Ltd. (') that the order of review passed by the Deputy Commissioner was not barred by time.\n\nThe decision of the Patna High Court in Commissioner of Cummercial Taxes, Bihar. Patna v. Sheodutta Prasad Chandeshwar Singh (supra) on identical facts was followed in Commissioner of Commercial Taxes, Bihar v. Shiva Pujan Prasad Bhagat ('). But the principle decided in those cases cannot help the appellant. It may well be that if the assessing authority itself exercises the power of review it cannot circumscribe the bar of limitation provided in section 11 (2a). But it will be unjust, unreasonable and impracticable to say that the said bar of limitation must also continue to run at all stages of the proceedings, namely, the appellate, rcvisional, reference, writ or any other stage.\n\nIt was pointed out by this Court in Swastik Oil Mills' case (supra) that the Deputy Commissioner when seeking to exercise his revisional powers was not encroaching upon the powers reserved to other authorities.\n\nThe powers were not exercised for the purpose of assessing or re-assessing an escaped turn over.\n\nThe revisional powers were sought to be exercised to correct what appeared to be an incorrect order passed by an Assistant Commissioner and for such a purpose proceedings could\n\nhat possibly have been taken under section l lA. In the instant case also it could not be disputed that the view taken by the Assistant Commissioner in appeal was obviously wrong.\n\nThe Commissioner while correcting that mistake in exercise of his revisional power was not doing anything which the Sales Tax Officer was empowered to do under section 11 A.\n\nHe was merely setting right the illegality in the appellate order.\n\nThe third point urged by the appellant is too obviously wrong to merit any detailed discussion. It was not the Commissioner who had passed the assessment order under section 11.\n\nThat order was of the Sales. Tax Officer acting as an officer to assist the Commissioner for the purpose of assessment.\n\nThe assessment order was interfered with by the appellate authority, the Assistant Commissioner and the Commissioner was revising the order of the Assistant Commissioner.\n\nAll cannot be treated as Commissioners for the purpose of the different powers exercised by the three different authorities.\n\nThe use of the term \"Commissioner\" in the sections is merely for the purpose of describing and, at any rate, including the officer assisting the Commissioner as Commissioner.\n\n(1) 25 S.T.C. 114.\n\n(2) 33 S.T.C'. 24,\n\n(3) 33 S.T.C. 466.\n\nApropos the fourth and the last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suo mo to after 'an unduly long delay, 01,1 the facts of this case it is plain that it was not so done.\n\nWithin a few months of the passing of the appellate order by the Assistant Commissioner, the Commissioner proceeded to revise and revised the said order.\n\nThere was no undue or unreasonable delay made by the Commissioner.\n\nIt may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time limit has been prescribed for the assessee to move in revision.\n\nThe appellate or the rcvisional powers in an appeal or revision filed by an asscssec can be exercised in due course. No time limit has been prescribed for it. It may well be that for an exercise of the suo moto power of revision also, the revisional authority has to initiate the proceeding within a reasonable time.\n\nAny unreasonable delay in exercise may affect its validity.\n\nWhat is a reasonable time, however, will depend upon the facts of each case.\n\nFor the reasons stated above the appeals fail and are dismissed with costs.\n\nOne set of hearing fee.\n\nP.B.R.\n\nAppeals dismissed.", "total_entities": 78, "entities": [{"text": "GURBAKSH SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "GURBAKSH SINGH", "offset_not_found": false}}, {"text": "UNION OF INDIA & OTHERS", "label": "RESPONDENT", "start_char": 16, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & OTHERS", "offset_not_found": false}}, {"text": "January 27, l'i76", "label": "DATE", "start_char": 41, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "GURBAKSH SINGH\n\nUNION OF INDIA & OTHERS\n\nJanuary 27, l'i76\n\n[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 61, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 81, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Sections 11", "label": "PROVISION", "start_char": 202, "end_char": 213, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 237, "end_char": 247, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 1", "label": "PROVISION", "start_char": 368, "end_char": 377, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 462, "end_char": 472, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20(3)", "label": "PROVISION", "start_char": 904, "end_char": 912, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11(2)", "label": "PROVISION", "start_char": 1337, "end_char": 1345, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20(3)", "label": "PROVISION", "start_char": 1686, "end_char": 1694, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20(2)", "label": "PROVISION", "start_char": 2305, "end_char": 2313, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 20(3)", "label": "PROVISION", "start_char": 2385, "end_char": 2393, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 11", "label": "PROVISION", "start_char": 2952, "end_char": 2957, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 4270, "end_char": 4274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 4704, "end_char": 4708, "source": "regex", "metadata": {"statute": null}}, {"text": "F. S. Nariman", "label": "PETITIONER", "start_char": 5317, "end_char": 5330, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0.", "canonical_name": "F. S. Nariman"}}, {"text": "Randhir Chawla", "label": "LAWYER", "start_char": 5332, "end_char": 5346, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0."}}, {"text": "G. C. Sharma", "label": "LAWYER", "start_char": 5348, "end_char": 5360, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0."}}, {"text": "A. K. Verma", "label": "LAWYER", "start_char": 5368, "end_char": 5379, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0."}}, {"text": "Talat Ansari", "label": "LAWYER", "start_char": 5381, "end_char": 5393, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 5395, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 5416, "end_char": 5428, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, Randhir Chawla, G. C. Sharma_, Mrs. A. K. Verma, Talat Ansari, Ravinder Narain, and 0."}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 5449, "end_char": 5461, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, R. N. Sachthey and Girish Chandra for the Respondents."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5463, "end_char": 5477, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, R. N. Sachthey and Girish Chandra for the Respondents."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 5482, "end_char": 5496, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, R. N. Sachthey and Girish Chandra for the Respondents."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 5563, "end_char": 5571, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nUNTWALIA, J. In these appeals by certificate the question for determination is whether the exercise of the power of revision under sub-section (3) of section 20 of the Bengal Finance (Sales Tax) Act,\n\n1941 as extended to the Union Territory of Delhi-hereinafter called the Act-is subject to the period of limitation provided in sub-section\n\n(2a) of section 11 or section llA of the said Act."}}, {"text": "section 20", "label": "PROVISION", "start_char": 5713, "end_char": 5723, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 5912, "end_char": 5922, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 7001, "end_char": 7014, "source": "regex", "metadata": {"statute": null}}, {"text": "September 24, 1960", "label": "DATE", "start_char": 7240, "end_char": 7258, "source": "ner", "metadata": {"in_sentence": "A fresh assessment for all the four quarters was accordingly made by the Sales Tax Officer on September 24, 1960."}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 7307, "end_char": 7323, "source": "ner", "metadata": {"in_sentence": "The appellant filed two writ petitions in the Delhi High Court challenging the order made in revision by the Commissioner and the fresh assessment order passed by the Sales Tax Officer in pursuance thereof."}}, {"text": "April 2, 1969", "label": "DATE", "start_char": 7543, "end_char": 7556, "source": "ner", "metadata": {"in_sentence": "A learned single Judge of the High Court allowed the writ applications on April 2, 1969 and quashed the impugned orders."}}, {"text": "F. S. Nariman", "label": "PETITIONER", "start_char": 7740, "end_char": 7753, "source": "ner", "metadata": {"in_sentence": "Hence these appeals by the assessees\n\nMr. F. S. Nariman appearing for the appellant contended :\n\n(1) That the appellate and the revisional authorities must\n\nexercise their appellate or revisional power within the.", "canonical_name": "F. S. Nariman"}}, {"text": "section 11", "label": "PROVISION", "start_char": 7959, "end_char": 7969, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 8110, "end_char": 8120, "source": "regex", "metadata": {"statute": null}}, {"text": "IA of the F Act", "label": "STATUTE", "start_char": 8592, "end_char": 8607, "source": "regex", "metadata": {}}, {"text": "sections 11", "label": "PROVISION", "start_char": 8766, "end_char": 8777, "source": "regex", "metadata": {"linked_statute_text": "IA of the F Act", "statute": "IA of the F Act"}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 8834, "end_char": 8847, "source": "regex", "metadata": {"linked_statute_text": "IA of the F Act", "statute": "IA of the F Act"}}, {"text": "section 3", "label": "PROVISION", "start_char": 9109, "end_char": 9118, "source": "regex", "metadata": {"linked_statute_text": "IA of the F Act", "statute": "IA of the F Act"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 9287, "end_char": 9297, "source": "regex", "metadata": {"linked_statute_text": "IA of the F Act", "statute": "IA of the F Act"}}, {"text": "section 11", "label": "PROVISION", "start_char": 9432, "end_char": 9442, "source": "regex", "metadata": {"linked_statute_text": "IA of the F Act", "statute": "IA of the F Act"}}, {"text": "section 2(a)", "label": "PROVISION", "start_char": 9738, "end_char": 9750, "source": "regex", "metadata": {"statute": null}}, {"text": "October 1, 1959", "label": "DATE", "start_char": 10060, "end_char": 10075, "source": "ner", "metadata": {"in_sentence": "October 1, 1959\n\nC by the Amending Act of 1959 and it reads as follows :\n\n\"Provided that where such assessment is made in consequence of or to give effect to any order of an appellate or -1 revisional authority or."}}, {"text": "section 11", "label": "PROVISION", "start_char": 10468, "end_char": 10478, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 11135, "end_char": 11145, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 11875, "end_char": 11885, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 11994, "end_char": 12004, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12335, "end_char": 12344, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 13113, "end_char": 13123, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi Sales Tax Rules, 1951", "label": "STATUTE", "start_char": 13345, "end_char": 13372, "source": "regex", "metadata": {}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 13665, "end_char": 13672, "source": "ner", "metadata": {"in_sentence": "Mr. Nariman very strongly relied upon the majority decision of this Court in The State of Orissa v. Debaki Debi and others (') and submitted that the power of revision exercised by.the Commissioners in this case beyond the period of four years prescribed in sub-section (2a) E of section 11 was illegal and ultra vireo'."}}, {"text": "section 11", "label": "PROVISION", "start_char": 13941, "end_char": 13951, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Sales Tax Rules, 1951", "statute": "the Delhi Sales Tax Rules, 1951"}}, {"text": "section 23", "label": "PROVISION", "start_char": 14146, "end_char": 14156, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Sales Tax Rules, 1951", "statute": "the Delhi Sales Tax Rules, 1951"}}, {"text": "section 12(7)", "label": "PROVISION", "start_char": 14351, "end_char": 14364, "source": "regex", "metadata": {"linked_statute_text": "the Delhi Sales Tax Rules, 1951", "statute": "the Delhi Sales Tax Rules, 1951"}}, {"text": "section 12( 6)", "label": "PROVISION", "start_char": 14510, "end_char": 14524, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(6)", "label": "PROVISION", "start_char": 14863, "end_char": 14876, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 14941, "end_char": 14951, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 15125, "end_char": 15134, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 15301, "end_char": 15311, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 15873, "end_char": 15883, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 16213, "end_char": 16223, "source": "regex", "metadata": {"statute": null}}, {"text": "Debaki Debi", "label": "OTHER_PERSON", "start_char": 17051, "end_char": 17062, "source": "ner", "metadata": {"in_sentence": "The ratio of the case in Debaki Debi's (supra) must be confined within its four corners and cannot be extended to the facts of the instant case."}}, {"text": "section 1", "label": "PROVISION", "start_char": 17749, "end_char": 17758, "source": "regex", "metadata": {"statute": null}}, {"text": "Punjab High Court, Delhi Bench", "label": "COURT", "start_char": 17980, "end_char": 18010, "source": "ner", "metadata": {"in_sentence": "Our attention was also drawn to the decision of a single Judge of the Punjab High Court, Delhi Bench, in Sir Sabha Singlz & Compwzy\n\nv. Conunissioner of Sales Tax, Delhi (!.!)"}}, {"text": "section 20( 4)", "label": "PROVISION", "start_char": 18221, "end_char": 18235, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 18289, "end_char": 18299, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11(2a)", "label": "PROVISION", "start_char": 18371, "end_char": 18385, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 18596, "end_char": 18606, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13(6)", "label": "PROVISION", "start_char": 19125, "end_char": 19138, "source": "regex", "metadata": {"statute": null}}, {"text": "Bihar Sales Tax Act, 1947", "label": "STATUTE", "start_char": 19146, "end_char": 19171, "source": "regex", "metadata": {}}, {"text": "Patna High Court", "label": "COURT", "start_char": 19232, "end_char": 19248, "source": "ner", "metadata": {"in_sentence": "But distinguishing the said decision another Bench of the Patna High Court held in Commissioner of Commercial Taxes, Bihar v. Ashoka Marketing Ltd. (') that the order of review passed by the Deputy Commissioner was not barred by time."}}, {"text": "section 11", "label": "PROVISION", "start_char": 19861, "end_char": 19871, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Sales Tax Act, 1947", "statute": "the Bihar Sales Tax Act, 1947"}}, {"text": "Swastik Oil Mills", "label": "ORG", "start_char": 20139, "end_char": 20156, "source": "ner", "metadata": {"in_sentence": "It was pointed out by this Court in Swastik Oil Mills' case (supra) that the Deputy Commissioner when seeking to exercise his revisional powers was not encroaching upon the powers reserved to other authorities."}}, {"text": "section 11", "label": "PROVISION", "start_char": 20932, "end_char": 20942, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 21181, "end_char": 21191, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_255_261_EN", "year": 1976, "text": "STATE OF MYSORE AND ANR.\n\nH. SRINIVASAMURTHY\n\nJanuary 29, 1976\n\n[R. S. S, ARKARIA AND S. MuRT•zA FAz-'-I~ Au, JJ.]\n\nConstuuuon of India-Articles 14 and I6-Pe11alty-Di.1crin1ination-Civil Service-Departing fronz Adnlinistratire Po/icy.\n\nThe respondent entered service of the State of 1lysore in 1935 as Instructor of Tailoring in the Department of Public Instruction. In 1949 he went on deputation in the Polytechnic In_stitute at Devangere.\n\nOne K. N. Chetty \\Vh? was far junior to respondent was also sc:tt on deputation to another similar institution in 1949.\n\nK. N. Chetty \\Vas absorbed from the date he went on deputa- C tion in the new post but respondent was not so absorbed.\n\nIn 1955, for no fault of the respondent, Government passed orders reverting him to his parent departn1ent. In 1956, respondent, was again posted on deputation. The interven~ ing pcri1)d beiwecn his reversion and re-posting Vi'as treated as leave.\n\nOn reorganisation of State respondent's services \\.Vere allotted to the new State of I\\<1yserc.\n\nThe respondent made several representations and stated that he was discrimir.:::iled against and treated differently from K. N. Chetty v; ho was junior to him in the parent dep:::irtment.\n\nThe Public Service Comn1ission found that respondent's case v.'as on all fours with tha1 of Chetty nn<l that he deserved simi- D lar trat1nent. The Commission follnd that the temporary reversion of the respondent io his parent department was not justified.\n\nThe Government in 1964 ordered the absorption of the respondent in the Department of Technical Education fron1 the date of the order subject to the conditions that he would not be entitled to the benefit of revision of scales of pay that had heen effected in 19:57 and 1961 and that he would not be given any more financial benefit or revision of pny or nddition inCremnt for his previou~ service.\n\nThe respondent filed a Writ Petition challenging these conditions and praying E for a dirction that he should be absorbed in the Department of Technical Education fron1 the date of his initial appointment in 1949, and granted consequential benefits of the revision of p<1y scales etc. The appellant opposed the \\Vrit Ptition on the grounds that the respondent had no legal right to be absorbed in the Department of Technica~ Education \\Vith effect frorn a particular anterior date or to be given the revised pay scales applicable to those borne permanently in the service of that department.\n\nChctty's case Was sought to be distin_guished on the _ground that he \\Vas absorbed in the year 1951 as against F the respondent's absorption in 1964 and that there \\1,:as a break in the service of the repondent.\n\nThe 1-:ligh Court allowed the Writ Petition and issued a direction that absorp tion of the respondent in the Department of Technical Education be given effect from 1949 when he initially assumed duty on deputation. The High Court aho declared that he would be entitled to <ill consequential benefits.\n\nThe appellant in an appeal by Special Leave relied on the judgment of this Hon'ble Court in the case of K. V. Raja!akshn>iah Setty v. State of Mysore [1967] G\n\n2 S.C.R. 70.\n\nDiss111issing the appeal,\n\nHELD : In he present case it appears that the State had evolved a principle pursuant to \\vh1ch all the employees who came on deputation from nther de~ partmci:its to the Polytechnic, exceptii:g the respondent, were absorbed permanently rn the Department of Technical Education with effect from 1he\n\nats on which they came on deputation. Even Chctty who was ndmittedlv 1un1or to the :esponden~ <ind was identically situated ~--as accorded the sam~\n\nteatment. It 1s an undisputed fact that 6 other employees who were similarly situated. were absorbed from the date on which they initially joined. duty after deputation to the Polytechnic.\n\n[259 A-C, 260 DJ\n\nA .\n\nThere was no justification whatever to depart from this principle of policy in the case of the respondent.\n\nHis reversion was not ordered owing to any fault on his part. The said reversion could not be treated as a break :in service since it was treated as leave, nor did it nmount to reduction in rank. [260 F-HJ The High Court was therefore, justified in granting the relief, it did to the respondent. 1261 Bl \"Rajalaksfvniah Setty \\·. State of lvfysore, [1967] 2 S.C.R. 70, ditinguished. ...\n\nB CIVIL APPELLATE JURISDICTION : Civil Appeal No. 722 of 1968.\n\nAppeal by Special Leave from the Judgment and Order dated the 17th July, 1967 of the Mysore High Court in Writ Petition No. 989 of 1965.\n\nNarayan Nettar and K. R. Nagaraja for the Appellant. c Mrs. Shyamla Papp11 and Vineet Kumar for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J .-The circumstances leading to this appeal, directed . 1 against a judgment of the High Court of Mysore, are as follows : ...,\n\nThe respondent herein entered the service of the Princely State of Mysore in 1935 as Instructor of Tailoring in the Department of Public Instructions.\n\nIn 1949, three Occupational Institutes (Polytechnics) at Hassan, Devangcre and Chintamani were started in the State.\n\nThe respondent was sent on deputation to serve in the Polytechnic at Devangere as Instructor in Tailoring and he joined the new post on November 28, 1949.\n\nOne Shri K. Narayanaswamy Chetty who was also an Instructor in Tailoring in the Department of Public Instruction was also deputed to the Occupational Institute at Hassan and joined duty there on December 1, 1949. This K. N. Chetty was far junior to the respondent in service. Special Officer-in-Charge of the three Occupational Institutes considered the names of the respondent and K. N. Chetty for absorption as Instructors in Tailoring and recommended for their absorption with effect from the respective dates of their joining duty, after deputation, in the Institutes. Accordingly K. N. Chetty was absorbed with effect from December 1, 1949, but no order was passed in the case of the respondent despite repeated representations made by the latter.\n\nIn 1953, the then State of Mysore set up the Department of Technical Education and the Polytechnic at Devangere became part of that Department.\n\nThe respondent continued to serve on deputation in that Department. In 1955, for no fault of the respondent, the Government passed orders reverting him to his parent Department. On June 11, 1956, the respondent was again posted on deputation as Instructor in Tailoring in the Polytechnic at Bellary \"on provisional basis\". The intervening period between his reversion and .reposting to the Polytechnic was treated as leave. On the re-orgamza!ion of States with effect from November l, 1956, his services were allotted to the new State of Mysore. The respondent continued to make representations to the effect that like other employees who were taken on deputation from other Departments, he should also be absorbed in the Department of Technical Education with effect from November .28, 1949, which was the date on which he initially came on deputat10n.\n\n...\n\nMYSORE v. H. SRIN!VASAMURTHY (Sarkaria, !.) 257\n\nHis specific grievance was that in any case, he could not be discriminated against and treated differently from K. N. Chetty who was junior to him in the parent Department and came on deputation to the Polytechnic establishment subsequently.\n\nThe State Government referred the respondent's case to the Public Service Commission who examined it and by a communication, dated Febrnary 2, 1960, made these recommendations in favour of the respondent;\n\n\"It is stated in the Government letter dated 26-10-1959 that the Director who was the Unit Officer for both the dcpartinents ordered the transfor of Sri Srinivasa Murthy who was fully qualified as Tailoring Instructor in the Technical Education Department and there was no need to classify the vacancy post to which he was transferred under the then existing rules.\n\nAlong with him Sri K.\n\nNarayanaswamy Chetty who was his junior and possessing similar qualifications was transferred as Tailoring Instructor in the Technical Education Department and was absorbed in the same department by Government in consultation with the Public Service Commission. The case of Sri Srinivas.amurthy is on all fours with that of Sri Narayanaswamy Chetty and he is deserving of similar treatment.\n\nIn view of the above, and since Sri Srinivasa Murthy, who was fully qualified was transferred in 1949 by the Director and appointed as Tailoring Instructor under the rules then in force, and as his reversion at this distance of time for no fault of his would cause a great hardship to him, the Commission\n\nare of the opinion that he may be absorbed as Tailoring In- E structor from the date of his appointment as such as has been ordered in the case of Sri K. Narayanaswamy Chetty.\"\n\nIn the opinion of the Commission, the temporary reversion of the respondent to his parent department in 1955-56, was not justified.\n\nUltimately. the Government by order, dated February 19, 1964, ordered the absorption of the respondent in the Department of Tech- F nical Education in the grade of Rs. 150-250 with effect from the date of the order, in the vacancy in which he was working, subject to these conditions.\n\n(a) that he would not be entitled to the benefit of revision of scales of pay that had been effected in 1957 & 1961 by way of increments or weightage benefit G accruing thereunder;\n\n(b) that he would not be given any more financial benefit or revision of pay or additional increments for his previous service.\n\nAgainst this order the respondent made representations to the Government praying that his absorption should be related back to H _1949 a_nd he be given the benefit of the revisions of pay scale, includ- . rng: weightagc benefit.\n\nThe Government did not accept the representation.\n\nOn April 21, 1965, the respondent filed a writ petition under Article 226 of the Constitution in the High Court, for the issue of a writ of mandamus directing his absorption in the Department of Technical Education from the date of his initial appointment therein, namely.\n\nNovember 28, 1949, and to give him benefits of the revisions cf pay scales effected in 1957 and 1961 and wcightage benefits thereunder.\n\nThe order dated February 19, 1964, was impugned on the ground that he had been in, \"\"m1sly discriminated against in the matter of absorption and appointment, while his junior K. Narayanaswamy Chetty, whose case was identical in all respects, and six other officers whc were similarly situated, were absorbed in the Department of Tee 'rnical Edncation with effect from the, initial date of joining duty on deputation. It was contended, that in making the impugned order, co1trary to the recommendations of the State Public Service Commission, the State Government had acted arbitrarily and in violation of Artie. es 14 and 16 of the Constitution.\n\nThe petition was opposed by the appellant, who in its co, rnteraffidavit. contended that the respondent had no legal right to tc absorbed in the service of the Department of Technical Education from a particular anterior date, or to be given the revised pay scales applicable to those borne permanently in the service of that Depar :ment.\n\nIt was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chctty becaus': the order of Chetty's absorption was passed in 1951 and that of te respondent's absorption in 1964, and there was a break in the serl'icc of the respondent in the Department of Technical Education, in 19:i5-56.\n\nIt was stated that the absorption of the employees which came on deputation from a particulaor date, was a concession which could not be claimed as of right, and consequently, a writ of mandamus, as prayed for by the respondent, should not be issned.\n\nThe High Court allowed the writ petition and issued a direction that the absorption of the respondent in the Department of Te<hnical Education, be given effect from November 28, 1949 when he initially resumed duty on deputation to the Polytechnic at Dcvangerc.\n\nThe High Court further declared that he will be entitled to all consequential benefits from such abosrption including the be)lefit of revision of pay scales in the years 1957 and 1961 and also weightage benefits.\n\nHence this appeal by the State.\n\nMr. Nettar appearing for the appellant contends that this ,; ase is fully covered by this Court's decision in K. V. Rajalakshmiah Setty\n\nand anr. v. State of Mysore and anr. ('). The point canvassed by the Counsel is, that the absorption of K. N. Chctty and five other;, with effect from particular anterior dates, was not made in pursuance of any principle of policy or statutory rule, but was done as a matter of concession. It is urged that Articles 14 and 16 of the Constitution cannot be invoked to enforce a mere concession. Counsel has further made an attempt to show that the respondent and K. N. Chctty were not similarly situated because there was a break in the respondent's service with the Department of Technical Education.\n\n\n....\n\nMYSORE v. H. SRINIVASAMURTHY (Sarkana, J.) 259\n\nAs against this, Mrs. Shyamla Pappu submits that in Rajalaksh- A miah Setty's case (supra), the facts were entirely different. It is emphasised that in the present case, seven employees had come on deputation from other Departments to the Polytechnics and _all of them, excepting the respondent, were absorbed permanently in the Department of Technical Education with effect from the dates on which they came on deputation.\n\nEven Narayanaswamy Chetty, who was admittedly junior to the respondent, and was identically situated, was B accorded the same treatment. It is urged that this principle of policy was ignored in the case of the respondent, and he was without reason, singled out for unfair discriminatory treatment. It is pointed out that his so-called \"reversion\" to the parent Department in 1955 for a short period, was a misnomer. It was not a reduction in rank, nor a break in the continuity of his service. Moreover, it was, as the Public Service Commission found, undeserved and could not, by any stretch of C reasoning, be considered a ground for meting out discriminatory treatment to the respondent. ·\n\nWe find a good deal of force in the arguments of the learned Counsel for the respondent.\n\nRajalakshmiah Setty v. State of Mysore (supra) is clearly distin- D guishable from the facts of the present case. In that case, the Government of the then State of Mysore, by a notification dated December 12, 1949, directed that the promotions of 63 petitioners therein, from the post of Surveyors as Assistant Engineers were to take effect from that date irrespective of the dates on which they were put in charge of sub-divisions.\n\nBut by a notification dated May 17, 1950, the Government showed a concession to a different batch of 4 I Sur- E vcyors, who had been placed in charge of different sub-divMons between March 1944 and January 1946, by promoting them as Assistant Engineers, with effect from the dates of occurrence of vacancies, according to seniority.\n\nIn November 1958, another batch of 107 persons were similarly promoted as Assistant Engineers with retrospective effect from !st November 1956, when the new State of Mysore emerged under the States Reorganization Act. The petitioners F therein filed a writ petition praying for the issue of mandamus directing the State to fix their seniority, also, on the basis that they had become Assistant Engineers from the dates on which the vacancies to which they had been posted had occurred.\n\nThe High Court dismissed the petition.\n\nOn appeal, this Court held that the concession shown to the batch of 41 persons who had G been appointed before the petitioners and to the batch of 107 persons who had been appointed thereafter, were mere ad hoc concessions and not SOil)ething which they could claim as of right. It was observed that there was no service rule which the State Government had transgressed, nor the State had evolved any principle to be followed in respect of persons who were promoted to the rank of Assistant Engineers from surveyors.\n\nIt may be noted that the grant of the relief prayed for by the 63 petitioners, would have unsettled and caused wholesale alterations of\n\nthe seniority list with regard to the entire cadre of Engineers thus affecting persons who were not before the Court and who would have been condemned unheard.\n\nFurther, acceptance of the petitioners' contentions would have unsettled pre-Constitution matters, and it would have been directly productive of results going against s. 115(7) of the States Re-organization Act. Furthermore, the petitioners in that case claimed to be promoted with effect from past dates.\n\nThere was no principle of policy or service rul_e on the basis of which they could claim such promotions as of right.\n\nLastly, the petitioners in that case were found guilty of serious ]aches.\n\nSuch impediments in the way of the relief claimed by the respondent, do not exist in the present case. It appears to us that the acceptance of the respondent's contentions in the present case cannot lead to any untoward results such as were apprehended. in Rajalakshmiah's case (supra). Indeed, it has not been shown that the absorption of the respondent with effect from November, 1949, would ad, versely affect even Narayanaswamy Chetty, who was admittedly junior to him in the parent Department.\n\nOn the other hand, it is an undisputed fact that six other employees, who were similarly situated, were absorbed from the dates on which they initially joined duty, after deputation to the Polytechnics. It is not the case of the appellant that this principle whereby the absorption in the Department of Technical Education was related back to the date on which a person initially came on deputation, was ever departed from, excepting in the case of the respondent. This being the case, the High Court was right in holding that the State Government had evolved a principle \"that if a person was deputed to the Department of Technical Education from another department and he stayed on in that other department for a reasonable long time his absorption in that department should be made to relate back to the date on which he was initially sent\". There was no justification whatever to depart from this principle of policy in the case of the respondent, who was, in all material respects, in the same situation as K. N. Chctty. Very rightly, the High Court has held that his \"impermissible reversion\" for a short while in 1955 to the parent department was no ground to hold that he was not similarly situated as K. Narayanaswamy Chetty. This so-called reversion to the parent Department for a short period in 1955-56, could not by any reckoning, be treated as a break in his service, this period having been treated as leave. Nor did it amount to reduction in rank. In any case, this 'reversion' was not ordered owing to any fault of the respondent. It is not the appellant's case th.at the responderrt's work in the Department of Technical Education\n\n. .,\n\nj '\n\nMYSORE v. H. SRINIVASAMURTHY (Sarkaria, J.) 261\n\nwas found unsatisfactory or that he was not otherwise suitable or quali- A fied to hold the post of Tailoring Instructor in that Department.\n\nThat he was suitable to be absorbed in that post, is manifest from the recommendation of the Public Service Commission and is implicit in the impugned order, itself.\n\nFor the reasons aforesaid, we are of opinion that in the special circumstances of this case, the High Court was fully justified in granting B the relief, it did, to the respondent.\n\nThe appeal fails and is dismissed with costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "STATE OF MYSORE AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE AND ANR", "offset_not_found": false}}, {"text": "H. SRINIVASAMURTHY", "label": "RESPONDENT", "start_char": 26, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "H. SRINIVASAMURTHY", "offset_not_found": false}}, {"text": "January 29, 1976", "label": "DATE", "start_char": 46, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "H. SRINIVASAMURTHY\n\nJanuary 29, 1976\n\n[R. S. S, ARKARIA AND S. MuRT•zA FAz-'-I~ Au, JJ.]"}}, {"text": "Articles 14", "label": "PROVISION", "start_char": 136, "end_char": 147, "source": "regex", "metadata": {"statute": null}}, {"text": "K. N. Chetty", "label": "OTHER_PERSON", "start_char": 446, "end_char": 458, "source": "ner", "metadata": {"in_sentence": "One K. N. Chetty \\Vh?", "canonical_name": "K. N. Chetty"}}, {"text": "Chctty", "label": "OTHER_PERSON", "start_char": 2467, "end_char": 2473, "source": "ner", "metadata": {"in_sentence": "Chctty's case Was sought to be distinguished on the ground that he \\Vas absorbed in the year 1951 as against F the respondent's absorption in 1964 and that there \\1,:as a break in the service of the repondent.", "canonical_name": "Chctty"}}, {"text": "[1967] 2 S.C.R. 70", "label": "CASE_CITATION", "start_char": 4301, "end_char": 4319, "source": "regex", "metadata": {}}, {"text": "Narayan Nettar", "label": "LAWYER", "start_char": 4542, "end_char": 4556, "source": "ner", "metadata": {"in_sentence": "Narayan Nettar and K. R. Nagaraja for the Appellant."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 4561, "end_char": 4575, "source": "ner", "metadata": {"in_sentence": "Narayan Nettar and K. R. Nagaraja for the Appellant."}}, {"text": "Shyamla Papp11", "label": "LAWYER", "start_char": 4602, "end_char": 4616, "source": "ner", "metadata": {"in_sentence": "c Mrs. Shyamla Papp11 and Vineet Kumar for the Respondent.", "canonical_name": "Shyamla Papp11"}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 4621, "end_char": 4633, "source": "ner", "metadata": {"in_sentence": "c Mrs. Shyamla Papp11 and Vineet Kumar for the Respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 4699, "end_char": 4707, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J .-The circumstances leading to this appeal, directed ."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 4794, "end_char": 4814, "source": "ner", "metadata": {"in_sentence": "1 against a judgment of the High Court of Mysore, are as follows : ...,\n\nThe respondent herein entered the service of the Princely State of Mysore in 1935 as Instructor of Tailoring in the Department of Public Instructions."}}, {"text": "Hassan", "label": "GPE", "start_char": 5048, "end_char": 5054, "source": "ner", "metadata": {"in_sentence": "In 1949, three Occupational Institutes (Polytechnics) at Hassan, Devangcre and Chintamani were started in the State."}}, {"text": "Devangcre", "label": "GPE", "start_char": 5056, "end_char": 5065, "source": "ner", "metadata": {"in_sentence": "In 1949, three Occupational Institutes (Polytechnics) at Hassan, Devangcre and Chintamani were started in the State."}}, {"text": "Chintamani", "label": "GPE", "start_char": 5070, "end_char": 5080, "source": "ner", "metadata": {"in_sentence": "In 1949, three Occupational Institutes (Polytechnics) at Hassan, Devangcre and Chintamani were started in the State."}}, {"text": "Devangere", "label": "GPE", "start_char": 5178, "end_char": 5187, "source": "ner", "metadata": {"in_sentence": "The respondent was sent on deputation to serve in the Polytechnic at Devangere as Instructor in Tailoring and he joined the new post on November 28, 1949."}}, {"text": "November 28, 1949", "label": "DATE", "start_char": 5245, "end_char": 5262, "source": "ner", "metadata": {"in_sentence": "The respondent was sent on deputation to serve in the Polytechnic at Devangere as Instructor in Tailoring and he joined the new post on November 28, 1949."}}, {"text": "K. Narayanaswamy Chetty", "label": "OTHER_PERSON", "start_char": 5274, "end_char": 5297, "source": "ner", "metadata": {"in_sentence": "One Shri K. Narayanaswamy Chetty who was also an Instructor in Tailoring in the Department of Public Instruction was also deputed to the Occupational Institute at Hassan and joined duty there on December 1, 1949.", "canonical_name": "K.\n\nNarayanaswamy Chetty"}}, {"text": "December 1, 1949", "label": "DATE", "start_char": 5460, "end_char": 5476, "source": "ner", "metadata": {"in_sentence": "One Shri K. Narayanaswamy Chetty who was also an Instructor in Tailoring in the Department of Public Instruction was also deputed to the Occupational Institute at Hassan and joined duty there on December 1, 1949."}}, {"text": "State of Mysore", "label": "ORG", "start_char": 6037, "end_char": 6052, "source": "ner", "metadata": {"in_sentence": "In 1953, the then State of Mysore set up the Department of Technical Education and the Polytechnic at Devangere became part of that Department."}}, {"text": "June 11, 1956", "label": "DATE", "start_char": 6345, "end_char": 6358, "source": "ner", "metadata": {"in_sentence": "On June 11, 1956, the respondent was again posted on deputation as Instructor in Tailoring in the Polytechnic at Bellary \"on provisional basis\"."}}, {"text": "Bellary", "label": "GPE", "start_char": 6455, "end_char": 6462, "source": "ner", "metadata": {"in_sentence": "On June 11, 1956, the respondent was again posted on deputation as Instructor in Tailoring in the Polytechnic at Bellary \"on provisional basis\"."}}, {"text": "November l, 1956", "label": "DATE", "start_char": 6637, "end_char": 6653, "source": "ner", "metadata": {"in_sentence": "On the re-orgamza!ion of States with effect from November l, 1956, his services were allotted to the new State of Mysore."}}, {"text": "Mysore", "label": "GPE", "start_char": 6702, "end_char": 6708, "source": "ner", "metadata": {"in_sentence": "On the re-orgamza!ion of States with effect from November l, 1956, his services were allotted to the new State of Mysore."}}, {"text": "November .28, 1949", "label": "DATE", "start_char": 6937, "end_char": 6955, "source": "ner", "metadata": {"in_sentence": "The respondent continued to make representations to the effect that like other employees who were taken on deputation from other Departments, he should also be absorbed in the Department of Technical Education with effect from November .28, 1949, which was the date on which he initially came on deputat10n."}}, {"text": "26-10-1959", "label": "DATE", "start_char": 7567, "end_char": 7577, "source": "ner", "metadata": {"in_sentence": "The State Government referred the respondent's case to the Public Service Commission who examined it and by a communication, dated Febrnary 2, 1960, made these recommendations in favour of the respondent;\n\n\"It is stated in the Government letter dated 26-10-1959 that the Director who was the Unit Officer for both the dcpartinents ordered the transfor of Sri Srinivasa Murthy who was fully qualified as Tailoring Instructor in the Technical Education Department and there was no need to classify the vacancy post to which he was transferred under the then existing rules."}}, {"text": "Srinivasa Murthy", "label": "OTHER_PERSON", "start_char": 7675, "end_char": 7691, "source": "ner", "metadata": {"in_sentence": "The State Government referred the respondent's case to the Public Service Commission who examined it and by a communication, dated Febrnary 2, 1960, made these recommendations in favour of the respondent;\n\n\"It is stated in the Government letter dated 26-10-1959 that the Director who was the Unit Officer for both the dcpartinents ordered the transfor of Sri Srinivasa Murthy who was fully qualified as Tailoring Instructor in the Technical Education Department and there was no need to classify the vacancy post to which he was transferred under the then existing rules.", "canonical_name": "Srinivasa Murthy"}}, {"text": "K.\n\nNarayanaswamy Chetty", "label": "OTHER_PERSON", "start_char": 7908, "end_char": 7932, "source": "ner", "metadata": {"in_sentence": "Along with him Sri K.\n\nNarayanaswamy Chetty who was his junior and possessing similar qualifications was transferred as Tailoring Instructor in the Technical Education Department and was absorbed in the same department by Government in consultation with the Public Service Commission.", "canonical_name": "K.\n\nNarayanaswamy Chetty"}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 8147, "end_char": 8172, "source": "ner", "metadata": {"in_sentence": "Along with him Sri K.\n\nNarayanaswamy Chetty who was his junior and possessing similar qualifications was transferred as Tailoring Instructor in the Technical Education Department and was absorbed in the same department by Government in consultation with the Public Service Commission."}}, {"text": "Srinivas.amurthy", "label": "OTHER_PERSON", "start_char": 8190, "end_char": 8206, "source": "ner", "metadata": {"in_sentence": "The case of Sri Srinivas.amurthy is on all fours with that of Sri Narayanaswamy Chetty and he is deserving of similar treatment.", "canonical_name": "Srinivasa Murthy"}}, {"text": "Narayanaswamy Chetty", "label": "OTHER_PERSON", "start_char": 8240, "end_char": 8260, "source": "ner", "metadata": {"in_sentence": "The case of Sri Srinivas.amurthy is on all fours with that of Sri Narayanaswamy Chetty and he is deserving of similar treatment.", "canonical_name": "K.\n\nNarayanaswamy Chetty"}}, {"text": "February 19, 1964", "label": "DATE", "start_char": 8964, "end_char": 8981, "source": "ner", "metadata": {"in_sentence": "the Government by order, dated February 19, 1964, ordered the absorption of the respondent in the Department of Tech- F nical Education in the grade of Rs."}}, {"text": "April 21, 1965", "label": "DATE", "start_char": 9802, "end_char": 9816, "source": "ner", "metadata": {"in_sentence": "On April 21, 1965, the respondent filed a writ petition under Article 226 of the Constitution in the High Court, for the issue of a writ of mandamus directing his absorption in the Department of Technical Education from the date of his initial appointment therein, namely."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 9861, "end_char": 9872, "source": "regex", "metadata": {"statute": null}}, {"text": "Narayanaswamy Chctty", "label": "OTHER_PERSON", "start_char": 11299, "end_char": 11319, "source": "ner", "metadata": {"in_sentence": "It was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chctty becaus': the order of Chetty's absorption was passed in 1951 and that of te respondent's absorption in 1964, and there was a break in the serl'icc of the respondent in the Department of Technical Education, in 19:i5-56.", "canonical_name": "K.\n\nNarayanaswamy Chetty"}}, {"text": "Chetty", "label": "OTHER_PERSON", "start_char": 11342, "end_char": 11348, "source": "ner", "metadata": {"in_sentence": "It was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chctty becaus': the order of Chetty's absorption was passed in 1951 and that of te respondent's absorption in 1964, and there was a break in the serl'icc of the respondent in the Department of Technical Education, in 19:i5-56.", "canonical_name": "Chctty"}}, {"text": "19:i5-56", "label": "DATE", "start_char": 11530, "end_char": 11538, "source": "ner", "metadata": {"in_sentence": "It was further contended that the case of the respondent did not stand on the same footing as that of Narayanaswamy Chctty becaus': the order of Chetty's absorption was passed in 1951 and that of te respondent's absorption in 1964, and there was a break in the serl'icc of the respondent in the Department of Technical Education, in 19:i5-56."}}, {"text": "Dcvangerc", "label": "GPE", "start_char": 12043, "end_char": 12052, "source": "ner", "metadata": {"in_sentence": "The High Court allowed the writ petition and issued a direction that the absorption of the respondent in the Department of Te<hnical Education, be given effect from November 28, 1949 when he initially resumed duty on deputation to the Polytechnic at Dcvangerc."}}, {"text": "Nettar", "label": "OTHER_PERSON", "start_char": 12306, "end_char": 12312, "source": "ner", "metadata": {"in_sentence": "Mr. Nettar appearing for the appellant contends that this ,; ase is fully covered by this Court's decision in K. V. Rajalakshmiah Setty\n\nand anr."}}, {"text": "K. N. Chctty", "label": "OTHER_PERSON", "start_char": 12543, "end_char": 12555, "source": "ner", "metadata": {"in_sentence": "The point canvassed by the Counsel is, that the absorption of K. N. Chctty and five other;, with effect from particular anterior dates, was not made in pursuance of any principle of policy or statutory rule, but was done as a matter of concession.", "canonical_name": "K. N. Chetty"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 12746, "end_char": 12764, "source": "regex", "metadata": {"statute": null}}, {"text": "Department of Technical Education", "label": "ORG", "start_char": 13005, "end_char": 13038, "source": "ner", "metadata": {"in_sentence": "Counsel has further made an attempt to show that the respondent and K. N. Chctty were not similarly situated because there was a break in the respondent's service with the Department of Technical Education."}}, {"text": "Shyamla Pappu", "label": "LAWYER", "start_char": 13118, "end_char": 13131, "source": "ner", "metadata": {"in_sentence": "....\n\nMYSORE v. H. SRINIVASAMURTHY (Sarkana, J.) 259\n\nAs against this, Mrs. Shyamla Pappu submits that in Rajalaksh- A miah Setty's case (supra), the facts were entirely different.", "canonical_name": "Shyamla Papp11"}}, {"text": "Rajalaksh- A miah Setty", "label": "OTHER_PERSON", "start_char": 13148, "end_char": 13171, "source": "ner", "metadata": {"in_sentence": "....\n\nMYSORE v. H. SRINIVASAMURTHY (Sarkana, J.) 259\n\nAs against this, Mrs. Shyamla Pappu submits that in Rajalaksh- A miah Setty's case (supra), the facts were entirely different."}}, {"text": "Government of the then State of Mysore", "label": "RESPONDENT", "start_char": 14437, "end_char": 14475, "source": "ner", "metadata": {"in_sentence": "In that case, the Government of the then State of Mysore, by a notification dated December 12, 1949, directed that the promotions of 63 petitioners therein, from the post of Surveyors as Assistant Engineers were to take effect from that date irrespective of the dates on which they were put in charge of sub-divisions."}}, {"text": "May 17, 1950", "label": "DATE", "start_char": 14767, "end_char": 14779, "source": "ner", "metadata": {"in_sentence": "But by a notification dated May 17, 1950, the Government showed a concession to a different batch of 4 I Sur- E vcyors, who had been placed in charge of different sub-divMons between March 1944 and January 1946, by promoting them as Assistant Engineers, with effect from the dates of occurrence of vacancies, according to seniority."}}, {"text": "State of Mysore emerged under the States Reorganization Act", "label": "STATUTE", "start_char": 15230, "end_char": 15289, "source": "regex", "metadata": {}}, {"text": "s. 115(7)", "label": "PROVISION", "start_char": 16584, "end_char": 16593, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajalakshmiah", "label": "OTHER_PERSON", "start_char": 17175, "end_char": 17188, "source": "ner", "metadata": {"in_sentence": "in Rajalakshmiah's case (supra)."}}]}
{"document_id": "1976_3_262_275_EN", "year": 1976, "text": "RAM JIVAN v.\n\nSMT. PHOOLA (DEAD) BY LRS. & ORS.\n\nJanuary 30, 1976\n\n[R. S. SARKARIA, S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J\n\nU.P. Zamindari Abolition & Land Refornis Act, 1950-Sections 172 and 174-Scope of.\n\nPractice-Whether decision of a Division Bench in an ap{Jt'al binding on another Division Bench hearing a writ petition.\n\nUnder s. 172 of the U.P. Zamindari Abolition and Land Reforms Ac1:, i950, when a bhu1nidar who has, after the date of vesting, inherited an interest in any holding, dies, the holding or the part thereof shall devolve upon the nearest surviving heir (such heir being ascertained in accordance \\vith the proviions of s. 171). Section 174 provides that \\Vhen a bhumidar who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given in the section.\n\nThe appellant was the grandson (son's son) of one brother while respond ent No. l \\Vas the only daughter of another brother.\n\nOn the death of the respondent's father, her mother continued in possession of the lands as heir of her husband under the provisions of the Oudh Land Act, 1886.\n\nU.P. Act 4 of 1921 which replaced the 1886 Act, conferred the status of a statutory tenant upon a person in possession of lands on the date of the amend ment. Section 29 of the U.P. Tenancy Act, 1939, which was a consolidating Act, conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act and so the mother acquired the status of a hereditary tenant. The 1939 Act was replaced by the U.P. Zan1indari Abolition & Land Reforms Act. 1950 under which she became :i bhun1idar.\n\nThe mother died in 1952.\n\nOn the death of the respondent's' mother the appellant got his name rnutated in the revenue records as the nearest heir of the mother. The respondent filed a suit under s. 21 of the Abolition Act 1950 claiming to be the sole legal heir to the property. She also filed an application before the Consolidation Officer under the U .P. Consolidation of Holdings Act for mutation of her name in place of the appellant's, which was accepted.\n\nOn appeal to this Court it was contended that it was the appellant'-) father who would succeed to the property in preference to the respondent and it \\Vas contended for the respondent that \\vhen the respondent's father died, the tenancy was heritable and so the tenancy acquired by her mother \\Vas in her own right as selfacquired property.\n\nA.llowing the appeal, HELD: (1) Section 172A \\vhich was introduced in 1954 ha\" no application to this case because the mother died two years bCfore the amendment came into force and the question of succession to her estate v, rould be govern ed by s. 172 or s. 174 of the Abolition Act.\n\n[274-A]\n\nr ..\n\n(2) The statute seeks to make a clear cut distinction betv,:een a widow who -\" has inherited an interest from her husband dealt with in s. 172 and fl wido\\V .. who had acquired an independent interest in the holding covered by s. 174.\n\n[272 CJ\n\nMst. Jaini & Ors. v. Ram Prasad, A.I.R. 1952 AIL 852, approved. (3)(a) Section 172 uses the word 'holding or the part shall devolve' to denote that if it was found that a widow had inherited an interest in the holding from her husband then it was the holding that devolved and not interest of the widow, \\Vhich ceased after her death. The High Court had overlooked the fact that merely because the mother having initially inherited possession or\n\noccupation of the holding from her husband acqu!red other types of inter:est by operation of law that could not destroy the 0~1g1n or the source of her tttle which was inheritance from her husband. Nor did the conferme_nt of the status of a statutory tenant under the various laWs passed_ by the legislature amount to an acquisition of a self-acquired interest by the widow. [272B, D]\n\n(b) The \\vords \"inherited an interest\" occurring in s. 172 are. not deed in the statute and, therefore, they must be deemed to be of the widest possible amplitude. [272FJ\n\n(4) Section 174 applies only to such cases where the widow did not inherit an interest from her husband but had an independent interest in the holding which she possessed as her self-acquired property.\n\nUnder s. 174 it is the interest in any holding which devolves and not the holding. The language used in Ss. 172 and 174 of the Abolition Act unmistakably brings forth the distinction between the two contingencies in which the two sections are to apply.\n\n[273E-F]\n\n(5) The Higfi Court having found as a fact that the mother had inherited C the property initially from her husband erred in law in not applying the provisions of s. 172 read with s. 171 of the Abolition Act as a result of which her husband's brother's son was entitled to succeed to the estate left by her in preference to her daughter (respondent). [271H]\n\n(6) The origin of the title of the mother lay in inheritance of the estate of her husband however limited or precarious it might have been. The succession to the estate of the mother \\vould have to be governed by the provisions of s. 172 of the Abolition Act. In the order of succession given in s. 171 D brother's son \\Vas a preferential heir.\n\nBefore the amendment of the Abolition Act in 1954, married daughter was completely excluded from inheritance. [274G-Hl\n\nJn the instant case the resIJondent having married on the death of her mother in 1952 the holding held by the mother would devolve on the appellant's father and thereafter, on the appellant as heir to his father.\n\n(7) The expressions 'heir of a tenant' and 'shall be entitled to retain occupation' occurring in s. 48 of the Rent Act 1886 before its amendment in E 1921 dearly postulate that the right to retain the occupation of the lands in dispute was given to the heirs of the deceased tenant, which clearly indicated that the person v.rho retained occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act. [273A]\n\nIn the instant case on the death of her husband occupation of the tenancy by the mother was by no way other than as heir of her husband. It cannot be said that the occupation of the lands by the mother on her husband's death was purely in her individual or independent capacity or that her p<>ssession of F the lands amounted to her self-acquired property. [273D-EJ\n\n. (8) hether a ec!sioJ?- i~ given in appeal from an original suit or in a wnt pet1t1on the !at10 _r~ ?t?drng on te subsequent Division Bench and merely because .te. previous D1v1s1on Bench Judgment was given in a suit the subsequent D1~1s1on Bench cannot refuse to follo\\v the same on the ground that it\n\n\\\\'as eanng the proceedings , in writ petition. The rule of judicial precedent ,1s a sl~1ary one and is aimed at achieving finaJ!ty of judgments.\n\ncas~ . the D1v1s1011: .B.ench under appeal wanted to differ from the previous\n\ndecision of the D1v1s1on Bench of the same court it ought to have referred the matter to a large bench.\n\n[271F-GJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 901 of 1968.\n\nAppeal by special leave from the judgment and order dated the 5-10-1966 of the High Court of Judicature at Allahabad in Special Appeal No. 97 of 1965.\n\nJ. P. Goyal and A. G. Ratnaparkhi for the Appellant.\n\nG. N. Dikshit and M. V. Goswami for Respondents.\n\nThe Judgment of the Court was delivered by\n\nFAzAL A:L~. J. This is an appeal by special leave against the judgment of a D1V1s10n Bench of the High Court of Allahabad dated Octoller 5, 1966, and raises a question of law regarding the applicability of ss. 172 and 174 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act No. 1 of 1951).\n\nIt appears that the case had a chequered career and the dispute between the parties passed through several phases both before the Revenue Courts and in the High Court. In order to appreciate the pomt of Jaw involved in this appeal, it may be necessary to give a resume of the facts which culminated in the judgment of the High Court under appeal. The dispute refers to lands comprised in Khata Nos. 1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U.P.).\n\nIt is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin.\n\nRamcharan appears to have died issueless but Ramadhin died leaving a widow Smt. Menda and a daughter from her Smt. Phoola who was respondent No. 1.\n\nThe other son Gurdin died leaving a son Jit who had contested the present proceedings against Smt. Phoola.\n\nDuring the pendency of the present proceedings Jit also died and the proceedings have been continued by his son Ram Jivan @ Lallu. The District of Rae Bareli fell in what was previously known as the Oudh Area of the United Provinces.\n\nThe dispute between the parties appears to have arisen on the death of Ramadhin one of the sons of Harbans who died in 1916 leaving behind his widow Smt. Menda.\n\nAt the time of the death of Ramadhin in 1916 the tenancy of the lands in dispute was governed by the provisions of the Oudh Rent Act, 1886-hereinaftcr referred to as 'the Rent Act of 1886'. Under the provisions of the Rent Act of 1886 Smt.\n\nMenda was to continue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was not entitled to renewal of the same.\n\nThe terms and conditions of the tenancy at the time of the death of Ramadhin were governed by s.48 of the Rent Act of 1886 which applied to the Oudh Area where the lands in dispute were situate. Under s.48 of the Rent Act of 1886 it is obvious that on the death of a tenant his widow was to continue in occupation of the lands for the unexpired portion of the period for which the deceased tenant might have held the holding. Accordingly Smt. Menda continued to occupy the lands after the death of her husband in 1916.\n\nMeanwhile five years later the Rent Act of 1886 was amended by U.P.\n\nAct 4 of 1921 under which the statns of a statutory tenant was conferred on a person who was in possession of the lands o~ the date when the amendment came into force.\n\nThe amendment mtroduced a substantial change in s.48 of the Rent Act of 1886 and added clause\n\n(18) to s.3 which runs thus :\n\n\"(18) \"Statutory tenant\" means a tenant to whom sec· tion 36 or section 37 applies.\n\nExplanation.-A person who succeeds as an heir of a statutory tenant under section 48 shall not be deemed to be\n\na statutory tenant unless he has obtained a patta from the landlord or has remained in occupation of the holding for three years after the expiration of the period for which he is entitled to retain occupation of the holding under section 48:\n\n\"Provided that when a holding is held by two or more co-tenants no person who succeeds as an heir of any such cotenant under section 48 shall be deemed to be a statutory tenant of the holding unless he has obtained a patta from the landlord, or has remained in occupation of the holding for three years after the expiration of the period for which the heir of the last surviving co-tenant is entitled to retain occupation of the holding under section 48.\"\n\nBy virtue of the Explanation extracted above, a tenant to whom ss. 36 and 37 applied would be deemed to be a statutory tenant. Section 36 of the Rent Act of 1886 runs thus :\n\n\"Every tenant, not being a tenant with a right of occupancy or a sub-tenant, shall be entitled to retain possession\n\nof the holding occupied by him at the commencement of the D Oudh Rent (Amendment) Act, 1921, at the rent then payable by him, for a period of ten years from the date of the last change in his rent or the last alteration in the area of the holding, or where no such change or alteration has taken place, from the date on which the tenant was admitted to the occupation of the holding.\"\n\nAs Smt. Menda was in possession of the holding at the date when the amendment came into force. she would be clearly governed by s. 36 and not s. 37 of the Rent Act of 1886 which deals with tenants who were admitted to the occupation of the holding after the coming into force of the amendment.\n\nUnder s. 36 the widow was entitled to retain possession of the holding acquired by her for a period of ten years from the date on which she was admitted to the occupation of the holding.\n\nThu_s the combined effect of s. 3 (I 8) and s. 36 of the Rent Act of 1886 would be to clothe Smt. Menda with the status and the rights of a statutory tenant. Section 48 made the status of a statutory tenant heritable and provided as follows :\n\n\" ( 1) When a statutory tenant dies, bis heir shall be entitled to retain occupation of the holding at the rent payable by the deceased for a period of five years from the date of the tenant's death, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by his predecessor in interest, but shall not be entitled to a renewal of the tenancy.\n\nProvided that a person who succeeds as an heir of a deceased tenant to whom clause ( e) of sub-section (1) of section 62A applies shall be entitled to retain occupation of the holding at the rent payable by the deceased only for\n\nA the unexpired portion of the statutory period of the deceased tenant.\n\n(2) Subject to any rights which he may have under section 22 as a representative of the deceased, a collateral relative who did not at the date of the death of the deceased, share in the cultivation of the holding, shall not be deemed to be an heir of the deceased within the meaning of this section.\"\n\nIn the instant case as Smt. Mendir had succeeded as an heir to her husband before the amendment of s. 48 her case will be governed by the provisions of s. 48 and she would be entitled to retain possession of the tenancy but not to a renewal thereof. It appears that soon after the death of Ramadhin the Court of Wards claimed that the tenancy had escheated to the State because Ramadhin had left no heirs and that Ramadhin was only a tenant at will.\n\nSmt. Menda appears to have resisted the claimJ>f the Conrt of Wards which resulted in proceedings before the Revenue Courts which ultimately found that Smt. Menda had acquired the independent rights of a statutory tenant and was, therefore, not liable to be ejected at the instance of the Court of Wards.\n\nThis order was passed by the Assistant Collector on June 4, 1926 and thereafter Smt. Menda continued in possession of the holding as a statutory tenant under the amended Rent Act of 1921.\n\nWe might mention here that previous to the passing of the U.P.\n\nTenancy Act, 1939 the areas of Oudh and Agra in the United Provinces were governed by two separate Acts so far as the tenancies were concerned. The areas in Agra were governed by the Agra Tenancy Act and those in Oudh by the Oudh Rent Act. The U.P. Tenancy Act 17 of 1939 appears to have consolidated the tenancies in the whole of the Province and the Legislature passed one Act which would govern all the tenancies in the entire Province.\n\nThe U.P. Tenancy Act 17 of 1939 was passed on December 16, 1939 and bys. 2 thereof the Agra Tenancy Act, 1926 and the Oudh Rent Act, 1886 were repealed.\n\nSection 29 of the Tenancy Act conferred the status of a hereditary tenant on any person who was a tenant of the land at the commencement of the Act.\n\nThus Smt.\n\nMenda who continued to be in possession as a statutory tenant acquirea the status of a hereditary tenant, under s. 29(a) of the Tenancy Act which runs thus:\n\n\"29. Every person belonging to one or another of the following classes shall be a hereditary tenant, and subject to any contract which is not contrary to the provisions of section 4 shall be entitled to all . the rights conferred, and be subject to all the liabilities imposed on hereditary tenants by this Act, namely :\n\n(a) every person who is, at the commencement of this Act, a tenant of land otherwise than as a permanent tenureholder, a fixed-rate tenant, a tenant holding on special terms in Oudh, an ex-proprietary tenant, an occupancy tenant, or\n\n,/ •\n\nii I\n\nRAM JIY/\\N v. SMT. PHOOLA (Faza[ Ali, J.) 267\n\ne:>.cept as otherwise provided in this Act as a sub-tenant or a tenant of sir : \" The Tenancy Act having conferred heritable rights on the tenants to which s. 29 applied also laid down an order of succession in which the rights of the tenants would pass after the death of the tenant.\n\nSections 36 and 37 of the Tenancy Act provided two different modes of devolution in the case of the death of a female tenant.\n\nSection 36 runs thus :\n\n\"36 (I) When a female tenant, other than a tenant mentioned in section 34, who either before or alter the commencement of this Act has inherited an interest in a holding as a widow, as a mother, as a step-mother, as a father's mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, notwithstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a father's father under the provisions of that section.\n\nx x x x ,,\n\nSection 37 of the Tenancy Act runs thus:\n\n\"When a female tenant, other than a tenant mentioned in section 34 or section 36 dies, her interest in the holding shall devolve in .accordance with the order of succession given below :-\n\n(a) male lineal descendants in the mac line of dcacent : Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive;\n\n(b) husband;\n\n(c) unmarried daughter;\n\n(d) daughter's son;\n\n(e) brother\n\n(f) brother's son.\" It will he seen that under s. 36 of the Tenancy Act the heirs of the husband get precedence over the daughter or the nnmarricd daughter, whereas in the case of a female tenant falling under s. 37 of the Tenancy Act the nnmarried daughter gets precedence over the brother or brother's son.\n\nIn other words, the policy of the law was that where a female tenant died having inherited an interest in the property from her husband then the male heirs of the husband should get preference over the female heirs.\n\nWhere, however, the female tenant had died having an independent and self-acqnired interest in the holding, her property was to pass in a different manner.\n\nWe are not concerned in this appeal with either s. 36 or s. 37 of the Tenancy Act, because Smt. Menda had died some time in September 1952\n\n-LS22SCl176\n\nA when the U.P. Tenancy Act, 1939 had been replaced by the U.P.\n\nZamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of\n\n1951) hereinafter to be referred to as 'the Abolition Act.'\n\nIn short, therefore, Smt. Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act of 1921, a hereditary tenani under the Tenancy Act and finally she acquired the status of a bhumidhar under the Abolition Act which came into force on July 1, 1952.\n\nThe relevant portion of s. 18 of the Abolition Act may be extracted thus :\n\n18. (1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands-\n\n(u)\n\n(b)\n\n(c)\n\n(d)\n\nin possession of or deemed to be held by an intermediary as sir, khudkasht, or an intermediary's groveheld as a grove by, or in the personal cultivation of a permanent lessee in Avadh, held by a fixed-rate tenant or a rent-free grantee as such, or held as such by- ( i) an occupancy tenant,\n\n(ii) a hereditary tenant,\n\n(iii) a tenant on patta I dawami or istamrari referred to in section j' 17\n\npossessing the right to transfer the holding by sale.\n\n(e) held by a grove-holder,\n\non the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof.\"\n\n:As Smt. Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act and by virtue of the legal fiction created by s.18(1) of the Abolition Act, the lands, having been vested in the State Government, were deemed to have been permanently settled with the bhumidhar, namely, Smt. Menda in this case.\n\nIt is the admitted case of the parties that Smt. Menda died some time in september 1952, i.e. only a few months after coming into force of the Abolition Act.\n\nThe controversy between the parties now centres round the question as to who would succeed to the tenancy left by Smt. Menda.\n\nIn other words, the matter to be decided is whether s. 172 or s. 174 of the Abolition Act would apply to the present case.\n\nTt is not disputed that Smt. Mcnda died leaving a daughter Smt.\n\nPhoola and her husband's brother's son Jit.\n\nThese were the two contending heirs for the property left by Smt. Menda.\n\n' \\\n\ni •\n\nRAM JIVAN v. 5MT. PHOOLA (Faza/ Ali, I.) 269\n\nSections 172 and 17 4 of the Abolition Act, insofar as they are relevant, may be extracted as follows :\n\n\"172.\n\n(1) When a bhumidhar. sirdar or asami, who has after the date of vesting, inherited an interest in any holding-\n\n\"(a) as a widow, widow of a male lineal descendent, in the male line of descent, mother or father's mother dies, marries, abandons or surrenders of such holding or part thereof; or (b) the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) or the last male bhumidhar, sirdar or asami. x x x x\" \"174. When a bhumidhar, sirdar or asami (other than a bhumidhar, sirdar or asami mentioned in Section 171 or\n\n172) who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given\n\nbelow D\n\n(a) son, son's son, son's son's son, predeceased son's widow and predeceased son's predeceased son's widow in equal shares per stirpes : Provided firstly that the nearer shall exclude the remoter in the same branch : Provided secondly that a widow, who has E remarried, shall be excluded;\n\nl )[ x x x\n\n(d) daughter; x x x x x\n\n(g) brother's son; x x x x x It is, therefore, clear that the mode of succession to the property of Smt. Menda would depend on the determination of the question whether Smt. Menda had inherited an interest in any holding or had an independent interest in the holding.\n\nThis matter appears to have been canvassed before the Revenue Courts which upheld the plea of Smt. Phoola.\n\nTo begin with on the death of Smt. Phoola, Jit was successful in gettiµg his name mutated in respect of the Khattas in dispnte as being the nearest heir to Smt. Menda.\n\nThe mutation was made by the Tahsildar Maharajgunj on July 30, 1954. This mutation appears\n\nto have been challenged by Smt. Phoola who claimed to be the daughter of Smt. Menda and therefore a preferential heir to the property as compared to Jit.\n\nIn 1957 Smt. Phoola filed a suit un- H der s. 209 of the Abolition Act for the ejectment of Jit from the disputed lands, on the ground that she was the sole legal heir of the\n\n3-L522SCI /76\n\nproperty left by Smt. Menda.\n\nIn the meanwhile in 1961 a notificauon under s. 4 of the Consolidation Act was issued bringing village Bishunpur m which the lands in dispute were situate under the consohdation operations.\n\nAccordingly Smt. Phoola filed an application during the consolidation operations before the Col\\solidation Officer, Bachhrawan, for correction of the records under s. 10(1) of the U.P. Consolidation of Holdings Act and prayed that the name of Jit in the Khattas in dispute may be struck off and Smt. Phoola's name may be mutated therein.\n\nThe Consolidation Officer accepted the plea of Smt. Phoula and he accordingly struck off the name of Jit trom the Khattas and directed that Smt. Phoola being the legal heir of Smt. Menda her name be mutated in respect of the Khattas.\n\nThereafter Jit filed an appeal against the order of the Consolidation Officer before the Settlement Officer (Consolidations), Tahsil Maharajgunj, District Rae Bareli.\n\nThe Settlement Officer by his order dated December 26, 1961 dismissed the appeal and upheld the order of the Consolidation Officer.\n\nThereafter Jit filed a second appeal before the District Deputy Director of Consolidation, Rae Bareli, which was permitted under the U.P. Consolidation of Holdings Act as it was in force then.\n\nThe District Deputy Dirjlctor of Consolidation upheld the plea of Smt. Phoola and held that she was entitled to inherit the property of Smt. Menda being her legal heir in preference to Jit who was merely her husband's brother's son and relied npon s. 171 of the Abolition Act, and accordingly dismissed the appeal.\n\nThereafter Jit filed a revision before the Joint Director of Consolidation who also dismissed the revision as being concluded by .a finding of fact.\n\nThereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965.\n\nSmt. Phoola then filed a special appeal before a Division Bench of the Allahabad High Court which reversed the decision of the Single Judge and dismissed the writ petition filed by Jit upholding the plea of Smt. Phoola. Thereafter Jit moved the High Court for granting leave to appeal to this Court and the same having been refused the present appeal by special leave has been filed in this Court.\n\nIn support of the appeal Mr. J. P. Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong view of the law in holding that SQ1\\. Phoola was entitled to succeed to the property left by Smt. Menda.\n\nThe learned counsel submitted that the present case squarely fell within the ambit of s. 172 of the Abolition Act since Smt. Menda had originally inherited the property from her husband Ramadhin and, therefore, according to the order of succession provided in s. 171 of the Abolition Act which applied to s. 172, Jit who was the son of the brother of Ramadhin would succeed in preference to the daughter of Smt. Menda.\n\nThe . respondents despite service did not appear and we requested Mr. G. N. Dikshit to assist the Court amicus curiae and we are grateful to him for the valuable assistance he rendered to us in deciding the complicated issues of law involved in .this appeal.\n\nMr. Dikshit submitted .that at the time when Ramadhin died the tenancy was not heritable and therefore the question of Smt. Menda having inherited the estate ef herhusband did\n\nRAM J!VAN v. SMT. PHOOLA (Fazal Ali, J.) 271\n\nnot arise and the tenancy held by Smt. Menda must therefore be regardeJ as having been acquired by her in her own right as her selfacquired property and, therefore, the Division Bench of the High Court and the Revenue Courts were right in upholding the plea of Smt.\n\nPhoola.\n\nWe have gone through the entire record as also the judgment of the Single Judge and the Division Bench and we think that the Division Bench of the High Court has taken an erroneous view of the law in the present case.\n\nThe Division Beneh found that although it was established that Smt. Menda had inherited the property from her husband Ramadhin yet the finding of the Revenue Courts was that she had acquired the status of a statutory tenant independently and since there was no error of law in this finding of the Revenue Courts there was no reason for the Single Judge to set aside the order of the Joint Director of Consolidation and allow the petition. It was argued before the High Court that the matter was concluded by a Division Bench decision of the Allahabad High Court in Mst. Jaini & Ors. v.\n\nRam Prasad(') and the High Court appears to have brushed aside this decision on a strange process of reasoning which does not appeal to us at all.\n\nThe High Court observed as follows :\n\n\"Mr. Misra has strenuously contended that Jaini v. Ram Prasad (supra) is clear authority for the proposition that even in the case of a statutory tenant succession would devolve under section 36 which, according to Mr. Misra is a counterpart of section 172 read with section 171 of the U.P. Zamindari Abolition Act.\n\nJaini v. Ram Prasad (supra) is clearly distinguishable because that case came up in appeal before this Court and not in the form of a writ or an appeal against the decision of a learned single Judge in a writ petition.\"\n\nIt is obvious that whether a Division Bench decision is given in an appeal from an original suit or in a writ petition the ratio is binding on the .subsequent Division Bench, and merely because the previous Division Bench judgment was given in a su!t the subsequent Division Bench cannot refuse to follow the same 15ecausc it was hearing the proceeding in a writ petition.\n\nThe rule of judicial precedent is a very salutary one and is aimed at achieving finality and homogeneity of judgments.\n\nIn case the Division .Bench under appeal wanted to differ from the previous decision of the Division Bench of the same Court it ought to have referred the matter to a larger Bench but it was not open to it to ignore completely the previous decision on illogical and unintelligible grounds as given by the High Court.\n\nWe are further of the opinion that the Division Bench having found as a fact that Smt. Menda had inherited the property initially from her husband erred in law in not applying the provisions of s. 172 read with s. 171 of the Abolition Act as a result of which Jit being her husband's brother's son was entitled to succeed to the estate left bv\n\nSmt. Menda in preference to Smt. Phoola the daughter.\n\nWe now H proceed to give reasons for this conclusion. ~\n\n{i) A.l.R. 1952 AU. 852. ~\n\nSection 172 of the Abolition Act as extracted above provides that when a bhumidhar who has after the date of vesting inherited an interest in any holding dies the holding would devolve upon the heirs in accordance with the order of succession mentioned in s. 171 of the Abolition Act. It is manifest therefore that in order to determine the applicability of s. 172 of the Abolition Act we must go to the origin of the title of the bhumidhar or the main source from which tl1e bhumidhar has derived interest in the holding.\n\nIt may be pertinent to note here that the statute uses the ·.vords \"the holding or the part shall devolve\" to denote that if it is found that a widow has inherited an interest in the holding from her husband, then it is the holding that devolves and not interest of the widow which ceased after her death. Thus the statute seeks to make a clear-cut distinction between a widow who has inherited an interest from her husband which is dealt with by s. 172 of the Abolition Act and a widow who has acquired an independent interest in the holding which is covered by s. 174 of the Abolition Act.\n\nThe High Court appears to have overlooked the fact that merely because Smt. Menda having initially inherited possession or occupation of the holding from her husband acquired other types of interests merely by operation of law, that could not destroy the origin or the source of her title which was inheritance from her husband.\n\nNor can we regard the conferment of the status of a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the U.P. Legislature as amounting to an acquisiton of a self-acquired interest by the widow. It was, however, argued by Mr. Dikshit that under the Rent Act of 18 86 before its amendment by Act 4 of 1921 the estate which was held by Ramadhin was not heritable at all and, therefore, Smt. Menda could not have inherited any interest in the tenancy on her husband's death.\n\nIn this connection the learned counsel sought to draw a distinction between the provisions of the Agra Tenancy Act which had made the tenancies heritable and the provisions of the Oudh Tenancy Act which did not make the tenancies heritable.\n\nAlthough the argument appears to be extremely attractive, on closer scrutiny if is not tenable.\n\nThe words used in s. 172 of the Abolition Act are \"inherited an interest\".\n\nThe statute has not defined the word \"interest\" and therefore it must be deemed to be of the widest possible amplitude. It will include not only an absolute interest but also a limited interest, a precarious interest and an inchoate interest or the like.\n\nSection 48 of the Rent Act of 1886 before its amendment by Act 4 of 1921 stood as follows :\n\n\"48. (1) The heir of a tenant who dies during the currency of the tenancy of a holding shall be entitled to retain occupation of the holding at the rent payable by the deceased for the unexpired portion of the period for which the deceased tenant might have held without liability to enhancement or ejectment, and to receive compensation under the provisions of this Act for improvements, if any, made on the holding by himself or his predecessor in interest, but shall not be entitled to a renewal of the tenancy. x x x x ..\n\nThe expressions \"heir of a tenant\" and \"shall be entitled to retain occupation\" clearly postulate that the right to retain the occupation of\n\n' j\n\nthe lands in dispute is given only to the heirs of the deceased tenant which clearly indicates that the person who retains occupation would inherit or succeed to a limited right which the deceased tenant possessed under the Act.\n\nIn the instant case since Smt. Menda continued to retain occupation of the lands on the death of her husband, she did so only as the heir of her husband and not otherwise, for if that was not\n\nso then she could not have been entitled to retain occupation.\n\nThe word \"entitled'' clearly signifies that the occupant must have some right, however precarious or limited it may be. In these circumstances, therefore, there can be no doubt that Smt. Menda's occupation of the tenancy on the death of Ramadhin was by way of inheritance only.\n\nThere was no other method by which she could have a right or claim to retain occupation of the holding.\n\nIt is true that the interest of Smt.\n\nMenda was a very limited one and she could have been ejected by the landlord under certain circumstances.\n\nBut section 48 of the Rent Act of 1886 undoubtedly conferred two important rights on the heir of the deceased tenant-(1) the right to retain occupation of the holding on the rent payable; and (2) to receive compensation for the improvemonts made.\n\nIn these circumstances, therefore, it cannot be said that the occupation of the lands by Smt. Menda on her husband's death was purely in her individual or independent capacity or that the possession of the lands amounted to her self-acquired property. Section 174 of the Abolition Act would naturally apply only to such cases where a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, nainely, an interest which she possessed in the holding as her self-acquired property, her stridhan or the like.\n\nThat is why s. 174 of the Abolition Act provides that it is the interest in any holding which devolves and not the holding.\n\nThus the language used in ss. 172 and 17 4 of the Abolition Act unmistakably brings forth the distinction of the two contingencies in which the two sections are to apply.\n\nThe Revenue Courts have also held as a fact that initially Smt. Menda had inherited the property from her husband but they have construed\n\nthe conferment of the various kinds of status on Smt. Menda after she had already inherited the property as amounting to her self-acquired property. It seems to us that the Revenue Courts were wrong in misconstruing the scope and ambit of the words \"inherited an interest in any holding'' as mentioned in s. 172 of the Abolition Act.\n\nSection 172-A of the Abolition Act was introduced by an amendment of the Act in 1954 which makes the position absolutely clear, by declaring that where a sirdar or adhivasi who had inherited any interest in any holding as a widow, it would be deemed to be an accession to the holding of the last male holder thereof.\n\nWe are, however, not at all concerned with s. 172-A of the Abolition Act, because Smt.\n\nMenda had died two years before the amendment came into force and the question of succession to her estate would be governed by s. 172 or s. 17 4 of the Abolition Act.\n\nIn the Division Bench decision in Mst. Jaini's case (supra) the Allahabad High Court had taken the same view.\n\nMalik, C.J ., speaking for the Court observed thus :\n\n\"Section 36 does not require that the tenancy as such should have been inherited by the widow.\n\nAll that it provides is that the widow should have inherited an interest in the holding.\n\nThe mere fact that she had to remain in possession for a further period of eight years liefore she could become the statutory tenant of the holding does not mean that she acquired no interest in the holding as a wiqow.\n\nWe fail to see how it could be said, in view of the language of s. 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhan.\n\nSection 36 was thus clearly applicable.\"\n\nThe Division Bench also relied in the aforesaid case on an earlier unreported decision of a Single Judge of that Court in Sita! v. Suraj Din(I) where exactly the same view was taken as the one we have taken in tho instant case.\n\nThe observations of the learned Single Judge have been quoted by the Division Bench in the case referred to above thus:\n\n\"We can assume that she acquired on the passing of the new Act (Act 4 of 1921) a fresh statutory period and a renewal of the tenancy but that does not take away the origin of her title. . . . . . . . . . . . . . . It is only when a female tenant acquires tenancy rights which do not have tacir origin in inheritance that the case could be takeu out of the amb,. of s. 36 to be governed by s. 37.\"\n\nIt would he seen that in this case the husband of the appellant haJ died in 1916 as in the instant case and yet the Court held that it is really the origin of the title that has to be seen and if the tenanc;\n\nrights had their origin in inheritance then ss. 36 & 37 would po1 apply.\n\nFor these reasons, therefore, we are satisfied that the origin o' the title of Smt. Menda Jay in inheritance of the estate of her husband however limited or precarious it may have been. This being the position, the succession to the estate of Smt. Menda would have to be governed by the provisions of s. 172 of the Abolition Act which ha:; applied the provisions of s. 171 regarding the order of succession.\n\nIn the order of succession given in s. 171 of the Abolition Act brother's son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter wa;\n\nalso introduced as an heir before brother's son. But thi' was not th<~ position prior to 1954 when the married daughter was completely e>- cluded from inheritance. It is also not disputed that Smt. Phoola was\n\n(!) Second Appeal No. 421of1943 decided on 20-12-48.\n\n---•\n\nj ,.\n\n' •\n\na married daughter on the death of Smt. Menda. In these circumstances, therefore, the holding held by Smt. Menda would devolve on Ramadhin's brother's son, namely, Jit and thereafter on his heir who is now continuing the present proceedings.\n\nThus the Tahsildar Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt. Phoola.\n\nThe Rvenue Courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by s. 17 4 of the Abolition Act as the interest left by Smt. Menda was her self-acquired property.\n\nThe result is that the appeal is allowed, the judgment of the Division Bench is set aside and that of the learned Single Judge is hereby restored. In the peculiar circumstances of this case, and particularly having regard to the fact that the respondents have not appeared to. c contest the appeal before this Court, we make no order as to costs in this Court.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 176, "entities": [{"text": "RAM JIVAN", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "Ram Jivan @ Lallu", "offset_not_found": false}}, {"text": "PHOOLA (DEAD) BY LRS. & ORS", "label": "RESPONDENT", "start_char": 19, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "PHOOLA (DEAD) BY LRS. & ORS", "offset_not_found": false}}, {"text": "January 30, 1976", "label": "DATE", "start_char": 49, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "January 30, 1976\n\n[R. S. SARKARIA, S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.J\n\nU.P. Zamindari Abolition & Land Refornis Act, 1950-Sections 172 and 174-Scope of."}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 68, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI", "label": "JUDGE", "start_char": 84, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Land Refornis Act, 1950", "label": "STATUTE", "start_char": 158, "end_char": 181, "source": "regex", "metadata": {}}, {"text": "Sections 172 and 174", "label": "PROVISION", "start_char": 182, "end_char": 202, "source": "regex", "metadata": {"linked_statute_text": "Land Refornis Act, 1950", "statute": "Land Refornis Act, 1950"}}, {"text": "s. 172", "label": "PROVISION", "start_char": 341, "end_char": 347, "source": "regex", "metadata": {"linked_statute_text": "Land Refornis Act, 1950", "statute": "Land Refornis Act, 1950"}}, {"text": "s. 171", "label": "PROVISION", "start_char": 650, "end_char": 656, "source": "regex", "metadata": {"linked_statute_text": "Land Refornis Act, 1950", "statute": "Land Refornis Act, 1950"}}, {"text": "Section 174", "label": "PROVISION", "start_char": 659, "end_char": 670, "source": "regex", "metadata": {"linked_statute_text": "Land Refornis Act, 1950", "statute": "Land Refornis Act, 1950"}}, {"text": "Oudh Land Act, 1886", "label": "STATUTE", "start_char": 1097, "end_char": 1116, "source": "regex", "metadata": {}}, {"text": "Section 29", "label": "PROVISION", "start_char": 1278, "end_char": 1288, "source": "regex", "metadata": {"linked_statute_text": "the Oudh Land Act, 1886", "statute": "the Oudh Land Act, 1886"}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 1301, "end_char": 1318, "source": "regex", "metadata": {}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 1592, "end_char": 1608, "source": "regex", "metadata": {}}, {"text": "s. 21", "label": "PROVISION", "start_char": 1848, "end_char": 1853, "source": "regex", "metadata": {"linked_statute_text": "Land Reforms Act", "statute": "Land Reforms Act"}}, {"text": "Abolition Act 1950", "label": "STATUTE", "start_char": 1861, "end_char": 1879, "source": "regex", "metadata": {}}, {"text": "Consolidation of Holdings Act", "label": "STATUTE", "start_char": 2011, "end_char": 2040, "source": "regex", "metadata": {}}, {"text": "Section 172A", "label": "PROVISION", "start_char": 2490, "end_char": 2502, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "s. 172", "label": "PROVISION", "start_char": 2706, "end_char": 2712, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "s. 174", "label": "PROVISION", "start_char": 2716, "end_char": 2722, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "s. 172", "label": "PROVISION", "start_char": 2897, "end_char": 2903, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "s. 174", "label": "PROVISION", "start_char": 2988, "end_char": 2994, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "Section 172", "label": "PROVISION", "start_char": 3077, "end_char": 3088, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 3891, "end_char": 3897, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 174", "label": "PROVISION", "start_char": 4015, "end_char": 4026, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 174", "label": "PROVISION", "start_char": 4220, "end_char": 4226, "source": "regex", "metadata": {"statute": null}}, {"text": "Ss. 172 and 174", "label": "PROVISION", "start_char": 4318, "end_char": 4333, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 4640, "end_char": 4646, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 4657, "end_char": 4663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 5067, "end_char": 5073, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 5132, "end_char": 5138, "source": "regex", "metadata": {"statute": null}}, {"text": "Before the amendment of the Abolition Act", "label": "STATUTE", "start_char": 5182, "end_char": 5223, "source": "regex", "metadata": {}}, {"text": "s. 48", "label": "PROVISION", "start_char": 5613, "end_char": 5618, "source": "regex", "metadata": {"linked_statute_text": "Before the amendment of the Abolition Act", "statute": "Before the amendment of the Abolition Act"}}, {"text": "Rent Act 1886", "label": "STATUTE", "start_char": 5626, "end_char": 5639, "source": "regex", "metadata": {}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 7195, "end_char": 7206, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal and A. G. Ratnaparkhi for the Appellant.", "canonical_name": "J. P. Goyal"}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 7211, "end_char": 7228, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal and A. G. Ratnaparkhi for the Appellant."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 7249, "end_char": 7262, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and M. V. Goswami for Respondents."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 7267, "end_char": 7280, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and M. V. Goswami for Respondents."}}, {"text": "FAzAL A", "label": "JUDGE", "start_char": 7343, "end_char": 7350, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAzAL A:L~. J. This is an appeal by special leave against the judgment of a D1V1s10n Bench of the High Court of Allahabad dated Octoller 5, 1966, and raises a question of law regarding the applicability of ss.", "canonical_name": "Faza[ Ali"}}, {"text": "ss. 172 and 174", "label": "PROVISION", "start_char": 7549, "end_char": 7564, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 7577, "end_char": 7623, "source": "regex", "metadata": {}}, {"text": "Bishunpur", "label": "GPE", "start_char": 8076, "end_char": 8085, "source": "ner", "metadata": {"in_sentence": "1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U.P.)."}}, {"text": "Rae Bareli", "label": "GPE", "start_char": 8105, "end_char": 8115, "source": "ner", "metadata": {"in_sentence": "1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U.P.)."}}, {"text": "U.P.", "label": "GPE", "start_char": 8117, "end_char": 8121, "source": "ner", "metadata": {"in_sentence": "1002, 1344 and 1411 of village Bishunpur in the District of Rae Bareli (U.P.)."}}, {"text": "Harbans", "label": "OTHER_PERSON", "start_char": 8190, "end_char": 8197, "source": "ner", "metadata": {"in_sentence": "It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin."}}, {"text": "Gurdin", "label": "OTHER_PERSON", "start_char": 8241, "end_char": 8247, "source": "ner", "metadata": {"in_sentence": "It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin."}}, {"text": "Ramcharan", "label": "PETITIONER", "start_char": 8249, "end_char": 8258, "source": "ner", "metadata": {"in_sentence": "It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin.", "canonical_name": "Ramcharan"}}, {"text": "Ramadhin", "label": "OTHER_PERSON", "start_char": 8263, "end_char": 8271, "source": "ner", "metadata": {"in_sentence": "It is not disputed that these Khattas originally belonged to one Harbans who died leaving behind three sons, namely Gurdin, Ramcharan and Ramadhin."}}, {"text": "Ramcharan", "label": "PETITIONER", "start_char": 8274, "end_char": 8283, "source": "ner", "metadata": {"in_sentence": "Ramcharan appears to have died issueless but Ramadhin died leaving a widow Smt.", "canonical_name": "Ramcharan"}}, {"text": "Menda", "label": "PETITIONER", "start_char": 8354, "end_char": 8359, "source": "ner", "metadata": {"in_sentence": "Menda and a daughter from her Smt.", "canonical_name": "Menda Jay"}}, {"text": "Phoola", "label": "PETITIONER", "start_char": 8389, "end_char": 8395, "source": "ner", "metadata": {"in_sentence": "Phoola who was respondent No.", "canonical_name": "Phoola"}}, {"text": "Jit", "label": "PETITIONER", "start_char": 8463, "end_char": 8466, "source": "ner", "metadata": {"in_sentence": "The other son Gurdin died leaving a son Jit who had contested the present proceedings against Smt.", "canonical_name": "Jit"}}, {"text": "Ram Jivan @ Lallu", "label": "PETITIONER", "start_char": 8643, "end_char": 8660, "source": "ner", "metadata": {"in_sentence": "During the pendency of the present proceedings Jit also died and the proceedings have been continued by his son Ram Jivan @ Lallu.", "canonical_name": "Ram Jivan @ Lallu"}}, {"text": "Oudh Rent Act, 1886", "label": "STATUTE", "start_char": 9047, "end_char": 9066, "source": "regex", "metadata": {}}, {"text": "Menda", "label": "PETITIONER", "start_char": 9169, "end_char": 9174, "source": "ner", "metadata": {"in_sentence": "Menda was to continue in possession of the lands as an heir of Ramadhin but only during the fixed period of the tenancy on the rent payable to the landlord and was not entitled to renewal of the same.", "canonical_name": "Menda Jay"}}, {"text": "s.48", "label": "PROVISION", "start_char": 9465, "end_char": 9469, "source": "regex", "metadata": {"linked_statute_text": "the Oudh Rent Act, 1886", "statute": "the Oudh Rent Act, 1886"}}, {"text": "Oudh", "label": "GPE", "start_char": 9515, "end_char": 9519, "source": "ner", "metadata": {"in_sentence": "The terms and conditions of the tenancy at the time of the death of Ramadhin were governed by s.48 of the Rent Act of 1886 which applied to the Oudh Area where the lands in dispute were situate."}}, {"text": "s.48", "label": "PROVISION", "start_char": 9572, "end_char": 9576, "source": "regex", "metadata": {"linked_statute_text": "the Oudh Rent Act, 1886", "statute": "the Oudh Rent Act, 1886"}}, {"text": "Meanwhile five years later the Rent Act", "label": "STATUTE", "start_char": 9891, "end_char": 9930, "source": "regex", "metadata": {}}, {"text": "s.48", "label": "PROVISION", "start_char": 10177, "end_char": 10181, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile five years later the Rent Act", "statute": "Meanwhile five years later the Rent Act"}}, {"text": "s.3", "label": "PROVISION", "start_char": 10232, "end_char": 10235, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile five years later the Rent Act", "statute": "Meanwhile five years later the Rent Act"}}, {"text": "section 37", "label": "PROVISION", "start_char": 10319, "end_char": 10329, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile five years later the Rent Act", "statute": "Meanwhile five years later the Rent Act"}}, {"text": "section 48", "label": "PROVISION", "start_char": 10414, "end_char": 10424, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile five years later the Rent Act", "statute": "Meanwhile five years later the Rent Act"}}, {"text": "section 48", "label": "PROVISION", "start_char": 10683, "end_char": 10693, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile five years later the Rent Act", "statute": "Meanwhile five years later the Rent Act"}}, {"text": "section 48", "label": "PROVISION", "start_char": 10821, "end_char": 10831, "source": "regex", "metadata": {"linked_statute_text": "Meanwhile five years later the Rent Act", "statute": "Meanwhile five years later the Rent Act"}}, {"text": "section 48", "label": "PROVISION", "start_char": 11139, "end_char": 11149, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 36 and 37", "label": "PROVISION", "start_char": 11216, "end_char": 11229, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 11280, "end_char": 11290, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 11959, "end_char": 11964, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 11973, "end_char": 11978, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 12132, "end_char": 12137, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 12343, "end_char": 12347, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 12358, "end_char": 12363, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 48", "label": "PROVISION", "start_char": 12472, "end_char": 12482, "source": "regex", "metadata": {"statute": null}}, {"text": "section 62A", "label": "PROVISION", "start_char": 13063, "end_char": 13074, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 13306, "end_char": 13316, "source": "regex", "metadata": {"statute": null}}, {"text": "Mendir", "label": "OTHER_PERSON", "start_char": 13587, "end_char": 13593, "source": "ner", "metadata": {"in_sentence": "Mendir had succeeded as an heir to her husband before the amendment of s. 48 her case will be governed by the provisions of s. 48 and she would be entitled to retain possession of the tenancy but not to a renewal thereof."}}, {"text": "s. 48", "label": "PROVISION", "start_char": 13658, "end_char": 13663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 48", "label": "PROVISION", "start_char": 13711, "end_char": 13716, "source": "regex", "metadata": {"statute": null}}, {"text": "June 4, 1926", "label": "DATE", "start_char": 14368, "end_char": 14380, "source": "ner", "metadata": {"in_sentence": "This order was passed by the Assistant Collector on June 4, 1926 and thereafter Smt."}}, {"text": "Menda continued in possession of the holding as a statutory tenant under the amended Rent Act", "label": "STATUTE", "start_char": 14401, "end_char": 14494, "source": "regex", "metadata": {}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 14569, "end_char": 14586, "source": "regex", "metadata": {}}, {"text": "Oudh and Agra in the United Provinces were governed by two separate Act", "label": "STATUTE", "start_char": 14600, "end_char": 14671, "source": "regex", "metadata": {}}, {"text": "December 16, 1939", "label": "DATE", "start_char": 15056, "end_char": 15073, "source": "ner", "metadata": {"in_sentence": "The U.P. Tenancy Act 17 of 1939 was passed on December 16, 1939 and bys."}}, {"text": "Agra Tenancy Act, 1926", "label": "STATUTE", "start_char": 15097, "end_char": 15119, "source": "regex", "metadata": {}}, {"text": "Oudh Rent Act, 1886", "label": "STATUTE", "start_char": 15128, "end_char": 15147, "source": "regex", "metadata": {}}, {"text": "Section 29", "label": "PROVISION", "start_char": 15164, "end_char": 15174, "source": "regex", "metadata": {"linked_statute_text": "the Oudh Rent Act, 1886", "statute": "the Oudh Rent Act, 1886"}}, {"text": "s. 29(a)", "label": "PROVISION", "start_char": 15437, "end_char": 15445, "source": "regex", "metadata": {"linked_statute_text": "the Oudh Rent Act, 1886", "statute": "the Oudh Rent Act, 1886"}}, {"text": "section 4", "label": "PROVISION", "start_char": 15655, "end_char": 15664, "source": "regex", "metadata": {"linked_statute_text": "the Oudh Rent Act, 1886", "statute": "the Oudh Rent Act, 1886"}}, {"text": "Faza[ Ali", "label": "JUDGE", "start_char": 16078, "end_char": 16087, "source": "ner", "metadata": {"in_sentence": "PHOOLA (Faza[ Ali, J.) 267\n\ne:>.cept as otherwise provided in this Act as a sub-tenant or a tenant of sir : \" The Tenancy Act having conferred heritable rights on the tenants to which s. 29 applied also laid down an order of succession in which the rights of the tenants would pass after the death of the tenant.", "canonical_name": "Faza[ Ali"}}, {"text": "s. 29", "label": "PROVISION", "start_char": 16254, "end_char": 16259, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 36 and 37", "label": "PROVISION", "start_char": 16384, "end_char": 16402, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 36", "label": "PROVISION", "start_char": 16511, "end_char": 16521, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 16598, "end_char": 16608, "source": "regex", "metadata": {"statute": null}}, {"text": "section 45", "label": "PROVISION", "start_char": 17026, "end_char": 17036, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 17102, "end_char": 17112, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 37", "label": "PROVISION", "start_char": 17256, "end_char": 17266, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 17354, "end_char": 17364, "source": "regex", "metadata": {"statute": null}}, {"text": "section 36", "label": "PROVISION", "start_char": 17368, "end_char": 17378, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 17779, "end_char": 17784, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 17942, "end_char": 17947, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 18464, "end_char": 18469, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 18473, "end_char": 18478, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy Act, 1939", "label": "STATUTE", "start_char": 18585, "end_char": 18602, "source": "regex", "metadata": {}}, {"text": "Zamindari Abolition and Land Reforms Act, 1950", "label": "STATUTE", "start_char": 18634, "end_char": 18680, "source": "regex", "metadata": {}}, {"text": "July 1, 1952", "label": "DATE", "start_char": 19068, "end_char": 19080, "source": "ner", "metadata": {"in_sentence": "Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act of 1921, a hereditary tenani under the Tenancy Act and finally she acquired the status of a bhumidhar under the Abolition Act which came into force on July 1, 1952."}}, {"text": "s. 18", "label": "PROVISION", "start_char": 19107, "end_char": 19112, "source": "regex", "metadata": {"linked_statute_text": "Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act", "statute": "Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act"}}, {"text": "Sections 10, 15, 16 and 17", "label": "PROVISION", "start_char": 19196, "end_char": 19222, "source": "regex", "metadata": {"linked_statute_text": "Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act", "statute": "Menda who originally occupied the lands in suit as a tenant on the death of her husband became a statutory tenant under the Rent Act"}}, {"text": "Avadh", "label": "GPE", "start_char": 19434, "end_char": 19439, "source": "ner", "metadata": {"in_sentence": "1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands-\n\n(u)\n\n(b)\n\n(c)\n\n(d)\n\nin possession of or deemed to be held by an intermediary as sir, khudkasht, or an intermediary's groveheld as a grove by, or in the personal cultivation of a permanent lessee in Avadh, held by a fixed-rate tenant or a rent-free grantee as such, or held as such by- ( i) an occupancy tenant,\n\n(ii) a hereditary tenant,\n\n(iii) a tenant on patta I dawami or istamrari referred to in section j' 17\n\npossessing the right to transfer the holding by sale."}}, {"text": "s.18(1)", "label": "PROVISION", "start_char": 20241, "end_char": 20248, "source": "regex", "metadata": {"linked_statute_text": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act", "statute": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act"}}, {"text": "s. 172", "label": "PROVISION", "start_char": 20763, "end_char": 20769, "source": "regex", "metadata": {"linked_statute_text": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act", "statute": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act"}}, {"text": "s. 174", "label": "PROVISION", "start_char": 20773, "end_char": 20779, "source": "regex", "metadata": {"linked_statute_text": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act", "statute": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act"}}, {"text": "Sections 172 and 17", "label": "PROVISION", "start_char": 21075, "end_char": 21094, "source": "regex", "metadata": {"linked_statute_text": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act", "statute": "Mcnda had already become a hereditary tenant under the Tenancy Act she automatically acquired the statns of a Bhumidhar under the Abolition Act"}}, {"text": "Section 171", "label": "PROVISION", "start_char": 21621, "end_char": 21632, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 171", "label": "PROVISION", "start_char": 21782, "end_char": 21793, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharajgunj", "label": "OTHER_PERSON", "start_char": 22837, "end_char": 22848, "source": "ner", "metadata": {"in_sentence": "The mutation was made by the Tahsildar Maharajgunj on July 30, 1954."}}, {"text": "July 30, 1954", "label": "DATE", "start_char": 22852, "end_char": 22865, "source": "ner", "metadata": {"in_sentence": "The mutation was made by the Tahsildar Maharajgunj on July 30, 1954."}}, {"text": "Phoola", "label": "PETITIONER", "start_char": 22922, "end_char": 22928, "source": "ner", "metadata": {"in_sentence": "Phoola who claimed to be the daughter of Smt.", "canonical_name": "Phoola"}}, {"text": "s. 209", "label": "PROVISION", "start_char": 23088, "end_char": 23094, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 23311, "end_char": 23315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 23621, "end_char": 23629, "source": "regex", "metadata": {"statute": null}}, {"text": "Consolidation of Holdings Act", "label": "STATUTE", "start_char": 23642, "end_char": 23671, "source": "regex", "metadata": {}}, {"text": "Phoula", "label": "PETITIONER", "start_char": 23848, "end_char": 23854, "source": "ner", "metadata": {"in_sentence": "Phoula and he accordingly struck off the name of Jit trom the Khattas and directed that Smt.", "canonical_name": "Phoola"}}, {"text": "December 26, 1961", "label": "DATE", "start_char": 24241, "end_char": 24258, "source": "ner", "metadata": {"in_sentence": "The Settlement Officer by his order dated December 26, 1961 dismissed the appeal and upheld the order of the Consolidation Officer."}}, {"text": "Consolidation of Holdings Act", "label": "STATUTE", "start_char": 24470, "end_char": 24499, "source": "regex", "metadata": {}}, {"text": "s. 171", "label": "PROVISION", "start_char": 24774, "end_char": 24780, "source": "regex", "metadata": {"linked_statute_text": "Consolidation of Holdings Act", "statute": "Consolidation of Holdings Act"}}, {"text": "Jit", "label": "PETITIONER", "start_char": 25003, "end_char": 25006, "source": "ner", "metadata": {"in_sentence": "Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965.", "canonical_name": "Jit"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 25040, "end_char": 25060, "source": "ner", "metadata": {"in_sentence": "Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965."}}, {"text": "December 21, 1962", "label": "DATE", "start_char": 25064, "end_char": 25081, "source": "ner", "metadata": {"in_sentence": "Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965."}}, {"text": "August 6, 1965", "label": "DATE", "start_char": 25139, "end_char": 25153, "source": "ner", "metadata": {"in_sentence": "Thereafter Jit filed a writ petition before the Allahabad High Court on December 21, 1962 and the writ petition was allowed by the Single Judge on August 6, 1965."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 25584, "end_char": 25595, "source": "ner", "metadata": {"in_sentence": "In support of the appeal Mr. J. P. Goyal has submitted that the Division Bench as also the Revenue Courts had taken a wrong view of the law in holding that SQ1\\. Phoola was entitled to succeed to the property left by Smt.", "canonical_name": "J. P. Goyal"}}, {"text": "s. 172", "label": "PROVISION", "start_char": 25871, "end_char": 25877, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 26045, "end_char": 26051, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 26090, "end_char": 26096, "source": "regex", "metadata": {"statute": null}}, {"text": "Dikshit", "label": "OTHER_PERSON", "start_char": 26469, "end_char": 26476, "source": "ner", "metadata": {"in_sentence": "Mr. Dikshit submitted .that at the time when Ramadhin died the tenancy was not heritable and therefore the question of Smt."}}, {"text": "Phoola", "label": "JUDGE", "start_char": 26955, "end_char": 26961, "source": "ner", "metadata": {"in_sentence": "Phoola.", "canonical_name": "Phoola"}}, {"text": "Misra", "label": "OTHER_PERSON", "start_char": 27961, "end_char": 27966, "source": "ner", "metadata": {"in_sentence": "The High Court observed as follows :\n\n\"Mr. Misra has strenuously contended that Jaini v. Ram Prasad (supra) is clear authority for the proposition that even in the case of a statutory tenant succession would devolve under section 36 which, according to Mr. Misra is a counterpart of section 172 read with section 171 of the U.P. Zamindari Abolition Act."}}, {"text": "section 36", "label": "PROVISION", "start_char": 28140, "end_char": 28150, "source": "regex", "metadata": {"statute": null}}, {"text": "section 172", "label": "PROVISION", "start_char": 28201, "end_char": 28212, "source": "regex", "metadata": {"statute": null}}, {"text": "section 171", "label": "PROVISION", "start_char": 28223, "end_char": 28234, "source": "regex", "metadata": {"statute": null}}, {"text": "Zamindari Abolition Act", "label": "STATUTE", "start_char": 28247, "end_char": 28270, "source": "regex", "metadata": {}}, {"text": "s. 172", "label": "PROVISION", "start_char": 29500, "end_char": 29506, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 29517, "end_char": 29523, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 172", "label": "PROVISION", "start_char": 29791, "end_char": 29802, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 30047, "end_char": 30053, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 30149, "end_char": 30155, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 30762, "end_char": 30768, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 174", "label": "PROVISION", "start_char": 30878, "end_char": 30884, "source": "regex", "metadata": {"statute": null}}, {"text": "U.P. Legislature", "label": "ORG", "start_char": 31382, "end_char": 31398, "source": "ner", "metadata": {"in_sentence": "Nor can we regard the conferment of the status of a statutory tenant or a hereditary tenant or a bhumidhar under the various laws passed by the U.P. Legislature as amounting to an acquisiton of a self-acquired interest by the widow."}}, {"text": "Dikshit that under the Rent Act", "label": "STATUTE", "start_char": 31502, "end_char": 31533, "source": "regex", "metadata": {}}, {"text": "s. 172", "label": "PROVISION", "start_char": 32106, "end_char": 32112, "source": "regex", "metadata": {"linked_statute_text": "Dikshit that under the Rent Act", "statute": "Dikshit that under the Rent Act"}}, {"text": "Section 48", "label": "PROVISION", "start_char": 32420, "end_char": 32430, "source": "regex", "metadata": {"linked_statute_text": "Dikshit that under the Rent Act", "statute": "Dikshit that under the Rent Act"}}, {"text": "section 48", "label": "PROVISION", "start_char": 34207, "end_char": 34217, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 174", "label": "PROVISION", "start_char": 34703, "end_char": 34714, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 174", "label": "PROVISION", "start_char": 35040, "end_char": 35046, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 172 and 17", "label": "PROVISION", "start_char": 35179, "end_char": 35193, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 35769, "end_char": 35775, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 172", "label": "PROVISION", "start_char": 35799, "end_char": 35810, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 36160, "end_char": 36166, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 172", "label": "PROVISION", "start_char": 36333, "end_char": 36339, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 36343, "end_char": 36348, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaini", "label": "OTHER_PERSON", "start_char": 36413, "end_char": 36418, "source": "ner", "metadata": {"in_sentence": "Jaini's case (supra) the Allahabad High Court had taken the same view."}}, {"text": "Malik", "label": "JUDGE", "start_char": 36485, "end_char": 36490, "source": "ner", "metadata": {"in_sentence": "Malik, C.J .,"}}, {"text": "Section 36", "label": "PROVISION", "start_char": 36540, "end_char": 36550, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 37009, "end_char": 37014, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhan", "label": "OTHER_PERSON", "start_char": 37151, "end_char": 37155, "source": "ner", "metadata": {"in_sentence": "We fail to see how it could be said, in view of the language of s. 36, that her acquisition of statutory rights had nothing to do with the fact that she had inherited an interest in the holding as widow of Bhan."}}, {"text": "Section 36", "label": "PROVISION", "start_char": 37158, "end_char": 37168, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 36", "label": "PROVISION", "start_char": 37915, "end_char": 37920, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 37939, "end_char": 37944, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 36 & 37", "label": "PROVISION", "start_char": 38201, "end_char": 38212, "source": "regex", "metadata": {"statute": null}}, {"text": "Menda Jay", "label": "PETITIONER", "start_char": 38315, "end_char": 38324, "source": "ner", "metadata": {"in_sentence": "Menda Jay in inheritance of the estate of her husband however limited or precarious it may have been.", "canonical_name": "Menda Jay"}}, {"text": "s. 172", "label": "PROVISION", "start_char": 38532, "end_char": 38538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 38597, "end_char": 38603, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 171", "label": "PROVISION", "start_char": 38676, "end_char": 38682, "source": "regex", "metadata": {"statute": null}}, {"text": "20-12-48", "label": "DATE", "start_char": 39109, "end_char": 39117, "source": "ner", "metadata": {"in_sentence": "421of1943 decided on 20-12-48."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 39677, "end_char": 39682, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_276_286_EN", "year": 1976, "text": "ABDUL KARIM v.\n\nM. K. PRAKASH AND ORS.\n\nJanuary 30, 1976\n\nfM. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]\n\nContempt of Court's Act 1971-Sec. 2(c)-Standard of proof for Criminal contempt-Contempt by a iudicial officer-Assumption-If should be wilful of jurisdiction erroneously or passing a wrong order.\n\nThe appellants in Criminal Appeals 195 and 196 are the owner and Manager of a timber depot respectively (hereinafter referred to as appellants).\n\nAppellants complained to the Police that Respondent No. 1 had collected a large number of persons with deadly \\.veapons and that the sheds constructed by the appellants were attacked and that there was apprehe_nsion that the shed would be demolished.\n\nThe Police seized thedisputed timber.\n\nThe appellants made an application praying that the seized logs may be handed over to them.\n\nRespondent No. 1 also made an application claiming the timber to be his property.\n\nAfter perusing the Police Report and bearing the counsel for the claimants, the Magistrate directed the Forest Range Officer to keep the timber in his custody pending the further investigation by the Police.\n\nRespondent No. l filed a Revision in the High Court against the said order of the Magistrate.\n\nThe High Court did not grant stay of the order of the Magistrate.\n\nThe High Court, however, observed that as the rainy season was approaching it 'vas necessary that the timber should be removed from the place as early as possible.\n\nThereafter, the Police Officer submitted the final report stating that the earlier Police report was biased and that thi appellants were the owners of the disputed timber and that the timber might be relensed to them.\n\nOn that the Magistrate passed an order directing that the timber should be returned to the appellants.\n\nThe Magistrate also issued a letter to the Forest Range Officer directing him to hand over the seized timber to the appellants, urgently.\n\nRespondent No. 1 filed a contempt petition in the High Court against the appellants, as well as against the appellant in Appeal No. 118 of 1971, the Magistrate.\n\nThe charge against the Magistrate was that he passed the second order without giving notice to respondent No. 1 and directed the Forest Range Officer to release the timber urgently and thereby defeated whatever order the High Court might have finally passed in revision and that he permitted process of the court to be abused and that he impeded the course of justice. The Magistrate filed his affidavit and stated that the High Court had not stayed his order and that he ordered the delivery of the disputed timber in the bona fide discharge of his official duty after accepting in good faith the final report made by the Police in which it was indicated that its notice had been given to the complainant and a copy of such notice was also enclosed.\n\nThe High Court did not find the appellants guilty of contempt. The High Court, however, found the Magistrate guilty of 'Criminal contempt' on the fol- G lowing grounds :\n\n1. The case between the parties had gained notoriety in the State and attracted a good deal of public attention.\n\n2. The certified copy of the order was taken only by appellant No. 1, and since the case was not posted in the open court, appellant No. 1 must have shown the order to the Magistrate at a place other than the open court.\n\n3. The Magistrate passed the order in spite of the fact that he was aware that the revision application was pending in the High Court which was seized of the matter of determining the question of the custody of the timber.\n\n- •\n\nABDUL KARIM V. M. K. PRAKASH 277\n\n4. The Magistrate did not give notice to the other side before passing the order. The procedure adopted by the Magistrate in writing the letter to the Forest Range Officer asking him to release the timber urgently is very strange and reveals an anxiety on the part of the Magistrate t~ help the appellants.\n\nThe urgency can only be to circumvent any poss1~ ble orders of stay that might be passed by the High Court.\n\nIn appeal filed by the Magistrate.\n\nHELD: (!) Section 2(c) of the Contempt of Courts Act 1971 codifies the definition of criminal contempt which had previously been crystalized by judicial decisions.\n\nThe broad test to be applied in such cases is whether the act com~ plained of \\Vas calculated to obstruct or had an intrinsic tendency to interfere with the course of justice and the due administration of law.\n\nThe standard of proof required to establish a charge of criminal contempt is the same as in any other criminal proceeding. It is all the more necessary to insist on strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a Judicial Officer.\n\nWrong order or usurpation of jurisdiction by a Judicial Officer owing to an error of judgment or to a misapprehension of the legal position, docs not fall within the mischief of 'criminal contempt'. Human judgment is fallible and a judicial officer is no exception. Consequently, so long as a Judicial Officer in the discharge of his official duties acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the court \\Vill not, as a rule, punish him for a criminal contempt. Even if it could be urged that mens rea as such is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner if the act or omission complained of was not wilful. [203B D-G] (Case of Debabrata Bandopadh_yay A.LR. 1969 S.C. 189, cited with approval.)\n\n(2) The main ground which influenced the High Court was that the case had gained certain amount of notoriety. This was a very vague, indefinite and nebulous circumstance. In the instant case, the prejudice generated by this creeping circumstance has unmistakably vitiated the approach of the High Court.\n\n[284 C-D]\n\n(3) The explanation given by the Magistrate was at least sufficient to dispel the suspicion that the Magistrate while passing the order ¥.'as actuated by a motive to impede or obstruct or defeat the course of justice. It was immaterial as to who sho\\ved the certified CODY of the order of the High Court to the Magistrate.\n\nOn reading the final report of the Police and the order of the HigC. Court the Magistrate might have honestly formed the opinion that there was no need to give the notice to the other party and that it was necessary to direct the Forest Officer to deliver the timber urgently to the appellants.\n\nIt is true that under the circumstances, the prudent course for the Magistrate would have been to postpone the making of any final order in regard to the delivery of the timber till the final disposal of the revision petition by the High Court.\n\nIt would have been also proper for him to have given opportunity of being heard to the other side before making any order. Nevertheless it was evident from the stark circumstances of the case, that in failing to do so, the Magistrate was not actuated by any improper motive ur deliberate design to impede, obstruct or interfere with the course of justice or to curcumvent or defeat the proceedings in the Revision pending before the High Court.\n\nConsequently the penal action taken by the High Court was not justified.\n\n[284 H,\n\n285A, B, F, 286A-D] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 118 of 1971.\n\nFrom the Judgment and Order dated 15th October, 1970 of the Kerala High Court at Ernakulam in O.P. No. 4879 of 1969 and Criminal Appeals Nos. 195 and 196 of 1971.\n\nAppeals by special leave from the jndgment and Order dated the 15th October, 1970 of the Kerala High Court at Ernakulam in 0.P.\n\nNo. 4879 of 1969.\n\nA. S. Nambiar for the Appellant in Cr!. A.118/71.\n\nKunhiraman Menon and A. S. Nambiar for the Appellants in Crl.\n\nA. Nos. 195 and 196 of 1971.\n\nFor the respondents in all the appeals : Nemo.\n\nIhe Judgment of 1he Court was delivered by-\n\nSARKARIA, J_.-These three appeals arise out of a common judgment of the High Court of Kerala holding the appellants guilty of contempt of court.\n\nS. Abdul Karim, the appellant in Criminal Appeal 118 of 1971. was, at the material time, a Munsif-Magistrate posted at Perambra.\n\nHe was Respondent No. 3 in the contempt petition filed in the High Court and will hereafter be referred to as R. 3.\n\nA. P. Parukutty Mooppilamma and A. P. Achuthankutty Nair appellants in Cr. Appeal No. 195 of 1971 were respondents 1 and i in the original petition before the High Court, and will be hereafter be called R. 1 and R. 2. The appellant K. P. Ramaswami in Criminal Appeal No. 195 of 1971 was Respondent 4 before the High Court.\n\nHe will, for short, be called R. 4.\n\nM. K. Prakash, Respondent No. 1 in all these appeals before us, was the petitioner in the contempt petition before the High Court. He will hereafter be called as 'P'.\n\nThe facts are these : R-1 is the owner of the Olathooki Ariyalakkan Malavaram in Kayanna Amsom which is managed for and on her behalf by her son,\n\nR-2.\n\nOn March 28, 1969 R-1 presented a petition through R-2, to the Superintendent of Po.[icc, Kozhikode alleging that the accused persons (P and his men) were likely to trespass into the Olathilkki Arialakkan Malavaram to remove her timber.\n\nIt was alleged that 'P' had collected a large number of persons and equipped them with dangerous weapons, unlicensed guns. swords etc.; that the sheds constructed by the petitioner and occupied by l11s workers and watchmen were being attacked and there was an apprehension that P and his men would demolish the sheds. The Superintendent of Police appears to have forwarded this petition to the Police Station Kayanna where, on its basis, a case under ss. 143, 147 and 506, Penal Code was registered against 'P' and others.\n\nThe Sub-Inspector in-charge of the Police Station, went to the spot and took into possession the disputed timber comprising of 587 logs and entrusted the same on a kychet to two strangers. On April 22, 1969, R-1 made an application, Ex. P-3, before the Magistrate (R-3) praying that the seized logs be handed over to him.\n\nThereafter, 'P' also made an application to the Magistrate claiming the timber to be his property and prayed for delivery of its possession to him.\n\nThe Magistrate thereupon issued notice to the Police who made a report.\n\nAfter hearing the Counsel of the rival claimants and perusing the police report (Ex. P-17) and other material, the Magistrate on April\n\n28, 1969, passed an order, directing the Forest Range Officer to keep the logs in his custody pending further investigation by the Police.\n\nAgainst this order 'P' filed Cr. Revision Petition No. 176 of 1969 m the High Court.\n\nNo interim order directing the Magistrate to stay further proceedings or defer further action regarding the delivery of the disputed timber was issued by the High Court.\n\nWhile P's Revision applicafion was pending in the High Court, the Police Officer, R-4, after completing the investigation, obtained the opinion of the Assistant Public Prosecutor on September 20, 1969 and submitted a Final Report on September 24, 1969 to the Magistrate (R-3). The material part of this Final Report runs as under :\n\n'\"On 16-7-69 a petitiOn from the complainant was received alleging that the investigation conducted by my predecessor was one-sided and biased against him and he had produced certain documents to support his contention that the property belongs to him and which were not considered by my predecessor.\n\nBased on this petition I continued the investigation and in the course of my investigation, I questioned the Divisional Forest Officer, Calicut and the Forest Range Officer, Knttiady. They stated that the permit issned to M. K. Prakash in Kalpaidiyan Thirumudiyan Malavaram was stayed by the Government and hence not operated upon till now.\n\nThey also stated that the 587 logs of timber seized by my predecessor we.I!' from Olathukku Arialakkan Malavaram in the possession and ownership of the mother of the complainant and those logs were cut by Smt. A. R.\n\nParukutty Amma's workmen and for which proceedings have been taken against them under the M.P.P.F. Act.\n\nTo the same effect the Range Officer Kuttiadv had fifed an affidavit before the High Court in O.P. 2045/69 filed by the accused in this case.\n\nIn the said O.P. the accused had questioned 1he validity of the Government Order allowing Smt. Paruk utty Amma to remove timber cut from the permitted and non-permitted area of Olakhukki Arialakkan Malavaram and the High Court had upheld the order of the Government and the complainant's mother was allowed to transport all timber cut from the Malavaram, both from the permitted and non-permitted area.\n\nAccording to the Divisional Forest Officer there is no Malavaram known as Kalpaidiyan Thirumudivan Malavaram in Pilliperuvanna Amsom as per the Regi>tration Manual.\n\nT also questioned the complainant and his workmen and thev stated that there was no trespass as such bv the accused or his henchmen. They did not enter the Malavaram, nor have they intimidated anv of them and as s11ch no offence has been made out. u/s 447 or 506 (1)\n\nIPC.\n\nUnder the above circumsfances, it is clear that Shri M. K.\n\nH Prakash accused in this case was not allowed to operate his permit and the 587 logs of timber seized by mv predecessor were cut by the complainant's mother and the same\n\nbelong to her.\n\nThese logs are now in the custody of the Range Officer, Kuttiady as per the order of the -Munsiff Magistrate Perarnbra and the same may be ordered to be released to the mother of the complainant and the case is referred as mistake of fact.\"\n\nUpon this report the Magistrate (R-3) passed this order :\n\n\"Notice given Case referred as mistake of fact. Further action dropped. Return timber logs to complainant.\"\n\nSd/- M. M. 26-9-1969.\n\nIn pursuance of this order, the Magistrate issued a letter (Ex.\n\nP-10) dated September 26, 196'!1, to the Forest !{unge Officer Kuttiady, directing him that 5 8 7 logs seized by the Ins.e_ector of Police, Quilandy, then in his custody, be urgently released to R-1 (the mother of the complainant).\n\nIn compliance with the order of the Magistrate, the Range Officer symbolically handed over the charge of the timber to R. 1.\n\nOn the preceding facts, 'P' on November 26, 1969, made a petition in the High Court complaining that R-1, R-2, R-3, R-4 and\n\nR-5 (Sri P. K. Appa Nair, Advocate) had committed centempt of the High Court within the meaning of s. 3 of the Contempt of Court~\n\nAct, 1952 and prayeol that the respondents be ;>Unisbed for committing that contempt. The High Court issued notice to R-1 to R-5 who filed affidavits in reply.\n\nThe Magistrate (R-3) stated that he had passed the order directing delivery of possession of the disputed t; mbcr to R-1 in the bona fide discharge of his official duty, after accepting in good faith, the final report made by the police in which it was indicated that its notice had been given to the complainant,___ and a copy of such notice was also enclosed.\n\nHe further averred : ·\n\n\"The purchase of the petitioner's rights by the l st Respondent referred to in the F.I.R. and Ex. P-3 petition was not denied by the petitioner. On the other hand, his counsel\n\ndurillg the hearing of Exts. P-3 and P-4 petitions had admitted the same even though he had a case that the petitioner was duped to sign the same and receive part of the consideration.\n\nUnder the circumstances, I had no reason to reject P-6 report, it was accepted in its entirety and final orilers were passed bona fide directing return of the logs to the complainant.\n\nThe criminal revision 176 of 1969 itself is only against Ext. R order directing entrustments of the loogs to the Forest Range Officer pending further investigation.\n\nThe order in revision that may be ultimately passed by the Hon'ble Court can have reference only to What should be done with the logs pendin.Q invcstigati, on.\n\nThe order in revision would not and cannot relate to the disposal of the logs after the completion of the investigation. It is therefore\n\nwrong to suggest that the final order is calculated to overreach the possible orders in the pending Cr. Revision Petition.\" In his affidavit, the Magistrate emphasised that in Cr. Revision 176 of 1969, the High Court had not issued any interim order staying further proceedings.\n\nR-1, R-2, R-4 and R-5, also, in their reply affidavits denied the allegations made against them by 'P' in the -contempt petition.\n\nThe Advocate-General assisted the High Court and filed a statement of facts on February 16, 1970.\n\nAfter considering the replies, a memoranda of charges was drawn up against R-1 to R-5 on February 10, 1970. The material part of the charges served on R-3 ran as under :\n\n\"That you, on receipt of the final report, even without giving notice to the petitioner, not only passed an order on 26-9-69 on the final report directing the return of the timber logs to the complainant but also wrote a letter (copy of which is Ext. P-10) to the Forest Range Officer, Kuttiadi, directing him urgently to release the timber logs to the 1st respondent-thereby effectively defeating whatever oroer the Honourable High Court may finally pass in Criminal Revision Petition 176 of 1969 and Criminal Miscellaneous Petition 309/69, and that in consequences of your order the timber logs were actually handed over to the 1st respondent; That in so doing :\n\n(a) you have acted unjustly, oppressively and irregularly in the execution of your duties, under colour of judicial proceedings, wholly unwarranted by law and procedure; ·\n\n(b) you have also permitted the process of your court to be abused by the other respondents and thereby diverted the dne course of justice and\n\n(c) you have also impeded the course of justice by defeating the final orders that are liable to be passed by the High Court in Criminal Revision Petition 176/69 and Cr. Misc. Petition 309/69; thereby committing gross contempt of the Honourable High Court, to which you are subordinate.\"\n\nThe Magistrate (R-3) submitted a further counter-affidavit denying the charges.\n\nThe High Court rejected the Magistrate's explanation and found him guilty of contempt on grounds which may be summarisid as below\n\n(1) \"The case between the Petitioner and the 1st and the second respondent had gained certain amount of notoriety not only in the area but also in the State\".\n\nAllegations were being made \"that even the then Minister of Forests was unjustly favouring R-1 and\n\nR-2.\n\nThe case before the Munsif!-Magistrate would naturally have attracted quite a good deal of public attention.\"\n\n(2) R-3 permitted R-1 and R-2 to approach and influence him. This irifercnce was available from the circumstance that in his affidavit, R-3 has said that an order dated May 2, 1969, passed by the High Court in C.M.P. 5869/69 in O.P. 2405/o9 v1as 'rown to him and the certified copy of this order was obtained from the High Court only by R-1. The copy must therefore have been shown to the Magistrate by R-1 or her Advocate or by R-2 or his agents. \"\"This could not have been in the open court. There was no posting of the case to 26-4-1969\".\n\n(3) (a) R-3 was aware that Criminal Revision 176/69 and Cr. M.P. 309/69 against his earlier order, was pending in the Higli Court which was \"seized of the matter of determining the question of custody of the timber. His explanation that he felt that ho \"'\" free to pass an order because only the qnestion of interim custody was involved in Cr. Rev. Petition No. 1 '76 of 1 969 .......... was puerile\".\n\n(3) (b) R-3 passed the order on the Final Report. directing the release of the logs, without caring to issue notice to the petitioner (P).\n\n( 4) In the letter Ex. P-10, dated 26-9-1969, the Magistrate wrote to the Range Officer thai the logs should be released to R-1, urgently. \"This is a very strange procedure, unhearil of, and reveals an anxiety on the part of the Munsif!-Magistrate to help R-1 and R-2.\n\nThe urgency can only be to. circumvent any possible orders of sfay that may be passed by (the High) Court\".\n\nWe have heard R-1 and the Counsel for the other appellants.\n\nR-1 has argued his case in person becanse, according to him he has no funds to engage a Connsel.\n\nHis submissions are straight and simple. He has reiterated what he had stated in his further affidavit filed in reply to the memorandum of charge in te High Court.\n\nIn sum, his defence is that in all the proceedings relating to the disposal of the disputed timber, including the making of the order dated- September 26, 1969, the issuing of the letter, Ex.-10, of the same date, and in failing to issue notice to 'P', he acted in the bona fide discharge of his duties; that even if what be did or omitfed, was wrot1g, it was no more than an honest error of judgment on his part.\n\nIn particular, it is submitted that Ground No. 1 ( 1) is not based on any cogent or legal evidence but on mere rumours and hearsay and\n\n~BDUL KARIM v. M. IC PRAKASH (Sarkaria, I.) 283\n\nit is too vague and general; that even so, it was not incorporated in the charges against him. It is further maintained that the inferences of ulterior motives on the part of the appellant vide Grounds (2) and ( 4) drawn by the High Coiirt were wholly unjustllied.\n\nIt is contended that the approach of !lie High Court, is n©t in consonance with the Jaw laid down by this Court in Debabrata Bandopadhyay and ors.\n\nv. State of West Bengal and anr.( 1) Before dealing with the contentions canvassed by the appellant, it will be useful to recall the law on the point.\n\nClause (c) of s. 2 of the Contempt of Court Act, I\\)71 merely codifies the definition of \"criminal contempt\" which had previously been crystalised by judicial decisions. It defines 'criminal contempt' to man publication of any matter, or the doing of any other act which-\n\n\"(i) scandalises or tends to scandalise, ur lowers or tends to lower the authority of any court; or\n\n(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings;\n\n(iii) interferes or tends to interfere, or obstructs or tends D to obstruct, the administration of justice in any other mannei.\" The broad test to be applied in such cases is, whether the act complained of was calculated to obstruct or had an intrinsic tendency to interfere with the course of justice and the due adn1inistration of law.\n\nThe standard of proof required to establish a charge of 'criminal contempt' is the same as in any other criminal proceeding. It is all the more necessary to insist upon. strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a judicial officer. Wrong order or even an act of usurpation of jurisdiction committed by a judicial Officer, owing to an error of judgment or to a misapprehension of the correct legal position, does not fall within the misc1iief of \"criminal contempt\".\n\nHuman judgment is fallible and a judicial Officer is no exception.\n\nConsequently, so long as a judicial Officer in the discharge of his official duties, acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the courts will not, as a rule, punish him for a \"criminal contempt\".\n\nEven if it could be urged that mens rea, as such, is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner, if the act or omission complained of, was not wilful.\n\nIn Debabrata Bandopadhyaya's case (supra), Hidayatullah speaking for the Court elucidated the position, thus :\n\n\"A question whether there is contempt of court or not is a serious one.\n\nThe court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising froni inveterate\n\n(1) (A.T.R. 1969 S.C. !89.)\n\nC.J.\n\npractices in c_ourts and tribunals.\n\nIt is only when a clear case of contumcious conduct not explainable otherwise, arises jhat the contemner must be punished. It must be realised that our system of courts often resnlts in delay of one kind or another.\n\nThe remedy for \"it is reform and punishment departmentally.\n\nPunishment under the law of C<>lltempt is called for when the lapse is deliberate and is in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do dnty for other measures and is not to be encouraged.\"\n\nThe judgment of the High Court is to be tested in the light of the above enunciation.\n\nThe main ground, as already noticed, which greatly influenced the decision of the High Court, was that thiscase between the parties had gained a certain amount of notoriety and allegations were being openly made that the then Minister for Forests was out to favour R-1 and R-2 against 'P'.\n\nThis was a very vague, indefinite and nebulous circumstance which had no better status than any other general rumour, gossip or talk in the town.\n\nCourts have to guard against cognizance of such rumours and general allegations as they prejudice an objective treatment and a fair determination of the problems before them. In the instant case, the prejudice generated by this creeping circumstance has unmistakably vitiated the approach of the High Court. It has hindered a correct appreciation of the submissions made by R-3 in reply to the charges. In his cou11ter-ffidavit R-3 stated\n\n\"In the final report filed by the 4th respondent which is marked in these proceedings as P-6, there is reference to an order passed by this Honourable Court allowing the 1st respondent to remove the cut timber.\n\nThe order aforesaid is the order dated 2-5-1969 in C.M.P. 5869/1969 in O.P. 2405/1969, wherein it is said that it is necessary that the timber should be removed from the place as early as possible.\n\nA certified copy of this order was also shown to me and that was the reason why I wrote Ext. P-10 letter to release the cut logs without delay. The reason that promptea\n\nme to pass the final orders are therefore (I) there was no stay of further proceedings pending Crl.R.P. 176/1969 (2) the Crl.R.P. itself related only to Ex.R. order for custody pending further investigation, and can have no reference t0 the ultimate result of investigation (3) it was admitted before me that the 1st respondent had purchased the alleged rights of the petitioner and part of the consideration was already paid, even though he had the case that the assig•-\n\nment is not valid, and ( 4) this Honourable Court had in C.M.P. 5869 /1969 aforesaid directed the speedy removal of the timber from the place by the 1st respondent.\" In ou.r .. opinion, the above reply given by the Magistrate was at least, sufficient to dispel the suspicion that in making _the order dated September 26, 1969, in regard to the delivery of the timber to R-1 he was actuated by a motive to impede or obstruct o~ defeat thecourse of justice.\n\nThe notoriety of the case looming large in their minds, the learned Judges of the High Court without due consideration rather hastily rejected the explanation of the Magistrate that he had directed (vide his letter Ex.P-10), urgent delivery of the timber to R-1 because on seeing the copy of the High Court's order, dated May 2, 1969, which was shown to him, he was of the opinion that such a course was indicated therein.\n\nThe point of substance was, whether such an order was made by the High Court and had been shown to the Magistrate before he made the order for urgent delivery of the timber. It was immaterial if certified copy of that order was shown to the Magistrate by R-1 or her Counsel or her agent.\n\nEx.R-1 is a certified copy of that order dated May 2, 1969 which was passed by the High Court in C.M.P. 5869/1969 in O.P. 2405/ 1969, M. K. Prakash v. R-1 to R-4, C.M.P. 5869/69 was a petition made by 'P' before the High Court praying that the operation of the order of the then Respondent 1 be stayed am! the other respondents, inclnding the Magistrate, be directed not to cause the removal of the felled trees pending disposal of the original petition.\n\nAfter hearing arguments of the Counsel for the parties, the High Court made an order, the material part of which reads as under :\n\n\"As the rainy season is fast approaching it is necessary that the timber should be removed from the place as early as possible.\n\nOtherwise, the same would be lost to all concerned. It is seen from the counter affidavit of the 4th respondent that she had already given an undertaking to the Government to pay the compounding fee, if any that may be fixed by the Forest Authorities.\n\nIn the circumtanccs it appears to be only just to vacate the order of interim injunction passed on this petition.\n\nAccordingly the order of interim injunction passed on this petition is vacated and this petition is dismissed but in the circumstances without costs.\n\nOn reading a copy of this order, and hearing the persuasive arguments of the party or her Counsel, the Magistrate might have honestly, albiet wrongly, formed the opinion that there was no need to give notice to the other party ('P') and that it was necessary to direct the Forest Officer to deliver the timber in question urgently to R-1.\n\nWe are therefore unable to agree with the High Court that by his letter Ex.P-10, the Magistrate directed urgent delivery of the logs to R-1 because \"there was an anxiety on his part to help R-1 and R-2 and to circumvent any possible orders of stay that may be passed by the High Court\". If the Magistrate had read the High Court's order, dated May 2, 1969, before making this order of urgent delivery and this fact has not been disputed then his explanation cannot be dubbed as wholly puerile\".\n\nRather, the order dated May 2, 1969, whereby P's request for ad-interim stay or injunctio1' with regard to these logs was declined by the High Court, could have induced the Magistrate to go ahead with the making of the ex-parte final order in regard to the delivery of the logs to R-1.\n\n3-L522SCI/76\n\nIt is true that the Magistrate was aware that P's criminal revision petition against his interim order, dated April 28, 1969, was then pending in the High Court. In such a situation, the prudent course for him was to postpone the making of any final order in regard to the delivery of this timber till the final disposal of the revision petition by the High Court. It would also have been proper for him to issue notice to 'P' and give an opportunity of being heard before making any order.\n\nThat would have been the ideal. But the point for consideration is whether the Magistrate deliberately did not follow this prudent course or whether he misdirected himself owing to an error of judgment.\n\nThe stark circumstances viz.-that the High Court had declined to issue any interim injunction or stay order in favour of 'P' in the criminal revision pending before it; that there was an observation in the High Court's order, dated May 2, 1969, stressing the need for speedy removal of the cut timber and the possibility of its being damaged by the in-coming rainy season; that he was labouring under the impression, though wrongly, that the order, dated April 28, 1969, was merely an interim order which had exhausted itself on the completion of the police investigation and the presentation of the Final Report by the police in which there was a positive finding that the timber belonged to R-1 and R-2 and they were entitled to its restoration-taken in their totality, go to show that in making the wrong order regarding delivery of the timber, the Magistrate was not actuated by any improper motive or deliberate design to thwart, impede, obstruct or interfere with the course of justice or to circumvent or defeat the proceedings in revision pendin!l before the High Court.\n\nIn the absence of any mens rea, the Magistrate had at the most committed only a technical contempt of the High Court, in such a case, as was pointed out by this Court in Debabrata Bandhopadhyay's case (supra), penal action was not called for.\n\nWe therefore allow R-3's appeal and set aside his conviction and sentence.\n\nNo conviction for contempt of court has been recorded against the appellants in the companion appeals by the High Court. All that we would observe in their (R-1 and R-2) case is that the High Court has made sweeping observations with regard to their civil rights, which might prejudice them in establishing their claims by a regular suit.\n\nThey shall therefore not be taken into account by any court before which the dispute with regard to this timber may come up for adjudication in due. course.\n\nSimilarly any adverse remarks made against the Police Officer (R-4) will not by themselves be taken conclusive as tQ his conduct in handling this case. Subject to these observations we dismiss Criminal Appeals Nos. 195 and 196 of 1971.\n\nP.H.P Criminal appeal 118 of 1971 al/owed.\n\nCriminal appeals 195 & 196 dismissed.", "total_entities": 57, "entities": [{"text": "ABDUL KARIM", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "ABDUL KARIM", "offset_not_found": false}}, {"text": "M. K. PRAKASH AND ORS", "label": "RESPONDENT", "start_char": 16, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "M. K. PRAKASH AND ORS", "offset_not_found": false}}, {"text": "January 30, 1976", "label": "DATE", "start_char": 40, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "January 30, 1976\n\nfM. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]"}}, {"text": "fM. H. BEG", "label": "JUDGE", "start_char": 58, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 70, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "R. S. SARKARIA, JJ.", "label": "JUDGE", "start_char": 89, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Sec. 2(c)", "label": "PROVISION", "start_char": 140, "end_char": 149, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(c)", "label": "PROVISION", "start_char": 4065, "end_char": 4077, "source": "regex", "metadata": {"statute": null}}, {"text": "Contempt of Courts Act 1971", "label": "STATUTE", "start_char": 4085, "end_char": 4112, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "A. S. Nambiar", "label": "LAWYER", "start_char": 7676, "end_char": 7689, "source": "ner", "metadata": {"in_sentence": "A. S. Nambiar for the Appellant in Cr!."}}, {"text": "Kunhiraman Menon", "label": "LAWYER", "start_char": 7727, "end_char": 7743, "source": "ner", "metadata": {"in_sentence": "Kunhiraman Menon and A. S. Nambiar for the Appellants in Crl."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 7913, "end_char": 7921, "source": "ner", "metadata": {"in_sentence": "Ihe Judgment of 1he Court was delivered by-\n\nSARKARIA, J_.-These three appeals arise out of a common judgment of the High Court of Kerala holding the appellants guilty of contempt of court."}}, {"text": "High Court of Kerala", "label": "COURT", "start_char": 7985, "end_char": 8005, "source": "ner", "metadata": {"in_sentence": "Ihe Judgment of 1he Court was delivered by-\n\nSARKARIA, J_.-These three appeals arise out of a common judgment of the High Court of Kerala holding the appellants guilty of contempt of court."}}, {"text": "S. Abdul Karim", "label": "JUDGE", "start_char": 8059, "end_char": 8073, "source": "ner", "metadata": {"in_sentence": "S. Abdul Karim, the appellant in Criminal Appeal 118 of 1971."}}, {"text": "A. P. Parukutty Mooppilamma", "label": "PETITIONER", "start_char": 8306, "end_char": 8333, "source": "ner", "metadata": {"in_sentence": "A. P. Parukutty Mooppilamma and A. P. Achuthankutty Nair appellants in Cr."}}, {"text": "A. P. Achuthankutty Nair", "label": "PETITIONER", "start_char": 8338, "end_char": 8362, "source": "ner", "metadata": {"in_sentence": "A. P. Parukutty Mooppilamma and A. P. Achuthankutty Nair appellants in Cr."}}, {"text": "K. P. Ramaswami", "label": "RESPONDENT", "start_char": 8538, "end_char": 8553, "source": "ner", "metadata": {"in_sentence": "The appellant K. P. Ramaswami in Criminal Appeal No."}}, {"text": "M. K. Prakash", "label": "RESPONDENT", "start_char": 8667, "end_char": 8680, "source": "ner", "metadata": {"in_sentence": "M. K. Prakash, Respondent No.", "canonical_name": "M. K. PRAKASH AND ORS"}}, {"text": "March 28, 1969", "label": "DATE", "start_char": 8991, "end_char": 9005, "source": "ner", "metadata": {"in_sentence": "On March 28, 1969 R-1 presented a petition through R-2, to the Superintendent of Po.[icc, Kozhikode alleging that the accused persons (P and his men) were likely to trespass into the Olathilkki Arialakkan Malavaram to remove her timber."}}, {"text": "Police Station Kayanna", "label": "ORG", "start_char": 9620, "end_char": 9642, "source": "ner", "metadata": {"in_sentence": "The Superintendent of Police appears to have forwarded this petition to the Police Station Kayanna where, on its basis, a case under ss."}}, {"text": "ss. 143, 147 and 506", "label": "PROVISION", "start_char": 9677, "end_char": 9697, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 9699, "end_char": 9709, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "April 22, 1969", "label": "DATE", "start_char": 9942, "end_char": 9956, "source": "ner", "metadata": {"in_sentence": "On April 22, 1969, R-1 made an application, Ex."}}, {"text": "April\n\n28, 1969", "label": "DATE", "start_char": 10424, "end_char": 10439, "source": "ner", "metadata": {"in_sentence": "P-17) and other material, the Magistrate on April\n\n28, 1969, passed an order, directing the Forest Range Officer to keep the logs in his custody pending further investigation by the Police."}}, {"text": "September 20, 1969", "label": "DATE", "start_char": 11010, "end_char": 11028, "source": "ner", "metadata": {"in_sentence": "While P's Revision applicafion was pending in the High Court, the Police Officer, R-4, after completing the investigation, obtained the opinion of the Assistant Public Prosecutor on September 20, 1969 and submitted a Final Report on September 24, 1969 to the Magistrate (R-3)."}}, {"text": "September 24, 1969", "label": "DATE", "start_char": 11061, "end_char": 11079, "source": "ner", "metadata": {"in_sentence": "While P's Revision applicafion was pending in the High Court, the Police Officer, R-4, after completing the investigation, obtained the opinion of the Assistant Public Prosecutor on September 20, 1969 and submitted a Final Report on September 24, 1969 to the Magistrate (R-3)."}}, {"text": "16-7-69", "label": "DATE", "start_char": 11166, "end_char": 11173, "source": "ner", "metadata": {"in_sentence": "The material part of this Final Report runs as under :\n\n'\"On 16-7-69 a petitiOn from the complainant was received alleging that the investigation conducted by my predecessor was one-sided and biased against him and he had produced certain documents to support his contention that the property belongs to him and which were not considered by my predecessor."}}, {"text": "Calicut", "label": "GPE", "start_char": 11599, "end_char": 11606, "source": "ner", "metadata": {"in_sentence": "Based on this petition I continued the investigation and in the course of my investigation, I questioned the Divisional Forest Officer, Calicut and the Forest Range Officer, Knttiady."}}, {"text": "Knttiady", "label": "GPE", "start_char": 11637, "end_char": 11645, "source": "ner", "metadata": {"in_sentence": "Based on this petition I continued the investigation and in the course of my investigation, I questioned the Divisional Forest Officer, Calicut and the Forest Range Officer, Knttiady."}}, {"text": "M. K. Prakash", "label": "RESPONDENT", "start_char": 11685, "end_char": 11698, "source": "ner", "metadata": {"in_sentence": "They stated that the permit issned to M. K. Prakash in Kalpaidiyan Thirumudiyan Malavaram was stayed by the Government and hence not operated upon till now.", "canonical_name": "M. K. PRAKASH AND ORS"}}, {"text": "Kalpaidiyan Thirumudiyan Malavaram", "label": "OTHER_PERSON", "start_char": 11702, "end_char": 11736, "source": "ner", "metadata": {"in_sentence": "They stated that the permit issned to M. K. Prakash in Kalpaidiyan Thirumudiyan Malavaram was stayed by the Government and hence not operated upon till now."}}, {"text": "Olathukku Arialakkan Malavaram", "label": "OTHER_PERSON", "start_char": 11887, "end_char": 11917, "source": "ner", "metadata": {"in_sentence": "from Olathukku Arialakkan Malavaram in the possession and ownership of the mother of the complainant and those logs were cut by Smt."}}, {"text": "A. R.\n\nParukutty Amma", "label": "OTHER_PERSON", "start_char": 12015, "end_char": 12036, "source": "ner", "metadata": {"in_sentence": "A. R.\n\nParukutty Amma's workmen and for which proceedings have been taken against them under the M.P.P.F. Act."}}, {"text": "Kuttiadv", "label": "OTHER_PERSON", "start_char": 12164, "end_char": 12172, "source": "ner", "metadata": {"in_sentence": "To the same effect the Range Officer Kuttiadv had fifed an affidavit before the High Court in O.P. 2045/69 filed by the accused in this case."}}, {"text": "Paruk utty Amma", "label": "OTHER_PERSON", "start_char": 12365, "end_char": 12380, "source": "ner", "metadata": {"in_sentence": "Paruk utty Amma to remove timber cut from the permitted and non-permitted area of Olakhukki Arialakkan Malavaram and the High Court had upheld the order of the Government and the complainant's mother was allowed to transport all timber cut from the Malavaram, both from the permitted and non-permitted area."}}, {"text": "Pilliperuvanna Amsom", "label": "GPE", "start_char": 12786, "end_char": 12806, "source": "ner", "metadata": {"in_sentence": "According to the Divisional Forest Officer there is no Malavaram known as Kalpaidiyan Thirumudivan Malavaram in Pilliperuvanna Amsom as per the Regi>tration Manual."}}, {"text": "s11", "label": "PROVISION", "start_char": 13052, "end_char": 13055, "source": "regex", "metadata": {"statute": null}}, {"text": "s 447", "label": "PROVISION", "start_char": 13090, "end_char": 13095, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 13108, "end_char": 13111, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "M. K.\n\nH Prakash", "label": "RESPONDENT", "start_char": 13167, "end_char": 13183, "source": "ner", "metadata": {"in_sentence": "Under the above circumsfances, it is clear that Shri M. K.\n\nH Prakash accused in this case was not allowed to operate his permit and the 587 logs of timber seized by mv predecessor were cut by the complainant's mother and the same\n\nbelong to her.", "canonical_name": "M. K. PRAKASH AND ORS"}}, {"text": "Quilandy", "label": "GPE", "start_char": 14000, "end_char": 14008, "source": "ner", "metadata": {"in_sentence": "unge Officer Kuttiady, directing him that 5 8 7 logs seized by the Ins.e_ector of Police, Quilandy, then in his custody, be urgently released to R-1 (the mother of the complainant)."}}, {"text": "P. K. Appa Nair", "label": "LAWYER", "start_char": 14353, "end_char": 14368, "source": "ner", "metadata": {"in_sentence": "On the preceding facts, 'P' on November 26, 1969, made a petition in the High Court complaining that R-1, R-2, R-3, R-4 and\n\nR-5 (Sri P. K. Appa Nair, Advocate) had committed centempt of the High Court within the meaning of s. 3 of the Contempt of Court~\n\nAct, 1952 and prayeol that the respondents be ;>Unisbed for committing that contempt."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 14443, "end_char": 14447, "source": "regex", "metadata": {"statute": null}}, {"text": "February 16, 1970", "label": "DATE", "start_char": 16526, "end_char": 16543, "source": "ner", "metadata": {"in_sentence": "The Advocate-General assisted the High Court and filed a statement of facts on February 16, 1970."}}, {"text": "February 10, 1970", "label": "DATE", "start_char": 16635, "end_char": 16652, "source": "ner", "metadata": {"in_sentence": "After considering the replies, a memoranda of charges was drawn up against R-1 to R-5 on February 10, 1970."}}, {"text": "26-9-69", "label": "DATE", "start_char": 16834, "end_char": 16841, "source": "ner", "metadata": {"in_sentence": "The material part of the charges served on R-3 ran as under :\n\n\"That you, on receipt of the final report, even without giving notice to the petitioner, not only passed an order on 26-9-69 on the final report directing the return of the timber logs to the complainant but also wrote a letter (copy of which is Ext."}}, {"text": "Kuttiadi", "label": "GPE", "start_char": 17003, "end_char": 17011, "source": "ner", "metadata": {"in_sentence": "P-10) to the Forest Range Officer, Kuttiadi, directing him urgently to release the timber logs to the 1st respondent-thereby effectively defeating whatever oroer the Honourable High Court may finally pass in Criminal Revision Petition 176 of 1969 and Criminal Miscellaneous Petition 309/69, and that in consequences of your order the timber logs were actually handed over to the 1st respondent; That in so doing :\n\n(a) you have acted unjustly, oppressively and irregularly in the execution of your duties, under colour of judicial proceedings, wholly unwarranted by law and procedure; ·\n\n(b) you have also permitted the process of your court to be abused by the other respondents and thereby diverted the dne course of justice and\n\n(c) you have also impeded the course of justice by defeating the final orders that are liable to be passed by the High Court in Criminal Revision Petition 176/69 and Cr."}}, {"text": "May 2, 1969", "label": "DATE", "start_char": 18747, "end_char": 18758, "source": "ner", "metadata": {"in_sentence": "This irifercnce was available from the circumstance that in his affidavit, R-3 has said that an order dated May 2, 1969, passed by the High Court in C.M.P. 5869/69 in O.P. 2405/o9 v1as 'rown to him and the certified copy of this order was obtained from the High Court only by R-1."}}, {"text": "26-4-1969", "label": "DATE", "start_char": 19108, "end_char": 19117, "source": "ner", "metadata": {"in_sentence": "There was no posting of the case to 26-4-1969\"."}}, {"text": "26-9-1969", "label": "DATE", "start_char": 19699, "end_char": 19708, "source": "ner", "metadata": {"in_sentence": "P-10, dated 26-9-1969, the Magistrate wrote to the Range Officer thai the logs should be released to R-1, urgently. \""}}, {"text": "September 26, 1969", "label": "DATE", "start_char": 20508, "end_char": 20526, "source": "ner", "metadata": {"in_sentence": "In sum, his defence is that in all the proceedings relating to the disposal of the disputed timber, including the making of the order dated- September 26, 1969, the issuing of the letter, Ex.-10, of the same date, and in failing to issue notice to 'P', he acted in the bona fide discharge of his duties; that even if what be did or omitfed, was wrot1g, it was no more than an honest error of judgment on his part."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21547, "end_char": 21551, "source": "regex", "metadata": {"statute": null}}, {"text": "Debabrata Bandopadhyaya", "label": "OTHER_PERSON", "start_char": 23449, "end_char": 23472, "source": "ner", "metadata": {"in_sentence": "In Debabrata Bandopadhyaya's case (supra), Hidayatullah speaking for the Court elucidated the position, thus :\n\n\"A question whether there is contempt of court or not is a serious one.", "canonical_name": "Debabrata Bandopadhyaya"}}, {"text": "Hidayatullah", "label": "OTHER_PERSON", "start_char": 23489, "end_char": 23501, "source": "ner", "metadata": {"in_sentence": "In Debabrata Bandopadhyaya's case (supra), Hidayatullah speaking for the Court elucidated the position, thus :\n\n\"A question whether there is contempt of court or not is a serious one."}}, {"text": "2-5-1969", "label": "DATE", "start_char": 25693, "end_char": 25701, "source": "ner", "metadata": {"in_sentence": "The order aforesaid is the order dated 2-5-1969 in C.M.P. 5869/1969 in O.P. 2405/1969, wherein it is said that it is necessary that the timber should be removed from the place as early as possible."}}, {"text": "April 28, 1969", "label": "DATE", "start_char": 30148, "end_char": 30162, "source": "ner", "metadata": {"in_sentence": "3-L522SCI/76\n\nIt is true that the Magistrate was aware that P's criminal revision petition against his interim order, dated April 28, 1969, was then pending in the High Court."}}, {"text": "Debabrata Bandhopadhyay", "label": "OTHER_PERSON", "start_char": 31984, "end_char": 32007, "source": "ner", "metadata": {"in_sentence": "In the absence of any mens rea, the Magistrate had at the most committed only a technical contempt of the High Court, in such a case, as was pointed out by this Court in Debabrata Bandhopadhyay's case (supra), penal action was not called for.", "canonical_name": "Debabrata Bandopadhyaya"}}]}
{"document_id": "1976_3_287_298_EN", "year": 1976, "text": "\\ I\n\nNANCHAND GANGARAM SHETH\n\nMALLAVPA MAHALINGAPPA SADALGE\n\nJanuary 30, 1976\n\n[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]\n\n28 7\n\nJoint Hindu family-If duty cast on menibers to inform creditors by general notice regarding disruption of joint Hindu fa111ily-Creditor-Duty to inquire about the capacity of exccutant of a document.\n\nPartnership Act, 1932-Sections 4 and 5-Difference.\n\nLimitation Act, 1908-Section 2!(3)(b) \"Manager of the family for the time being\"-Meaning of-Erstwhile kana-1/ could keep an old debt alive and extend limitation against all the members of joini Hindu family.\n\nThe plaintiffappellant had business dealings with the joint family of the defendants.\n\nHe had instituted a suit claiming a certain sum of money from the defendants, one of the grounds being that even if the defendants proved that there had been a partition in the family, the family was still liable for the dues pertaining to the ancestral business carried on .bY allthe defendants either as members of the joint Hindu family or as partners of a firm.\n\nDefendant 3 (respondent) stated that there was disruption of the joint family status on November 4, 1945. when defendants 1 and 2 and his deceased father unequivocally expressed their intention to separate and divided their movables.\n\nHe denied that defendants 1 and 2 had ever acted as managers of the joint family.\n\nThe trial Court and the High Court concurrently found that the joint family of the defendants had disrupted on November 4, 1945 and that no joint family business was in existence on the date when the last dealing of tho plaintiff with the defendants took place.\n\nOn appeal to this Court, it was contended that even if the joint family stood disrupted from November, 1945, in the absence of public notice by defendants 1 and 2 regarding the disruption of the joint family, the acknowledgements made by them as karta of the joint Hindu family would be binding on the erstwhile joint family under s. 45 of the Partnership Act, 1932.\n\nDismissing the appeal, HEID : ( 1) It is the duty of the creditor to ascertain whether the person\n\nm~.king the acknowledgement still bolds his representative capacity as karta of the family. The law does not cast any duty upon the memrs of tho family to inform the creditors by a general notice about the disruption of the family.\n\nIf the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril. Disruption of the joint family status puts an end to the representative capacity of the karta and any acknowledgement of a deht made by him after such disruption cannot save the creditor's claim from bec:oming time barred against the other members. [298B-C] Pramod Kumar Pati v. Damodar Sahu, ILR 1953 Cuttack 221; Rengaswami Ayyangar v. Sivprakasem Pillai, !LR 1942 Mad. 251 (F.B.); Mutayala Ramacht:ndrappa v. Mutayala Narayanappa, AIR 1940 Mad. 339, approved.\n\nKashiram Bhagshet Shete v. Bhaga Bhanshet Redii A.i.R. 1945 Born. 511 over rukd.\n\n(2) (a) The Legislature has excluded the joint Hindu trading families from the operation of the Partnership Act. Section 4 defines partnership as a relation between persons who have agreed to share the profits: of a business, and H according to s. 5 the Act governs only that relation of partnership which arises fro.'.Il contract and not from status, such as the one obtaining among the mem bm of a joint Hindu family trading partnership, [297C-DJ\n\n(b) The words \"manager of a family for the time being\" occurring in s. 21 (3) (b) of the Limitation Act, 1908, indicate that at the time when the acknowledgement was made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family.\n\nIf <ft the relevant time the joint Hindu family, as such, was no longer in existence, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against aJI the members of the family, his representative capacity as karta being co-terminus \\vith the joint status of the family. [297F-Gl\n\n( c) Coparceners do not derive their title through the kart a of the coparcenaty.\n\nJn the instant case defendants 1 and 2 did not fulfil the requirements of 4 sub--s. (I) of s. 21 of the Limitation Act. [298Al '\\\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1896 of 1968.\n\n(Appeal by special leave from the judgment and order dated the 21st September, 1962, of the Mysore High Court in Regular Appeal (B) No. 287 of 1956).\n\nH. B. Data and P. C. Bhartari for the appellant.\n\nS. T. Desai and Naunit Lal for respondents 3 & 4.\n\nThe Judgment of the Court was delivered by\n\nSARKARrA, J.-This is a plaintiff's appeal by special leave directed against a judgment of High Court of Mysore. The following pedigce table will be helpful in understanding the facts leading up to this appeal :\n\nMal Jappa Def. No. I\n\nMahalingappa (died in ! 922)\n\nI Appa Saheb\n\nDef. No. 2\n\nI I Chandrakant Def. No. 3\n\nI .\n\nSn1t. Balab1 (wife of Neelkanth Def. No. 4).\n\nI Neelkanth (died on R-7-46)\n\nThe respondents are Hindus governed by Mitakshra School of Hindu Law.\n\nMahalingappa, the prepositus of the joint family died in 19'.!2, survived by three sons, namely, Malappa, Defendant 1, Appasaheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as 'M'. 'A' and 'N'), Mahalingappa and his sons constituted a joint Hindu family.\n\nThe family was trading in tobacco.\n\nMahalingappa, as Karla was managing the joint family business.\n\nAfter his death, his eldest son, Neelkanth. father of Chandrakant, Defendant 3, began to look after the management of the family business 'N' also started C. N.\n\nTennis Bidi Factory in the name of his son, Chandrakanth, in 1942 or thereabout. 'N' died on July 8, 1946.\n\nThereafter, 'A' (Defendant 2) continued and managed the joint family business and the family concerns with the consent of the other members. Nter 1951, the family business was managed by 'M' (Defendant 1).\n\nThe appellant had business dealings in tobacco and money dealings with the Defendants' joint family.\n\nThere used to be periodical verification of accounts and acknowledgements were made from time to\n\ntime by the Manager of the family.\n\nThe plaintiff's accounts were burnt in fire on October 22, 1949 and he had to reconstruct the accounts from available information and documents.\n\nOn April 15, 1953 accounts were taken, and the amount due from the defendants' family to the plaintiff was worked out and verified.\n\nThe accounts thus stated were acknowledged and signed by Defendant 1 and by Defendant 4, as guardian of her minor son, Defndant 3. A balance of Rs. 69,465/15/- was found due to the plamtdI from the defendants.\n\nWith the preceding allegations, the plaintiff on January 28, 1954 instituted the suit for the recovery of Rs. 75,000/-, comprising of Rs. 69,465/15/-, as principal, plus interest at 12 per cent per annum.\n\nSubsequently by an amendment of the plaint, he added an alternative ground that if the Defendants proved that there had been a partition in the family, , they were still liable for the dues pertaining to the ancestral business carried on by all the defendants either as members of the joint Hindu family or as partners of a firm.\n\nDefendants 1 and 2 in their joint written statement admitted that there was an ancestral tobacco business of the family managed by 'N' till his death in 1946; that after N's death, the family business was managed by them (M & A) and that all the defendants were jointly liable for the plaintiff's claim. The defendants denied that there was ever a partition of the joint family. They however conceded that a deed of partnership, an agreement and a partition award had been brought into existence from time to time with the sole object of lessening the burden of income-tax, and they were 11ot intended to be acted upon. It was added that after the interim attachment of the property, Defendant 3, taking advantage of these bogus documents, obtained an ex parte decree to show that there had been division of the joint family, and that this decree was not opposed by the answering defendants because they were assnred that it would not be executed. They admitted that _the appellant's claim was partially true, but denied correctness of the total balance claimed as due.\n\nThey further averred that the suit was time-barred as the acknowledgement relied on by the plaintiff was not legal and could not extend limitation, that interest was wrongly calculated; that if they ( Defendant 1 and 2) were held liable, they should be allowed to pay in easy instalments.\n\nDefendant 3 filed a separate written statement.\n\nHe resisted the plaintiff's claim, traversed the allegations in the plaint, and denied that there was any acknowlegement made on his behalf on April 15, 1953 by his mother, Defendant 4.\n\nIn the alternative he pleaded that she had no authority to acknowledge the debt so as to bind him as he was then a minor. Defendant 3 further stated that there was a disruption of the joint family status on November 4, 1945 when M, A and N unequivocally expressed their intention to separate, and divided the moYables, and thereafter, a decree for partition of the immovable property of the family was passed in 1949 on the basis of an arbitration award.\n\nDefendant 3 asserted that this decree had been acted upon by the parties, He denied that Defendants 1 and 2 had ever acted manager of the joint family with the consent of the other memhers,\n\nA and added that this question could not arise because of the earlier division of the family.\n\nDefendant 4 in her written statement denied the plaintiffs' claim and supported the contentions raised in his written statement by Defendant 3.\n\nShe stated that Defendants 1 and 2, had taken her thumbimpressions on certain papers on the representation that they had been B properly managing the Tennis Bidi Factory which had fallen to the share of her husband.\n\nShe was never informed of the contents of the documents by the Defendants, who took undue advantage of her illiteracy.\n\nThe trial court held that the joint family had disrupted in 1945 and the plaintiff was aware of this fact; that the acknowledgements of C the debt had been made by Defendants 1 and 2 and not by Defendant 3, and on that account the suit was within time only as against Defendants 1 and 2; that Defendant 3 had on attaining majority repudiated his liability as partner; that the thumb-impressions of Defendant 4 on the acknowledgement had been taken by practising fraud; that in any case defendant 4 had no authority to acknowledge the debt on behalf of her minor son.\n\nThe Court, however, upheld the D appellant's contention that the old accounts had been destroyed in fire and that the plaintiff was entitled to interest at 12 per cent per annum.\n\nOn these findings, the trial court decreed the plaintiff's claim in toto against Defendants 1 and 2 but dismissed it against Defendants 3 and 4.\n\nAgainst that judgment and decree of the trial court, the plaintiff E preferred an! appeal to the High Court.\n\nThe High Court has affirmed the findings of the trial court and dismissed the appeal.\n\nHence this second appeal by the plaintiff.\n\nDefendants 1 and 2 did not appeal against the decree of the trial court which had consequently become final against them.\n\nIt is common ground between the parties that during the life-time of Mahalingappa, the family consisting of Mahalingappa and his sons, was a joint Hindu family trading in tobacco.\n\nIt is further not disputed that after the death of Mahalingappa, the surviving co-parceners continued to be joint and Neelkanth, the eldest son of Mahalingappa, managed the family business as Karla till November 4, 1945.\n\nThe first matter in controversy is, whether on November 4, 1945, on account of an unequivocal declaration of an intention to separate made by the three sons of Mahalingappa, there was a disruption of the joint family status? The courts below have concurrently answered this question in the affirmative.\n\nMr. Datar, appearing for the appellant contends that this finding of the courts below that there was a division in the family on November 4, 1945, was not based on any evidence whatever and is consequently, unsustainable in Jaw.\n\nWe are unable to accept this contention.\n\nThe finding is based on good evidence which has been found creditworthy after due consideration by the two courts. Firstly, there is a recital of the fact of division on November 4, 1945, in the partnership deed, Ex. 197, dated October 25, 1946.\n\nThis deed has been written on a general stamp paper of the value of Rs. 30.\n\nThe date of the purchase of the stamp paper accords with the date of the execution of the deed.\n\nThis document therefore, could not have been brought into existence subsequently.\n\nSecondly, there was an endorsement ou the Income-tax Return Ex.\n\n309, relating to the previous year ending on November 4, 1945, that at the end of the year there has been a change in the status of the family.\n\nThirdly, there is the Arbitration Award (Ex. 294) dated November 3, 1948, followed by the decree (Ex. 295). This award is a registered document. The material recitals in this document are as under:\n\n'The plaintiff (Chandrakant Nilkanth) and the defendants Nos. 1, 2 and 3 (Mallappa, Appasaheb and Basawabai, widow of Mahalingappa) were members of joint family.\n\nDuring the lifetime of the plaintiff's father, he and the defendants Nos. l, 2 and 3 were living joint and all the three persons carried on the business of the joint family. Thereafter, as the minds of the plaintiff's father and of the defendants Nos. 1 and 2 were prejudiced on account of some domestic reasons, they began to live separately in the year 1945.\n\nThereafter they took accounts of the transaction,, with desire to get their immovable and movable properties and other busines; partitioned and got the capital amount in that business partitioned on 4th November 1945. So also they effected partitions in the other movables and the ornaments etc., of the family ....\n\nNow the defendants Nos. 1 and 2 are objecting about the maintenance to be given to the defendant No. 3 (widow of Mahalingappa) as per agreement deed ....\n\nThe contentions of the defendants Nos. 1 and 2 are as follows :\n\nWe and our deceased eldest brother Sri Nilkanthappa were living joint. It is true that on 4th November 1945 we all three together have taken the accounts of the business and have l)lade divisions in the capital of the business.\n\nIt is true that accordingly we have proportionately divided the remaining movable articles and the ornaments etc. and have taken the same .... \"\n\nThe award bears the signatures of the three arbitrators and on its ?asi.s the court passed a decree on August 9, 1949.\n\nThat suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants.\n\nUnder the award, prO\\ision was made for the maintenance of Smt. Basawwa and the residence of Suryakant, the illegitimate son of Nilkanth.\n\nThe conclusion based on the above documentary evidence was reinforced by the courts below with admissions made by Defendants 1 and 2, in cross-examination, and also with an inference drawn against the plaintiff and Defendant 1 on account of the non-production of the account-books. In our opinion, the court below were justified in drawing the inference because Defendant 1, as is apparent from his wrtiten statement, is colluding with the plaintiff, and all circumstances suggest that these account-books must be with defendant 1.\n\nThe case of Defendant 3 is that on November 4, 1945, the accounts of the joint family were worked out and closed.\n\nIt was found that there was a capital balance of Rs. 64,023/11/- which was equally divided among the three brothers and the fact of this division was. noted in the account books which were in the possession of Defendant 1.\n\nIn the witness-box, Defendants 1 and 2 admitted IDat on November 11, 1945, each of the brothers got Rs. 21,340/3/9 and credit entries to that effect were made in the khata of each brother in the account-books of the shop.\n\nDefendant 3 by an appljcation (Ex. 169) called upon Defendant 1 to produce in court the account-books, in his possession.\n\nNotice of this application was received by Defendant 1 's Counsel on July 18, 1955.\n\nDespite this notice defendant 1 did not produce the account books when he appeared in the witness-box on July 21, 1955.\n\nHe made a lame excuse that the account books had been given to Javali pleader after the service of summons in this suit on him ( defendant 1) because that pleader had asked him to bring the books containing the plaintiff's accounts. But the defendant gave him the books of the Bidi Factory and not of M. B. Sadalge shop.\n\nDefendant 1, in cross-examination, clearly admitted that he had given to J avali pleader only those account books which contained the plaintiff's Khata \"and not of previous years\".\n\nBy any reckoning, this means that he did.not hand over the account books relating prior to the years 1949 to Javali Pleader.\n\nAdmittedly, after the death of Nilkanth, he was managing the busines's upto 1950, and, as such, was supposed to be in possession of the account-books.\n\nThe courts below were therefore, right in rejecting the explanation given by him for non-production of the account-books.\n\nThe explanation regarding the nonproduction of the books, given by defen?ant 2, who had mapaged the business after 1951, was equally unsatisfactory and was nghtly discarded.\n\nIn the light of what has been said above, it cannot be held tat there was no legal evidence before the courts below to base the findtng that the joint family had disrupted on November 4, 1945.\n\nIt is next contended by Mr. Datar that even if there was some declaration of separation in 1945 and subs.equently a decree for partition based on an award was passed m 1949, then. also, uch declaration award and decree were never acted upon. It 1s submitted that in holding to the contrary, the High Court has committe.d several errors of record and misconstrued important.documentary evidence.\n\n'-,\n\nAccording to Mr. Datar, the under-mentioned documentary A evidence unmistakably shows that the declaration of 1945, the award of 1948 and the partitjon decree of 1949 were not acted upon : (1). Affidavits Exhts. 221, 24 7 and 248 sworn on July 20, 1946, before a Magistrate by Defendants 2, 4 and 1 stating that they are members of a joint Hindu family and Defendant 2 is the manager of the family.\n\nIn the affidavit Ex. 24 7, Sm!. Balabai gave her consent to the management of the affairs of the joint family by defendant 2. (2). Application dated August 13, 1946 (Ex. 182), by Defendant 1 to Sales-tax Officer for transfer and registration of the licence, and application Ex. 208, dated September 30, 1946 made by defendants 1 and 2 on their behalf and on behalf of Chandrakant Defendant 3 informing the City Surveyor about the death of Neelkanth and requesting him to enter the Khata in the names of all the three defendants 1 to 3.\n\n(3) Income-tax returns Exhs. 309 to 314 filed after the death of Neelkanth. ( 4). Resolution, Ex. 335, pased by the Board of Directors in te meeting held on July 30, 1946 permitting defendant 2 to redeem, Ill the capacity of Karta of the joint family, goods pledged with the Nipani Branch of the Bank by Neelkanth deceased. (5). Ex. 147, statement, date<l September 26, 1953, by defendant 3 requesting the City Surveyor, Nipani that his joint share in Nipani Revision Survey Nos. 1254 and 1264 may be cancelled and the name of defendant 1 may be entered again for both the numbers. Emphasis is on a sentence in this statement to the effect : \"Two months have passed since the said partition\".\n\nIn accordance with this statement, the mutation Ex. 263, was attested.\n\nBoth the courts below have fully considered this evidence, along with other .evidence, and come to the conclusion that these documents do not discount or alter the fact that the joint family had disrupted on November 4, 1945. The High Court has given reasons why the F evidence furnished by the deed oI partnership (Ex. 197) and the Arbitration Award, (Ex. 294) can be safely accepted.\n\nIn regard to Exs. 221, 247 and 248, the High Court has said that there is no evidence as to for what purpose these affidavits were sworn to and has rightly emphasised that in the absence of such evidence, it is difficult to draw any inference about the implications of G their contents.\n\nRegarding the affidavit Ex. 247, purporting to have been sworn by Smt. Balabai, the High Court has said that she must have been mentally depressed being in mourning on account of the death o~ her husband which occurred only 12 days earlier; that she was an illiterate woman who thumb-marked whatever documents were presented to her, without understanding its contents. In this connection, the High Court referred to the statement of defendant 1, wherein H he has admitted that during defendant 3's minority, defendant 1 and defendant 2 were the only persons who looked after the business and defendant 4 never objected to whatever they did. and that they used\n\nA to take defendant 4's thumb-impression whenever they thought it necessary in connection with the dealings of M. B. Sadalge shop.\n\nAs regards the applications Exs. 182 and 208, the High Court said, there was nothing inconsistent in the recitals of these documents, to show that there was no partition of the joint family.\n\nThe recital in Ex. 208 was found to be too technical to spell out the full legal B implications of the words \"in the joint family\".\n\nReferring; to the Income-tax returns Exs. 310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court noted that these refer to the accounts of the two concerns and contain somewhat different description in the management.\n\nIn Ex. 310, relating to the year ending c October 24, 1946, it is stated that 'N' and defendants 1 and 2 were Kartas of the family.\n\nIn Ex. 311, defendant 2 is mentioned as the manager of the \"old Hindu Undivided Family\". Similarly, Ex. 314, purports to have been filed by the H.U.F. relating to the year 1949-50 but this was filed on Feb. 13, 1954 after the institution of this suit.\n\nThe income-tax returns Ex. 312 and 313 relate to the previous years ending on 12-11-1947 and 22-12-48. Ex. 312 was submitted on D Demember 26, 1949 and Ex. 313 on December 22, 1953, both by defendant 2. The status of the assessee in these two returns is mentioned as \"Firm''.\n\nEx. 315, is the income-tax return relating to the income-tax year 1948-49, the previous year. of which ended on November 12, 1947.\n\nIt was filed by defendant 4 as guardian of her minor son, defendant 3, E on December 22, 1949. The status of the assessee therein is shown as 'Individual'.\n\nIt relates to the business which was being run under the style of M/s. M. B. Sadalge.\n\nIt is mentioned in this return that )r each of the three defendants 1, 2 and 3 has 1 /3 share in the business Ex. 316 is the order of the Income-tax Officer passed on June 20 1950 wherein it is stated that l /3 share of defendant 1 in the profits of this firm was assessed on that date.\n\nF Ex. 309 is the income-tax return relating to the previous year ended on November 4, 1945. It was filed by defendant 2 in 1946, after Neelkanth's death.\n\nThe High Court has attached great weight to an endorsement on this return, which is to the effect, that there had been a change in the family status at the end of the year. This endorsement has been omitted from the printed copy of Ex. 309. Consequently, at G one stage, it was maintained by the counsel for the appellant that in repeatedly referring to this endorsement the High Cour~ ad committed an error of record.\n\nWe therefore, sent for the ongmal. We find that this endorsement is very much there in the original.\n\nThis endorsement was a valuable piece of evidence to show that, in fact, there had been a disruption of the joint family status at the end of the previous year, 1944-45, on November 4, f945.\n\nH Thus the evidence furnished by the income-tax returns was conflicting. But the aforesaid endorsement on Ex. 309 was a clinchr. It was a statement made ante !item motam. It confirmed the testmg of\n\n' •\n\nDefendant 2 that the partition had taken place in 1945 and this tilted the balance against the contention of the plaintiff.\n\nIn such evidentiary value, it out-weighs the income-tax returns, Ex. 310, 311 and 314, in which the status of the assessee is sho\\vn as H.U.F.\n\nThe High Court was therefore, not wrong in holding that all these documents taken together do uot show \"that the family of the defendants had continued to be joint\".\n\nDiscussing the resolution (Ex. 335)of the Board of Directors passed on July 30, 1946, the High Court said that this resolution was passed only 22 days after the death of Neelkanth and therefore, there was nothing unusual if all the members authorised defendant 2 to redeem the pledged goods as manager of the joint family.\n\nIn our opinion, it was not nnresonable to hold that the recital in this resolution with regard to defendant 2 being the authorised manager of the joint family, was made as a matter of expediency, and did not discount the case of defendant 4 that the joint family had disrupted on November 4, 1945.\n\nThe High Court found that the racital in Ex. 143, that the partition had taken place two months prior to this application, was obviously a mistake, as it was nobody's case that the partition had taken place in 1953.\n\nThis inference also was not implausible.\n\nThis document contains other palpable errors of a similar nature.\n\nFor instance, therein the age of defendant 3 is mentioned as twenty years, while he was hardly eighteen.\n\nThe High Court fonnd that the documentary evidence furnished by\n\nthe partnership deed (Ex. 197) dated October 25, 1946, the award E (Ex. 294) dated October 30, 1948, and the decree (Ex. 295) dated September 15, 1949, passed on its basis was entirely reliable. It further found that these documents had been acted upon.\n\nIn this connection, the High Court, rightly relied upon lhe admissions of defendant 1 in cross-examination. In the witness-box, defendant 1 had conceded that all the immovable property that had been allotted to defendant 2 under the award had. been sold away by him, and that F pursuant to the award, Rs. 7 ,000 /- had been paid to Heerabai and her son, Suryakant.\n\nDefendant 1 further significantly admitted that on October 25, 1946 Rs. 16000/- and odd were to the credit of defendant 3 in the account books of M. S. Sadalge Shop. By virtue of the receipt, Ex. 167, dated August 9, 1949, defendants 1 and 2 acknowledged the deposit of Rs. 16005-15-0 in favour of the minor Defendant 3, payable with interest at Rs. 6/- per cent per annum.\n\nG Defendant 1 admitted the correctness of the contents of this receipt.\n\nIt is undisputed that subsequently, defendant 3 has not only obtained a decree on the basis of this receipt against defendant 1, but has taken out its execution.\n\nThe High Court has also discussed the effect of the agreement (Ex. 99) which was executed between defendants 1, 2 and defendant H 4 as the guardian of the minor, defendant 3 on April 12, 1950. The main object of this agreement was to safeguard the interests of the minor in the management of the two partnership businesses, namely,\n\nA M. B. Sadalge Shop and Tennis Bidi Factory in the name of Chandrakant Neelkant Sadalge. By this agreemenl, defendants 1 and 2 were called upon to credit to the business whatever amounts they had spent from out of the partnership assets.\n\nThepower of each of the defendants with regard to withdrawal of funds from partnership chest for personal expenses, was also restricted. This arrangement continued to be in force till the partnership was dissolved by another registered B deed on April 20, 1951.\n\nReference has already been made to Ex. 316, an order dated June 20, 1950, of the Income-tax Officer showing that defendants 1, 2 and 3 were being assessed on the basis that each of them had 1 /3rd share in the business.\n\nIn a joint Hindt! family business, no member of the family can say that he is the owner of one-half, one-third or onefourth.\n\nThe essence of joint Hindu family property is unity of ownership and community of interest, and the shares of the members are not defined.\n\nSimilarly, the pattern of the accounts of a joint Hindu family business maintained by the Karla is different from those of a partnership.\n\nIn the case of the former the shares of the individual members in the profits and losses are not worked out, while they have to be worked out in the case of partnership accounts.\n\nIn view of all that has been said above, we are of opinion that the co.ncurrent. finding of the courts below to the effect, that the joint Hindu family of the defendants had disrupted on November 4, 1945, does not suffer from any legal infirmity or gross error which would justify out interference in this appeal by special leave.\n\nWe therefore, take it that no joint Hindu family of the defendants, nor any joint business of such a family was in existence either on October 15, 1949 when the last dealing (vide Ex. 394) of the plaintiff with defendauts 1 and 2 took place, or when on April 15, 1953 the accounts were stated and admitted.\n\nIndeed, on the date, April 15, 1953, on which the plaintiff's cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.\n\nMr. Datar next contends that even if the joint status of the family stood disrupted from November, 1945, then also, on the principle of s. 45, Partnership Act, the acknowledgements made by defendants 1 and 2, representing themselves, jointly or severally, as Karla of the joint Hindu trading family, would, in the absence of public notice to G the traders in general or particular notice to the plaintiff, be binding on all the erstwhile members of the joint family.\n\nReliance for this contention has been placed on a Single Bench judgment of the Bombay High Court in Kashiram Bhagshet Shete v. Bhaga Bhanshet Redij(').\n\nAs against this, Mr. Desai submits that Kashiram's case (supra) does not lay down the law correctly.\n\nCounsel maintains that the con- H trary view taken by the other High Courts in these cases is sound : Pramod Kumar Pali v. Damodar Sahu('); Rengaswami Ayyangar v.\n\n(I) A.LR. 1945 Born. 511\n\n(2) 1.L R. !953 Ci ttack 221.\n\nSivyurakasam Pillai('); Muthyala Ramachandrappa v.\n\nMuthyala A Narayanappa(').\n\nKashiram's case (supra) decided by an eminent single Judge certainly supports the proposition propounded by Mr. Datar. Applying the principle of s. 45 of the Partnership Act, 1932, the learned Judge held that unless intimation of the severance of joint status between the members of the joint family is given to the outside creditors who had dealings with the joint family through its karta, either by public notice or individual notice in that behalf, the karta would be deemed to continue to represent the family and to have power to incur debts for family necessity and to make acknowledgements or part-payments in respect of the same so as to extend the period of limitation.\n\nWith great respect to the learned Judge, we do not think that this is a correct enunciation of the Jaw on the point.\n\nFirstly, the legislature has, in its wisdom, excluded joint Hindu trading families from the operation of the Partnership Act. Section 4 of that Act defines 'partnership' as \"the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all\".\n\nSection 5 furth'1f makes it clear that this Act governs only that relation of partnership which arises from contract and not from status such as the one obtaining among the members of a joint Hindu family trading partnership.\n\nSecondly, ihe question whether an acknowledgement made by the karta of an erstwhile joint Hindu family after its severance, would extend limitation against all the former members of that family, turns primarily on an interpretation of clause\n\n(b) of sub-section (3) of s. 21 read withs. 19 of the Limitation Act,\n\n1908. Clause (b) of s. 21(3) provides:\n\n\"Where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgement or payment made by or by the duly authorised agent of, the manager of the family for the time-being, shall be deemed to have been made on behalf of the whole family\".\n\nThe key words in this clause are 'the manager of the family for the time being'.\n\nThese words unerringly indicate that at the time when the acknowledgement is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family. If at the relevant time the joint Hindu family as such was no longer in existence because of. division, or disruption of its joint status, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitatfon as against all the members of the family, his representative capacity as karta being co-terminus with the joint status of the family.\n\nExplanation (II) to s. 19 lays down that for the purpose of this section \"signed\" means signed either personally or by an agent duly authorised in this behalf. Section 21 (1) provides that the exprssion \"agent duly authorised in thi~ behalf\" in ss. 19 and 20 shall in the case of a person under disability include his lawful guardian or manager or an agent duly authorised in this behalf. It is well settled that\n\n(I) I.L.R. 1942Mad. 251 (FB.)\n\n(2) A.I.R. 1940 Mad. 339.\n\nA coparceners do not derive their title through the karta of the . coparcenary. Defendants 1 and 2 do not fulfil the requirements of this sub-section.\n\nIt is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgement still holds his representative capacity as karta of the farni!y.\n\nThe law does not cast any B duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family. If the creditor fails to make an enquiry and satisfy himself about the capacity of tne executant to represent the family at the time of making the acknowledgement, he does so at his own peril. Disruption of the joint family status, as already noticed, puts an. end to the representative capacity C of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditors' claim from becoming timebarred against the other members.\n\nThe above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rangaswamy Ayyangar\n\nv. Sivprakasam Pillai (supra) and by a Division Bench consisting of Varadachariar and Abdur Rahman JJ . .in Muthyala Ramachandrappa\n\nv. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra).\n\nWe approve of the law enunciated on the point by the High Courts in these cases.\n\nNo other point has been argued before us in this appeal which fails and is dismissed with costs. ~\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 105, "entities": [{"text": "I\n\nNANCHAND GANGARAM SHETH", "label": "PETITIONER", "start_char": 2, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "NANCHAND GANGARAM SHETH", "offset_not_found": false}}, {"text": "MALLAVPA MAHALINGAPPA SADALGE", "label": "RESPONDENT", "start_char": 30, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "Mallappa Mahalingappa H Sadalge", "offset_not_found": false}}, {"text": "January 30, 1976", "label": "DATE", "start_char": 61, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "\\ I\n\nNANCHAND GANGARAM SHETH\n\nMALLAVPA MAHALINGAPPA SADALGE\n\nJanuary 30, 1976\n\n[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 80, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 99, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Partnership Act, 1932", "label": "STATUTE", "start_char": 333, "end_char": 354, "source": "regex", "metadata": {}}, {"text": "Sections 4 and 5", "label": "PROVISION", "start_char": 355, "end_char": 371, "source": "regex", "metadata": {"linked_statute_text": "Partnership Act, 1932", "statute": "Partnership Act, 1932"}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 385, "end_char": 405, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 2", "label": "PROVISION", "start_char": 406, "end_char": 415, "source": "regex", "metadata": {"linked_statute_text": "Limitation Act, 1908", "statute": "Limitation Act, 1908"}}, {"text": "4, 1945", "label": "DATE", "start_char": 1145, "end_char": 1152, "source": "ner", "metadata": {"in_sentence": "Defendant 3 (respondent) stated that there was disruption of the joint family status on November 4, 1945."}}, {"text": "November 4, 1945", "label": "DATE", "start_char": 1477, "end_char": 1493, "source": "ner", "metadata": {"in_sentence": "The trial Court and the High Court concurrently found that the joint family of the defendants had disrupted on November 4, 1945 and that no joint family business was in existence on the date when the last dealing of tho plaintiff with the defendants took place."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 1960, "end_char": 1965, "source": "regex", "metadata": {"statute": null}}, {"text": "Partnership Act, 1932", "label": "STATUTE", "start_char": 1973, "end_char": 1994, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 3181, "end_char": 3190, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 3313, "end_char": 3317, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 3586, "end_char": 3591, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act, 1908", "label": "STATUTE", "start_char": 3607, "end_char": 3627, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 21", "label": "PROVISION", "start_char": 4309, "end_char": 4314, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act, 1908", "statute": "the Limitation Act, 1908"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 4322, "end_char": 4336, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "H. B. Data", "label": "LAWYER", "start_char": 4562, "end_char": 4572, "source": "ner", "metadata": {"in_sentence": "H. B. Data and P. C. Bhartari for the appellant."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 4577, "end_char": 4591, "source": "ner", "metadata": {"in_sentence": "H. B. Data and P. C. Bhartari for the appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4612, "end_char": 4623, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Naunit Lal for respondents 3 & 4."}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 4628, "end_char": 4638, "source": "ner", "metadata": {"in_sentence": "S. T. Desai and Naunit Lal for respondents 3 & 4."}}, {"text": "SARKARrA", "label": "JUDGE", "start_char": 4707, "end_char": 4715, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARrA, J.-This is a plaintiff's appeal by special leave directed against a judgment of High Court of Mysore."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 4797, "end_char": 4817, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARrA, J.-This is a plaintiff's appeal by special leave directed against a judgment of High Court of Mysore."}}, {"text": "Mal Jappa", "label": "PETITIONER", "start_char": 4919, "end_char": 4928, "source": "ner", "metadata": {"in_sentence": "The following pedigce table will be helpful in understanding the facts leading up to this appeal :\n\nMal Jappa Def.", "canonical_name": "Mal Jappa"}}, {"text": "Appa Saheb", "label": "PETITIONER", "start_char": 4973, "end_char": 4983, "source": "ner", "metadata": {"in_sentence": "922)\n\nI Appa Saheb\n\nDef.", "canonical_name": "Appa Saheb"}}, {"text": "Balab1", "label": "RESPONDENT", "start_char": 5036, "end_char": 5042, "source": "ner", "metadata": {"in_sentence": "Sn1t. Balab1 (wife of Neelkanth Def.", "canonical_name": "Balabai"}}, {"text": "Mahalingappa", "label": "RESPONDENT", "start_char": 5177, "end_char": 5189, "source": "ner", "metadata": {"in_sentence": "Mahalingappa, the prepositus of the joint family died in 19'.!2, survived by three sons, namely, Malappa, Defendant 1, Appasaheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as 'M'. '", "canonical_name": "Mahalingappa"}}, {"text": "Malappa", "label": "PETITIONER", "start_char": 5274, "end_char": 5281, "source": "ner", "metadata": {"in_sentence": "Mahalingappa, the prepositus of the joint family died in 19'.!2, survived by three sons, namely, Malappa, Defendant 1, Appasaheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as 'M'. '", "canonical_name": "Mal Jappa"}}, {"text": "Appasaheb", "label": "RESPONDENT", "start_char": 5296, "end_char": 5305, "source": "ner", "metadata": {"in_sentence": "Mahalingappa, the prepositus of the joint family died in 19'.!2, survived by three sons, namely, Malappa, Defendant 1, Appasaheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as 'M'. '", "canonical_name": "Appa Saheb"}}, {"text": "Neelkanth", "label": "RESPONDENT", "start_char": 5324, "end_char": 5333, "source": "ner", "metadata": {"in_sentence": "Mahalingappa, the prepositus of the joint family died in 19'.!2, survived by three sons, namely, Malappa, Defendant 1, Appasaheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as 'M'. '", "canonical_name": "Neelkanth"}}, {"text": "Mahalingappa", "label": "RESPONDENT", "start_char": 5392, "end_char": 5404, "source": "ner", "metadata": {"in_sentence": "A' and 'N'), Mahalingappa and his sons constituted a joint Hindu family.", "canonical_name": "Mahalingappa"}}, {"text": "Karla", "label": "OTHER_PERSON", "start_char": 5506, "end_char": 5511, "source": "ner", "metadata": {"in_sentence": "Mahalingappa, as Karla was managing the joint family business."}}, {"text": "Neelkanth", "label": "RESPONDENT", "start_char": 5586, "end_char": 5595, "source": "ner", "metadata": {"in_sentence": "After his death, his eldest son, Neelkanth.", "canonical_name": "Neelkanth"}}, {"text": "Chandrakant", "label": "RESPONDENT", "start_char": 5607, "end_char": 5618, "source": "ner", "metadata": {"in_sentence": "father of Chandrakant, Defendant 3, began to look after the management of the family business 'N' also started C. N.\n\nTennis Bidi Factory in the name of his son, Chandrakanth, in 1942 or thereabout. '", "canonical_name": "Chandrakant Neelkant Sadalge"}}, {"text": "Chandrakanth", "label": "RESPONDENT", "start_char": 5759, "end_char": 5771, "source": "ner", "metadata": {"in_sentence": "father of Chandrakant, Defendant 3, began to look after the management of the family business 'N' also started C. N.\n\nTennis Bidi Factory in the name of his son, Chandrakanth, in 1942 or thereabout. '", "canonical_name": "Chandrakant Neelkant Sadalge"}}, {"text": "July 8, 1946", "label": "DATE", "start_char": 5808, "end_char": 5820, "source": "ner", "metadata": {"in_sentence": "N' died on July 8, 1946."}}, {"text": "October 22, 1949", "label": "DATE", "start_char": 6313, "end_char": 6329, "source": "ner", "metadata": {"in_sentence": "The plaintiff's accounts were burnt in fire on October 22, 1949 and he had to reconstruct the accounts from available information and documents."}}, {"text": "April 15, 1953", "label": "DATE", "start_char": 6415, "end_char": 6429, "source": "ner", "metadata": {"in_sentence": "On April 15, 1953 accounts were taken, and the amount due from the defendants' family to the plaintiff was worked out and verified."}}, {"text": "January 28, 1954", "label": "DATE", "start_char": 6805, "end_char": 6821, "source": "ner", "metadata": {"in_sentence": "With the preceding allegations, the plaintiff on January 28, 1954 instituted the suit for the recovery of Rs."}}, {"text": "Datar", "label": "OTHER_PERSON", "start_char": 12083, "end_char": 12088, "source": "ner", "metadata": {"in_sentence": "Mr. Datar, appearing for the appellant contends that this finding of the courts below that there was a division in the family on November 4, 1945, was not based on any evidence whatever and is consequently, unsustainable in Jaw."}}, {"text": "October 25, 1946", "label": "DATE", "start_char": 12579, "end_char": 12595, "source": "ner", "metadata": {"in_sentence": "197, dated October 25, 1946."}}, {"text": "November 3, 1948", "label": "DATE", "start_char": 13121, "end_char": 13137, "source": "ner", "metadata": {"in_sentence": "294) dated November 3, 1948, followed by the decree (Ex."}}, {"text": "Chandrakant Nilkanth", "label": "PETITIONER", "start_char": 13280, "end_char": 13300, "source": "ner", "metadata": {"in_sentence": "The material recitals in this document are as under:\n\n'The plaintiff (Chandrakant Nilkanth) and the defendants Nos.", "canonical_name": "Chandrakant Neelkant Sadalge"}}, {"text": "Mallappa", "label": "RESPONDENT", "start_char": 13338, "end_char": 13346, "source": "ner", "metadata": {"in_sentence": "1, 2 and 3 (Mallappa, Appasaheb and Basawabai, widow of Mahalingappa) were members of joint family.", "canonical_name": "Mal Jappa"}}, {"text": "Appasaheb", "label": "PETITIONER", "start_char": 13348, "end_char": 13357, "source": "ner", "metadata": {"in_sentence": "1, 2 and 3 (Mallappa, Appasaheb and Basawabai, widow of Mahalingappa) were members of joint family.", "canonical_name": "Appa Saheb"}}, {"text": "Basawabai", "label": "PETITIONER", "start_char": 13362, "end_char": 13371, "source": "ner", "metadata": {"in_sentence": "1, 2 and 3 (Mallappa, Appasaheb and Basawabai, widow of Mahalingappa) were members of joint family.", "canonical_name": "Basawabai"}}, {"text": "4th November 1945", "label": "DATE", "start_char": 13988, "end_char": 14005, "source": "ner", "metadata": {"in_sentence": "Thereafter they took accounts of the transaction,, with desire to get their immovable and movable properties and other busines; partitioned and got the capital amount in that business partitioned on 4th November 1945."}}, {"text": "Nilkanthappa", "label": "OTHER_PERSON", "start_char": 14365, "end_char": 14377, "source": "ner", "metadata": {"in_sentence": "1 and 2 are as follows :\n\nWe and our deceased eldest brother Sri Nilkanthappa were living joint.", "canonical_name": "Nilkanthappa"}}, {"text": "August 9, 1949", "label": "DATE", "start_char": 14804, "end_char": 14818, "source": "ner", "metadata": {"in_sentence": "asi.s the court passed a decree on August 9, 1949."}}, {"text": "Basawwa", "label": "PETITIONER", "start_char": 14864, "end_char": 14871, "source": "ner", "metadata": {"in_sentence": "That suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants.", "canonical_name": "Basawabai"}}, {"text": "Suryakant", "label": "OTHER_PERSON", "start_char": 14896, "end_char": 14905, "source": "ner", "metadata": {"in_sentence": "That suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants."}}, {"text": "Nilkanth", "label": "OTHER_PERSON", "start_char": 14928, "end_char": 14936, "source": "ner", "metadata": {"in_sentence": "That suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants.", "canonical_name": "Nilkanthappa"}}, {"text": "Mallappa Mahalingappa H Sadalge", "label": "RESPONDENT", "start_char": 14938, "end_char": 14969, "source": "ner", "metadata": {"in_sentence": "That suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants.", "canonical_name": "Mallappa Mahalingappa H Sadalge"}}, {"text": "Appasaheb", "label": "PETITIONER", "start_char": 14974, "end_char": 14983, "source": "ner", "metadata": {"in_sentence": "That suit was mshtutcd by C:han?akant, and Basawwa, widow of Mahalingappa, Suryakant, an dleg1hmate son of Nilkanth, Mallappa Mahalingappa H Sadalge and Appasaheb were impleaded as defendants.", "canonical_name": "Appa Saheb"}}, {"text": "November 11, 1945", "label": "DATE", "start_char": 16082, "end_char": 16099, "source": "ner", "metadata": {"in_sentence": "In the witness-box, Defendants 1 and 2 admitted IDat on November 11, 1945, each of the brothers got Rs."}}, {"text": "July 18, 1955", "label": "DATE", "start_char": 16441, "end_char": 16454, "source": "ner", "metadata": {"in_sentence": "Notice of this application was received by Defendant 1 's Counsel on July 18, 1955."}}, {"text": "July 21, 1955", "label": "DATE", "start_char": 16562, "end_char": 16575, "source": "ner", "metadata": {"in_sentence": "Despite this notice defendant 1 did not produce the account books when he appeared in the witness-box on July 21, 1955."}}, {"text": "M. B. Sadalge shop", "label": "ORG", "start_char": 16879, "end_char": 16897, "source": "ner", "metadata": {"in_sentence": "But the defendant gave him the books of the Bidi Factory and not of M. B. Sadalge shop."}}, {"text": "Balabai", "label": "RESPONDENT", "start_char": 18685, "end_char": 18692, "source": "ner", "metadata": {"in_sentence": "Balabai gave her consent to the management of the affairs of the joint family by defendant 2. (", "canonical_name": "Balabai"}}, {"text": "Chandrakant", "label": "RESPONDENT", "start_char": 19021, "end_char": 19032, "source": "ner", "metadata": {"in_sentence": "208, dated September 30, 1946 made by defendants 1 and 2 on their behalf and on behalf of Chandrakant Defendant 3 informing the City Surveyor about the death of Neelkanth and requesting him to enter the Khata in the names of all the three defendants 1 to 3.", "canonical_name": "Chandrakant Neelkant Sadalge"}}, {"text": "July 30, 1946", "label": "DATE", "start_char": 19347, "end_char": 19360, "source": "ner", "metadata": {"in_sentence": "335, pased by the Board of Directors in te meeting held on July 30, 1946 permitting defendant 2 to redeem, Ill the capacity of Karta of the joint family, goods pledged with the Nipani Branch of the Bank by Neelkanth deceased. ("}}, {"text": "September 26, 1953", "label": "DATE", "start_char": 19546, "end_char": 19564, "source": "ner", "metadata": {"in_sentence": "147, statement, date<l September 26, 1953, by defendant 3 requesting the City Surveyor, Nipani that his joint share in Nipani Revision Survey Nos."}}, {"text": "Nipani", "label": "GPE", "start_char": 19611, "end_char": 19617, "source": "ner", "metadata": {"in_sentence": "147, statement, date<l September 26, 1953, by defendant 3 requesting the City Surveyor, Nipani that his joint share in Nipani Revision Survey Nos."}}, {"text": "March 15, 1948", "label": "DATE", "start_char": 21822, "end_char": 21836, "source": "ner", "metadata": {"in_sentence": "310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court noted that these refer to the accounts of the two concerns and contain somewhat different description in the management."}}, {"text": "November 12, 1949", "label": "DATE", "start_char": 21838, "end_char": 21855, "source": "ner", "metadata": {"in_sentence": "310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court noted that these refer to the accounts of the two concerns and contain somewhat different description in the management."}}, {"text": "February 13, 1954", "label": "DATE", "start_char": 21860, "end_char": 21877, "source": "ner", "metadata": {"in_sentence": "310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court noted that these refer to the accounts of the two concerns and contain somewhat different description in the management."}}, {"text": "Feb. 13, 1954", "label": "DATE", "start_char": 22365, "end_char": 22378, "source": "ner", "metadata": {"in_sentence": "314, purports to have been filed by the H.U.F. relating to the year 1949-50 but this was filed on Feb. 13, 1954 after the institution of this suit."}}, {"text": "12-11-1947", "label": "DATE", "start_char": 22494, "end_char": 22504, "source": "ner", "metadata": {"in_sentence": "312 and 313 relate to the previous years ending on 12-11-1947 and 22-12-48."}}, {"text": "22-12-48", "label": "DATE", "start_char": 22509, "end_char": 22517, "source": "ner", "metadata": {"in_sentence": "312 and 313 relate to the previous years ending on 12-11-1947 and 22-12-48."}}, {"text": "November 12, 1947", "label": "DATE", "start_char": 22805, "end_char": 22822, "source": "ner", "metadata": {"in_sentence": "of which ended on November 12, 1947."}}, {"text": "December 22, 1949", "label": "DATE", "start_char": 22901, "end_char": 22918, "source": "ner", "metadata": {"in_sentence": "It was filed by defendant 4 as guardian of her minor son, defendant 3, E on December 22, 1949."}}, {"text": "M. B. Sadalge", "label": "OTHER_PERSON", "start_char": 23053, "end_char": 23066, "source": "ner", "metadata": {"in_sentence": "It relates to the business which was being run under the style of M/s. M. B. Sadalge."}}, {"text": "November 4, f945", "label": "DATE", "start_char": 24207, "end_char": 24223, "source": "ner", "metadata": {"in_sentence": "This endorsement was a valuable piece of evidence to show that, in fact, there had been a disruption of the joint family status at the end of the previous year, 1944-45, on November 4, f945."}}, {"text": "September 15, 1949", "label": "DATE", "start_char": 26118, "end_char": 26136, "source": "ner", "metadata": {"in_sentence": "295) dated September 15, 1949, passed on its basis was entirely reliable."}}, {"text": "Heerabai", "label": "OTHER_PERSON", "start_char": 26573, "end_char": 26581, "source": "ner", "metadata": {"in_sentence": "7 ,000 /- had been paid to Heerabai and her son, Suryakant."}}, {"text": "M. S. Sadalge Shop", "label": "ORG", "start_char": 26753, "end_char": 26771, "source": "ner", "metadata": {"in_sentence": "16000/- and odd were to the credit of defendant 3 in the account books of M. S. Sadalge Shop."}}, {"text": "April 12, 1950", "label": "DATE", "start_char": 27395, "end_char": 27409, "source": "ner", "metadata": {"in_sentence": "99) which was executed between defendants 1, 2 and defendant H 4 as the guardian of the minor, defendant 3 on April 12, 1950."}}, {"text": "A M. B. Sadalge Shop", "label": "ORG", "start_char": 27551, "end_char": 27571, "source": "ner", "metadata": {"in_sentence": "The main object of this agreement was to safeguard the interests of the minor in the management of the two partnership businesses, namely,\n\nA M. B. Sadalge Shop and Tennis Bidi Factory in the name of Chandrakant Neelkant Sadalge."}}, {"text": "Tennis Bidi Factory", "label": "ORG", "start_char": 27576, "end_char": 27595, "source": "ner", "metadata": {"in_sentence": "The main object of this agreement was to safeguard the interests of the minor in the management of the two partnership businesses, namely,\n\nA M. B. Sadalge Shop and Tennis Bidi Factory in the name of Chandrakant Neelkant Sadalge."}}, {"text": "Chandrakant Neelkant Sadalge", "label": "RESPONDENT", "start_char": 27611, "end_char": 27639, "source": "ner", "metadata": {"in_sentence": "The main object of this agreement was to safeguard the interests of the minor in the management of the two partnership businesses, namely,\n\nA M. B. Sadalge Shop and Tennis Bidi Factory in the name of Chandrakant Neelkant Sadalge.", "canonical_name": "Chandrakant Neelkant Sadalge"}}, {"text": "April 20, 1951", "label": "DATE", "start_char": 28037, "end_char": 28051, "source": "ner", "metadata": {"in_sentence": "This arrangement continued to be in force till the partnership was dissolved by another registered B deed on April 20, 1951."}}, {"text": "June 20, 1950", "label": "DATE", "start_char": 28113, "end_char": 28126, "source": "ner", "metadata": {"in_sentence": "316, an order dated June 20, 1950, of the Income-tax Officer showing that defendants 1, 2 and 3 were being assessed on the basis that each of them had 1 /3rd share in the business."}}, {"text": "October 15, 1949", "label": "DATE", "start_char": 29327, "end_char": 29343, "source": "ner", "metadata": {"in_sentence": "We therefore, take it that no joint Hindu family of the defendants, nor any joint business of such a family was in existence either on October 15, 1949 when the last dealing (vide Ex."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 29819, "end_char": 29824, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 30230, "end_char": 30247, "source": "ner", "metadata": {"in_sentence": "Reliance for this contention has been placed on a Single Bench judgment of the Bombay High Court in Kashiram Bhagshet Shete v. Bhaga Bhanshet Redij(')."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 30325, "end_char": 30330, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Desai submits that Kashiram's case (supra) does not lay down the law correctly."}}, {"text": "Kashiram", "label": "OTHER_PERSON", "start_char": 30344, "end_char": 30352, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Desai submits that Kashiram's case (supra) does not lay down the law correctly."}}, {"text": "Sivyurakasam Pillai", "label": "OTHER_PERSON", "start_char": 30627, "end_char": 30646, "source": "ner", "metadata": {"in_sentence": "Sivyurakasam Pillai('); Muthyala Ramachandrappa v.\n\nMuthyala A Narayanappa(')."}}, {"text": "s. 45", "label": "PROVISION", "start_char": 30852, "end_char": 30857, "source": "regex", "metadata": {"statute": null}}, {"text": "Partnership Act, 1932", "label": "STATUTE", "start_char": 30865, "end_char": 30886, "source": "regex", "metadata": {}}, {"text": "Hindu trading families from the operation of the Partnership Act", "label": "STATUTE", "start_char": 31566, "end_char": 31630, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 31632, "end_char": 31641, "source": "regex", "metadata": {"linked_statute_text": "Hindu trading families from the operation of the Partnership Act", "statute": "Hindu trading families from the operation of the Partnership Act"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 31811, "end_char": 31820, "source": "regex", "metadata": {"linked_statute_text": "Hindu trading families from the operation of the Partnership Act", "statute": "Hindu trading families from the operation of the Partnership Act"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 32307, "end_char": 32312, "source": "regex", "metadata": {"linked_statute_text": "Hindu trading families from the operation of the Partnership Act", "statute": "Hindu trading families from the operation of the Partnership Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 32335, "end_char": 32349, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 21(3)", "label": "PROVISION", "start_char": 32372, "end_char": 32380, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act,\n\n1908", "statute": "the Limitation Act,\n\n1908"}}, {"text": "s. 19", "label": "PROVISION", "start_char": 33341, "end_char": 33346, "source": "regex", "metadata": {"linked_statute_text": "the Limitation Act,\n\n1908", "statute": "the Limitation Act,\n\n1908"}}, {"text": "Section 21", "label": "PROVISION", "start_char": 33481, "end_char": 33491, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 19 and 20", "label": "PROVISION", "start_char": 33566, "end_char": 33579, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 34893, "end_char": 34910, "source": "ner", "metadata": {"in_sentence": "The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rangaswamy Ayyangar\n\nv. Sivprakasam Pillai (supra) and by a Division Bench consisting of Varadachariar and Abdur Rahman JJ ."}}, {"text": "Varadachariar", "label": "JUDGE", "start_char": 35003, "end_char": 35016, "source": "ner", "metadata": {"in_sentence": "The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rangaswamy Ayyangar\n\nv. Sivprakasam Pillai (supra) and by a Division Bench consisting of Varadachariar and Abdur Rahman JJ ."}}, {"text": "Abdur Rahman", "label": "JUDGE", "start_char": 35021, "end_char": 35033, "source": "ner", "metadata": {"in_sentence": "The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rangaswamy Ayyangar\n\nv. Sivprakasam Pillai (supra) and by a Division Bench consisting of Varadachariar and Abdur Rahman JJ ."}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 35132, "end_char": 35149, "source": "ner", "metadata": {"in_sentence": ".in Muthyala Ramachandrappa\n\nv. Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati v. Damodar Sahu (supra)."}}]}
{"document_id": "1976_3_299_302_EN", "year": 1976, "text": "SURAJ BHAN v.\n\nOM PRAKASH AND ANR.\n\nFebruary 2, 1976\n\n[P. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.]\n\nCode of Criminal Procedure 1973 (Act 2 of 1974)-S. 428-Scope of- Whether co11te1nplates a!TY challenge to co11viction-Procedure to inroke the section.\n\nPractice-Interference by the Suprenie Court under Art. 136 of the Constitution, when the Crin1i11al Revision before the High Court for enhancement of\n\ntlu~ sentence has become infructuous. by virtue of a judgment in the Crirninal Appeal which has become final uls 393 of Cr/. P.C. 1973 (Act 2 of 1974) is C not proper.\n\nThe respondent \"OP\" in:flicttid five stab wounds on the appellant \"S\" on 19-4-1973 but the appellant survived thanks to prompt medical attention and an immediate operation. The trial court convicted ''OP\" under section 307 l.P.C. by its judgment dated 26-2-74 and sentenced him to 10 years rigorous imprisonment and also to a fine of Rs. 200/- The accused \"OP\" filed a (Criminal Appeal No. 442/74) in the Punjab High Court on the ground that he was entitled to set of! u/s 428 of the Cr!. P.C. 1973 (Act 2 of 1974), the period of his detention as an under trial prisoner against the period of imprisonment imposed upon him. The appellant \"S\" also filed a Criminal Revision No. 606/ 74 in the High Court for enhancement of the sentence against the accused.\n\nSince there was no opposition from the State to the plea in the criminal appeal,,. the High Court accepting the appeal, reduced the sentence of the term of imprisonment to that already undergone by him.\n\nAgainst the said appeal, there was no further appeal either by the State or by \"S\" and therefore the orders became final.\n\nThe criminal revision filed by \"S\" was however dismissed separately by the High Court for the \"reasons recorded in Criminal Appeal No. 442/74\". Unable to obtain leave under Art. 134(1) (c) of the ~Constitution,\n\n\"S\" obtained special leave after notice to the accused \"OP\" and the State.\n\nDismissing the appeal, the Court\n\nHELD: ( 1) It is clear from S. 428 of the Criminal Procedure Code. 1973\n\n(Act 2 of 1974) itself that even though the conviction was prior to the enforce F ment of the code of criminal procedure benefit of Section 428 would be available to such a conviction. Indeed S. 428 does not contemplate any challenge to a conviction or a sentence. It confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as an under trial prisoner.\n\n[30JH, 302A]\n\n(2) The procedure to invoke Section 428 Criminal Procedure Code could be a Miscellaneous application by the accused to the court at any time while the sentence runs for passing an appropriate order reducing the term of imprison- G meat which is the mandate of the section. [302A]\n\n(3) li; t the initat cas7, _in the absence of an appeal against the judgment of the, High Cour.t m Cnmmal Appeal No. 442 /74 either by the State or by the 1n1ured, that Judgment has become final.\n\nThe scope of criminal revision before the High Court was whether the sentence of ten years should be further enhanced, but that sentence itse]f disappeared by virtue of the judgment of the High Court in the Criminal Appeal. The criminal revision therefore became infructuous and the Supreme Court can do nothing about it while the judgment H of the High Court remains operative. [3020, EF]\n\nObiter : The order of the High Court was clearly unsu&tainable even in terms of section 428 Criminal Procedure Code as the only set off which was\n\nurged for under lhc section and which was admissible, was a period of about nine months Of pretrial detention. [The Court disapproved of such a grossly lenient sentence imposed by the High Court and deprecated that the State ignored to take notice of such a grossly lenient sentence and for not preferring an appeal to the Court.]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal :No. 381 of 1975.\n\nAppeal by Special Leave from the Judgmnt and Order dated the 10th January, 1973 of the Punjab and Haryana High Court at Chandigharh in Criminal Revision No. 606 of 1974.\n\nV. C. Mahajan, S. K. Mehta and K. R. Nagaraja for the Appellant.\n\nCh. Ram Sarup and R. A. Gupta for Respondent No. I H. S. Marwah and S. P. Nayar for Respondent No. 2\n\nThe Judgment of the Court was delivered by GOSWAMI, J.-On April 19, 1973, the responpent Om Parkash ~· (hereinafter to be described as the accused) inllicted as many as five stab wounds on the appellant Suraj Bhan.\n\nThe injuries were very severe as will be found from the description given below :-\n\n\"!. Incised wound 5 cm x 2 cm x oblique spindle shape on the left side of the front of abdomen, 8 cm below the xiphisternum and 6 cm to the left of mid line.\n\nDepth not probed edges were fresh.\n\n2. Incised wo11nd 2! cm x 1 cm oblique, 6 cm on the left and 2 cm above injury No. 1, spindle shaped.\n\nEdges were fresh and depth was not probed.\n\n3. Incised wound 2t cm X 1 cm horizontal, spindle shaped 6 cm above the left anterior superior iliac spine.\n\nDepth was not probed and edges were fresh.\n\n4. Incised wound 1 cm X i cm X 2 mm deep, horizontal 6 cm inner to end at the level of left anterior superior iliac spine, edges were fresh.\n\n5. Penetrating wound 5 cm X 21 cm X cavity deep, horizontal on the front of abdomen 2 cm to the right of mid line 10 cm below the level of xiphisternum, edges were clean cut and fresh the coils of small intestine protruding through the wound.\" The appellant had also to under-go an operation.\n\nThere is nc doubt that pronipt and proper medical attention alone saved the appellant from death.\n\nThe accused was convicted under section 307 IPC by the trial court by its judgment dated February 26, 1974 and sentenced to 10 years' rigorous imprisonment and also to a fine of Rs. 200/- in default ri ..\n\ngorous imprisonment for one year.\n\nAlthough the accused gave his\n\nSURAJ BHAN v. OM PRAKASH (Goswami, !.) 301\n\nage as 19 years, according to the trial court he appeared to be aged A about 23 years.\n\nThe accused appealed to the High Court against his conviction and sentence.\n\nThe appeal was numbered as Criminal Appeal No. 442 of 1974.\n\nThe injured Suraj Bhan also filed a Criminal Revision Application being numbered as 606 of 1974 for enhancement of the sentence passed on the accused.\n\nThe appeal was decided by a B learned single Judge of the High Court of Punjab and Haryana on January 10, 1975. It appears from the judgment of the High Court in that appeal that conviction of the accused was not challenged.\n\nThe only point that was argued was that the accused was entitled to set off the period of his detention as an under trial prisoner against the period of imprisonment imposed upon him under section 428 of the Criminal Procedure Code 1973 (Act No. 2 of 1974) which c came into force from April 1, 1974.\n\nIt appears also from the judgment that the State did not oppose the aforesaid submission on behalf of the accused.\n\nThe learned single Judge, therefore, passed the order in the following terms :-\n\n\"There is force in this submission of the learned counsel which is not opposed by the State counsel.\n\nI am of the view that the ends of justice will be met if the term of imprisonment of the convict-appellant is reduced to that already undergone by him.\"\n\nHaving said so the learned single Judge dismissed the appeal maintaining the conviction and reduced the accused's term of imprisonment to that already undergone by him and also maintained the sentence\n\nof fine.\n\nIncluding the pre-conviction detention the accused served E only one year and eight months of the sentence.\n\nIt appears the State did not choose to prefer any appeal against the grossly inadequate sentence passed by the High Court.\n\nOn the other hand the injured Suraj Bhan made an application to the High Court for a certificate of fitness for leave to appeal to this Courrunder article l34(1)(c) of the Constitution without success and thereafter F obtained special leave from this Court after notice to the respondents including the State to show cause why special leave to appeal should not be granted.\n\nWe have described the above facts in some detail as we fail to appreciate why the State in this case should have ordinarily ignored to take notice of such a grossly lenient sentence.\n\nThe order of the High Court was clearly unsustainable even in terms of section 428, Criminal Procedure Code, as the only set off which was urged for under the section and which was admissible was a period of about nine months which the accused had served s an under trial prisoner prior to the conviction.\n\nIt is also clear from section 428, Criminal Procedure Code itself that even though the conviction was prior to the enforcement of the H Code of Criminal Procedure, benefit of section 428 would be available to such a conviction. Indeed section 428 does not contemplate any\n\n5-L522SCI/76\n\nchallenge to a conv1ct10n or a sentence.\n\nIt confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as an under trial prisoner.\n\nThe procedure to invoke section 428, Criminal Procedure Code, could be a miscellaneous application by the accused to the court at any time while the sentence runs for passing an appropriate order for reducing the term of imprisonment which is the mandate of the section.\n\nIn the appeal before the High Court there was no scope for the High Court to reduce the sentence only to the period already under- \\ gone under section 428, Criminal Procedure Code, in view of the only point argued before it.\n\nSince in an attempt to murder hurt was caused, the maximum punishment under the second part of section 307 IPC would be imprisonment for life.\n\nThe injured was not satisfied with the maximum punishment of ten years contained in the first part of the section and moved the High Court in revision for enhancement of the sentence.\n\nThe revision was separately dismissed by the High Court for the \"reasons recorded in Criminal Appeal No. 442 of 1974\" and it is against this order of the High Court in revision that special leave was obtained by the appellant.\n\nIn the absence of an appeal against the judgment of the High Court in Criminal Appeal No. 442 of 1974. either by the State or .,, the injured, that Judgment has become final which means that the accused's sentence remains to be for a period of one year and eight months and a fine of Rs. 200/- in default rigorous imprisonment for one year.\n\nThe scope of the criminal revision before the High Court was whether the sentence of ten years should be further enhanced but that sentence itself disappeared by virtue of the Judgment of the High Court in the criminal appeal.\n\nThe criminal revision, therefore, became infructuous and we can do nothing about it while the Judgment of the High Court remains operative.\n\nUnfortunately that judgment in the criminal appeal is not before us in this Court.\n\nAlthough, therefore, we cannot approve of such a grossly lenient sentence in the present case, we have no other alternative than to dismiss the present appeal.\n\nThe appeal is, therefore, dismissed.\n\nS.R.\n\nAppeal dismissed.\n\n~·/", "total_entities": 54, "entities": [{"text": "SURAJ BHAN", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "SURAJ BHAN", "offset_not_found": false}}, {"text": "OM PRAKASH AND ANR", "label": "RESPONDENT", "start_char": 15, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "OM PRAKASH AND ANR", "offset_not_found": false}}, {"text": "February 2, 1976", "label": "DATE", "start_char": 36, "end_char": 52, "source": "ner", "metadata": {"in_sentence": "February 2, 1976\n\n[P. 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{"document_id": "1976_3_303_307_EN", "year": 1976, "text": "STATE OF GUJARAT\n\nHAIDARALI KALUBHAI\n\nFebruary 3, 1976\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.J\n\nIndian Penal Code-Section 304A-lngredients of-Loss of control over the speeding truck causing the fatal injury falls under s. 304A.\n\nOn August 23, 1969, the respondent accused came in a tractor and stopped it on the highway.\n\nSeeing the parked truck GTF 904 which he used to drive previously, the accused used the key of his tractor to start the same and drove it with the head lights on in full speed, The conductor of the truck owner \\Vas also in the tractor at that time. The tractor while being driven by the field and while he was trying to turn towards the kutcha road, hit against the\n\ncot in which the village Sarpanch who was resting on it and talking with three policemen.\n\nThe policemen jumped from the cot and sustained injuries, while the Sarpanch who was thrown away by the impact of the tractor to a distance of about ten feet from the cot, had grievous injuries to \\Vhich he succumbed later. Since there was enmity between the deeeased and the accused over the Panchayat elections, the prosecution put up a case of deliberate and v.ilful driving of the vehicle towards the cot with the intention of causing death of the deceased Sarpanch. The Sessions Judge convicted the accused (i) under s. 304 Part II, J.P.C. for causing the death of the Sarpanch and (ii) under s. 326 and 323. LP .C. for causing injuries to the two other persons and sentenced him for rigorous imprisonment for seven years and two years respec tively for the said offences.\n\nOn appeal to the High Couff, the conviction was altered to one under s. 304A only and the respondent was sentenced to rigorous imprisotHnent for 18 months and to a fine of Rs. 500/ ..\n\nDismissing the State's appeal by special leave, the Court,\n\nHELD : ( 1) Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under s. 299, I.P.C. or murder under s. 300 I.P.C.\n\nEach case Will depend on the particular facts established against the accused.\n\n[305A-BJ\n\n(2) Section 304A, by its own definition totally excludes the ingredients of s. 299 or s. 300, I.P.C. Doing an act with the intent to kill a person or\n\nknowledge that doing of an act is likely to cause a person's death are ingredients \\ of the offence of culpable homicide. When intent or knowledge is the direct F motivating force of the act complained of, s. 304A has to make room for the graver and more serious charge of culpable homicide.\n\n[306 GH, 307AJ\n\n(3) In the instant case, the tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it _over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries. would not reveal the accused's intention or any deliberate act with the requisite knowledge for an offence of culpable homicide. The facts and circumstances dis closed in this case fit in more reasonably v.1ith the theory of loss of control G by the accused of the vehicle in high speed trying to take a turn for the kutcha road. The case falls under s. 304A, l.P.C. and not under 3. 304 Part II, l.P.C. [307-A-C]\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 188 of 1971.\n\nAppeal by special leave from the judgment and order dated the 29-9-1970 of the Gujarat High Court in Criminal Appeal No. 410 of 1970.\n\nD. Mookherjee, S. K. Dholakia and M. N. Shroff, for the appellant.\n\nK. J. Shethna and Vimal Dave and Miss Kai/ash Mehta, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J .-The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali. He was also convicted under sections 326 and 323 I.P.C. and sontenced to rigorous imprisonment for two years and to three months respectively in connection with injuries to two other persons.\n\nOn appeal to the High Court conviction was altered to one under section 304 A.l.P .C. only and the accused was sentenced to rigorous imprisonment for eighteen months and to a fine of Rs. 500/-, in default rigorous imprisonment for six months.\n\nBriefly the facts are as follows :- It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad.\n\nThere is a big open space in front of the hotel towards the north and a kutcha. road branches off from the highway towards Dangarwa.\n\nThis kutcha road is almost in the centre of the open space in front of the hote•: measuring about 80 feet.\n\nIt is said that the portion immediately ir: front of the hotel is about two feet higher in elevation from the kutch<.\n\nroad.\n\nOn August 23, 1969, the accused came in a tractor anc!'. stopped the same on the highway. He saw truck No. G.T.F. 904 which was parked opposite to the aforesaid hotd of Vasudev (P.W. 7). The\n\nowner of the truck had gone to the village leaving his conductor Usman Imamali (P.W. 11) in the truck. It is said that the accused used to drive this truck earlier with permission of the truck-owner. Thi5 time he used the key of his tractor to start the truck and he drove the same by the open field in front of the hotel.\n\nHe drove the truck with the head lights on in full speed straight on the steel cot on which the deceased was resting with the result that the truck dashed against \\he cot and the deceased was thrown away to a distance of about tea feet from the cot.\n\nHead Constable Revajit (PW 3) was sitting on the same cot with the deceased and he was also thrown away.\n\nThere was another wooden cot nearby where Constable Dalpat Singh (PW 4) and Vavdinmiya (PW 5) were sitting.\n\nThe Head Constable with the other Constable came to meet the Sarpanch in connection with the investigation of a certain case.\n\nSince there was enmity between the accused and the deceased on account of Panchayat elections the prosecution case is that the accused wilfully and deliberately drove the vehicle towards the cot with the intention of causing death to the deceased Sarpanch.\n\nThe accused was originally charged under secticn 302 IPC and under section 326 and 323 JPC with the result mentioned above. Hence this appeal by the State by special leave against the judgment of the High Court. .\n\nThe question that arises for consideration is whether the facts that are established against the accused fulfil the ingredients of section 304\n\n' .\n\nI I\n\nGUJARAT v. HAIDARALI (Goswami, J.) 305\n\nPart Il as submitted by Mr. Debabrata Mukherjee on behalf of the State. According to the learned counsel this is a clear case under section 304 Part II and conviction under section 304A is unsustainable.\n\nSection 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under section 299 IPC or murder nnder section 300 IPC.\n\nIf a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide.\n\nEach case will, therefore, depend upon the particular facts established against the accused, The prosecution in this case wanted to establish a motive for committing the offence against the Sarpanch. It was sought to be estabished that there was enmity between the Sarpanch and the accused and his relations on account of Panchayat elections.\n\nSome evidence was led in order to prove that the accused and his relations were gunning against the Sarpanch for some time after the latter's election as Sarpanch. Even an anonymous letter was received by the Sarpanch\n\nthreatening his life which was handed over to the police by the Sarpanch.\n\nBoth the Sessions Judge as well as the High Court did not accept the evidence appertaining to motive. Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case.\n\nEven so, the learned counsel submits that the act per se and the manner in which the vehicle was driven clearly brought the case under section 304 Part II IPC.\n\nThe following facts are established. The accused drove the truck at great speed with lights on. He had the conductor with him in the truck.\n\nSome time before driving the truck the accused had seen the Constables talking with the Sarpanch at the spot in question. There is no evidence that the accused had a licence to drive the truck. It, however, appears from Ext. 70, which is a complaint in criminal case No. 160 of 1969 dated January 17, 1969 that the accused \"had no licenc-e.... . while driving his truck No. GTF 704.\" While the two Constables jumped from the cot and escaped the deceased could not do so in spite of being alerted by the Head Constable as he was iu a lying posture on the cot.\n\nIt appears from the map of the scene Ext. 9 that the truck while being driven by the field was trying to turn towards the kutcha road at a point near the cot shown in the map.\n\nThis would go to show that the accused was unable to control t)le vehicle in high speed while taking a turn to get into the kutcha road from the open field and in this process hit the cot throwing the deceased out of the cot by the impact resulting in injuries which ultimately led to his death.\n\nEven the Constables, who jumped from the cot, received injuries.\n\nThere was no direct impact of the persons with the vehicle in speed.\n\nThe accused in his statement under section 342, Criminal Procedure Code, stated as follows :-\n\n\"I took the truck in reverse first and as there were other trucks lying round about, I took out my truck from the available way.\n\nThe accilator (sic) stuck down and hence the truck went in full speed and did not remain in control. One truck was coming from opposite side with full light. While driving with (sic) this way, I heard some noise, and the conductor Usman told me that the truck had struck with something then I heard some shouts and realised that some persons were injured but I did not stop the truck through fear of assault ........ truck through fear of assault .......... I presented myself at the Police Station\".\n\nNow this version is sup_ported by Usman (PW 11) who, however, has been declared hostile by the prosecution.\n\nHe was cross-examined by the prosecution in order to show that he made a wrong statement in the examination-in-chief when he stated that the accused drove the truck with the key of the truck whereas he had stated before the police that the accused came on his tractor and started the truck with\n\nhis key. He was also cross-examined about a truck coming from the opposite side with full light that he had not stated to the police to that -... effect.\n\nWe do not think that the omission to mention before the police about another truck coming from the opposite direction can be a contradiction within the meaning of section 162, Criminal Procedure Code.\n\nWe also do not give much importance as to whether the accused drove the truck with his key or with the key of the tractor.\n\nThat has not much relevance in view of the fact that the accused admitted to have driven the truck. Besides, it is admitted by the prosecution witnesses (PWs' 2 and\n\n6) that the conductor (PW 11) was in the truck when the accused drove the same. PWl 1 is, therefore, a natural witness and we do not find any reason to disbelieve him when he stated that a truck was coming from the opposite direction with full lights on.\n\nBesides, the owner of the truck having not found the truck in the place where he had parked had already telephoned to the Police Station about someone taking away the truck. PWll, who is an employee of the truckowner, was, therefore, not even obliged to speak in favour of the accused. The facts disclosed in the prosecution evidence, therefore, do not make out a case of any wilful or deliberate act on the part of the accused in order to cause the death of the Sarpanch by driving the truck in the way he did.\n\nBesides, the presence of the Head Constable and another Constable with the deceased whom the accused had himself seen prior to his driving the truck would run counter to a theory of wilful and deliberate act on the part of the accused to cause the death not only of the Sarpanch but necessarily also of the .\n\nConstables.\n\nSection 304A by its own definition totally excludes the ingredients of section 299 or section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a prsou's death are iagredients of the offence of culpable homicide. When intent or knowledge as described above is the direct motivating force of the act complained of, section 304 A has to make room for the graver\n\nGUJARAT v. HA!DARALI (Goswami, J.) 30 7\n\nand more serious charge of culpable homicide.\n\nDoes this happen in A this case?\n\nThe tangential track of the speeding truck coming in contact with the corner of the steel cot throwing it over the wooden cot and thereby throwing the deceased out of it resulting in fatal injuries would not reveal the accused intention or any deliberate act with the requisite knowledge for an offence qf culpable homicide.\n\nThe facts and B circumstances disclosed in this case fit in more reasonably with the theory of loss of control by the accused of the vehicle in high speed trying to take a turn for the kutcha road.\n\nThere is, therefore, no error committed by the High Court in holding that the falls under section 304A IPC and not under 304 Part II IPC.\n\nThe appeal is accordingly dismissed. c .\n\nS.R.\n\nAppeal dismissed.", "total_entities": 78, "entities": [{"text": "STATE OF GUJARAT", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "HAIDARALI KALUBHAI", "label": "RESPONDENT", "start_char": 18, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "HAIDARALI KALUBHAI", "offset_not_found": false}}, {"text": "February 3, 1976", "label": "DATE", "start_char": 38, "end_char": 54, "source": "ner", "metadata": {"in_sentence": "STATE OF GUJARAT\n\nHAIDARALI KALUBHAI\n\nFebruary 3, 1976\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.J\n\nIndian Penal Code-Section 304A-lngredients of-Loss of control over the speeding truck causing the fatal injury falls under s. 304A.\n\nOn August 23, 1969, the respondent accused came in a tractor and stopped it on the highway."}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 57, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 97, "end_char": 114, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 304A", "label": "PROVISION", "start_char": 115, "end_char": 127, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 304A", "label": "PROVISION", "start_char": 220, "end_char": 227, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Sarpanch", "label": "GPE", "start_char": 715, "end_char": 723, "source": "ner", "metadata": {"in_sentence": "The tractor while being driven by the field and while he was trying to turn towards the kutcha road, hit against the\n\ncot in which the village Sarpanch who was resting on it and talking with three policemen."}}, {"text": "Sarpanch", "label": "OTHER_PERSON", "start_char": 1242, "end_char": 1250, "source": "ner", "metadata": {"in_sentence": "Since there was enmity between the deeeased and the accused over the Panchayat elections, the prosecution put up a case of deliberate and v.ilful driving of the vehicle towards the cot with the intention of causing death of the deceased Sarpanch."}}, {"text": "s. 304", "label": "PROVISION", "start_char": 1303, "end_char": 1309, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 326 and 323", "label": "PROVISION", "start_char": 1379, "end_char": 1393, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 304A", "label": "PROVISION", "start_char": 1629, "end_char": 1636, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 304A", "label": "PROVISION", "start_char": 1817, "end_char": 1829, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 299", "label": "PROVISION", "start_char": 1971, "end_char": 1977, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 1979, "end_char": 1984, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 300", "label": "PROVISION", "start_char": 2002, "end_char": 2008, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2009, "end_char": 2014, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 304A", "label": "PROVISION", "start_char": 2111, "end_char": 2123, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 299", "label": "PROVISION", "start_char": 2183, "end_char": 2189, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 300", "label": "PROVISION", "start_char": 2193, "end_char": 2199, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2201, "end_char": 2206, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 304A", "label": "PROVISION", "start_char": 2464, "end_char": 2471, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 304A", "label": "PROVISION", "start_char": 3143, "end_char": 3150, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "29-9-1970", "label": "DATE", "start_char": 3336, "end_char": 3345, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 29-9-1970 of the Gujarat High Court in Criminal Appeal No."}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 3353, "end_char": 3371, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 29-9-1970 of the Gujarat High Court in Criminal Appeal No."}}, {"text": "D. Mookherjee", "label": "OTHER_PERSON", "start_char": 3409, "end_char": 3422, "source": "ner", "metadata": {"in_sentence": "D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the appellant."}}, {"text": "S. K. Dholakia", "label": "OTHER_PERSON", "start_char": 3424, "end_char": 3438, "source": "ner", "metadata": {"in_sentence": "D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the appellant."}}, {"text": "M. N. Shroff", "label": "OTHER_PERSON", "start_char": 3443, "end_char": 3455, "source": "ner", "metadata": {"in_sentence": "D. Mookherjee, S. K. Dholakia and M. N. Shroff, for the appellant."}}, {"text": "K. J. Shethna", "label": "LAWYER", "start_char": 3477, "end_char": 3490, "source": "ner", "metadata": {"in_sentence": "K. J. Shethna and Vimal Dave and Miss Kai/ash Mehta, for the respondent."}}, {"text": "Vimal Dave", "label": "OTHER_PERSON", "start_char": 3495, "end_char": 3505, "source": "ner", "metadata": {"in_sentence": "K. J. Shethna and Vimal Dave and Miss Kai/ash Mehta, for the respondent."}}, {"text": "Kai/ash Mehta", "label": "LAWYER", "start_char": 3515, "end_char": 3528, "source": "ner", "metadata": {"in_sentence": "K. J. Shethna and Vimal Dave and Miss Kai/ash Mehta, for the respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 3595, "end_char": 3602, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali."}}, {"text": "Haidarali Kalubhai", "label": "RESPONDENT", "start_char": 3620, "end_char": 3638, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali.", "canonical_name": "HAIDARALI KALUBHAI"}}, {"text": "section 304", "label": "PROVISION", "start_char": 3691, "end_char": 3702, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 3712, "end_char": 3729, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mahomadali Kasamali", "label": "OTHER_PERSON", "start_char": 3811, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-The accused Haidarali Kalubhai was convicted by the Sessions Judge, Mehsana, under section 304 Part II, Indian Penal Code, and was sentenced to rigorous imprisonment for seven years for causing death of Mahomadali Kasamali."}}, {"text": "sections 326 and 323", "label": "PROVISION", "start_char": 3860, "end_char": 3880, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3881, "end_char": 3886, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 304", "label": "PROVISION", "start_char": 4089, "end_char": 4100, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Nandasan", "label": "GPE", "start_char": 4388, "end_char": 4396, "source": "ner", "metadata": {"in_sentence": "Briefly the facts are as follows :- It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad."}}, {"text": "Mehsana", "label": "GPE", "start_char": 4536, "end_char": 4543, "source": "ner", "metadata": {"in_sentence": "Briefly the facts are as follows :- It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 4547, "end_char": 4556, "source": "ner", "metadata": {"in_sentence": "Briefly the facts are as follows :- It was usual for the deceased Mahomadali Kasamali, who was the sarpanch of village Nandasan, to spend some hours of the night from 8.00 P.M. to 11.P.M. near the Hotel Shanker Vijay which is situated by the side of the highway from Mehsana to Ahmedabad."}}, {"text": "Dangarwa", "label": "GPE", "start_char": 4682, "end_char": 4690, "source": "ner", "metadata": {"in_sentence": "road branches off from the highway towards Dangarwa."}}, {"text": "August 23, 1969", "label": "DATE", "start_char": 4930, "end_char": 4945, "source": "ner", "metadata": {"in_sentence": "On August 23, 1969, the accused came in a tractor anc!'."}}, {"text": "Vasudev", "label": "WITNESS", "start_char": 5096, "end_char": 5103, "source": "ner", "metadata": {"in_sentence": "G.T.F. 904 which was parked opposite to the aforesaid hotd of Vasudev (P.W. 7)."}}, {"text": "Usman Imamali", "label": "WITNESS", "start_char": 5184, "end_char": 5197, "source": "ner", "metadata": {"in_sentence": "The\n\nowner of the truck had gone to the village leaving his conductor Usman Imamali (P.W. 11) in the truck."}}, {"text": "Revajit", "label": "WITNESS", "start_char": 5709, "end_char": 5716, "source": "ner", "metadata": {"in_sentence": "Head Constable Revajit (PW 3) was sitting on the same cot with the deceased and he was also thrown away."}}, {"text": "Dalpat Singh", "label": "WITNESS", "start_char": 5852, "end_char": 5864, "source": "ner", "metadata": {"in_sentence": "There was another wooden cot nearby where Constable Dalpat Singh (PW 4) and Vavdinmiya (PW 5) were sitting."}}, {"text": "Vavdinmiya", "label": "WITNESS", "start_char": 5876, "end_char": 5886, "source": "ner", "metadata": {"in_sentence": "There was another wooden cot nearby where Constable Dalpat Singh (PW 4) and Vavdinmiya (PW 5) were sitting."}}, {"text": "IPC", "label": "STATUTE", "start_char": 6347, "end_char": 6350, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326 and 323", "label": "PROVISION", "start_char": 6361, "end_char": 6380, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 304", "label": "PROVISION", "start_char": 6640, "end_char": 6651, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Debabrata Mukherjee", "label": "OTHER_PERSON", "start_char": 6731, "end_char": 6750, "source": "ner", "metadata": {"in_sentence": "I I\n\nGUJARAT v. HAIDARALI (Goswami, J.) 305\n\nPart Il as submitted by Mr. Debabrata Mukherjee on behalf of the State."}}, {"text": "section 304", "label": "PROVISION", "start_char": 6835, "end_char": 6846, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 304A", "label": "PROVISION", "start_char": 6876, "end_char": 6888, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Section 304A", "label": "PROVISION", "start_char": 6908, "end_char": 6920, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 299", "label": "PROVISION", "start_char": 7062, "end_char": 7073, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 7074, "end_char": 7077, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 300", "label": "PROVISION", "start_char": 7094, "end_char": 7105, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 7106, "end_char": 7109, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mukherjee", "label": "OTHER_PERSON", "start_char": 8071, "end_char": 8080, "source": "ner", "metadata": {"in_sentence": "Mr. Mukherjee, therefore, rightly and very fairly did not address us with regard to that part of the case."}}, {"text": "section 304", "label": "PROVISION", "start_char": 8310, "end_char": 8321, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 8330, "end_char": 8333, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "January 17, 1969", "label": "DATE", "start_char": 8766, "end_char": 8782, "source": "ner", "metadata": {"in_sentence": "160 of 1969 dated January 17, 1969 that the accused \"had no licenc-e.... ."}}, {"text": "section 342", "label": "PROVISION", "start_char": 9682, "end_char": 9693, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 9695, "end_char": 9718, "source": "regex", "metadata": {}}, {"text": "Usman", "label": "OTHER_PERSON", "start_char": 10103, "end_char": 10108, "source": "ner", "metadata": {"in_sentence": "While driving with (sic) this way, I heard some noise, and the conductor Usman told me that the truck had struck with something then I heard some shouts and realised that some persons were injured but I did not stop the truck through fear of assault ........ truck through fear of assault .......... I presented myself at the Police Station\"."}}, {"text": "Usman", "label": "WITNESS", "start_char": 10408, "end_char": 10413, "source": "ner", "metadata": {"in_sentence": "Now this version is sup_ported by Usman (PW 11) who, however, has been declared hostile by the prosecution."}}, {"text": "section 162", "label": "PROVISION", "start_char": 11097, "end_char": 11108, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 11110, "end_char": 11133, "source": "regex", "metadata": {}}, {"text": "Section 304A", "label": "PROVISION", "start_char": 12518, "end_char": 12530, "source": "regex", "metadata": {"statute": null}}, {"text": "section 299", "label": "PROVISION", "start_char": 12589, "end_char": 12600, "source": "regex", "metadata": {"statute": null}}, {"text": "section 300", "label": "PROVISION", "start_char": 12604, "end_char": 12615, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 12616, "end_char": 12619, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 304", "label": "PROVISION", "start_char": 12891, "end_char": 12902, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 304A", "label": "PROVISION", "start_char": 13675, "end_char": 13687, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 13688, "end_char": 13691, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "IPC", "label": "STATUTE", "start_char": 13718, "end_char": 13721, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1976_3_308_318_EN", "year": 1976, "text": "3 08\n\nHARI SHANKER TRIPATHI v.\n\nSHIV HARSH & OTHERS\n\nFebruary 3, 1976\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]\n\nRepresellfation of tile People Act (43 of 1951), ss. 2(1)(/zJ, 39(1)(a), 81(1), 87(1) and 1he Rules /rained by the Aflahabad High Court under Act, rr. 3 and 4-Allalzabad High Court Rules, 1952, rr. 4 and IO-Period of lin1itation\n\nunder s. 81 ( 1) for election petition expiring during sumnier vacation-Filing of petition on re-opening day-If barred-General Clauses Act (10 of 1897), s. IO-Applicability.\n\nThe respondent was declared elected on April 30, 1974, in the election to the State Legislative Council. The period of limitation of 45 days, prescribed bys. 81(1) of the Representation of the People Act, 1951, for filing an election petition, expired on June 14, 1974, when the High Court was closed for the summer vacation.\n\nThe appellant, therefore, filed the election petition on July 8, 1974, the re-opening day, challenging the respondent's election. The High Court dismissed the petition as having been filed out of time.\n\nAllowing the appeal to this Court and remitting the matter to the High Court for disposal on merits.\n\nHELD : The Hi, gh Court had issued' a notification that the entire period of the si1mmer vacation from lay 25, to July 7, 1974 was a closed holiday, As the period of limitation expired during the summer vacation, which was a closed holiday, the Registrar of the High Court \\Vas not competent to entertain the election petition. nor could the appellant have presented the election petition legally to the Registrar during such period; and so. it is a case to which s. 10, General Clauses Act, 1897, applies and the appellant was justified in filing the petition on the re-opening day.\n\n[312C-D; 3130-E; 318A-B]\n\n( 1) Und.er r. 3 of the Rules framed by the High Court under the Representation of the People Act, every election petition shall be presented to the Registrar; and r.. 4 lays down that after the office report is complete, the Registrar shall place the petition forthwith before the Chief Justice for reference to the concerned Bench.\n\nBut, from these rules it could not be held that there was no impediment in the way of the appellant in filing the election petition before the Registrar as the office of the High Court was open and the Registrar was available, even though the Court was closed.\n\nThe presentation before the Registrar, required by r. 3, must be a legal presentation and not a mere physical presentation.\n\nIf on a day the office is open and only Judges~ do not sit, it v,1ould undoubtedly be a working day of the Court and the election petition could be presented to the Registrar or other officer.\n\nBut, if the Court was observing a closed holiday, then the Court is not open even though .the office may remain open for conducting ministerial or administrative work.\n\nRules 3 artl 4 refer to a situation where the Court is open, because, the Registrar has to take the legal steps of placing the petition immediately before the Chief Justice for reference to the Bench concerned and the assignment of a Judge.\n\nThis could not be done when the Court was observing a closed holiday.\n\n[314C-GJ\n\nHuku111dev Narain Yada1• v. Lalit Narain Mi.l'lira, [1974] 3 S.C.R. 31, explained.\n\nKrishna Dhan Mullick v. U1nratul Zohra Begam, I.L.R. [1949] All. 433, :1pproved.\n\n(2) (a) Further, r. 10 of the High Court Rules. which is the only provision which empowers vacation Judges to -hear matters, has a very limited scope and does not empov.er the Registrar to entertain or to receive an e1ection petitio!1.\n\nUnder the rule, normally, only criminal work shall continue to be dealt \\\\'Ith during vacation, and it is only when other matters require immediate attention\n\nH. s. TRIPATH! v. SHIV HARSH (Fazal Ali, !.) 30 9\n\nthat the vacation Judges have jurisdiction to entertain them. Election petitions A do not come under these two categories, so as to be taken up when the Court is observing a closed holiday.\n\n[315E, H-316B]\n\n(b) The mere fact that a practice has grown up of the Registrar or Deputy Registrars or other officers receiving: a number of applications, which was not strfctly justified by the Rules, would not have the effect of converting v.'hat is legally a closed holiday into a working day.\n\n[316B-C]\n\n( c) Rule 4 of the High Court Rules-which pro\\rides that 'where any particular number of days is prescribed by these Rules, the same shall be reckoned exclusive of the first day and inclusive of the last day, unless, the last day shall happen to fall on a day on which the offices of the Court are closed, in v.hich case the time shall be reckoned exclusive of that day\n\nnlso ar:r, l of any succeeding day or days on v.:hich the offices of the Court continue to be closed'-cannot be relied upon by the respondei:tt, because, it applies only where the period of limitation is prescribed by the Rules.\n\n[316G]\n\n(3) For taking advantage of s. 10, General Clauses Act, 1897, it is necessary that,\n\n(a) an act or proceeding is allowed to be done or taken in any court\n\ner office on a particular day or within a prescribed period; and\n\n(b) if the Court or office is closed on that day or the last day of the prescribed period then the act or proceeding will be deemed to have been taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.\n\nThe proviso to the :; eclion makes the section inapplicable to cases where the Limitation Act applies.\n\nJn Hukuindev Narain Yadav's case [19741 3 S.C.R. 31, this Court held that ss. 4 and 5, Limitation Act, do not apply to election petitions. Therefore, s. 10, General Clauses Act applies in terms to the instant case. [313A-D]\n\nH. H. Raja Harinder Singh v. S. Karnail Singh, [1957] S.C.R. 208, followed.\n\n( 4) 'Public holiday' is defined in s. 2( I) (h) of the Representation of the People Act to mean any day which is a public holiday for the purposes of s. 25, Negotiable Instruments Act, 1881. But the term 'public holiday' refers only to such contingencies as are mentioned in s. 39(1) (a) of the Act, in the conduct of the actual elections.\n\nSection 87 ( 1) shows that so far as the disposal of election petitions is concerned, once s. 80 confers power on the High Court to try them, s. 2(1)(h) would have no application whatsoever to their trial which will be governed either according to the Rules framed by the High Court under the Act, or the general Rules of the High Court, or in accordadce with the C.P .C. In the instant case, the High Court having framed Rules under the Representation of the People Act, which provide for the presentation of the petition to the Registrar. which could only be on a day which is not a 'closed holiday', the term 'closed holiday' will have to be referred to and not 'public holiday• defined in s. 2(1)(h). [317B-Hl\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 699 of 1975.\n\nFrom the Judgment and order dated l 0-2-1975 of the Allahabad High Court in Election Petition No. 45 of 1974.\n\nJ. P. Goyal, S. P. Singh and G. S. Chatterjee for the appellant.\n\nS. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.\n\nAgarwala, for the respondent. ·\n\nThe Judgment of the Court was delivered by\n\nFAzAL Au, J.-This is an appeal against the judgment of S. Malik, .I. of the Allahabad High Court who was assigned as an Election Judge to hear the election petition filed by the appellant in the High\n\nCourt The electio_n petition was filed by the appellant who was one of. the ten can~1dates for the rnernbership of the U.P. Legislative Council from Bastl-curn-Gorakhpur Local Authority Constituency.\n\nThe results of the aforesaid election were declared on April 30, 1974 and the appellant Jiled the election petition in 1jJe High Court on July 8, 1974 praying that the election of respondent No. 1 be declared void and that the appellant be declared to be duly elected. The election petition was placed for hearing before the learned Judge after he was assigned as a Judge to hear the election petition by the Chief Justice and the learned Judge framed 20 issues in the case.\n\nIssue No. 8 related to the question as to whether the election petition\n\nhad been properly prnsented and was within tirne.\n\nAs Issue No. 8 related to the maintainability of the petition on the point of limitation, the learned Judge took up this matter as a preliminary issue, and after hearing the parties he held that the petition having been filed beyond time merited dismissal under s.86(1) read with s.81(1) of the Representation of the People Act, 1951.\n\nThe election petition of the appellant was accordingly dismissed by the High Court by its order dated February 10, 1975 and it is against this order that the present appeal has been preferred in this Court.\n\nThe facts of the case lie within a very narrow compass.\n\nIt is not disputed that the results of the election were declared on April 30, 197 4 and normally the election petition should have been filed in the High Court within 45 days from this date.\n\nAccordingly the period of limitation expired on June 14, 1974.\n\nThe petition was, however, presented before the Registrar on July 8, 1974.\n\nThe appellant relied on the fact that he was not in a position to file the petition in the High Court on June 14, 1974 because the High Court was closed for the summer vacation and as the High Court was observing a closed holiday the appellant was entitled to file the petition on the re-opening which was July 8, 1974 and accordinly he filed the petition on that day.\n\nThe appellant, therefore, claimed that his petition was not time-barred in view of the provisions of s. 10 of the General Clauses Act, 1897 which would apply to this case.\n\nThe learned counsel for the appellant has reiterated the same argument before us as in the Court below and has submitted that for all intents and purposes the summer vacation being a closed holiday according to the notification issued by the High Court, the appellant was legally entitled to file the pe_tition only on July 8, 197 4 when the High Court re-opened.\n\nThe learned Judge of the High Court rejected 'the contention of the appellant on two grounds.\n\nIn the first place the learned Judge thought that the matter was clearly covered by the decision of this Court in Hukumdev Narain Yadav v. Lalit Narain Mishra. (1) Secondly the learned Judge was of the opinion that although the High Court ws closed for the summer vacation, the office of the High Court was open and the Registrar was available for ei; i'.ertaining any petition of an urgent nature which was filed by any pettllonr and the Vacat1011\n\n\nI I\n\n~ r\n\nBench also functioned during the vacation.\n\nIn these circum8tances the learned Judge thought that there was no justification for the appellant to have waited till the re-opening of the High Court in order to file the election petition.\n\nMr. S. N. Misra appearing for the respondents more or less supported the view taken by the learned Judge and he also put forward certain additional arguments which will be dealt with later.\n\nAfter having heard the arguments of the parties and going through the record, we find that the view taken by the learned Judge is legally erroneous.\n\nThe learned Judge appears to have drawn an analogy from the facts in the case of Hukumdev Narain Y adav (supra) which appear to be clearly distinguishable from the facts of the present case.\n\nIn the case of Hukumdev Narain Yadav this Court was not calkd upon to consider the legal significance of the Court having been closed due to summer vacation, but was considering a case where the Court was undoubtedly open but the petition was filed on the Monday instead of the previous Saturday which though a working day of the Court was not a day on which the Judges were usually sitting.\n\nSecondly the learned Judge appears to have completely overlooked the provisions of s. I 0 of the General Clauses Act, particularly in view of the fact that this Court has held that ss. 4 or 5 of the Limitation Act did not apply to election petitions.\n\nTo begin with we would first deal with the case qf Hukumdev Narain Yadav (supra).\n\nWhat had happened in that case was that the election petition was filed on March 20, 1972 instead of being filed on Staturday March 18, 1972 which was the last day on which the limitatiori exp~ The election petitioner sought to cross the bar of limitation on the ground that Saturday not being a working day of the Court, the petitioner was entitled to file the petition on the next working day, namely, Monday.\n\nThis Court on a consideration of various factors negatived this contention and held that even though the Judges of the High Court did not usnally sit on Saturdays it was undoubtedly a working day of the Court and it could not be said that the Court was observing a closed holiday on Saturday.\n\nAfter referring to a large number of decisions and traversing various provisions of the Limitation Act, this Court observed as follows:-\n\n\". . . . for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in s: 4, ss. 9 to 18 and s. 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law ................................ .\n\nFor all these reasons we have come to the conclusion that the provisions of s. 5 of the Limitation Act do not govern the filing of election petitions or their trial, and in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay.\" This Court accordingly held that s. 4 as also s. 5 of the Limitation Act had no application to the election petitions on the true interpretation of s. 29 (2) of the Limitation Act.\n\nThe Court also held on a\n\nreading of rr. 6 & 7 with r. 26 of the Patna High Court Rules that even though the Judges were not sitting ou Saturdays the election petition could be presented on a Saturday to the Registrar or other Officers as envisaged.by r. 26.of the Patna High Court Rules.\n\nIn the instant case, however, the period of limitation provided by s. 81(1) of the Representation of the People Act appears to have expired during the snmmer vacation which according to the notification of the Allahabad High court was declared to be a closed holiday.\n\nBy virtue of the notification of the Allahabad High Court dated September 22, 1973 when the High Court Calendar for 1974 was approved by the Court after inviting objections from the members of the public, a list of days had been mentioned to be treated as closed holidays.\n\nThe last part of this notification runs thus :\n\n\"List of days to be observed as closed holidays in the High Court of Judicature at Allahabad during the year 197 4.\n\nName of holidays Dates on which they fall Days of the Number ,- -\"- --, week of days According to According to Gregorian Indian Calen- Calendar dar saka era\n\n1 2 3 4 5\n\nSummer Vacation May 25 to Jyaistha 4 to Saturday 44 July 7.\n\nAsad ha 1 !, t 896 to Sunday \"\n\nIn view of this notification, therefore, the legal position would be that the summer vacation, namely, the period starting from May 25 and ending.on July 7, 1974, would be deemed to be closed holidays in the High Court.\n\nThus it follows that June 14, 1974, which fell within this period would also be a closed holiday.\n\nIf, therefore, the period of limitation under s, 81 of the Representation of the People Act expired on June 14, 1974 which being a closed holiday right upto July 7, 197 4, then s, 10 of the General Clauses Act would apply in terms and the appellant would be fully justified in filing the petition on July 8, 197 4 when the Court re-opened after the summer vacation.\n\nThe relevant portion of s. 10 of the General Clauses Act runs thus :\n\n\"10. (1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in an)I Court or office on a certain day or within a prescribed period, when. if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open :\n\nProyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.\"\n\n..,.,,\n\nI I\n\nAnalysing the section it would appear that the following conditions A must be satisfied before a litigant may take advantage of the protec- tion of s. 10 of the General Clauses Act :\n\n( 1) that any act or proceeding is allowed to be done or taken in any court or office on a particular day or within a prescribed period;\n\n(2) that if the court or office is closed on that day B or the last day of prescribed period then the act or proceeding will be deemed to have been taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.\n\nThe proviso to s. 10 makes these provisions inapplicable to cases C where the Limitation Act applies.\n\nIn the instant case which arises out of the election petition it is manifest from the judgment of this Court on H ukumdev Narain Y adav (supra) that the provisions of ss. 4 and 5 of the Limitation Act do not apply.\n\nIt is also clear from the notification of the High Court referred to above that the entire period of the summer vacation starting from May 25 to July 7, 1974, was a closed holiday. Thirdly the period of limitation pres- D cribed by s. 8 ( 1) of the Representation of the People Act expired on June 14, 1974 during the summer vacation.\n\nIn these circumstances the inescapable conclusion would be that s. 10 of the General Clauses Act would apply in terms and the appellant would be entitled to file the election petition on July 8, 1974 as he did.\n\nIn H. H. Raja Harinder Singh v. S. Karnail Singh(') while inter- E pretating s. 10 of the General. Clauses Act, this Court pointed out the necessary conditions that are required to invoke s. 10 and held that s. 10 clearly applied to election petitions.\n\nIn this connection, this Court observed as follows :\n\n\"Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the court or office is open.\n\nFor that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that perio<, l should expire on a holiday. . . . . . . . . . . . ... We entertain no doubt that the legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that s. 10 is not applicable to petitions falling within Rule 119.\n\nWe are also unable to read in the proviso to s. 37 of the Act an intention generally to exclude the operation of s. 10 of the General Qauses Act in the constrncti.Qn of the Rules, as that will be against the plain language .of Rule 2(6) ................................. The\n\n(1) [19571 S.C.R. 208.\n\noperation of snch a beneficent enactment as s. 1 O of the General Claµses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us.\n\nWe are accordingly of opinion that the petition which the respondent filed on May 18, 1954, is entitled to the protection afforded by that section and is in time.\"\n\nIn these circumstances, therefore, s. 10 of the General Clauses Act furnishes a complete answer to the reasons given by the learned Judge in holding_ that the election petition filed by the appellant in the High Court was barred by time.\n\nAnother reason given by the learned Judge was that even though the High Court was closed its office was open and the Registrar was available to receive any election petition.\n\nThis reasoning of the High Court fails to consider the distinction between the opening of the Court and opening of the office.\n\nWhile the Court may be closed, the office may remain open for conducting ministerial business or administrative work.\n\nSo far as the election petitions are concerned Mley are matters of moment and if the power to receive these petitions was delegated to the Registrar by the Rules framed by the Allahabad High Court under the Representation of the People Act, the Registrar must be deemed to exercise a judicial power which could not be exercised when the Court was observing a closed holiday. It would appear that under the rules framed by the High Court of Allahabed regarding the trial of election petitions, r. 3 required that every election petition shall be presented to the Registrar and r. 4 laid clown that after the office report etC. is complete the petition shall be laid forthwith before the Chief Justice for reference to the Bench concerned.\n\nThe learned Judge seems to think that in view of these rules there was no impediment in the way of the appellant in filing the election petition before the Registrar who was available during the summer vacation even though the Court was closed.\n\nWe are, however, unable to agree with this view. These rules clearly refer to a situation where the Court is open, because the Registrar has to take legal steps, namely, the placing of ti)e petition immediately before the Chief Justice for reference to the Bench concerned and the a5'ignment of a Judge.\n\nThis could not be done when the Court was observing a closed holiday.\n\nThe presentation before the Registrar as required by r. 3 of the aforesaid rules must be a legal presentation and not a physical presentation.\n\nFor instance, if the Registrar visited the High Court on a Sunday or on any public holiday, could it be said that the election petition could be presented to him and the Registrar may be asked to entertain the same.\n\nThe answer to this question must obviously .be in the negative.\n\nTherefore, the position would be the same if the Court by virtue of the notification issued on Scptemller 22, 1973, was observing a closed holiday during the summer vacation.\n\nA similar question appears to have arisen before the- Allahabad High Court in a case on appeal to the Federal Court where six weeks time for depositing security money expired during the High Court vacation and the Allahabad High Court clearly pointed out that the mere fact that certain ministerial officers of the\n\nCourt were available to conduct the routine matters would not indicate that the Court was open. In this connection the Allahabad High Court in Krishna Dhan Mullick v. Umratul Zahra Begam( 1) observed as follows :\n\n\"The six weeks within which security could be deposited expired during the High Court vacation. It the period expires on a closed holiday, it is not disputed that the time would be excluded in computing the period of six weeks.\n\nThis is done under section 10 of the General Clauses Act (X of 1897) ........................ The fact that the Court for its own convenience deputes certain officers to receive the money does not give them a separate existence and it cannot be urged that while the Court is closed the office is open. There may be days when the learned Judges are not sitting and yet the Court may not be closed, but if the Court is closed then it cannot be said that the ministerial officers attached to the Court are an office within the meaning of the term in section 10 of the General Clauses Act and they have a separate existence from the Court.\"\n\nWe find ourselves in complete agreement with the observations made by the Division Bench in the aforesaid decision, and in fact this clearly brings out the real distinction between the functioning of the office of the High Court and of the High Court itself.\n\nFurthermore, it would appear from r. 10 of Ch. V of the Allahabad High Court Rules, that this is the only provision which empowers the Vacation Judges to hear certain types of matters.\n\nThe rule may be extracted thus :\n\n\"10. (1) Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice.\n\nThey may also exercise the original and appellaie jurisdiction vested in the Court in any miscellaneous matter or any civil matter connected with, relating to, or arising out of, the execution of a decree, which may in their opinion, require immediate attention.\n\nSuch jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by\n\nmore than cne Judge.\n\n(2) Subject to any general of special order of the Chief Justice, Vacation Judges shall, in the absence of the Chief Justice. exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of -Benches, listing of cases and other like matters.\"\n\nA perusal of r. 10 would clearly indicate that only criminal work H shall continue to be dealt with during the vacation by such judges as --------\n\n(l) I.L.R. [1949] All. 433.\n\nmay be appointed for the purpose by the Chief Justice.\n\nThe second part of r. 10 no doubt gives jurisdiction to the Vacation Judges to entertain other matter, but the rider is that those matters must require immediate attention. This rule no where empowers the Registrar to entertain or to receive an election petition. Rule 10 of Chapter V has a very limited scope and does not include election petitions which cannot be said to be cases of a criminal nature or those requiring\n\nimmediate attention so as to be taken up even , when the Court is observing a closed holiday. It is true, as the learned Judge pointed out, that the office of the High Court was open and the Registrar or the Deputy Registrar etc. were receiving a number of applications, but the mere fact that such a practice had grown which may not have been strictly justified by the statu\\ory Rules would not have the effect of converting what is legally a closed holiday into a working day.\n\nSimilarly as indicated above, this Court in Hukumdev Narain Yadav's case (supra) was not at all called upon to consider the significance of a closed holiday but was deciding a case where on all accounts the day on which the limitation expired was a working day of the Court and where the Court was factnally and legally held to be open.\n\nIn these circumstances, therefore, the analogy drawn by the learned Judge from that case does not hold good in the facts of the present case.\n\nMr. S. N. Misra appearing for the respondents advanced two contentions before us.\n\nIn the first place he drew our attention to r. 3 of Chapter I of the Allahabad High Court Rules, the relevant part of which may be extracted thus :\n\nE \" 'Registrar' includes-\n\n(i) the Deputy Registrar at Lucknow, in matters relating to the Lucknow Bench;\n\n(ii) the Joint Registrar or any other officer, with respect to such functions and duties of the Registrar as may have been assigned to tbe Joint Registrar or such officer by the Chief Justice, and\n\n(iii) in the absence of the Registrar, the Joint Registrar or any other officer authorized to act on his behalf;\"\n\nRule 3 no doubt provides that the Registrar includes the Deputy Registrar and other officers.\n\nRule 4 of Chapter I would have no application to the present case because this rule applies only to snch cases where the period of limitation is prescribed by the Rules.\n\nIn the instant case, the period of limitation is not prescribed by the Rules made by the High Court of Allahabad but bys. 81(1) of the Representation of the People Act itself, and therefore this rule cannot be of any assistance to the respondents.\n\nIt was then suubmitted that under s. 2(1) (h) of the Representation of the People Act, \"public holiday\" was defined as meaning any day which is a public holiday for the purposes of section 25 of the Negotiable Instruments Act, 1881. It was contended that as the notification issued by the High Court declared the summer vacation\n\nto be a closed holiday it could not be construed as a holiday under s. 25 of the Negotiable Instruments Act and it would not be deemed to be a public holiday of which the appellant could have taken any advantage.\n\nThe argument is undobutedly attractive but on a deeper probe it does not appear to be tenable.\n\nThe term \"public holiday\" referred to in s. 2(1) (h) of tbe Representation of the People Act has nothing to do with any administrative functions exercised by the High Court but refers only to such contingencies as are mentioned in the conduct of the actual elections under the provisions of the Representation of the People Act.\n\nFor instance s. 39(1) (a) provides thus :\n\n'39, (1) .As soon as the notification calling upon the elected meinbers or the members of the Legislative Asscmbiy\n\nof a State 6r the members of the electoral college of a C Uniou territory to elect a member or members is issued, the Election Commission shall; by notification in the Official Gazette, appoint-\n\n( a) the last date for making nominations which shall be the seventh day after the date of publication of the firstmen tioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday.\"\n\n'Ihe word \"public holiday\" nscd ins. 39(1) (a) would undoubtedly refer to public holiday as defined in s. 2 (1) (h) of the Representation of the People Act.\n\nSo far as the disposal of the election petitions is concerned, once s. 80 confers the power on the High Court to try an election petition, s. 2 (1) (h) would have no application whatsoever to the trial of such election petition by the High Court which will be governed either according to tbe Rules framed by the High Court under the Representation of the People Act or under the general Rules of the High Conrt or in accordance with the Code of\n\nCivil Procedure.\n\nThis is borne out by s. 87 (1) of the Representation of the People Act which may be extracted as follows :\n\n\"87. (!} Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. 1908, to the trial of suits:\n\nProvided * * * * *\" In the instant case the High Court having framed the Rules nndcr the Reprcsantation of the People Act which provided for the presentation of the election petitions to the Registrar, which as we have held could only be done on a day which is not a closed holiday, the term \"closed holiday\" would have to be referred to as defined by the Hi!!h Court Rules and not by s. 2 (1) (h) of the Representation of the People Act.\n\nIn these circumstances, therefore, the contention nf th.: respondents on this score must be overruled.\n\nFor the reasons given above we are satisfied that as the period of limitation expired during the summer vacation which was a closed\n\n6-52'.SCI 176\n\nholiday by virtue of the notification issued by the High Court, the Registrar was not competent to entertain the election petition nor could the appellant have presented the election petition legally to the Registrar during such period.\n\nWe are further satisfied that this is a case in which s. 10 of the General Clauses, Act applies in terms and the appellant was fully justified in filing the election petition on the reopening day of the High Court, namely, July 8, 1974.\n\nIn these circumstances the view taken by the High Court that the election petition was barred by time is wrong on a point of law, and the finding of the learned Judge on issue No. 8 cannot, therefore, be sustained.\n\nThe appeal is accordingly allowed, the order of the High Court dated February 10, 1975, is set aside and the matter is remitted to the learned Judge for trying the election petition in accordance with C the law.\n\nIn the special circumstances of this case we make no order as to costs, in this Court.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 138, "entities": [{"text": "08\n\nHARI SHANKER TRIPATHI", "label": "PETITIONER", "start_char": 2, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "HARI SHANKER TRIPATHI", "offset_not_found": false}}, {"text": "SHIV HARSH & OTHERS", "label": "RESPONDENT", "start_char": 32, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "SHIV HARSH & OTHERS", "offset_not_found": false}}, {"text": "P. 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true}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 694, "end_char": 732, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 1619, "end_char": 1624, "source": "regex", "metadata": {"linked_statute_text": "the Representation of the People Act, 1951", "statute": "the Representation of the People Act, 1951"}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 1626, "end_char": 1651, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 1831, "end_char": 1863, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1974] 3 S.C.R. 31", "label": "CASE_CITATION", "start_char": 3226, "end_char": 3244, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 4924, "end_char": 4929, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 4931, "end_char": 4956, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 5448, "end_char": 5462, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Jn Hukuindev Narain Yadav", "label": "OTHER_PERSON", "start_char": 5473, "end_char": 5498, "source": "ner", "metadata": {"in_sentence": "Jn Hukuindev Narain Yadav's case [19741 3 S.C.R. 31, this Court held that ss."}}, {"text": "ss. 4 and 5", "label": "PROVISION", "start_char": 5547, "end_char": 5558, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act, 1897", "statute": "General Clauses Act, 1897"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 5560, "end_char": 5574, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 5623, "end_char": 5628, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act, 1897", "statute": "General Clauses Act, 1897"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 5630, "end_char": 5649, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2( I)", "label": "PROVISION", "start_char": 5811, "end_char": 5819, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act", "statute": "General Clauses Act"}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 5831, "end_char": 5863, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 25", "label": "PROVISION", "start_char": 5926, "end_char": 5931, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act", "statute": "General Clauses Act"}}, {"text": "Negotiable Instruments Act, 1881", "label": "STATUTE", "start_char": 5933, "end_char": 5965, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 39(1)", "label": "PROVISION", "start_char": 6051, "end_char": 6059, "source": "regex", "metadata": {"linked_statute_text": "Negotiable Instruments Act, 1881", "statute": "Negotiable Instruments Act, 1881"}}, {"text": "Section 87", "label": "PROVISION", "start_char": 6117, "end_char": 6127, "source": "regex", "metadata": {"linked_statute_text": "Negotiable Instruments Act, 1881", "statute": "Negotiable Instruments Act, 1881"}}, {"text": "s. 80", "label": "PROVISION", "start_char": 6208, "end_char": 6213, "source": "regex", "metadata": {"linked_statute_text": "Negotiable Instruments Act, 1881", "statute": "Negotiable Instruments Act, 1881"}}, {"text": "s. 2(1)(h)", "label": "PROVISION", "start_char": 6259, "end_char": 6269, "source": "regex", "metadata": {"linked_statute_text": "Negotiable Instruments Act, 1881", "statute": "Negotiable Instruments Act, 1881"}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 6555, "end_char": 6587, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 2(1)(h)", "label": "PROVISION", "start_char": 6810, "end_char": 6820, "source": "regex", "metadata": {"linked_statute_text": "Negotiable Instruments Act, 1881", "statute": "Negotiable Instruments Act, 1881"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 6946, "end_char": 6966, "source": "ner", "metadata": {"in_sentence": "From the Judgment and order dated l 0-2-1975 of the Allahabad High Court in Election Petition No."}}, {"text": "J. P. Goyal", "label": "LAWYER", "start_char": 7005, "end_char": 7016, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, S. P. Singh and G. S. Chatterjee for the appellant."}}, {"text": "S. P. Singh", "label": "LAWYER", "start_char": 7018, "end_char": 7029, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, S. P. Singh and G. S. Chatterjee for the appellant."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 7034, "end_char": 7050, "source": "ner", "metadata": {"in_sentence": "J. P. Goyal, S. P. Singh and G. S. Chatterjee for the appellant."}}, {"text": "S. N. Misra", "label": "LAWYER", "start_char": 7071, "end_char": 7082, "source": "ner", "metadata": {"in_sentence": "S. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.\n\nAgarwala, for the respondent. ·", "canonical_name": "S. N. Misra"}}, {"text": "K. C. Agarwala", "label": "LAWYER", "start_char": 7084, "end_char": 7098, "source": "ner", "metadata": {"in_sentence": "S. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.\n\nAgarwala, for the respondent. ·"}}, {"text": "M. M. L. Srivastava", "label": "LAWYER", "start_char": 7100, "end_char": 7119, "source": "ner", "metadata": {"in_sentence": "S. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.\n\nAgarwala, for the respondent. ·"}}, {"text": "E. C.\n\nAgarwala", "label": "LAWYER", "start_char": 7124, "end_char": 7139, "source": "ner", "metadata": {"in_sentence": "S. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.\n\nAgarwala, for the respondent. ·"}}, {"text": "FAzAL Au", "label": "JUDGE", "start_char": 7208, "end_char": 7216, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAzAL Au, J.-This is an appeal against the judgment of S. Malik, .I. of the Allahabad High Court who was assigned as an Election Judge to hear the election petition filed by the appellant in the High\n\nCourt The electio_n petition was filed by the appellant who was one of."}}, {"text": "S. Malik", "label": "JUDGE", "start_char": 7263, "end_char": 7271, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAzAL Au, J.-This is an appeal against the judgment of S. Malik, .I. of the Allahabad High Court who was assigned as an Election Judge to hear the election petition filed by the appellant in the High\n\nCourt The electio_n petition was filed by the appellant who was one of."}}, {"text": "s.86(1)", "label": "PROVISION", "start_char": 8472, "end_char": 8479, "source": "regex", "metadata": {"statute": null}}, {"text": "s.81(1)", "label": "PROVISION", "start_char": 8490, "end_char": 8497, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 8505, "end_char": 8543, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "February 10, 1975", "label": "DATE", "start_char": 8648, "end_char": 8665, "source": "ner", "metadata": {"in_sentence": "The election petition of the appellant was accordingly dismissed by the High Court by its order dated February 10, 1975 and it is against this order that the present appeal has been preferred in this Court."}}, {"text": "April 30, 197", "label": "DATE", "start_char": 8880, "end_char": 8893, "source": "ner", "metadata": {"in_sentence": "It is not disputed that the results of the election were declared on April 30, 197 4 and normally the election petition should have been filed in the High Court within 45 days from this date."}}, {"text": "June 14, 1974", "label": "DATE", "start_char": 9052, "end_char": 9065, "source": "ner", "metadata": {"in_sentence": "Accordingly the period of limitation expired on June 14, 1974."}}, {"text": "July 8, 1974", "label": "DATE", "start_char": 9129, "end_char": 9141, "source": "ner", "metadata": {"in_sentence": "The petition was, however, presented before the Registrar on July 8, 1974."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 9615, "end_char": 9620, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act, 1897", "label": "STATUTE", "start_char": 9628, "end_char": 9653, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "July 8, 197 4", "label": "DATE", "start_char": 10006, "end_char": 10019, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the appellant has reiterated the same argument before us as in the Court below and has submitted that for all intents and purposes the summer vacation being a closed holiday according to the notification issued by the High Court, the appellant was legally entitled to file the pe_tition only on July 8, 197 4 when the High Court re-opened."}}, {"text": "S. N. Misra", "label": "LAWYER", "start_char": 10849, "end_char": 10860, "source": "ner", "metadata": {"in_sentence": "Mr. S. N. Misra appearing for the respondents more or less supported the view taken by the learned Judge and he also put forward certain additional arguments which will be dealt with later.", "canonical_name": "S. N. Misra"}}, {"text": "Hukumdev Narain Y adav", "label": "OTHER_PERSON", "start_char": 11267, "end_char": 11289, "source": "ner", "metadata": {"in_sentence": "The learned Judge appears to have drawn an analogy from the facts in the case of Hukumdev Narain Y adav (supra) which appear to be clearly distinguishable from the facts of the present case.", "canonical_name": "Hukumdev Narain Y adav"}}, {"text": "Hukumdev Narain Yadav", "label": "OTHER_PERSON", "start_char": 11393, "end_char": 11414, "source": "ner", "metadata": {"in_sentence": "In the case of Hukumdev Narain Yadav this Court was not calkd upon to consider the legal significance of the Court having been closed due to summer vacation, but was considering a case where the Court was undoubtedly open but the petition was filed on the Monday instead of the previous Saturday which though a working day of the Court was not a day on which the Judges were usually sitting.", "canonical_name": "Hukumdev Narain Y adav"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 11868, "end_char": 11887, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 4", "label": "PROVISION", "start_char": 11952, "end_char": 11957, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 11970, "end_char": 11984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "March 20, 1972", "label": "DATE", "start_char": 12181, "end_char": 12195, "source": "ner", "metadata": {"in_sentence": "What had happened in that case was that the election petition was filed on March 20, 1972 instead of being filed on Staturday March 18, 1972 which was the last day on which the limitatiori exp~ The election petitioner sought to cross the bar of limitation on the ground that Saturday not being a working day of the Court, the petitioner was entitled to file the petition on the next working day, namely, Monday."}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 12901, "end_char": 12915, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 9 to 18", "label": "PROVISION", "start_char": 13126, "end_char": 13137, "source": "regex", "metadata": {"linked_statute_text": "After referring to a large number of decisions and traversing various provisions of the Limitation Act", "statute": "After referring to a large number of decisions and traversing various provisions of the Limitation Act"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 13142, "end_char": 13147, "source": "regex", "metadata": {"linked_statute_text": "After referring to a large number of decisions and traversing various provisions of the Limitation Act", "statute": "After referring to a large number of decisions and traversing various provisions of the Limitation Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13378, "end_char": 13382, "source": "regex", "metadata": {"linked_statute_text": "After referring to a large number of decisions and traversing various provisions of the Limitation Act", "statute": "After referring to a large number of decisions and traversing various provisions of the Limitation Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13390, "end_char": 13404, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 4", "label": "PROVISION", "start_char": 13624, "end_char": 13628, "source": "regex", "metadata": {"linked_statute_text": "After referring to a large number of decisions and traversing various provisions of the Limitation Act", "statute": "After referring to a large number of decisions and traversing various provisions of the Limitation Act"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13637, "end_char": 13641, "source": "regex", "metadata": {"linked_statute_text": "After referring to a large number of decisions and traversing various provisions of the Limitation Act", "statute": "After referring to a large number of decisions and traversing various provisions of the Limitation Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13649, "end_char": 13663, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 29", "label": "PROVISION", "start_char": 13739, "end_char": 13744, "source": "regex", "metadata": {"linked_statute_text": "After referring to a large number of decisions and traversing various provisions of the Limitation Act", "statute": "After referring to a large number of decisions and traversing various provisions of the Limitation Act"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 13756, "end_char": 13770, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Patna High Court", "label": "COURT", "start_char": 13838, "end_char": 13854, "source": "ner", "metadata": {"in_sentence": "6 & 7 with r. 26 of the Patna High Court Rules that even though the Judges were not sitting ou Saturdays the election petition could be presented on a Saturday to the Registrar or other Officers as envisaged.by r. 26.of the Patna High Court Rules."}}, {"text": "s. 81(1)", "label": "PROVISION", "start_char": 14130, "end_char": 14138, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 14146, "end_char": 14178, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High court", "label": "COURT", "start_char": 14273, "end_char": 14293, "source": "ner", "metadata": {"in_sentence": "In the instant case, however, the period of limitation provided by s. 81(1) of the Representation of the People Act appears to have expired during the snmmer vacation which according to the notification of the Allahabad High court was declared to be a closed holiday."}}, {"text": "September 22, 1973", "label": "DATE", "start_char": 14396, "end_char": 14414, "source": "ner", "metadata": {"in_sentence": "By virtue of the notification of the Allahabad High Court dated September 22, 1973 when the High Court Calendar for 1974 was approved by the Court after inviting objections from the members of the public, a list of days had been mentioned to be treated as closed holidays."}}, {"text": "High Court of Judicature at Allahabad", "label": "COURT", "start_char": 14709, "end_char": 14746, "source": "ner", "metadata": {"in_sentence": "The last part of this notification runs thus :\n\n\"List of days to be observed as closed holidays in the High Court of Judicature at Allahabad during the year 197 4."}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 15412, "end_char": 15444, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "July 7, 197", "label": "DATE", "start_char": 15510, "end_char": 15521, "source": "ner", "metadata": {"in_sentence": "If, therefore, the period of limitation under s, 81 of the Representation of the People Act expired on June 14, 1974 which being a closed holiday right upto July 7, 197 4, then s, 10 of the General Clauses Act would apply in terms and the appellant would be fully justified in filing the petition on July 8, 197 4 when the Court re-opened after the summer vacation."}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 15543, "end_char": 15562, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "July 8, 197", "label": "DATE", "start_char": 15653, "end_char": 15664, "source": "ner", "metadata": {"in_sentence": "If, therefore, the period of limitation under s, 81 of the Representation of the People Act expired on June 14, 1974 which being a closed holiday right upto July 7, 197 4, then s, 10 of the General Clauses Act would apply in terms and the appellant would be fully justified in filing the petition on July 8, 197 4 when the Court re-opened after the summer vacation."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 15744, "end_char": 15749, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 15757, "end_char": 15776, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Act or Regulation made after the commencement of this Act", "label": "STATUTE", "start_char": 15813, "end_char": 15878, "source": "regex", "metadata": {}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 16366, "end_char": 16380, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 16560, "end_char": 16565, "source": "regex", "metadata": {"linked_statute_text": "Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877", "statute": "Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 16573, "end_char": 16592, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 17004, "end_char": 17009, "source": "regex", "metadata": {"linked_statute_text": "Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877", "statute": "Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 17067, "end_char": 17081, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ukumdev Narain Y adav", "label": "OTHER_PERSON", "start_char": 17206, "end_char": 17227, "source": "ner", "metadata": {"in_sentence": "In the instant case which arises out of the election petition it is manifest from the judgment of this Court on H ukumdev Narain Y adav (supra) that the provisions of ss.", "canonical_name": "Hukumdev Narain Y adav"}}, {"text": "ss. 4 and 5", "label": "PROVISION", "start_char": 17259, "end_char": 17270, "source": "regex", "metadata": {"linked_statute_text": "Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877", "statute": "Proyided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877"}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 17278, "end_char": 17292, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "May 25 to July 7, 1974", "label": "DATE", "start_char": 17443, "end_char": 17465, "source": "ner", "metadata": {"in_sentence": "It is also clear from the notification of the High Court referred to above that the entire period of the summer vacation starting from May 25 to July 7, 1974, was a closed holiday."}}, {"text": "s. 8", "label": "PROVISION", "start_char": 17540, "end_char": 17544, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 17557, "end_char": 17589, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 17708, "end_char": 17713, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 17721, "end_char": 17740, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 10", "label": "PROVISION", "start_char": 17933, "end_char": 17938, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18044, "end_char": 18049, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18064, "end_char": 18069, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18794, "end_char": 18799, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 37", "label": "PROVISION", "start_char": 18902, "end_char": 18907, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 18970, "end_char": 18975, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 19201, "end_char": 19205, "source": "regex", "metadata": {"statute": null}}, {"text": "May 18, 1954", "label": "DATE", "start_char": 19413, "end_char": 19425, "source": "ner", "metadata": {"in_sentence": "We are accordingly of opinion that the petition which the respondent filed on May 18, 1954, is entitled to the protection afforded by that section and is in time.\""}}, {"text": "s. 10", "label": "PROVISION", "start_char": 19535, "end_char": 19540, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 19548, "end_char": 19567, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 20369, "end_char": 20401, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Allahabed", "label": "COURT", "start_char": 20588, "end_char": 20611, "source": "ner", "metadata": {"in_sentence": "It would appear that under the rules framed by the High Court of Allahabed regarding the trial of election petitions, r. 3 required that every election petition shall be presented to the Registrar and r. 4 laid clown that after the office report etC. is complete the petition shall be laid forthwith before the Chief Justice for reference to the Bench concerned."}}, {"text": "Scptemller 22, 1973", "label": "DATE", "start_char": 22044, "end_char": 22063, "source": "ner", "metadata": {"in_sentence": "Therefore, the position would be the same if the Court by virtue of the notification issued on Scptemller 22, 1973, was observing a closed holiday during the summer vacation."}}, {"text": "section 10", "label": "PROVISION", "start_char": 22903, "end_char": 22913, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 22921, "end_char": 22940, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 10", "label": "PROVISION", "start_char": 23431, "end_char": 23441, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 23449, "end_char": 23468, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad", "label": "GPE", "start_char": 24758, "end_char": 24767, "source": "ner", "metadata": {"in_sentence": "exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of -Benches, listing of cases and other like matters.\""}}, {"text": "Lucknow", "label": "GPE", "start_char": 24771, "end_char": 24778, "source": "ner", "metadata": {"in_sentence": "exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of -Benches, listing of cases and other like matters.\""}}, {"text": "Chapter I of the Allahabad High Court Rules", "label": "STATUTE", "start_char": 26644, "end_char": 26687, "source": "regex", "metadata": {}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 27516, "end_char": 27539, "source": "ner", "metadata": {"in_sentence": "In the instant case, the period of limitation is not prescribed by the Rules made by the High Court of 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{"document_id": "1976_3_319_324_EN", "year": 1976, "text": "'\"' r\n\n3 19\n\nSTATE OF UTTAR PRADESH\n\nHET RAM & ORS.\n\nFebruary 3, 1976\n\n[R. S. SARKARIA AND P. N. SHINGHAL, JJ.J\n\nLocal irupection-\"Anv place in which an offe11ce fa {/llcged to ha\\'e been conunittcd or any other Place which it is in his opinion necessary to view for !he purpose of properly appreciating the evidence\", n1eans only the renue of ofie11ce and no other p!ace..__code of Crbninal Procedure (Act 5), 1898- Section 539 B, object of.\n\nThe respondents we_re convicted by the Sessions Judge for the offence under s. 302/34, J.P.C. for committing the murder of one Rati Ram and sentenced C to rigorous imprisonment for life. They were also convicted under s. 307134 I.P.C. for causing grievous injury to Raja Ram (PW 2) with intent to commit his murder and sentenced to rigorous imprisonment for 10 years.\n\nThey were, however, given the benefit of doubt and acquitted of the murder of Nainsuk brother-in-Jaw of Rati Ram. The convictions were based on the dying declaration and the seven incise wounds on Rati Ram and 26 incised wounds on Raja Ram and also on the evidence of Raja Ram (PW 2) and Dwarika\n\n(PW 3) who identified the respondents as the assailants.\n\nThe offence took place in the early hours of 24th December 1971 (About 330 A.J\\t) and it D was the admitted case that it was a dark night.\n\nDuring the pendency of the appeal by the respondents, the learned Judges of the High Court acting under s. 539B, Cr.P.C., 1, ve11t \\\\'ith the Government Advocate and the respondents' counsel on 11-1-1974 to a place where there \\Vas no artificial light at about 7.30 p.m. for the purpose of appreciating the veracity of the evidence of Ra_ia Ram (PW 2) and Dwarika (PW 3) tendered at the trial in identifying the respondents in darkness. Finding that under the E circumstances noticed by them, it was difficult to recognise a person, the High Court disbelieved the evidence of PW2 and PW3 and acquitted the respondents.\n\nAJJowing the appeal by special leave, and remitting the case for rehearing, the Court,\n\nHELD : ( 1) Section 539B of the Code of Criminal Procedure, 1898, contemplates the lo:; al inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose F of appreciating the evidence which was already on the record.\n\n[322FJ\n\n(2) Jn the instant case, the procedure adopted by the Judges in visiting quite a different place, on a time unconnected with the time of the allep-Pt 1\n\nincient, f?r the purposes of decdin.g whether the witnesses could identify the assailants 1n the darkness was quite illegal and it was not permissible for them to dispose of the case on the basis of their own findinp:s vdthout regard to the evidence \\Vhich \\Vas already on record. f324A-B]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 79 of l 975.\n\n(Appeal by Special Leave from the Judgment and 1 5-1-1974 of the Allahabad High Court in Criminal 2545/72).\n\n0. P. Rana, for the appellant.\n\nOrder dated Appeal No.\n\nYogeJhwar Prasad and Miss Rani Arora, for the respondent.\n\nA The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life.\n\nHe also convicted them of an offence under section 307 /34 I.P.C. for causing grievous injury to Raja Ram (P.W. 2) with intent to commit his murder, and sentenced them to rigorous imprisonment for ten years.\n\nThe respondents were given benefit of doubt in regard to the murder of one Nain Sukh, brother-in-law of Rati Ram, and were acquitted.\n\nWhile no appeal was preferred against the acquittal, the accused went up in appeal to the High Coc1rt of Judicature at Allahabad, which took the view that the prosecution had failed to establish the guilt beyond reasonable doubt.\n\nThe High Court allowed the appeal by its judgment dated January 15, 1974, and set aside the conviction and the sentences of the accused.\n\nThe State of Uttar Pradesh has therefore filed the present appeal by special leave.\n\nThe controversy in this Court centres round a short point but, in order to appreciate it, it will be necessary to make a brief mention of some of the facts.\n\nIt was alleged by the prosecution that there was a dispute between Rati Ram and respondent Het Ram over a potato field.\n\nRati Ram initiated proceedings under section 144 Cr.P.C. and secured an order of attachment. A panchayat was held thereafter, and it decided that while the potato crop may be given to respondent Het Ram, the field may be given to Rati Ram. It was alleged that the terms of the decision of the panchayat were reduced to writing and that document was handed over to Nain Sukh, brother-in-law of Rati Ram.\n\nIt was alleged further that on December 24, 1971, Rati Ram and his son Raja Ram (P.W. 2) left for Farukhabad at about 2.45 a.m. in a bullock cart loaded with potatoes for selling them there. Rati Ram's nephew Dwarika (P.W. 3) accompanied them in another bullock cart loaded with potatoes for the same purpose.\n\nAt about 3.30 a.m. when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with \"Karalis''. It is alleged that Het Ram was also armed with a pistol, and Sobran with a lathi.\n\nAll the three respondents caused injuries to Rati Ram and Raja Ram, who raised an alarm.\n\nDwarika, who was trailing behind in his cart, also raised an alarm and ran towards Jhaua village, but the respondents ran away towards the west before the villagers could arrive saying they would go and kill Nain Sukh. It is said that Nain Sukh was murdered soon after while he was sleeping in Rati Ram's \"cbaupal\". A report of the incident was lodged at police station Shamshabad shortly afterwords. at about 9.50 a.m.\n\nThe injuries of Raia Ram and Rati Ram were examined by the Medical Officer, District Hospital. Fatehgarh, the same day.\n\nRaja Ram had 26 incised wounds.\n\nThe iniuries of Rati Ram were also\n\nxamined the snrne dav. Ile haO 7 inCiscd \\Vounds.\n\nHis dying declaration was recorded bv the Sub-Divisio:d Maistrate on December\n\n24. 1971. and he succumbed to his iniurics on December 30, 1971.\n\nNain Sukh succumbed to his injuries soon after the incident, but we A are not concerned with his case as it is not the subject matter of the appeal before us.\n\nThe High Court took note of the fact that Raja Ram (P. W. 2) and Dwarika (P. W. 3) were the two eye witnesses of the prosecution in regard to the incident relating to the injuries infiicted on Rati Ram and Raja Ram. It held that the presence of Raja Ram had been established by the injuries which were received by him, and it also reached the conclusion that Dwarika (P.W. 3) was also present at the tinie of the incident.\n\nAfter recording that finding, the Judges raised the question whether those witnesses could identify the assailants in the dark night and answered it in the following manner,-\n\n\"As we were not certain whether persons could be identified in a dark night even from a short distance we went to a place where there was no artificial light on 11-1-7 4, which was the third day of dark fortnight, at about 7.30 p.m. before moonrise along with the learned Government Advocate and Sri Kundan Singh counsel for the appellants. We found that it was extremely difficult to recognise faces even of persons standing within a foot.\n\nAlthough the general outline of the face was visible the features could not be seen clearly. Beyond a distance of two or three feet even the outline of the face was not clear.\n\nIt is noteworthy that according to the evidence on record the assailants did not speak at all at the time of the occurrence.\n\nThere was therefore no question of recognition by voice. We are therefore of the opinion that even Raja Ram and Rati Ram who had received injuries in the incident were not in a position to recognise the assailants clearly beyond the possibility of any mistake. According to the evidence on record, Dwarika is alleged to have recognised the assailants from a distance of about five or six paces. From that distance it was not at all nossible to do so. The result therefore is that we are not prepared to accept either the dying declaration of Rati Ram or the statements of Raia Ram and Dwarika regarding the complicity of the appeliants in the crime. The implication of the appellants on the basis of suspicion cannot be ruled out as. admittedly there was a dispute between Rati Ram and Het Ram in respect of a field which, according to the prosecution, constituted the motive for the crin1e.\"\n\nThe legality and the propriety of the visit of the Judges \"to a: place where there was no ai; tificial light\", at 7.30 p.m. on January 11, 1974 and the inferences drawn from that visit, is the only point which has been urged for our consideration, for, as has been stated in the judgment under appeal, that was the basis of the order of acquittal. While Mr. Rana has challenged that action, Mr. Yogeshwar Prasad has argued that the visit was by way of a local inspection within the meaning of section 539B of the Code of Criminal Procedure and was quite in order. It is admitted that a memorandum of the facts observed by\n\nthe Judges was not recorded, and Mr. Yogeshwar Prasad has invited our attention to several decisions of High Courts in which, it has been held that such an omission was a mere irregularity so long as it coulo be shown that it had not caused failure of justice or prejudiced the defence.\n\nIt is not in controversy before us that it is permissible for an appellate court to make a local inspection of the nature contemplated by section 539B. Sub-section (1) of that section. which bears on the controversy before us. reads as follows.-\n\n\"539B (1) Any Judge or Magistrate may at any stage of the inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offenre is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the the evidence given at such inquiry or trial. and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.\"\n\nWhat is therefore permissible is that a Judge may inspect any \"place\"\n\nin which an offence is alleged to have been committed,\" or \"any other place\" which it is in his opinion necessary to view for the purpose of \"properly appreciating the evidence\" given at an inquiry, trial or other proceeding.\n\nThe Judges of the High Court did not, however, inspect any such place in which an offence was alleged to have been committed and, as is obvious, it cannot be said that they inspected any other place which could be said to be necessary to view for the purpose of properly appreciating the evidence in the case.\n\nThe learned Judges in fact did not go to visit any particular \"place\" as such, for they went to a place \"at a short distance\" where there was no artificial light merely for the purpose of ascertaining whether \"persons could be identified in a dark night even from a short distance.\" Theirs was therefore not a local inspection within the meaning of section 539B Cr. P. C., for what that section contemplates is the local inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose of properly appreciating the evidence which was already on the record.\n\nIt will be recalled that the incident in this case was alleged to have taken place at about 3.30 a.m. on December 24, 1971. The Judges however chose to go and visit a place unconnected with the incident on January 11, 1974, at about. 7.30 p.m. for the purpose of ascertaining whether persons could be identified at that hour from a short distance. They thus chose the time and the place of their visit according to their whim and fancy, quite unconnected with the time and place of the incident.\n\nMr. Y ogeshwar Prasad has not been able to refer us to any provision of law under which such a course could be said to be permissible.\n\nIt will be recalled that the Judges did not record a memorandum of any relevant fact observed by them at the time of their inspection.\n\nBut even if it is assumed, for the sake of argument, that the omission did not prejudice any one and was a mere irregularity, the fact remains that, as we shall show presently, they did not\n\ncorrelate the result of their inspection to the evidence on record and there is justification for the argument of Mr. Rana that the local ins .. pection cannot be said to have been undertaken for the purpose of properly appreciating the evidence on record.\n\nWe have extracted that portion of the impugned judgment of the High Court which bears on the controversy before us.\n\nThere is nothing in the judgment to show the na•ure of tlie p'o:e which \"'as\n\nselected by the Judges for their visit on January 11, 1974 at about\n\n7.30 p.m. It is thus not known whether it was an open place, or it was some such place as the one where the alleged incident took place.\n\nThe time of the visit had also nothillg to do with the alleged incident.\n\nIt has been stated by the Judges that they found that it was \"extremely difficult to recognise faces even of persons standing within a foot,\" but they have not stated whether it was impossible to recognise the faces of even those persons who were relations and were well known to the witnesses over a long period of time.\n\nThe statement of Raja Ram (P.W. 2) in the trial court was read out to us.\n\nHe has stated that the accused gave the beating while clinging to the victims at close quarters.\n\nThere is however nothing in the judgment of the High Court to show whether the darkness found by the Judges was so intense that even those clinging to the victims could not be identified by them in the darkness which the Judges found at the time of their inspection.\n\nThe statement that it was extremely difficult to recognise faces of persons standing within a foot, was thus quite immaterial because the evidence to the present case was not that the accused were standing at that distance but that they were clinging to the victims.\n\nIt has further been stated in the impugned judgment that \"although the general outline of the face was visible the features could not be seen clearly\". It has not however been stated whether the features of well familiar faces could also not be recognised. The same criticism applies to the observation that beyond a distance of two or three feet, even the outline of the face was not clear. It would thus appear that it is not possible to contend that the local insoection on which considerable reliance was placed by the learned judges was undertaken for the purpose of \"properly appreciating the evidence\"\n\non the record. If we may say so. the inspection was not utilised for any such purpose.\n\nIt had the effect of substituting the personal observations of the Judges for the evidence on the record.\n\nIt is a matter of regret rhat these views should have formed the basis for rejecting the prosecution evidence altogether.\n\nIt has to be remembered that Raia Ram (PW. 2) received as many as 26 incised wounds. some of which were on the front part of his body.\n\nHe has stated at the trial that the accused were clinging to him so that. according to him, he was facing them at very close quarters, Rati Ram received 7 injuries including those on the chest.\n\nHe also thus had the opportunity of identifying them at very close quarters.\n\nThe statement of Raja Ram and the dying declaration of Rati Ram should therefore have been examined by the High Court, as the Court of first appeal. on their merits and not on the fanciful ground that the Judges who went for local inspection found, on their own examination, that it was extremely difficult to recognise the faces of the assailants.\n\nFor the reasons mentioned above, we have no doubt that the procedure adopted by the Judges in visiting quite a different place, on a date and time unconnected with the time of the alleged incident, for the purpose of deciding whether the witnesses could identify the assailants in the darkness, was quite illegal and it was not permissible for them to dispose of the case on the basis of their own findings without regard to the evidence which was already on the record.\n\nWe are therefore constrained to set aside the impugned judgment dated January 15, 197 4 and to direct that the High Court shall rehear the appeal according to the Jaw and dispose of it within a period of three weeks.\n\nThe record of the case may be sent to the High Court by a special messenger to avoid any delay in transit.\n\nS.R.\n\nCase remanded.", "total_entities": 64, "entities": [{"text": "19\n\nSTATE OF UTTAR PRADESH", "label": "PETITIONER", "start_char": 9, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "HET RAM & ORS", "label": "RESPONDENT", "start_char": 37, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "HET RAM & ORS", "offset_not_found": false}}, {"text": "February 3, 1976", "label": "DATE", "start_char": 53, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "February 3, 1976\n\n[R. 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Rana", "label": "LAWYER", "start_char": 2945, "end_char": 2952, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant."}}, {"text": "YogeJhwar Prasad", "label": "LAWYER", "start_char": 2998, "end_char": 3014, "source": "ner", "metadata": {"in_sentence": "YogeJhwar Prasad and Miss Rani Arora, for the respondent.", "canonical_name": "Y ogeshwar Prasad"}}, {"text": "Rani Arora", "label": "LAWYER", "start_char": 3024, "end_char": 3034, "source": "ner", "metadata": {"in_sentence": "YogeJhwar Prasad and Miss Rani Arora, for the respondent."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 3103, "end_char": 3111, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life."}}, {"text": "Sessions Judge of Farukhabad", "label": "COURT", "start_char": 3120, "end_char": 3148, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life."}}, {"text": "Het Ram", "label": "PETITIONER", "start_char": 3171, "end_char": 3178, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life.", "canonical_name": "HET RAM & ORS"}}, {"text": "Sobran", "label": "PETITIONER", "start_char": 3180, "end_char": 3186, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life.", "canonical_name": "Sobran"}}, {"text": "Ram Pal", "label": "RESPONDENT", "start_char": 3191, "end_char": 3198, "source": "ner", "metadata": {"in_sentence": "A The Judgment of the Court was delivered by\n\nSHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life.", "canonical_name": "Ram Pal"}}, {"text": "section 302", "label": "PROVISION", "start_char": 3219, "end_char": 3230, "source": "regex", "metadata": {"statute": null}}, {"text": "section 307", "label": "PROVISION", "start_char": 3378, "end_char": 3389, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3394, "end_char": 3399, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Nain Sukh", "label": "OTHER_PERSON", "start_char": 3619, "end_char": 3628, "source": "ner", "metadata": {"in_sentence": "The respondents were given benefit of doubt in regard to the murder of one Nain Sukh, brother-in-law of Rati Ram, and were acquitted.", "canonical_name": "Nain Sukh"}}, {"text": "High Coc1rt of Judicature at Allahabad", "label": "COURT", "start_char": 3769, "end_char": 3807, "source": "ner", "metadata": {"in_sentence": "While no appeal was preferred against the acquittal, the accused went up in appeal to the High Coc1rt of Judicature at Allahabad, which took the view that the prosecution had failed to establish the guilt beyond reasonable doubt."}}, {"text": "January 15, 1974", "label": "DATE", "start_char": 3966, "end_char": 3982, "source": "ner", "metadata": {"in_sentence": "The High Court allowed the appeal by its judgment dated January 15, 1974, and set aside the conviction and the sentences of the accused."}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 4052, "end_char": 4074, "source": "ner", "metadata": {"in_sentence": "The State of Uttar Pradesh has therefore filed the present appeal by special leave."}}, {"text": "Het Ram", "label": "RESPONDENT", "start_char": 4382, "end_char": 4389, "source": "ner", "metadata": {"in_sentence": "It was alleged by the prosecution that there was a dispute between Rati Ram and respondent Het Ram over a potato field.", "canonical_name": "HET RAM & ORS"}}, {"text": "Rati Ram", "label": "PETITIONER", "start_char": 4412, "end_char": 4420, "source": "ner", "metadata": {"in_sentence": "Rati Ram initiated proceedings under section 144 Cr.", "canonical_name": "Rati Ram"}}, {"text": "section 144", "label": "PROVISION", "start_char": 4449, "end_char": 4460, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 4461, "end_char": 4467, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "December 24, 1971", "label": "DATE", "start_char": 4847, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "It was alleged further that on December 24, 1971, Rati Ram and his son Raja Ram (P.W. 2) left for Farukhabad at about 2.45 a.m. in a bullock cart loaded with potatoes for selling them there."}}, {"text": "Farukhabad", "label": "GPE", "start_char": 4914, "end_char": 4924, "source": "ner", "metadata": {"in_sentence": "It was alleged further that on December 24, 1971, Rati Ram and his son Raja Ram (P.W. 2) left for Farukhabad at about 2.45 a.m. in a bullock cart loaded with potatoes for selling them there."}}, {"text": "Jhaua", "label": "GPE", "start_char": 5180, "end_char": 5185, "source": "ner", "metadata": {"in_sentence": "At about 3.30 a.m. when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with \"Karalis''."}}, {"text": "Rampura", "label": "GPE", "start_char": 5190, "end_char": 5197, "source": "ner", "metadata": {"in_sentence": "At about 3.30 a.m. when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with \"Karalis''."}}, {"text": "Sobran", "label": "RESPONDENT", "start_char": 5253, "end_char": 5259, "source": "ner", "metadata": {"in_sentence": "At about 3.30 a.m. when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with \"Karalis''.", "canonical_name": "Sobran"}}, {"text": "Ram Lal", "label": "RESPONDENT", "start_char": 5264, "end_char": 5271, "source": "ner", "metadata": {"in_sentence": "At about 3.30 a.m. when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with \"Karalis''.", "canonical_name": "Ram Pal"}}, {"text": "Het Ram", "label": "RESPONDENT", "start_char": 5323, "end_char": 5330, "source": "ner", "metadata": {"in_sentence": "It is alleged that Het Ram was also armed with a pistol, and Sobran with a lathi.", "canonical_name": "HET RAM & ORS"}}, {"text": "Jhaua village", "label": "GPE", "start_char": 5560, "end_char": 5573, "source": "ner", "metadata": {"in_sentence": "Dwarika, who was trailing behind in his cart, also raised an alarm and ran towards Jhaua village, but the respondents ran away towards the west before the villagers could arrive saying they would go and kill Nain Sukh."}}, {"text": "Shamshabad", "label": "GPE", "start_char": 5847, "end_char": 5857, "source": "ner", "metadata": {"in_sentence": "A report of the incident was lodged at police station Shamshabad shortly afterwords."}}, {"text": "Raia Ram", "label": "OTHER_PERSON", "start_char": 5914, "end_char": 5922, "source": "ner", "metadata": {"in_sentence": "at about 9.50 a.m.\n\nThe injuries of Raia Ram and Rati Ram were examined by the Medical Officer, District Hospital.", "canonical_name": "Raja Ram"}}, {"text": "District Hospital. Fatehgarh", "label": "ORG", "start_char": 5974, "end_char": 6002, "source": "ner", "metadata": {"in_sentence": "at about 9.50 a.m.\n\nThe injuries of Raia Ram and Rati Ram were examined by the Medical Officer, District Hospital."}}, {"text": "December\n\n24. 1971", "label": "DATE", "start_char": 6208, "end_char": 6226, "source": "ner", "metadata": {"in_sentence": "His dying declaration was recorded bv the Sub-Divisio:d Maistrate on December\n\n24."}}, {"text": "December 30, 1971", "label": "DATE", "start_char": 6264, "end_char": 6281, "source": "ner", "metadata": {"in_sentence": "and he succumbed to his iniurics on December 30, 1971."}}, {"text": "11-1-7 4", "label": "DATE", "start_char": 7205, "end_char": 7213, "source": "ner", "metadata": {"in_sentence": "After recording that finding, the Judges raised the question whether those witnesses could identify the assailants in the dark night and answered it in the following manner,-\n\n\"As we were not certain whether persons could be identified in a dark night even from a short distance we went to a place where there was no artificial light on 11-1-7 4, which was the third day of dark fortnight, at about 7.30 p.m. before moonrise along with the learned Government Advocate and Sri Kundan Singh counsel for the appellants."}}, {"text": "Kundan Singh", "label": "OTHER_PERSON", "start_char": 7344, "end_char": 7356, "source": "ner", "metadata": {"in_sentence": "After recording that finding, the Judges raised the question whether those witnesses could identify the assailants in the dark night and answered it in the following manner,-\n\n\"As we were not certain whether persons could be identified in a dark night even from a short distance we went to a place where there was no artificial light on 11-1-7 4, which was the third day of dark fortnight, at about 7.30 p.m. before moonrise along with the learned Government Advocate and Sri Kundan Singh counsel for the appellants."}}, {"text": "Dwarika", "label": "OTHER_PERSON", "start_char": 8087, "end_char": 8094, "source": "ner", "metadata": {"in_sentence": "According to the evidence on record, Dwarika is alleged to have recognised the assailants from a distance of about five or six paces."}}, {"text": "January 11, 1974", "label": "DATE", "start_char": 8810, "end_char": 8826, "source": "ner", "metadata": {"in_sentence": "The legality and the propriety of the visit of the Judges \"to a: place where there was no ai; tificial light\", at 7.30 p.m. on January 11, 1974 and the inferences drawn from that visit, is the only point which has been urged for our consideration, for, as has been stated in the judgment under appeal, that was the basis of the order of acquittal."}}, {"text": "Rana", "label": "OTHER_PERSON", "start_char": 9041, "end_char": 9045, "source": "ner", "metadata": {"in_sentence": "While Mr. Rana has challenged that action, Mr. Yogeshwar Prasad has argued that the visit was by way of a local inspection within the meaning of section 539B of the Code of Criminal Procedure and was quite in order."}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 9078, "end_char": 9094, "source": "ner", "metadata": {"in_sentence": "While Mr. Rana has challenged that action, Mr. Yogeshwar Prasad has argued that the visit was by way of a local inspection within the meaning of section 539B of the Code of Criminal Procedure and was quite in order.", "canonical_name": "Y ogeshwar Prasad"}}, {"text": "section 539B", "label": "PROVISION", "start_char": 9176, "end_char": 9188, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 9196, "end_char": 9222, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 539B", "label": "PROVISION", "start_char": 9732, "end_char": 9744, "source": "regex", "metadata": {"statute": null}}, {"text": "section 539B", "label": "PROVISION", "start_char": 11272, "end_char": 11284, "source": "regex", "metadata": {"statute": null}}, {"text": "Y ogeshwar Prasad", "label": "LAWYER", "start_char": 12058, "end_char": 12075, "source": "ner", "metadata": {"in_sentence": "Mr. Y ogeshwar Prasad has not been able to refer us to any provision of law under which such a course could be said to be permissible.", "canonical_name": "Y ogeshwar Prasad"}}, {"text": "Raia Ram", "label": "WITNESS", "start_char": 15240, "end_char": 15248, "source": "ner", "metadata": {"in_sentence": "It has to be remembered that Raia Ram (PW."}}, {"text": "January 15, 197", "label": "DATE", "start_char": 16512, "end_char": 16527, "source": "ner", "metadata": {"in_sentence": "We are therefore constrained to set aside the impugned judgment dated January 15, 197 4 and to direct that the High Court shall rehear the appeal according to the Jaw and dispose of it within a period of three weeks."}}]}
{"document_id": "1976_3_325_334_EN", "year": 1976, "text": ". \"\n\nCHOGMAL BHANDARI & OTHERS\n\nDEPUTY COMMERCIAL TAX OFFICER II DIVISION\n\nKURNOOL\n\nFebruary 4, 1976\n\n[R. S. SARKARIA AND MURTAZA FAZAL ALI, JJ.J\n\nAndhra Pradesh General Sales Tax Act-Sec. 17(1)-Whether sales tax -t!ues of u 0calor can be recorered fro111 tr11stees-h1dia11 Trusts A>'t. 1882-\n\nSec. 4-Unlawful Trust-Transfer of Property Act-Sec. 53-Transfer wit/1 intent to defeat or delay creditors-Liability to pay tax-Whether depends on assess111ent and quantification-Whether authorities 111uler Sales Tax Act can decide .con1plicated questions of title.\n\nKollayya and Narasimaiah carried on business in partnership. The firm incurred huge losses and was dissolved in 1963. Kollayya's son Bala and Bala's son B.V.S. Rao carried on joint Hindu Family business.\n\nB.V.S. Rao applied, being a minor, through his father Bala, for registration \\Vhich Vias granted by the Sales Tax Authorities. Thereaftei, Sales Tax Authorities continued to make assessment in the name of B.V.S. Rao from the year 1966 to the year 1969.\n\nAlthough B.V, S. Rao informed the Sales Tax Department that the business \\Vas in fact carried on by the Joint Hindu family yet no assessment was made in the name of Joint Hindu family until 1971. Although B.V.S. Rao informed the Sales Tax Department that his business had come to an end and that the business was carried on by his grand-father Kollayya, yet the Sales Tax Depart- 1nent neither cancelled the registration of B.V.S. Rao nor issued fresh notice to Kollayya.\n\nIn September, 1968, Kollayya and Narasimiah the partners of the dissolved firm executed a registered deed of Trust by which certain properties were vested in the Trustees for the purpose of paying off the creditors mentioned in the Trust Deed who had obtained decrees ngainst the settlors.\n\nIn the year 1971 assessments were made against the Joint Hindu Family and penalties \\Vere also imposed for not paying the sales tax.\n\nAll the assessments prior to the year 1971, \\1.lere made in the name of B.V.S. Rao.\n\nSince the Sales Tax Authoritie<; coukl not recover the monies from the assesees they issued notices under\n\ns, 17 ( 1) of the Andhra Pradesh General Sales Tax Act to the appellants who were the trustees of the said trust on the ground that the trust \\Vas void and fraudulent.\n\n. A wit petition. fild by the appelants in the High Court for quashing ihe F sard notices was dtsmissed by the High Court on the ground that the deed of trust \\vas fraudulent and had been executed to defeat the sales tax dues.\n\nOn an appeal by special leave it v.ns contended by the appellants :\n\n( 1) Th~ moment the trust deed was executed by Kollayya and Narasa~\n\nm::nah the title to those properties vested in the trustees and thus it \\Vas beyond the reach of the Sales Tax Department,\n\n(2) When the impugned notice \\Vas issued in 1970 tax had not been G quantified since the assessments were made subsecluently.\n\nJt \\Vas contended by the respondents that :\n\n( 1) K<:illayy'.1 must b~ deemed to have knowledge as the Karta of the\n\nJoint Hindu Family that he had inurred sales tax liability.\n\n(2) Under s. 17(1) of the Act, the Sales Tax Authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries.\n\n(3) Thed truth ishhi~ by s. 53 of the Tn1nsfer of Property ACt. being ma e \\Vtt t e intent to defeat or delay the creditors.\n\n( 4)\n\nThe liability of the appellants arose as early as in 1966-67 and the trust deed came into existence in September, 1968.\n\nKollayya and trustees, therefore, could not be unaware of the tax liability.\n\nThe creation of the trust subsequently was, therefore, a device to evade the payment of arrears of sales tax.\n\nAllowing the appeal by special leave, HELD : ( 1) The Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent without cl?nsidering the real point of law which arose on the admitted facts.\n\n[329 A]\n\n(2) The mon1ent the trust deed was executed the trustees acquired an independent title under the Trust. The trust deed clearly mentioned the names of the creditors to whom the money was to be paid.\n\nUnder the trust, the settlors did not reserve any advantage or benefit for themselves.\n\nThere is no material to show that the decrees obtained by the creditors were collusive and the trust deed was executed before the assessment orders against the Joint Family were made and. therefore. there \\Vas no real debt due from the settlors when the trust was -executed. [329A-D]\n\n(3) The present trust cannot be said to be unlawful within the meaning of s, 4 of the Indian Trust Act, 1882. since the trust is neither forbidden by law nor does it defeat any legal provision nor can it be said to be fraudulent\n\nex facie.\n\n[330D-E] Whether the trust deed has been executed with the intent to defeat or delay the creditors v.:ithin the meaning of s. 53 ( 1) of the 1ransfer of Property Act depends on the intention of the settlors depending mainly on the facts and circumstances of the case.\n\nThe mere preference of one creditor to another by itself does not lead to the irresistible inference that the intention was to defeat the other creditors.\n\n[331CE] Musahar Sahu and another v. Hakim Lal and another L.R. 43 I.A. 104: ftfa Pwa May and another v. S. R. M. M.A. Chettiar Firn1, AIR 1929 P.C. 279, 281 and San1patrai Chhogalalji and others v. Ji'.'. S. Patel, Sales Tax Officer, and others_. 17 S.T.C. 29, 34, approved.\n\n(4) Once the trust is held to be valid the department cannot proceed against the trustees under s. 17 ( 1). The section does not empower the Sales Tax Department to follow the money in; the hands of a bonafide transferee from the assessee even before the dues are accrued.\n\nThe Sales Tax Authorities under s. 17 can only detennine the jurisdictional facts and cannot proceed beyond\n\nthat.~ The (IUthorities cnnnot be a judge in its own cause and determine or decide complicated questions of title. f333C-E] Katikara Chinta111ani Dor(I & Ors. v. Guntreddi Annan1anaidu & Ors. [1974]t_\n\n2. S. C. R. 655, followed.\n\nT n the present case the Sales Tax Authorities cannot be allowed to hold that the deed of trust executed by the settlors w3s hit by s. 53 of the Transfer Of\n\nProperty Act. Even if a transfer is made with intent to defeat or delay the creditors it is not void but only voidable under s. 53. ]f the transfer is voidable the Sales Tax Authorities cannot ignore or disregard it but have to get it set aside\n\nthrough a properly instituted suit after impleading necessary parties and praying for the desired relief. f333F-G] Chutterput SinRh & Ors. v. Maharaj Bahadoor and others, L.R. 32 I.A. t and Zafrul Hasan and others v. FaridUd-Din and others, A.LR. 1946 P.C. 177. approved.\n\n(5) So long as the tax had not been ass'essed and, quantified it could not be said that any specific debt due to the Revenue from the assessee had come into existence-.\n\nThe question of such a non-existent debt, being a first charg:! on the property at the date of the execution of the Trust Deed did not arise.\n\n[334E-F] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1148 of 1975.\n\nAppeal by special leave from the judgment and order dated the 2-12-1974 of the Andhra Pradesh High Court in writ petition No. • 2250 of 1973.\n\n..,,-\n\nM. C. Bhandare and Miss A. Subhashini for the appellant.\n\nP. Ram Reddy and P. P. Rao for the respondent.\n\nThe Judgment of the Court was delivered by\n\nF AZAL Au, J .-This is an appea1 by special leave against the Judgment of the Andhra Pradesh High Court dated December 2, 197 4 and arises under the following circumstances.\n\nltikala Kollayya and his brother-in-law Kovvuru Narasimhaiah constituted partnership firm dealing in foodgrains.\n\nThe firm carried on the business in the name and slyle of \"Kovvuru Narasimhaiah and Ktikala Kollayya\".\n\nThe firm, however, stood dissolved in 1963.\n\nThe firm appears to have been in serious financial difficulties and incurred debts to the tune of about Rs. 70,000/-. The creditors filed an insolvency petition but the petition was ultimately dismissed because it was held that the firm had no means to discharge the debts.\n\nSubsequently the business was started in-tlie name of B. V. S. Rao son of Bala Scshaiah.\n\nAfter the death of ltikala Kollayya his son Bala Scshaiah and his son B. V. S. Rao carried on joint Hindu family business.\n\nIn fact B. V. S. Rao applied on May 8, 1966 for a certificate of registration to the Sales Tax Department of the State and was given the same.\n\nB. V. S. Rao who was a minor had applied for the certificate through his guardian Bala Seshaiah.\n\nThereafter the Sales Tax Department continued to make assessments in the name of B. V. S.\n\nRao.\n\nThus for the years 1966-67, 1967-68 and 1968-69 the provisional assessments were made in the name of B. V. S. Rao the minor.\n\nIt is not disputed that during all these years the business was run in the name of B. V. S. Rao the minor grandson of Kollayya.\n\nThere are also materials on the record to show that B. V. S. Rao had informed the Sales Tax Department that the business was in fact carried on by the Joint Hindu family and yet no asscsrnent was made in the nan1e of the Joint Hindu family until 1971. It is true that the High Court has held that B. V. S. Rao was merely a benamidar for Kollayya who was the real proprietor of the firm and therefore the real dealer would be Kollayya and not B. V. S. Rao. The High Court also relied on the circumstance that Kollayya did not appear before the Sales Tax Department in obedience to the notices issued to him and therefore the High Court thought it was too late in the day for Kollayya to contend that he was not a dealer within the meaning of the Andhra Pradesh General Sales Tax Act.\n\nMr. Ram Reddy learned counsel for the respondent did not support this part of the reasoning of the High Court because the Sales Tax Department having itself issued the certificate of registration to B. V. S. Rad and having recognised him as a dealer could not make a somersault and start assessing tax in the name of Kollayya who was not at all a registered dealer. Furthermore, it would appear that B. V. S. Rao had himself informed the Sales. Tax Department that his business had come to an end and that the busmess was carried on by his grandfather and yet the Sales Tax Department did not choose to cancel the registration of B. V. S. Rao or to issue fresh notice to Kollayya.\n\nIn these circumstances the ball was in the court of the Sales Tax Department which appears to have taken delayed actlon in the matter for assessing Kol\\ayya as the manager of the\n\njoint Hindu family for the first time in 1971. Mr. Ram Reddy confined his arguments only to the question that in view of the circumstances of the .case Kollayya must be_ deemed to have knowledge as the karta of the. JO!Ilt Hindu family that he had earned sales-tax .liability and from this alone an inference was sought to be raised that the trust was a fraudulent _transaction.\n\nWeare, however, unable to press this mference too far m view of the reasons which we shall give hereafter.\n\nlt appears that on May 26, 1969 B. V. S. Rao informed the Salcs- Tax Department that he had stopped the business with effect from August 1, 1968 and despite this fact the Sales Tax Department went on making assessment orders in the name of B. V. S. Rao. Further on January 17, 1968 the Deputy Commercial Tax Officer while making the assessment order had stated that the business was being carried on as joint family business by Bala Seshaiah the father of B. V. S. Rao. It appears that on September 16, 1968 Itika]a Kollayya and Kovvuru N arasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A' of the trust deed.\n\nThirteen persons were named in Schedule 'A'. According to the assessees the creditors mentioned in Schedule 'A' had obtained decrees against the settlors and it was for the purpose of discharging the previous debts of those creditors that the trust was executed. Subsequently it appears that the assessments were made against the joint Hindu family on January 18, 19 and 24, 1971 aud penalties were also imposed on the assessees for not 'paying the sales tax.\n\nThe sales tax authorities, therefore, made the assessment in the name of the joint Hindu family for the first time on January 18, 1971 and prior to that the assessments were made in the name of the minor B. V. S. Rao. The Sales Tax Department having found that the assessees had constituted a trust in respect of the properties and as the amounts could not be realised from the assessees notices were issued on the petitioners who were the trustees for payment of the amounts due under the various assessments made by the Sales Tax--Department on the joint Hindu family.\n\nThe Sales Tax Depaitinent was of the view that the deed of trust dated September 16, 1968 was void and fraudulent and was brought about to defeat the debts of the Sales Tax Department in the shape of the assessments made against the joint Hindu family whose business was carried on by its karta Bala Seshaiah.\n\nDemand notices under s. 17(1) of the Andhra Pradesh General Sales Tax Act were served on the petitioners who filed a writ petition before the A1dhca Pradesh High Court for quashing the notices, on the basis of which the amounts were sought to be recovered.\n\nThe High Court held that the deed of trust was fraudulent and had been executed to defeat the Sales Tax Department of its dues and the petitioners were, therefore, trustees of an invalid trust and being in possession of the properties held the same on behalf of the debtor assessees who were liable to pay, the amounts.\n\nOn this finding the writ petition was dismissed. by t\\)_e High Court. The petitioners moved the High Court f?r granmg ceJc tificate of fitness for leave to appeal to this Court which having bcl(n\n\nrefused they obtained special foave from this Court and hence this A appeal.\n\nlt is. true that the Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent and, therefore, it could be ignored by the Sales Tax Department.\n\nNormally this should have been a finding of fact which could have. settled the. matter beyond any controversy. But on a perusal of B the facts and circumstances of the case we find that the real point of law which arose on the admitted facts does not appear to have been considered either by the sales tax authorities or even by the High Court.\n\nMerely because the joint Hindu family had earned liability to pay sales-tax it had been inferred by the High Court as also by the sales tax authorities that the registered deed of trust executed on September 16, 1968, about three years before the actual assessments C were made in the name of the joint Hindu family was a colourable transaction.\n\nLearned counsel for the appellants Mr. M. C. Bhandare submitted that the petitioners were merely trustees who were to discharge the debts of the creditors tnentioned in Sch. 'A'. The moment the trust deed was executed by Kollayya and Narasimhaiah the title to those properties vested in the trustees and thus put beyond the reach of the Sales Tax Department. It cannot be said in the circumstances D that the trustees were holding the properties either on account of or on behalf of the joint Hindu family, because they had acquired an independent title under the trust.\n\nIn our opinion, the contention put forward by the learned counsel for the appellants is sound and must prevail. The learned counsel appearing for the respondent, however, submitted that the mere fact that the inembers of the joint Hindu family were aware that they had incurred the sales tax liability because E they were dealers in foodgrains and had conducted a number of sales was sufficient to show that the trust deed was fraudulent and unlawful.\n\nIt was also submitted that under s. 17 ( 1) of the Andhra Pradesh General Sales Tax Act, the _sales tax authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries sought to be made against ~~m.\n\nWe would first consider the question as to the nature of the trust deed executed by the settlors. It is not disputed that the trust deed was\n\na reoistered instrument and came into existence three years before the actu; l assessments were made in favour of the joint Hindu family.\n\nFurthermore it is clearly stipulated in the trust deed that the object of the trust was to discharge the. debts of the previous creditors of the G settlors who had obtained decrees from the Courts.\n\nThe names of those creditors are mentioned in Schedule 'A' and there is no material before us to show that the creditors mentioned in Schedule 'A' are fictitious persons. It is true that in the copy of the trust deed printed in the paper book the names of the creditors are not mentioned but from the certified copv of the original trust deed it appears that the names are there which. constitute of the following persons : H\n\n1. Narendrakumar Manoharlal & Co.\n\n2. Devraj Dbanumal.\n\n3. Dhupaji Phoolchand.\n\n4. Bhubutmal Chandumal.\n\n5. Bhubutmal Bhoormal.\n\n6. Kesarmal Mancharlal.\n\n7. Tarachand Santilal.\n\n8. Manrupji Nathumall.\n\n9. Pokhraj Kantilal.\n\nJO. Pratapchand Kundanmal.\n\nI I. Ambapuram Bachu Pedda Subbiah & Sons.\n\n12. Meda Krishnayya.\n\n13. T. Nagalakshmidevamma Minor by guardian husband T.\n\nSanjeeva Rao. •\n\nIt is well settled that it is open to the settlors to create a trust for dis- --<f charging the debts of their creditors.\n\nSuch an object cannot be said to be unlawful.\n\nSection 4 of the Indian Trusts Act, 1882, runs thus :\n\n\"4. A trust may be created for any lawful purpose. The purpose of a trust is lawful qnless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or {d) involves or implies injury to the person or property of another, or ( e) the Court regards it as immoral or opposed to public policy. • • • ...\n\nThe object of the trust is neither forbidden by law, nor does it defeat any legal provision, nor it can be said to be fraudulent ex facie.\n\nIn these circumstances the view taken by the High Court or the Sales Tax authorities that the trust executed in favour of the petitioners was fraudulent or unlawful cannot be accepted.\n\nThe other question raised by Mr. Ram Reddy learned counsel for the respondent was that the trust is hit by s. 53 of the Transfer of\n\nProperty Act, 1882, the relevant portion of which runs thus :\n\n\"53 (I) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or\n\ndelayed.\"\n\nBefore analysing the ingredients of the section mentioned above, it may be necessary to state the admitted facts :\n\n(I) that at the time when the trust was executed no assessment order against the joillt Hindu family which was managed by one of the executants of the l!ust had been passed.\n\nThus there was no real debt due from one of the executants of the trust at the time when the l!uSt was executed;\n\n(2) that the trust did not have for its object any unlawful A purpose; ( 3) that the names of the creditors were clearly mentioned in Schedule 'A' of the trust as also the properties some of which had already been sold to liquidate debts of the settlors;\n\n( 4) that under the trust the executants did not reserve B any advantage or benefit for tliemselves; and\n\n(5) there is no material in th~ present case to show that the creditors mentioned in SChednle 'A' had obtained collusive decrees oitliat they were aware of the debts owed by one of the executants to the Sales Tax Department before the execution of the trust deed. c\n\nln the facts and circumstances of t11is appeal therefore it cannot be said that the trust deed was executed to defraud the creditors namely the Sales Tax Department. Under s. 53 of t11e Transfer of Property Act a person who challenges the vallditfof the transaction must prove two facts-(!) that a document was executed by the settlor; and (2) that the said document was executed with clear intention to defraud or delay the creditors. How the intention is proved would be a matter which would largely depend on the facts and circumstances of each case.\n\nIt is well settled that the mere fact that a debtor chooses to prefer one creditor to the other, either because of the priority of the debt or otherwise, by itself cannot lead to the irresistible inference that the intention was to defeat the other creditors. In Musahar Sahu and another v. Hakim Lal and Anr.( 1) where the Privy Council observed as follows :\n\n\"The transfer which defellts or delays creditors is not an instrument which prefers one creditor fo another,· but an instrument which removes property from the creditors to the benefit of the debtor.\n\nThe debtor must not retain a benefit for himself.\n\nHe may pay one creditor and leave another unpaid: Middleton v. Pollock-(1876)2 Ch.D. 104, 108.\n\nF So soon as it is found that the transfer here impeached was made for adequate consideration in satisfaction of genuine debts. and without reservation of any benefit to the debtor, it follows that no ground for impeaching it lies in the fact that the plaintiff who also was a creditor was a lose~ by payment being made to this preferred creditor-there being in the case no question of bankruptcy.\" G This decision was endorsed by the Privy Council in Ma Pwa May and another v. S. R. M. M. A. Chettiar Firm(') where the Judicial Committee observed as follows :\n\n\"A debtor is entitled to prefer a creditor, unless the transaction can be challenged in bankruptcy, and such a preference cannot in itself impeached as failing within s. 53.\" H\n\n(!) L.R. 43 I.A. !04.\n\n(2) A.LR. 1929 P.C. 279, 28!.\n\nThe learned counsel for the appellants relied on a decision 'of the Gujarat High Court in Sampatraj Chhogalalji and others v. V. S. Patel, Sales Tax Officer, and others,(') where a Division Bench of the High Court observed as follows :\n\n'The effect of the assignment is to create a valid title in the trustees and a valid and enforceable trust for the benefit of the creditors as soon as the deed has been executed and the creditors have assented to it.\n\nIt is thus clear under the said deed of arrangement, the petitioners as trustees became the legal owners of the properties assigned to them, holding the trust premises upon trust to collect them in the first instance and after selling them to distribute the sale proce.eds thereof rateably amongst the various creditors, a list o[ whom was annexed to Schedule II to the deed of arrangement. It follows, therefore, that the trustees were not holding the sale proceeds which they deposited with the said bank in a separate account in their names as agents of the said firms or any one of them, nor were they the transferees of or successors to those businesses. * * * *\n\n* It is also not possible to say that the bank was a person from whom any amount of money was due to any one of the aforesaid firms who were the dealers in respect of the arrears of tax.\n\nThat being the position, the very first condition necessary for the application of section 39 is totally wanting in this case.\"\n\nThe facts of the present case appear to be on all fours with the facts in the Gujarat case cited above. The High Court clearly held that the fact of the assignment was to create a valid title in the trustees and once the title passed to the trustees on the registration of the trust deed, the trustees could not be said to hold the properties which vested in them either on behalf or on account of the settlors.\n\nMr. Ram Reddy relied on s. 17(1) of the Andhra Pradesh General Sales Tax Act which runs thus :\n\n\"17. (1) The assessing authority, may at any time or from time to time. by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the assessing authority) require any person from whom money is due or may become due to the dealer, or any person who holds or may subsequently hold money for, or on account of the dealer, to pay to the assessing authority either forthwith if the money has become due or is so held within the time specified in the notice (but not before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the dealer in respect of arrears of tax, penalty or fee or the whole of the money when it is equal to or less than that amount.\"\n\nH Particutar reliance was placed cin the words underlined in the section ; in order to contend that even if the trust was a valid document the\n\n(!) 17 S.T.C. 29, 34.\n\ntrustees would be deemed by virtue of s. 1 7 to hold the money for or on account of the dealer. This contention is clearly negatived by the decisiun oi the Gujarat High Court in Sampall'ai Chhoga.aiji's case\n\n(supra) which we have cited above and which, in our opinion, lays down the correct law on the subject. It is obvious that the object of s. 17 of the Andhra Pradesh General Sales Tax Act is to follow up the money due to the Sales Tax Department in the hands of either the assessee or any person who may be holding the money on behalf of the assessee.\n\nThe section, however, does not empower the Sales Tax Department to follow the money in the hands of a bona (uie transferee from the assessee even before the dues have accrued. There can be no doubt that the Sales Tax Authorities had the power to determine in a summary fashion as to whether or not the petitioners were holding the monies on behalf of the assessee, but the enquiry would be limited to this question only and cannot be projected further.\n\nWhere a transfer is made by the assessee after the assessment order has been passed against him in favour of persons who are either relatives or friends of the assessee and the said transfer prima facie appears to be colourable or fraudulent, it is open to the Sales Tax Dspartment to ignore such a transaction and proceed against the transferee on the basis that the transaction is a sham one and no title has in fact passed under the transfer.\n\nBut this is quite different from proceeding against a transferee who has acquired an independent title under the transfer even before the assessment is made against the transferor. The Sales Tax Authorities under s. 17 of the Andhra Pradesh General Sales Tax Act can only determine the jurisdictional facts and cannot proceed beyond that.\n\nIn Katikara Chintamani Dora & Os. v. Guntreddi Annamnaitlu & Ors(') it was ruled by this Court !that a Tribunal possesses the power to determine a jurisdictional fact which gives the jurisdiction or empowers the Tribunal to try a certain issue.\n\nThis, however, does not empower the Tribunal to be a judge in its own cause and determine or decide complicated questions of 'title.\n\nIn the special and peculiar facts of the present case which have been catalogued above, in our opinion, this is not a fit case m which F the sales tax authorities can be allowed to hold that the deed of trust executed by the settlors was hit by s. 53 of the Transfer of Property Act.\n\nIt may be noted that under s. 53 of the Transfer of Property Act if a transfer is made with intent to defeat or delay the creditors it is not void but only voidable. If the transfer is voidable, then the sales tax authorities cannot ignore or disregard it but have to get it set aside through a properly constituted suit after impleading necessary G parties and praying for the desired relief.\n\nIn Chutterput Singh & Ors.\n\nv. Maharaj Bahadoor and ot!iers,( 2) the Privy Council observed as follows :\n\n\"No issue was stated in this suit whether the transfers were or were not liable to be set aside at the instance of Dhunput under s. 53 of the Transfer for Property Act, and H no decree has been made for setting them aside. Such an\n\n(I) [!974] 2 S.C.R. 655.\n\n(2) L.R. 321.A. !.\n\n7-L522SC1/76\n\nissue could be raised and such a decree could be made only in a suit properly constituted either as to parties or otherwise.\" To the same effect is the later decision of the Privy Council in Zafrul Hasan and others v. FariJ-Ud-Din and others,(') where Lord Thankerton made the following observations :\n\n\"Further, under s. 53 the wakfnama would only be voidable at the option of the \"person so defrauded or delayed\" ....... Until so voided the deed remains valid.\" Lastly it was contended by counsel for the respondent that the liability of the appellant arose as early as 1966-67 and the Trust Deed came into existence on September 16, 1968. This being the case, it was stressed that Itikala Kollayya and the trustees could not be un- \\!ware of the tax liability or the amount due at that time when the trust deed was executed.\n\nThis tax liability was the first charge on the property and its sale proceeds.\n\nTherefore, the creation of the deed and subsequent sale of the property on January 10, 1971, for liquidation of the supposed debts of the trustees and other creditors was merely a device to evade the payment of arrears of sales-tax due to the Government.\n\nOur attention has been invited in this connectfon to the order dated November 13, I 972, of the Deputy Commercial Tax Officer. The contention is devoid of force.\n\nAs rightly pointed out by Mr. Bhandare, ; when the impugned notice dated July 20, 1970,\n\nwas issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments were made subsequently.\n\nSo long as the tax had not been assessed and qualified, it could not be said that any specific debt due to the Revenue from the assessee had come into existence. The question of such a non-existent debt, being a first charge on the property at the date of the execution of the trnst deed, did not arise. The contention of the respondent on this score is, therefore, overruled.\n\nIn this view of the matter, we feel that it cannot be said in the present case that the trnst deed executed by the settlors is prima facie 'fraudulent or a colourable transaction.\n\nIt will, however, be open to the Sales Tax Authorities to avoid the document by bringing a properly constituted suit, if so advised. We could also like to make it clear that any observation regarding the validity of the document that has been made in this case by us will be confined only to the materials that have been placed before us and will not prejudice the merits of either party in a suitable action which may be brought.\n\nFor these reasons the appeal is allowed, the judgment of the High Court is set aside and the notices issued by the respondent against the appellants are hereby quashed.\n\nWe would, however, direct that the sum of Rs. 31,100/- which has been deposited hy the appellants in Union Bank. Kurnool, under the directions of this Court, would not be refunded to the appellants before the expiry of three months from to-day's date.\n\nIn the circumstances of this case, we make no order as to costs in this Court.\n\nP.H.P.\n\nAppeal allowed. -----\n\n(!) A.LR. 1946 P.C. 177.", "total_entities": 103, "entities": [{"text": "CHOGMAL BHANDARI & OTHERS", "label": "PETITIONER", "start_char": 5, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "CHOGMAL BHANDARI & OTHERS", "offset_not_found": false}}, {"text": "DEPUTY COMMERCIAL TAX OFFICER II DIVISION\n\nKURNOOL", "label": "RESPONDENT", "start_char": 32, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "DEPUTY COMMERCIAL TAX OFFICER II DIVISION, KURNOOL", "offset_not_found": false}}, {"text": "February 4, 1976", "label": "DATE", "start_char": 84, "end_char": 100, "source": "ner", "metadata": {"in_sentence": "CHOGMAL BHANDARI & OTHERS\n\nDEPUTY COMMERCIAL TAX OFFICER II DIVISION\n\nKURNOOL\n\nFebruary 4, 1976\n\n[R. S. SARKARIA AND MURTAZA FAZAL ALI, JJ.J\n\nAndhra Pradesh General Sales Tax Act-Sec."}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 103, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 122, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Andhra Pradesh General Sales Tax Act", "label": "STATUTE", "start_char": 147, "end_char": 183, "source": "regex", "metadata": {}}, {"text": "Sec. 17(1)", "label": "PROVISION", "start_char": 184, "end_char": 194, "source": "regex", "metadata": {"linked_statute_text": "Andhra Pradesh General Sales Tax Act", "statute": "Andhra Pradesh General Sales Tax Act"}}, {"text": "Sec. 4", "label": "PROVISION", "start_char": 294, "end_char": 300, "source": "regex", "metadata": {"linked_statute_text": "Andhra Pradesh General Sales Tax Act", "statute": "Andhra Pradesh General Sales Tax Act"}}, {"text": "Unlawful Trust-Transfer of Property Act", "label": "STATUTE", "start_char": 301, "end_char": 340, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sec. 53", "label": "PROVISION", "start_char": 341, "end_char": 348, "source": "regex", "metadata": {"linked_statute_text": "Unlawful Trust-Transfer of Property Act", "statute": "Unlawful Trust-Transfer of Property Act"}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 500, "end_char": 513, "source": "regex", "metadata": {}}, {"text": "Kollayya", "label": "PETITIONER", "start_char": 560, "end_char": 568, "source": "ner", "metadata": {"in_sentence": "Kollayya and Narasimaiah carried on business in partnership.", "canonical_name": "Kollayya"}}, {"text": "Narasimaiah", "label": "OTHER_PERSON", "start_char": 573, "end_char": 584, "source": "ner", "metadata": {"in_sentence": "Kollayya and Narasimaiah carried on business in partnership.", "canonical_name": "Narasimhaiah"}}, {"text": "Bala", "label": "OTHER_PERSON", "start_char": 693, "end_char": 697, "source": "ner", "metadata": {"in_sentence": "Kollayya's son Bala and Bala's son B.V.S. Rao carried on joint Hindu Family business."}}, {"text": "B.V.S. Rao", "label": "OTHER_PERSON", "start_char": 713, "end_char": 723, "source": "ner", "metadata": {"in_sentence": "Kollayya's son Bala and Bala's son B.V.S. Rao carried on joint Hindu Family business.", "canonical_name": "B.V, S. Rao"}}, {"text": "B.V, S. Rao", "label": "OTHER_PERSON", "start_char": 1028, "end_char": 1039, "source": "ner", "metadata": {"in_sentence": "Although B.V, S. Rao informed the Sales Tax Department that the business \\Vas in fact carried on by the Joint Hindu family yet no assessment was made in the name of Joint Hindu family until 1971.", "canonical_name": "B.V, S. Rao"}}, {"text": "Narasimiah", "label": "OTHER_PERSON", "start_char": 1525, "end_char": 1535, "source": "ner", "metadata": {"in_sentence": "In September, 1968, Kollayya and Narasimiah the partners of the dissolved firm executed a registered deed of Trust by which certain properties were vested in the Trustees for the purpose of paying off the creditors mentioned in the Trust Deed who had obtained decrees ngainst the settlors.", "canonical_name": "Narasimhaiah"}}, {"text": "Narasa~", "label": "OTHER_PERSON", "start_char": 2635, "end_char": 2642, "source": "ner", "metadata": {"in_sentence": "On an appeal by special leave it v.ns contended by the appellants :\n\n( 1) Th~ moment the trust deed was executed by Kollayya and Narasa~\n\nm::nah the title to those properties vested in the trustees and thus it \\Vas beyond the reach of the Sales Tax Department,\n\n(2) When the impugned notice \\Vas issued in 1970 tax had not been G quantified since the assessments were made subsecluently."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 3083, "end_char": 3091, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 3294, "end_char": 3299, "source": "regex", "metadata": {"statute": null}}, {"text": "Kollayya", "label": "PETITIONER", "start_char": 3522, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "Kollayya and trustees, therefore, could not be unaware of the tax liability.", "canonical_name": "Kollayya"}}, {"text": "Indian Trust Act, 1882", "label": "STATUTE", "start_char": 4635, "end_char": 4657, "source": "regex", "metadata": {}}, {"text": "s. 53", "label": "PROVISION", "start_char": 4913, "end_char": 4918, "source": "regex", "metadata": {"linked_statute_text": "the Indian Trust Act, 1882", "statute": "the Indian Trust Act, 1882"}}, {"text": "L.R. 43 I.A. 104", "label": "CASE_CITATION", "start_char": 5273, "end_char": 5289, "source": "regex", "metadata": {}}, {"text": "s. 17", "label": "PROVISION", "start_char": 5587, "end_char": 5592, "source": "regex", "metadata": {"linked_statute_text": "the Indian Trust Act, 1882", "statute": "the Indian Trust Act, 1882"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 5797, "end_char": 5802, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 6236, "end_char": 6241, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 6387, "end_char": 6392, "source": "regex", "metadata": {"statute": null}}, {"text": "M. C. Bhandare", "label": "LAWYER", "start_char": 7315, "end_char": 7329, "source": "ner", "metadata": {"in_sentence": "..,,-\n\nM. C. Bhandare and Miss A. Subhashini for the appellant.", "canonical_name": "M. C. Bhandare"}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 7339, "end_char": 7352, "source": "ner", "metadata": {"in_sentence": "..,,-\n\nM. C. Bhandare and Miss A. Subhashini for the appellant."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 7373, "end_char": 7385, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and P. P. Rao for the respondent."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 7390, "end_char": 7399, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and P. P. Rao for the respondent."}}, {"text": "F AZAL Au", "label": "JUDGE", "start_char": 7465, "end_char": 7474, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nF AZAL Au, J .-This is an appea1 by special leave against the Judgment of the Andhra Pradesh High Court dated December 2, 197 4 and arises under the following circumstances."}}, {"text": "December 2, 197", "label": "DATE", "start_char": 7575, "end_char": 7590, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nF AZAL Au, J .-This is an appea1 by special leave against the Judgment of the Andhra Pradesh High Court dated December 2, 197 4 and arises under the following circumstances."}}, {"text": "ltikala Kollayya", "label": "PETITIONER", "start_char": 7640, "end_char": 7656, "source": "ner", "metadata": {"in_sentence": "ltikala Kollayya and his brother-in-law Kovvuru Narasimhaiah constituted partnership firm dealing in foodgrains.", "canonical_name": "ltikala Kollayya"}}, {"text": "Kovvuru Narasimhaiah", "label": "OTHER_PERSON", "start_char": 7680, "end_char": 7700, "source": "ner", "metadata": {"in_sentence": "ltikala Kollayya and his brother-in-law Kovvuru Narasimhaiah constituted partnership firm dealing in foodgrains.", "canonical_name": "Kovvuru N arasimhaiah"}}, {"text": "Ktikala Kollayya", "label": "PETITIONER", "start_char": 7838, "end_char": 7854, "source": "ner", "metadata": {"in_sentence": "The firm carried on the business in the name and slyle of \"Kovvuru Narasimhaiah and Ktikala Kollayya\".", "canonical_name": "ltikala Kollayya"}}, {"text": "B. V. S. Rao", "label": "OTHER_PERSON", "start_char": 8232, "end_char": 8244, "source": "ner", "metadata": {"in_sentence": "Subsequently the business was started in-tlie name of B. V. S. Rao son of Bala Scshaiah.", "canonical_name": "B. V. S.\n\nRao"}}, {"text": "Bala Scshaiah", "label": "OTHER_PERSON", "start_char": 8252, "end_char": 8265, "source": "ner", "metadata": {"in_sentence": "Subsequently the business was started in-tlie name of B. V. S. Rao son of Bala Scshaiah.", "canonical_name": "Bala Scshaiah"}}, {"text": "ltikala Kollayya", "label": "PETITIONER", "start_char": 8287, "end_char": 8303, "source": "ner", "metadata": {"in_sentence": "After the death of ltikala Kollayya his son Bala Scshaiah and his son B. V. S. Rao carried on joint Hindu family business.", "canonical_name": "ltikala Kollayya"}}, {"text": "May 8, 1966", "label": "DATE", "start_char": 8424, "end_char": 8435, "source": "ner", "metadata": {"in_sentence": "In fact B. V. S. Rao applied on May 8, 1966 for a certificate of registration to the Sales Tax Department of the State and was given the same."}}, {"text": "Bala Seshaiah", "label": "OTHER_PERSON", "start_char": 8618, "end_char": 8631, "source": "ner", "metadata": {"in_sentence": "B. V. S. Rao who was a minor had applied for the certificate through his guardian Bala Seshaiah.", "canonical_name": "Bala Scshaiah"}}, {"text": "B. V. S.\n\nRao", "label": "OTHER_PERSON", "start_char": 8715, "end_char": 8728, "source": "ner", "metadata": {"in_sentence": "Thereafter the Sales Tax Department continued to make assessments in the name of B. V. S.\n\nRao.", "canonical_name": "B. V. S.\n\nRao"}}, {"text": "Ram Reddy", "label": "OTHER_PERSON", "start_char": 9774, "end_char": 9783, "source": "ner", "metadata": {"in_sentence": "Mr. Ram Reddy learned counsel for the respondent did not support this part of the reasoning of the High Court because the Sales Tax Department having itself issued the certificate of registration to B. V. S. Rad and having recognised him as a dealer could not make a somersault and start assessing tax in the name of Kollayya who was not at all a registered dealer."}}, {"text": "B. V. S. Rad", "label": "OTHER_PERSON", "start_char": 9969, "end_char": 9981, "source": "ner", "metadata": {"in_sentence": "Mr. Ram Reddy learned counsel for the respondent did not support this part of the reasoning of the High Court because the Sales Tax Department having itself issued the certificate of registration to B. V. S. Rad and having recognised him as a dealer could not make a somersault and start assessing tax in the name of Kollayya who was not at all a registered dealer.", "canonical_name": "B. V. S.\n\nRao"}}, {"text": "Kol\\ayya", "label": "PETITIONER", "start_char": 10600, "end_char": 10608, "source": "ner", "metadata": {"in_sentence": "In these circumstances the ball was in the court of the Sales Tax Department which appears to have taken delayed actlon in the matter for assessing Kol\\ayya as the manager of the\n\njoint Hindu family for the first time in 1971.", "canonical_name": "Kollayya"}}, {"text": "May 26, 1969", "label": "DATE", "start_char": 11139, "end_char": 11151, "source": "ner", "metadata": {"in_sentence": "lt appears that on May 26, 1969 B. V. S. Rao informed the Salcs- Tax Department that he had stopped the business with effect from August 1, 1968 and despite this fact the Sales Tax Department went on making assessment orders in the name of B. V. S. Rao."}}, {"text": "January 17, 1968", "label": "DATE", "start_char": 11385, "end_char": 11401, "source": "ner", "metadata": {"in_sentence": "Further on January 17, 1968 the Deputy Commercial Tax Officer while making the assessment order had stated that the business was being carried on as joint family business by Bala Seshaiah the father of B. V. S. Rao."}}, {"text": "September 16, 1968", "label": "DATE", "start_char": 11609, "end_char": 11627, "source": "ner", "metadata": {"in_sentence": "It appears that on September 16, 1968 Itika]a Kollayya and Kovvuru N arasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A' of the trust deed."}}, {"text": "Itika]a Kollayya", "label": "OTHER_PERSON", "start_char": 11628, "end_char": 11644, "source": "ner", "metadata": {"in_sentence": "It appears that on September 16, 1968 Itika]a Kollayya and Kovvuru N arasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A' of the trust deed.", "canonical_name": "Itikala Kollayya Setty"}}, {"text": "Kovvuru N arasimhaiah", "label": "OTHER_PERSON", "start_char": 11649, "end_char": 11670, "source": "ner", "metadata": {"in_sentence": "It appears that on September 16, 1968 Itika]a Kollayya and Kovvuru N arasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A' of the trust deed.", "canonical_name": "Kovvuru N arasimhaiah"}}, {"text": "January 18, 19 and 24, 1971", "label": "DATE", "start_char": 12274, "end_char": 12301, "source": "ner", "metadata": {"in_sentence": "Subsequently it appears that the assessments were made against the joint Hindu family on January 18, 19 and 24, 1971 aud penalties were also imposed on the assessees for not 'paying the sales tax."}}, {"text": "January 18, 1971", "label": "DATE", "start_char": 12501, "end_char": 12517, "source": "ner", "metadata": {"in_sentence": "The sales tax authorities, therefore, made the assessment in the name of the joint Hindu family for the first time on January 18, 1971 and prior to that the assessments were made in the name of the minor B. V. S. Rao."}}, {"text": "Sales Tax Depaitinent", "label": "ORG", "start_char": 12959, "end_char": 12980, "source": "ner", "metadata": {"in_sentence": "The Sales Tax Depaitinent was of the view that the deed of trust dated September 16, 1968 was void and fraudulent and was brought about to defeat the debts of the Sales Tax Department in the shape of the assessments made against the joint Hindu family whose business was carried on by its karta Bala Seshaiah."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 13287, "end_char": 13295, "source": "regex", "metadata": {"statute": null}}, {"text": "A1dhca Pradesh High Court", "label": "COURT", "start_char": 13408, "end_char": 13433, "source": "ner", "metadata": {"in_sentence": "Demand notices under s. 17(1) of the Andhra Pradesh General Sales Tax Act were served on the petitioners who filed a writ petition before the A1dhca Pradesh High Court for quashing the notices, on the basis of which the amounts were sought to be recovered."}}, {"text": "M. C. Bhandare", "label": "LAWYER", "start_char": 15063, "end_char": 15077, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the appellants Mr. M. C. Bhandare submitted that the petitioners were merely trustees who were to discharge the debts of the creditors tnentioned in Sch. '", "canonical_name": "M. C. Bhandare"}}, {"text": "Narasimhaiah", "label": "OTHER_PERSON", "start_char": 15258, "end_char": 15270, "source": "ner", "metadata": {"in_sentence": "The moment the trust deed was executed by Kollayya and Narasimhaiah the title to those properties vested in the trustees and thus put beyond the reach of the Sales Tax Department.", "canonical_name": "Narasimhaiah"}}, {"text": "s. 17", "label": "PROVISION", "start_char": 16082, "end_char": 16087, "source": "regex", "metadata": {"statute": null}}, {"text": "Narendrakumar Manoharlal & Co.", "label": "ORG", "start_char": 17244, "end_char": 17274, "source": "ner", "metadata": {"in_sentence": "Narendrakumar Manoharlal & Co.\n\n2."}}, {"text": "Devraj Dbanumal", "label": "RESPONDENT", "start_char": 17279, "end_char": 17294, "source": "ner", "metadata": {"in_sentence": "Devraj Dbanumal."}}, {"text": "Dhupaji Phoolchand", "label": "RESPONDENT", "start_char": 17300, "end_char": 17318, "source": "ner", "metadata": {"in_sentence": "Dhupaji Phoolchand."}}, {"text": "Bhubutmal Chandumal", "label": "RESPONDENT", "start_char": 17324, "end_char": 17343, "source": "ner", "metadata": {"in_sentence": "Bhubutmal Chandumal."}}, {"text": "Bhubutmal Bhoormal", "label": "RESPONDENT", "start_char": 17349, "end_char": 17367, "source": "ner", "metadata": {"in_sentence": "Bhubutmal Bhoormal."}}, {"text": "Kesarmal Mancharlal", "label": "RESPONDENT", "start_char": 17373, "end_char": 17392, "source": "ner", "metadata": {"in_sentence": "Kesarmal Mancharlal."}}, {"text": "Tarachand Santilal", "label": "RESPONDENT", "start_char": 17398, "end_char": 17416, "source": "ner", "metadata": {"in_sentence": "Tarachand Santilal."}}, {"text": "Manrupji Nathumall", "label": "RESPONDENT", "start_char": 17422, "end_char": 17440, "source": "ner", "metadata": {"in_sentence": "Manrupji Nathumall."}}, {"text": "Pokhraj Kantilal", "label": "RESPONDENT", "start_char": 17446, "end_char": 17462, "source": "ner", "metadata": {"in_sentence": "Pokhraj Kantilal."}}, {"text": "Pratapchand Kundanmal", "label": "RESPONDENT", "start_char": 17469, "end_char": 17490, "source": "ner", "metadata": {"in_sentence": "Pratapchand Kundanmal."}}, {"text": "Meda Krishnayya", "label": "RESPONDENT", "start_char": 17541, "end_char": 17556, "source": "ner", "metadata": {"in_sentence": "Meda Krishnayya."}}, {"text": "T. Nagalakshmidevamma Minor", "label": "RESPONDENT", "start_char": 17563, "end_char": 17590, "source": "ner", "metadata": {"in_sentence": "T. Nagalakshmidevamma Minor by guardian husband T.\n\nSanjeeva Rao. •"}}, {"text": "T.\n\nSanjeeva Rao", "label": "LAWYER", "start_char": 17611, "end_char": 17627, "source": "ner", "metadata": {"in_sentence": "T. Nagalakshmidevamma Minor by guardian husband T.\n\nSanjeeva Rao. •"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 17802, "end_char": 17811, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Trusts Act, 1882", "label": "STATUTE", "start_char": 17819, "end_char": 17842, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 53", "label": "PROVISION", "start_char": 18673, "end_char": 18678, "source": "regex", "metadata": {"linked_statute_text": "the Indian Trusts Act, 1882", "statute": "the Indian Trusts Act, 1882"}}, {"text": "Property Act, 1882", "label": "STATUTE", "start_char": 18699, "end_char": 18717, "source": "regex", "metadata": {}}, {"text": "s. 53", "label": "PROVISION", "start_char": 20156, "end_char": 20161, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 20170, "end_char": 20194, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 53", "label": "PROVISION", "start_char": 21977, "end_char": 21982, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 22110, "end_char": 22128, "source": "ner", "metadata": {"in_sentence": "The learned counsel for the appellants relied on a decision 'of the Gujarat High Court in Sampatraj Chhogalalji and others v. V. S. Patel, Sales Tax Officer, and others,(') where a Division Bench of the High Court observed as follows :\n\n'The effect of the assignment is to create a valid title in the trustees and a valid and enforceable trust for the benefit of the creditors as soon as the deed has been executed and the creditors have assented to it."}}, {"text": "Schedule II", "label": "PROVISION", "start_char": 22848, "end_char": 22859, "source": "regex", "metadata": {"statute": null}}, {"text": "section 39", "label": "PROVISION", "start_char": 23437, "end_char": 23447, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat", "label": "GPE", "start_char": 23561, "end_char": 23568, "source": "ner", "metadata": {"in_sentence": "The facts of the present case appear to be on all fours with the facts in the Gujarat case cited above."}}, {"text": "s. 17(1)", "label": "PROVISION", "start_char": 23920, "end_char": 23928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 24934, "end_char": 24938, "source": "regex", "metadata": {"statute": null}}, {"text": "Sampall'ai Chhoga.aiji's", "label": "OTHER_PERSON", "start_char": 25074, "end_char": 25098, "source": "ner", "metadata": {"in_sentence": "This contention is clearly negatived by the decisiun oi the Gujarat High Court in Sampall'ai Chhoga.aiji's case\n\n(supra) which we have cited above and which, in our opinion, lays down the correct law on the subject."}}, {"text": "s. 17", "label": "PROVISION", "start_char": 25241, "end_char": 25246, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 26570, "end_char": 26575, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 53", "label": "PROVISION", "start_char": 27322, "end_char": 27327, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 27335, "end_char": 27359, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 53", "label": "PROVISION", "start_char": 27389, "end_char": 27394, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 27402, "end_char": 27426, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Dhunput", "label": "OTHER_PERSON", "start_char": 27978, "end_char": 27985, "source": "ner", "metadata": {"in_sentence": "v. Maharaj Bahadoor and ot!iers,( 2) the Privy Council observed as follows :\n\n\"No issue was stated in this suit whether the transfers were or were not liable to be set aside at the instance of Dhunput under s. 53 of the Transfer for Property Act, and H no decree has been made for setting them aside."}}, {"text": "s. 53", "label": "PROVISION", "start_char": 27992, "end_char": 27997, "source": "regex", "metadata": {"statute": null}}, {"text": "Thankerton", "label": "OTHER_PERSON", "start_char": 28412, "end_char": 28422, "source": "ner", "metadata": {"in_sentence": "To the same effect is the later decision of the Privy Council in Zafrul Hasan and others v. FariJ-Ud-Din and others,(') where Lord Thankerton made the following observations :\n\n\"Further, under s. 53 the wakfnama would only be voidable at the option of the \"person so defrauded or delayed\" ....... Until so voided the deed remains valid.\""}}, {"text": "s. 53", "label": "PROVISION", "start_char": 28474, "end_char": 28479, "source": "regex", "metadata": {"statute": null}}, {"text": "Itikala Kollayya", "label": "OTHER_PERSON", "start_char": 28839, "end_char": 28855, "source": "ner", "metadata": {"in_sentence": "This being the case, it was stressed that Itikala Kollayya and the trustees could not be un- \\!ware of the tax liability or the amount due at that time when the trust deed was executed.", "canonical_name": "Itikala Kollayya Setty"}}, {"text": "January 10, 1971", "label": "DATE", "start_char": 29139, "end_char": 29155, "source": "ner", "metadata": {"in_sentence": "Therefore, the creation of the deed and subsequent sale of the property on January 10, 1971, for liquidation of the supposed debts of the trustees and other creditors was merely a device to evade the payment of arrears of sales-tax due to the Government."}}, {"text": "November 13, I 972", "label": "DATE", "start_char": 29389, "end_char": 29407, "source": "ner", "metadata": {"in_sentence": "Our attention has been invited in this connectfon to the order dated November 13, I 972, of the Deputy Commercial Tax Officer."}}, {"text": "Bhandare", "label": "OTHER_PERSON", "start_char": 29513, "end_char": 29521, "source": "ner", "metadata": {"in_sentence": "As rightly pointed out by Mr. Bhandare, ; when the impugned notice dated July 20, 1970,\n\nwas issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments were made subsequently."}}, {"text": "July 20, 1970", "label": "DATE", "start_char": 29556, "end_char": 29569, "source": "ner", "metadata": {"in_sentence": "As rightly pointed out by Mr. Bhandare, ; when the impugned notice dated July 20, 1970,\n\nwas issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments were made subsequently."}}, {"text": "Uma Traders", "label": "ORG", "start_char": 29591, "end_char": 29602, "source": "ner", "metadata": {"in_sentence": "As rightly pointed out by Mr. Bhandare, ; when the impugned notice dated July 20, 1970,\n\nwas issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments were made subsequently."}}, {"text": "Itikala Kollayya Setty", "label": "OTHER_PERSON", "start_char": 29616, "end_char": 29638, "source": "ner", "metadata": {"in_sentence": "As rightly pointed out by Mr. Bhandare, ; when the impugned notice dated July 20, 1970,\n\nwas issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments were made subsequently.", "canonical_name": "Itikala Kollayya Setty"}}]}
{"document_id": "1976_3_335_349_EN", "year": 1976, "text": "BALWAN SINGH\n\nPRAKASH CHAND & OTHERS\n\n(Vice-Versa)\n\nFebruary 4, 1976\n\n[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]\n\nRepresentation of People Act, 1951-S. 123(5)-Corrupt Practice-Procuring of G tractor and trolly belonging to the candidate's wife for carrying voters to\n\ntlif' polling station-1! .corrupt practice.\n\nWords and phrases \"procuring\", nieaning of-\n\nPractice-A1nendment , of election petition after the period prescribed for C presentation-If could be done-Whether obligatory for the election petitioner to examine hitnself at the trial.\n\nThe appellant's election to the State Assembly \\Vas set aside by the High Court on the ground of corrupt practice fallip_g under s. 123(5) of the Repre~ sentation of People Act.\n\nThe appellant, it v,:as alleged, hired and pro:::ured vehicles for the free conveyance of voters. This was however denied by the appellant. The High Court allowed amendment of the election petition by inserting a new .sub-paragraph 12(d), stating that the names of the persons D who hired or procured the vehicles for carrying the voters to the polling station were given in schedule lll(i) of the petition, on the view that the information given was a necessary particular to -allege and prove that the vehicle was used for the conveyance of the voters.\n\nIt was contended in this Court_1 (i) that the tractor in which the voters were alleged to have been carried to the polling station, was taken there in some other connection and that though the tractor was in the name of his wife as benamidar. it really belonged to the appellant and, as such, no question of E hiring or procuring it, whether on payment or otherwise, arose so as to make it fall within the purview of s. 123 (5) of the Act; and (ii) that the High Court had committed a serious error of law in allowing: the election petition to be amended after the expiry of the period prescribed for its presentation.\n\nDismissing the appeal,\n\nHELD : The finding of the High Court that the appellant procured the tractor with trolly and used it for the purpose of transporting the voters to the F polling station and thereby committed a corrupt practice within the meaning of s. 123(5) of the Act is correct. [348E]\n\n(1) (a) There is no justification for contending that there could be no question or occasion for hiring or procuring the tractor because it belonged to the appellant. It cannot be urged that the tractor, which belonged to his wife, must be deemed to belong to the appellant or that it should be inferred that she was a n1ere benamidar when that was not the appellant's cas~ anyw'here.\n\nThe tractor belonged to the wife of the appellant and was not his own property.\n\nG f341E-F]\n\n(b) It would amount to \"procuring\" the tractor if it could be shown that the appellant obtained or got or acquired the tractor from his wife.\n\nThe dictionary meaning of the word \"procure'' is \"to obtain as by request loan, effort, labour; get, gain, come into possession of\". This is the correct meaning of the word used in s. 12(5). [34\\G-H]\n\n( c) It is not ahyays possible for an election petitioner to adduce direct evidence to _prove that a particular vehicle was hired or procured by the candi-. date or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from the proved circumstances where such inference is justifiable. [348B]\n\nBhagwan Datta Shastri v. Badri Narayan Singh and others, A.LR. 1960 S.C. 200; Shri Un1ed v. Rai SinJ?h and others. A.LR. 1975 S.C. 43: Ratn Awadesh Sinf{h v. Suniitra Devi and Others. [19721 2 S.C.R. 674: Rahim Khan v. Khurshitl\n\nAhmed and others, [1975] 1 S.C.R. 643; Baburao Ragaji Karemore and others\n\nv. Govind and others [19741 2 S.C.R. 4zg; and Srnt. Indira Nehru Gandhi v.\n\nRaj Narain, AJ.R. 1975 S.C. 2299, referred to.\n\n(2) It is futile to contend that a new corrupt practice was allowed to be inserted by the Hhb Court's order of amendment. The s-::hedulc was an integral part of the election petition and the original election petition contained what was required to be stated by s. 83 of the Act and the amendment was n1eant to furnish some further particulars in regard to the same corrupt practice.\n\nWhen issue No. 2 was framed by the High Court, the appellant was tully aware that the election petitioners had alleged the user of the vf'hi--:les also and that \\\\'as why he joined issue for the trial of that allegation.\n\n[340B-CJ\n\n{3) There is no obligation on the part of the election petitioners to examine themselves at the trial iTh the High Coutt.\n\nThe evidence which they vtere able to produce at the trial could not have been rejected for anv such fanciful reason when there was nothing to show that the election petitiOners were able to give useful evidence to their personal knowledge but stayed away purpo<; ely.\n\n[349F)\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 775 and 1107 of 1975.\n\n(From the Judgment and Order dated the 9-4-1975 of the Allahabad High Court in Election Petition No. 24 of 1974)\n\nN. S. Bindra. K. C. AJ?arwala. R- D. Uppadhaya and M.\n\nSrivastava, for the appellant in CAs 775/75.\n\nYogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107 /75.\n\nN. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.\n\nSrivastava, for the respondent in CA 1107 /75.\n\nYogeshwar Prasad, Miss Rani Arora and Bir Bahadur Singh, for respondents 1 and 2 in CAs 775/75.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-Civil Appeal No. 775 of 1975 has been filed under section l l 6A of the Representation of People Act, 1951, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975. The appellant has been held guilty of co=itting a corrupt practice under section 123(5) of the Act, and has been disqualified for a period of six years. His election was challenged on several grounds by an ekction petition filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency.\n\nThere were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti Dal (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No. 2 of the Congress (R) party who secured 31,008 votes. Appeal No. 1167 of 1975 is by election oetitioner Prakash Chandra for setting aside the judgment on issues decided against the election petitioners.\n\nBAL WAN SINGH V. PRAKASH CHAND ( Shingha/, J.) 3 3 7\n\nThe allegation regarding the commission of the corrupt practice referred to above was to the effect that the appellant, his workers, agents and supporters, with his consent hired and procured vehicles for the free conveyance of electors. A concise statement of the material facts in that respect was made in paragraph 12 of the election petition.\n\nParticulars of the vehicles used for the free conveyance of the electors were given in Schedule III of the petition.\n\nThe appellant denied the allegation and pleaded in his written statement that none of the vehicles mentioned in Schedule III was either procured or hired by him or his workers and agents with his consent for the purpose of carrying voters to and from the polling stations and that no such vehicle was \"used for the purposes of carrying electors to and from the polling stations on the date of poll\". It was also stated that the allegations contained in sub-paragraphs 12(a), 12(b) and 12(c) were not the facts required by section 83.\n\nThey were totally vague and lacked in material particulars, and were liable to be struck o!f.\n\nThe High Court considered that and the other objections and stated in its order dated August 30, 1974, in regard to the obiection that the names of the persons who procured or hired vehicles were not given in paragraph 12 or Schedule III, that the counsel for the election\n\nrletitioner had undertaken to fumi, fu the names.\n\nTho ek(ij/Jn tioners furnished better particulars by adding paragraph 12( d) stating that the names of the persons who hired or procured the vehicles by which the electors were \"carried free of cost from their houses to the polling station\" on the date of election by respondent No. 1 were given in Schedule III ( 1). They ?ave the percentage and residence of the persons named in Schedule III, as also particulars and names of the persons who hired and procured vehicles for the free conveyance of the electors, and the names of the owners of the vehicles. An objection was then taken that such an amendment was not permissible.\n\nThe High Court rejected that objection by it,1 order dated October 10, 197 4, except that the names of two new persons were not allowed to be inserted in Schedule V. with which we are not concerned.\n\nThe High Court framed several issues, including issue No. 2 which was as follows,-\n\n\"2. Whether the respondent No. 1 himself, or his workers and agents with hisconsent, h; red or procured veh'cles for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose and thereby the respondent No. 1 committed corrupt practice.\"\n\nAfter recording the evidence of the parties, the High Court recorded its finding as follows.-\n\n\"My answer on issue No. 2 accordingly is that the respondent No. 2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta, J aganpur and Tigain polling stations and further that the respondent No. 1 thereby committed a corrupt practice under section 123(5) of the R.P. Act.\"\n\nA It was in view of that finding that the election petition was allowed with costs, the election 'of the appellant was declared void, and he was disqualified as aforesaid.\n\nThat is how appeal No. 775 has arisen.\n\nThe other appear No. 1107 has been filed by election-petitioner Prakash Chandra, as he feels aggrieved against the High Ccurt's findings on the other issues, but Mr. Yogeshwar Prasad has stated that he would not press. that appeal.\n\nWe have therefore only Balwan ll Singh's appeal for consideration. ·\n\n It has been argued by Mr. Bindra on behalf of Balwan Singh, hereinancr referrea to as the appellant, that the High Court ought not to have entertained the elect10n petition as it was not .verified in . the manner laid down in the Code of Civil Procedure for the verifica- -tion of pleadings even though that was the clear requirement of section 83(l)(c) of the Act.\n\nWe asked the counsel to refer us to any such objection of the appellant in the trial court, and all that he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974.\n\nThat paragraph however relates to the objection regarding the defective verification of the affidavit accompanying the election petition, which is a different matter. That is. in fact the subject matter of Mr. Bindra's second argument, and we shall deal with it separately. The fact remains that an ()bjection regarding the alleged defective verification of the election petition was nor taken in the High Court, and it was not a point at issue there.\n\nThere is therefore no justification for allowing it to be raised here.\n\nIt is in fact significant that even though an objection was taken on November 27, 1974 in regard to the verification of the affidavit, no such objection was . taken about the verification of the main election petition.\n\nIt was vaguely stated that verification of . the affidavit and vertification of the Schedule (i.e. Schedule III) were\n\n\"at variance\", but that was a different matter. In so far as the verification of the affidavit is concerned, it would be sufficient to say that that part of it which related to the commission of the corrupt practice which was the subject matter of issue No. 2 was concerned (Schedule III) it was verified in accordance with the prescribed form (No. 25 of the Ccndtict of Election Rules, 1961) as true to the election petitioner's information received from the persons mentioned in it.\n\nIt was therefore quite in order.\n\nIt may be mentioned that although the High Court examined the , objections of the appellant on two occasions, no objection was taken or pressed for its consideration in regard to the verification of the main election petition, its schedules or the affidavits.\n\nAn objection was raised in the appellant's application dated November 27, 1974 that the election petition may not be tried because of defective affidavit, but it was rejected by the High Court's order of the same date on the grounds that it was a belated objection, and the alle)!ation of corrupt practice could not be deleted merely because of the defective form of the affidavit.\n\nNo issue was joined in respect of any such objection and it cannot be allowed to be raised for the first time in this appeal. It has next been argued by Mr. Bindra that the High Court committed a serious error of law in allowing the election petition to be\n\namended, after the expiry of the period prescribed for its presentation, A eve11 tnough it did not allege that any vehicle was used for the free conveyance of any elector and did not specify the names of the perc sons who wcr-~ alleged to have hired or procured the vehicles.\n\nIt has been urgcu that as the facts alleged in the petition did not bring out all th0 ingredients or the corrupt practice, there was no cause of action for trial.\n\nReference in this connection has been made to Samant N. Balakrishna etc.\n\nv. George Fernandez and B others('). F!ardwari Lal v. Kamal Singh,(') Raj Narain v. Smt. fndira Wehru Gandhi and another(') and Vatal Naxaraj v. R.\n\nDayanand\n\nagar(').\n\nBy the amendment in question, the election petitioners had applied for insertion of a new sub-paragraph ( d) in paragraph 12 of the petition as follows,- C\n\n\"The names of the persons who hired or procured t.he vehicles by which the electors were carried free of cost from\n\ntheir houses to polling station on the date of election by respondent No. 1, his workers and agents with his consen( arc given in schedule Ill(i) of the election petrtion.\"\n\nScheduic Ill(i) gave the particulars and names of the persons who hired and procured the vehicles for the free conveyance of electors. The High Court took note of the law that a fresh corrupt practice could not be alleged by means of an application to amend the election petition and, after referring to the decisions in Ba/wan Singh v. Lakshmi Narain and others(') and Joshbhai Chunibhai Patel v.\n\nAnwar Beg A. Mirza,(6 ) given before and after the amendment made by Act 47 of 1966, it held that it was the requirement of the law that in addition to proving the hiring or procuring of the vehicles for the free conveyance of any elector to and from any polling station, it was a necessary particulars to allege and prove that the vehicle was used for the conveyance of the electors.\n\nIt then noticed paragraph 9 (iii) of the election petition which stated that the appellant, his workers, agents and supporters with his consent, hired and procured vehicles for the free conveyance of electors and committed corrupt practice as provided under sub-section (5) of section 123 of the Act.\n\nIt also noticed paragraph 12 which clearly stated that the concise statement of material facts in relation to the aforesaid ground relating to the procuring and hiring of tractors, jeep and car \"for free conveyance of voters to the polling stations from their houses\" were given in sub-paragraphs (a) and (b).\n\nThose sub-para!!faphs clearly mentioned that the vehicles had been hired and procured for the free conveyance of the electors from their houses to the polling stations on the date of poll.\n\nReference was also made to Schedule III of the petition for which it was stated in paragraph 12(c) of the petition that the full particulars in regard to the corrupt practice were given in it.\n\nThat schedule contained the \"particulars of vehicles used for\n\n\n(2) [1972) 2 S.C.R. 742.\n\n(4) f10751 2 S.C.R. >R4.\n\n\nfree conveyance of electors on the date of election\" and contained not only the place from which the electors were conveyed, the time of conwyance, the name of the polling station. the particulars of the Teh1cle, but also the names of the electors who were so conveyed and the names of the workers and agents who conveyed them.\n\nThe schedule was an integral part of the election petition, and the original election petition thus contained what was required to be stated by section 83 of the Act, and the amendment was meant to furnish some further particulars in regard to the same corrupt practice.\n\nIt is therefore futile to contend that a new corrupt practice was allowed to be inserted by the High Court's order of amendmi:nt.\n\nIt may l'.ie pointed out that, as would appear from paragraph 12(c) of the appellant's original written statement to the unamended election petition, he also understood the allegation in the election petition to mean that it related to the use of the vehicles for carrying the electors to and from the polling stations on the date of poll.\n\nIt will be recalled that the issues were framed on August 30, 197 4, before the making of the application for leave to amend the election petition, and issue No 2 clearly raised the question whether appellant Balwan Singh, or his workers and agents with his consent, hired or procured the vehicles for the free conveyance of the voters and whether the vehicles so hired and procured \"were used for the purpose.\" The appellant was therefore fully aware that the election petitioners had, inter alia, alleged the user of the vehicles also, and that was why he joined issue for ihe trial of that allegation.\n\nThere is thus no justification for the argument to the contrary.\n\nWe have already made a mention of issue No. 2 and the High Court's . finding thereon in favour of the election petitioners in respect of tractors No. as UPG 9962 and UTE 5865, and jeep No. UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain polling stations.\n\nMr. Blndra has challenged that finding . and we shall proceed to examine his arguments in respect of the Nanbasta polling station.\n\nThe election petitioners alleged in the election petition that the appellant, his workers, supporters and agents hired and procured the veh<cles mentioned in Schedule III, with his consent, for the free conveyance of electors from their houses to the polling stations on the date of poll. namely. on February 26, 1974. Particulars of the corrupt practice were given in the schedule.\n\nIt was thus stated, in regard to Naubasta polling station, that electors were conveyed there from Bhimpur and Basehi villages, by tractor No. UPG 9962. in a trolly. It was soecificallv stated that electors Munshi Lal (P.W.20). Ram Swanm (P.W.\n\n13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.11) of Basehi were thus taken to Naubasta.\n\nSo also, it was stated that some of the workers and a)!ents who conveyed the electors were Bhagwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur.\n\nThe aope_1lant pleaded. in his written statement that the allegation was \"totally mcorrect and false,\" and that \"none of the vehicles mentioned in Schedule III was either \"procured or hired by the answering A respondent or by any of his workers and agents with his consent for the purposes of carrying voters to and from the polling station, nor any such vehicles were used for the purpose of carrying electors to and from the polling stations on the date of poll.\" It was not the case of the appellant that tractor No. UPG 9962 was taken to Naubasta polling station in some other connection, or that there was no occasion or question of hiring or procuring it as it was his own property, B or that it was otherwise utilised for his election campaign or for some other work.\n\nHe merely stated that the tractor \"was not used in connection with the election.\"\n\nIt has been argued by Mr. Bjndra that the tractor really belonged to the appellant, and that his wife was only a 'benamidar' so that there could be no question of \"hiring or procuring it whether on payment c or otherwise\" within the meaning of sub-section (5) of section 123 of the Act. Reliance in this connection has been placed on Surinder\n\nNath Gautam v. Vidya Sagar loshi(1).\n\nThat tractor No. UPG 9962 belonged to the appellant's wife Smt.\n\nVimla, has been clearly admitted by him in his own statement in the High Court.\n\nIn fact, as has been stated, it was not his case in the 0 written statement that this was not so and that it was his own property and there could be no question of hiring or procuring it.\n\nA. U.\n\nSiddiqui (P.W.2), tax clerk of the office of R.T.O. Kanpur, has proved that the tractor was registered in the name of Smt. Vimla Yadav, wife of appellant Balwan Singh, and that it stood in her name since May I, 1971.\n\nBalwan Singh's statement shows that she was an independent candidate for being coopted as a member of the Zila E Parishad, and it appears from the statement of Vijay Kumar Singh (P. W. 5) that she was her husband's counting agent.\n\nIt cannot therefore be urged with any justification that the tractor which belonged to her, must be deemed to belong to her husband, or that it should be inferred that she was a mere 'benamidar' when that was not the appellanes case anywhere.\n\nWe must therefore accept it as proved beyond doubt that tractor No. UPG 9962 belonged to the wife of the- F appellant and was not his own property.\n\nThere is thus no justification for contending that there could be no question or occasion for hiring or procuring it as it belonged to the appellant.\n\nThe word \"procure\" has been defined in the Century Dictionary to mean \"to obtain, as by request, loan, effort, labour, or purchase; get; gain, come into possession of.\" It has been defined in the Oxford G English Dictionary to mean \"to gain, win, get possession of, acquire.\" This in our view is the correct meaning of the words as used in sub-s. ( 5) of s.123 of the Act.\n\nJ[t would therefore amount to \"procuring\" the tractor if it could be shown that the appellant obtained or got it or arqui red it from his wife.\n\nAs has been stated. the tractor did not belong to the apoellant and, in that view of the matter. it is not necessary for us to examine the correctness of the view taken by the Delhi H High Court in Surinder Nath Gautam's case (supra).\n\n(I) 35 E.L.R. 129.\n\nA We shall now examine whether tractor No. UPG 9962 was used\n\nfor the free conveyance of any elector to or from the Naubasta polling station on the date of the poll, and whether it was hired or procured for that purpose by the appellant or his agent or by ony other person with his consent.\n\nAs has been stated, polling in the constituency\" took place on February 26, 1974.\n\nIt has been stated by Vijay Kumar Singh (P.W.\n\n5) who was the polling agent of respondent Raghunath Singh, that he saw the workers of the appellant bringing voters to Naubasta polling statio11 in the trolly of tractor No. Ul'G 9962. The trn.; or, according to him, carried the B.K.D. flag and the posters of that party were pasted on the trolly.\n\nWhen he saw the tractor making the tirst trip to the polling station, he made an oral complaint to the presiding olliccr. It took some time for him to come out of the pc\\, ing station, and by thaL time the tractor had gone. But when the tractor came for the second time, he made written complaint Ex. 4 about it to Mr.\n\nSingh who was the presiding officer, and he made an endorsement on it in his presence. The witness has stated further that the presiding officer came out of the polling station and himself saw the tractor as well as the persons who got down from it.\n\nThose persons, according to the witness, were assisted by the workers of the B.K.D. in standing in the queue at the polling booth. \"Parchis were given to them from the c:; mp of the B.K.D. which also had that party's Jlag and posters.\n\nAccording to Vijay Kumar Singh, the tractor and the trolly made only two trips to the polling station, the second trio being at about 3.30 p.m.\n\nThe witness has stated further that the presiding oflicer made an enquiry on his complaint, and he must have mentioned the result of the enquiry in his diary. He has stated further that the presiding officer saw the tractor from a distance of about 100\n\n'paces and the registration number could be read from that distance.\n\nThe witness was cross-examined at length, but nothing could be brought out to discredit his testimony, except that both the witness and respondent Raghunath Singh were related to one Shashi Bhushan Singh.\n\nThat might be the reason why the witness was appointed as the polling agent of respondent Raghunath Singh, but that o'l.stant relationship cannot justify the argument that the witness is unreliable . and his testimony should be rejected for that reason.\n\nThe statement of Vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding Officer of the Naubasta polling . station.\n\nHe has stated that the aforesaid complaint Ex. 4 was presented to him by Vijay Knmar Singh on February 25, 1974 at 3.30 p.m. and that he made an endorsement to that effect on the complaint. The complaint Ex. 4 was in Hindi but it is not disputed that its English translation reads as follows :\n\n\"It is submitted that the workers of Sri Balwan Singh have brought voters in UPG 9962 tractor trolly bearing flag, and the agents of B.K.D. are setting them in queue. It is\n\n/ ,.\n\nentirely illegal. I have already spoken to you in this connection.\n\nBut no action has been taken.\n\nKindly take proper at.:tion.\"\n\nM. P. Singh has stated that he came out of the polling station, as the polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the \"Instructions to Presiding Orhcers\" issued by the Election Commission of India. The wit- R ness admitted that it was the requirement of the instruction that the Presiding Officer of the polling station should forward any complaint • filed before him in regard to the illegal conveyance of voters to the sub-divisional and other magistrate having jurisdiction, with such remarks as he could make on his ''own observation and personal knowledge.\" He saw on coming out of the polling station that a tractor and trolly were standing at a distance of 500 or 600 yards c from the polling station.\n\nThe witness admitted ultimately that the \"tractor was standing near the camp of the B.K.D.\", he \"saw some persons getting down from the tractor and the trolly\" and that \"those r who got down from the tractor were seen by me (him) going towards the B.K.D. Camp.\" It may be mentioned that the High Court allowed the counsel for the election petitioners to cross-examine the witness as there was some inconsistency in the statement made by O him in the Court and the report (Ex. 5) made in his diary. We shall\n\nrefer to that report in a while.\n\nIt was then that the witness stated as follows :\n\n\"I had read the whole of the complaint (Ex. 4) while going out.\n\nHaving seen the tractor and the trolly outside the polling station near the B.K.D.' camp and having seen £. the persons getting down the tractor and trolly and moving towards the camp, I concluded that everything contained in the complaint (Ex. 4) was correct, and it was for this reason that I mentioned in the report (Ex. 5) that the facts of the complaint were found to be correct.\n\nI stayed outside the polling station for hardly 5 or 6 minutes.\"\n\nThe witness has therefore corroborated the statement of Vijay Kumar\n\nSingh (P.W. 5) in several material particulars.\n\nHe has thus st1ted that (i) complaint Ex. 4 was presented to him on February 26, 1974 at 3.30 p.m. by Vijay Kumar Singh, (ii) he read the whole of it,\n\n(iii) he came out of the polling station to see for himself whether the allegation was correct, (iv) he saw that the tractor and trolly were outside the polling station near the B.K.D. camp, (v) persons were getting down the tractor and trolly, and (vi) they were moving towards the camp.\n\nThe witness has also stated that he forwarded the complaint to the District Election Officer and that he made report Ex. 5 in his diary to the following effect,-\n\n\"22-Serious complaint made by the candidates.\n\nThe Congress polling agent made a complaint, that B.K.D. workers were conveying voters to the polling station by a tractor and trolly.\n\nThe fact of the complaint were found to be correct and the complaint forwarded.\"\n\nM. P. Singh was cross-examined in regard to the correctness of\" the report, but he was unable to deny its genuineness or correctness. His explanation that he merely concluded after seeing what he has stated, that everything contained in complaint Ex. 4 was correct, but did not notice the registration number of the tractor and did not see any flag or posters on the tractor or the B.K.D. agents setting them in queue, cannot be accepted because of his statement that he went out of the polling station as he considered it necessary to see for himself whether the allegation was correct, and also because of his contemporaneous note in the diary that \"the facts of the complaint were found to be correct.\" We have therefore no reason to disagree with the view taken by the High Court that the statement of M. P. Singh and documents Bxs. 4 and 5 go to prove the correctness of the statement of Vijay Kumar Singh (P.W. 5).\n\nMr. Bindra has argued that M. P. Singh could not have seen the registration number of the tractor as it was standing at a distance of 500 or 600 yards from the polling station, and that there is no reason to disbelieve his statement to that effect. It would be sufficient for us to say in this connection that Vijay Kumar Singh (P.W. 5) has stated that the Presiding Officer had seen the tractor from a distance of about 100 paces, and his statement to that effect has not been contradicted by any other witness except M. P. Singh (P.W. 6) who, as has been shown, tried to give an inconsistent statement and was allowed to be cross-examined by an order of the High Court.\n\nBut even M. P. Singh has stated that he saw the tractor standing near the B.K.D. camp.\n\nSection 130 of the Act prohibited canvassing or exhibiting any notice or sign. within a distance of 100 metres of the polling station, and Mr. Bindra was unable to refer us to any requirement of the law that it was not permissible for a candidate to locate his camp at that distance. Moreover, if it had not been possible for M. P. Singh to see the registration number of the tractor, he would not have recorded in his report Ex. 5 that the facts mentioned in th complaint (Ex. 4) were \"found to be correct.\" The same is the position in regard to M. P. Singh's statement that he did not notice whether the tractor and the trolly did or did not carry any flag or posters. It is pertinent to point out in this connection that the com1 - lain! (Ex. 4) of Vijay Kumar Singh was that workers of the appellant had brought the voters in the tractor trolly, and it would not have been possible for him to \"conclude that everything contained in the complaint (Ex. 4) was correct\" if he had not seen some distinguishing mark on the tractor or the trolly to connect it with the appellant. It has been stated by Vijay Kumar Singh (P.W. 5) that the persons who got down from the tractor trolly went and took \"parchis\" from the B.K.D. camp outside the poUing station.\n\nM. P.\n\nSingh (P.W. 6) has also stated that those who got down from the tractor were seen by him going towards the B.K.D. camp. It is not the case of the appellant that they were not the electors of the constituency.\n\nIn fact it would not have availed him or his workers to bring those who were not the electors to the polling station.\n\nThe election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta\n\nwero Babu Lal (P.W.\n\n11) and Radhey Lal (P.W. 12) of village Basehi and Ram Swamo (P.W. 13), Misri Lal\n\n(R.W.\n\n13) and Munshi Lal (P.W. 20) of village Bhimpur. While Babu Lal, Radhey Lal, Ram Swamp and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant.\n\nWe have gone through the statement of these witnesses.\n\nBabu Lal (P.W. 11) has stated that a tractor having a trolly came to Basehi on the date of poll carrying the flag and posters of the B.K._D . and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was pait! vomntarily.\n\nRadhey Lal (P.W. 12) has stated much to the same effect, except that he was not asked to name the other persons who travelled with him in the trolly. He has however stated that Babu Lal had gone with him in the tro!ly. Nothing has been elicited in the cross-examination to shake the testimony of these witnesses. ·\n\nWe have also gone through the statements of Ram Swamp (P.W.\n\n13) and Munshi Lal (P.W. 20) of Bhimpur.\n\nRam Swamp has stated that a tractor and trolly carrying the flag and posters having the •ymbol of \"Haldhar Kisan\" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything.\n\nHe has stated that he returned to the village in the same tractor, after casting, his vote.\n\nMunshi Lal (P.W. 20) has deposed much to the same effect, and he has stated that Ram Swamp (P.W. 13) also travelled in the tractor trolly along with the other persons named by him.\n\nThe statements of these witnesses have not been shaken in cross-examination.\n\nAs has been stated, Misri Lal (R.W. 13) was also named in the schedule to the election petition as the elector who was conveyed in the tractor trolly, and he has been examined on behalf of the appellant.\n\nHe has stated that there is a distance of 2 or 2 t furlongs between the \"abadi\" of Bhimpur and the \"abadi\" of Naubasta, and that he went on foot to cast his vote at the polling station.\n\nHe has stated further that the persons living at Bhimpur had gone to the polling sttion on foot and that it was wrong to say that any tractor came to Bhimpur to transport the voters to the polling station.\n\nThe appellant has admitted that he knew Misri Lal for 3 or 4 years, and we are unable to think that the High Court erred in rejecting his statement in face of the other evidence to which reference has cbeen made above.\n\nIt was speciJ; ically stated in Schedule III of the election petition that Bhagwan Smgh (R.W .11) and Babu Singh of N aubasta and Maikoo of Bhimpur were the workers and agents of the appellat who conveyed the eectors to the Naubasta polling station.\n\nOf these only one Bhagwan Smgh (R.W.11) has been examined on behalf of Balwan Singh.\n\nHe has stated that it was wrong to say that he, Maikoo and\n\nBabu Singh brought any voters in tractor trolly from Bhimpur to Naubasta, or that he got any \"parchis\" distributed to any voters in the queue at the polling station. It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur.\n\nBhagwan Singh (R.W.11) has admitted that there . was another Bhagwan Singh in his village.\n\nHe has stated that he did not see appellant Balwan Singh during the election, in his village, that he had put the flag and poster of the Congress party at his house and that he and his sons worked for the Congress in the election. As against this, the appellant has stated that he did go to Naubasta and talked to Thakur Bhagwan Singh there who was a sympathiser of\n\nB.K.D.\n\nIt therefore appears that Bhagwan Singh (R.W.11) cannot be said to be the worker named in the Schedule of the petition, and nothing can possibly turn on what he has stated.\n\nIt will be recalled that Vijay Kumar Singh (P.W.5) who was the polling agent of the Congress candidate at N aubasta had stated in the trial court that he had made an oral as well as a written complaint about the conveyance of voters by the workers of the appellant, to the Presiding Officer.\n\nThe appellant also appointed his polling agent at the polling station, but he has not examined him in rebuttal of Vijay Kumar Singh's statement to that effect.\n\nWe have gone through the other evidence which has been led by way of rebuttal of the allegation regarding the use of tractor No.\n\nUPG 9962 for the conveyance of electors to Naubasta polling station.\n\nWe have already dealt with the statements of Bhagwan Singh (R.W. 11) and Misri Lal (R.W.13) and have given our reasons for rejecting them as unsatisfactory.\n\nThe remaining witnesses, to whose testimony our attention has been invited by Mr. Bindra, are Vijai Pal Singh (R.W.14) and appellant Balwan Singh (R.W.34). Vijai Pal Singh is a self-condemned witness for whereas he stated that he was the polling agent of Ayodhya Prasad who contested the election as a Congress (0) candidate and did not see any tractor trolly conveying voters to N anbasta polling station although he remained present at the polling station, he admitted under cross-examination that he was not a polling agent at the Naubasta polling station and had made a false\n\nstatement to that effect.\n\nIn so far as Balwan Singh (R.W.34) is concerned, it will be sufficient to say that he has admitted that he did not go to Nau bas ta on the date of the poll. He could not therefore disprove the evidence of the election petitioners in regard to the alleged corrupt practice.\n\nHe once ventured to state that he came to know on the \"next day after polling that . (his) tractor bad gone to the National Sugar Institute\" for transporting ''seta\" .and \"patwar\", but: he qualified that statement by saying that the tractor may have been sent there by his wife and that \"seta\" and \"patwar\" were obtained before February 26, 1974.\n\nAn attempt was made to examine Iqbal Bahadur Dwivedi along with the original gate pass of the Institute, but it was given up by Balwan Singh.\n\nHe cannot therefore be said to have rebutted the evidence of the election petitioners. It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu\n\nBAL WAN SINGH v. PRAKASH CHAND (Shinghal, J.) 3 4 7\n\nSingh and Maikoo in the election petition, they were not examined in A defence.\n\nIt may be mentioned that some witnesses of the election petitioners, namely, Babu Lal (P.W.11), Ram Swarup (P.W.13) and Munshi Lal (P.W.20) named certain persons who, accordmg to them, travelled with them to the polling station Naubasta free of cost.\n\nMost of those persons were summoned at the instance of the appellant, but B they were not examined ultimately, and were given up.\n\nThe election petitioners have also led evidence to prove that tractor UPG 9962 was procured by appellant Balwan Singh himself for the conveyance of the electors to the Naubasta polling station. Amarpal Singh (P.W.33) has lated in this connection that ?e held a diploma in motor mechamsm and was runnmg a repamng shop at C Rawatpur for motors and tractors.\n\nThe appellant was known to him and asked him to do the repair work of the vehicles at the B.K.D. office at Rania for Rs. 25/- per day.\n\nHe has stated further that he went to Rania and worked there for 12 days.\n\nOne day before polling, the tractor of the appellant was brought to Rania as it had developed some defects.\n\nBalwan Singh's wife Smt. Vimla and his driver were present when he was working on that tractor.\n\nRam Swarup Sharma, D Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairi>lg work as early as possible, and he asked Smt. Vimla to send the trctor to Naubasta with Babu Singh for transporting voters.\n\nWitness has stated further that his partner Ramesh was present at that time.\n\nRam Swarup Sharma is dead.\n\nAppellant Balwan Singh cited Babu Singh as a defence witness, but gave him up.\n\nHe did not examine Ramesh.\n\nE Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania.\n\nRania, according to the witness, had a population of some 3 500 persons and it is difficult to believe that the appellant F had no office there.\n\nThe appellant recorded his own statement to the effect, inter alia, that he did not employ Amarpal Singh for repairing any vehicle and did not give any instruction that Babu Singh should take the tractor for transporting voters.\n\nNo reason has however been assigned why Amarpal Singh should have tried to implicate the appellant falsely.\n\nThe trial Judge has placed reliance on his statement, and we see no reason for taking a different view.\n\nTractor UPG 9962 belonged to the appellant's wife Smt. Vimla, and it was alleged from the very inception, in the contemporaneous report Ex. 4, that it had been used for the conveyance of electors, some of whom were named in the Schedule to the election petition along with the names of the workers and agents who utilised the tractor for the work. It could be expected of the appellant that he H would give satisfactory particulars and details about any other use of the tractor on the date of the poll if that was within his special knowledge, but he has not done so.\n\nOn the other hand, as has been\n\nshown, his attempt to prove that the tractor had been sent to the National Sugar Institute met with dismal failure.\n\nHis wife Smt. Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal.\n\nIt is not always possible for an election petitioner to adduce direct evidence to prove that a particular vehicle was hired or procured by the candidate or his agent or by any other person with the consent of the candidate or his election agent, but this can be inferred from the proved circumstances where such inference is justifiable.\n\nReference in this connection may be made to the decisions of this Court in Bhagwan Datta Shastri v. Badri Narayan Singh and others(') and Shri Urned v. Raj Singh and others(2 ). In the present case, it has been proved by clear and reliable evidence that tractor UPG 9962 was used for the conveyance of electors to and from the Naubasta polling station, and that it was so used by the workers of the appellant.\n\nThen there is the further fact that the voters were conveyed free of cost.\n\nIt has also been proved that the tractor belonged to the appellant's wife and he could not succeed in his effort to prove that it was used elsewhere or for some other purpose.\n\nIn these facts and circumstances, it would be quite permissible to draw the inference that the tractor had been procured by the appellant for the free conveyance ©f the electors.\n\nFor the reasons mentioned above, we have no doubt that the finding of the High Court that appellant Balwan Singh procured tractor No. UPG 9962 with trolly and that they were used for the purpose of transporting the voters to the N aubasta polling statton, and he thereby committed a corrupt practice within the meaning of section 123(5) of the Act, is correct and must be upheld.\n\nIn view of this categorical finding it is not necessary for us to examine the allegation regarding the hiring or procuring of tractor No. UTE 5865 and jeep No. UPW 359 for the free oonveyance of electors to two other polling stations.\n\nIt may be mentioned that in arriving at the above finding we have taken due note of the view expressed by this Court in Ram A wadesh Singh v. Sumitra Devi and others(') in regard to the generation of factious feelings during elections and their continuance even after the election enabling the parties to produ9e a large number of witnesses some of whom may be seemingly disinterested, and the view expressed in Rahim Khan v. Khurshid Ahmed and others(<) that an election once held should not be treated in a light-hearted manner and the court should insist on clear and cogent testimony compelling it to uphold the corrupt practice alleged against the returned candidate.\n\nSo also, we have noticed the view expressed in Baburao Ragaji Karemore and others v. Govind and others(') that the Court should\n\n(1) A.T.R. 1960 S.C. 200.\n\n(2) A.I.R. 1975 S.C. 43.\n\n\n(4) 1975 I S.C.R. 643.\n\n\nexamine the evidence having regard to the fact that where the electorate has chosen their candidate at an election, their choice ought not to be lightly upset.\n\nWe have also taken notice of the view expressed by Ray C.J. in Smt. Indira Nehru Gandhi v. Raj Narain(') that in an election contest it is the public interest, not the parties' claims, which is the paramount concern.\n\nMr. Bindra has placed considerable reliance on these decisions.\n\nBut, as has been shown, the finding of the High Court regarding the aforesaid corrupt practice is based on clear, cogent and convincing evidence and there is no justification for interfering with it.\n\nMr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U .P. Legislative Assembly from another constituency in 1957, but his election was set aside on the ground, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors. He has argued that in view of this Court's decision against him in 1'alwan Singh v. Shri Lakshmi Narain and others (supra) he could not possibly have taken the risk of committing another similar corrupt practice at the election in question.\n\nThe argument is based on mere conjecture and cannot disprove or rebut the clear, cogent and reliable evidence on which the appellant has been held guilty of committing the cor- . rupt practice in this case.\n\nMr. Bindra tried to argue further that the High Court committed an illegality in setting aside the appellant's election without finding that the result of the election had been materially affected thereby.\n\nThe argument is misconceived, for it is not the requirement of section E 100 ( 1) (b) which has been found to be applicable to the corrupt practice in question, that the High Court should declare the election of the returned candidate to be void only if the result of the election has been materially affected by it.\n\nAnother asgument of Mr. Bindra was that the corrupt practice in question should not have been found to have been committed as the election petitioners did not examine themselves during the course of the trial in the High Court.\n\nThere was however no such obligation on them, and the evidence which the election petitioners were able to produce at the trial could not .have been rejected for any such fanciful reason when there was nothing to show that the election petitioners were able to give useful evidence to their personal knowledge but stayed away purposely.\n\nIn the result, the appeal (Civil Appeal No. 775 of 1975) filed by Balwan Singh fails and is dismissed with costs.\n\nThe cross-appeal (Civil Appeal No. 1107 of 1975) is dismissed as not pressed, but without any order as to the costs.\n\nP.B.R.\n\n(1) A.LR. 1975 S.C. 299.\n\n8-L522SC!/76\n\nAppeal dismissed.", "total_entities": 151, "entities": [{"text": "BALWAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "Bhagwan Singh Thakur", "offset_not_found": false}}, {"text": "PRAKASH CHAND & OTHERS", "label": "RESPONDENT", "start_char": 14, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "PRAKASH CHAND & OTHERS", "offset_not_found": false}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 71, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Representation of People Act, 1951", "label": "STATUTE", "start_char": 111, "end_char": 145, "source": "regex", "metadata": {}}, {"text": "S. 123(5)", "label": "PROVISION", "start_char": 146, "end_char": 155, "source": "regex", "metadata": {"linked_statute_text": "Representation of People Act, 1951", "statute": "Representation of People Act, 1951"}}, {"text": "s. 123(5)", "label": "PROVISION", "start_char": 673, "end_char": 682, "source": "regex", "metadata": {"linked_statute_text": "Representation of People Act, 1951", "statute": "Representation of People Act, 1951"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 1696, "end_char": 1702, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(5)", "label": "PROVISION", "start_char": 2155, "end_char": 2164, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 12(5)", "label": "PROVISION", "start_char": 2999, "end_char": 3007, "source": "regex", "metadata": {"statute": null}}, {"text": "[1975] 1 S.C.R. 643", "label": "CASE_CITATION", "start_char": 3622, "end_char": 3641, "source": "regex", "metadata": {}}, {"text": "s. 83", "label": "PROVISION", "start_char": 4065, "end_char": 4070, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 4949, "end_char": 4969, "source": "ner", "metadata": {"in_sentence": "(From the Judgment and Order dated the 9-4-1975 of the Allahabad High Court in Election Petition No."}}, {"text": "N. S. Bindra", "label": "PETITIONER", "start_char": 5008, "end_char": 5020, "source": "ner", "metadata": {"in_sentence": "24 of 1974)\n\nN. S. Bindra.", "canonical_name": "N. S. Bindra"}}, {"text": "R- D. Uppadhaya", "label": "LAWYER", "start_char": 5039, "end_char": 5054, "source": "ner", "metadata": {"in_sentence": "R- D. Uppadhaya and M.\n\nSrivastava, for the appellant in CAs 775/75.", "canonical_name": "R- D. Uppadhaya"}}, {"text": "M.\n\nSrivastava", "label": "LAWYER", "start_char": 5059, "end_char": 5073, "source": "ner", "metadata": {"in_sentence": "R- D. Uppadhaya and M.\n\nSrivastava, for the appellant in CAs 775/75.", "canonical_name": "M. M. L.\n\nSrivastava"}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 5109, "end_char": 5125, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107 /75.", "canonical_name": "Yogeshwar Prasad"}}, {"text": "Rani Arora", "label": "LAWYER", "start_char": 5135, "end_char": 5145, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107 /75."}}, {"text": "Bir Bahadur Singh", "label": "LAWYER", "start_char": 5150, "end_char": 5167, "source": "ner", "metadata": {"in_sentence": "Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh, for the appellant in CA 1107 /75."}}, {"text": "N. S. Bindra", "label": "LAWYER", "start_char": 5204, "end_char": 5216, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.\n\nSrivastava, for the respondent in CA 1107 /75.", "canonical_name": "N. S. Bindra"}}, {"text": "K. C. Agarwala", "label": "LAWYER", "start_char": 5218, "end_char": 5232, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.\n\nSrivastava, for the respondent in CA 1107 /75."}}, {"text": "R. D. Uppadhaya", "label": "LAWYER", "start_char": 5234, "end_char": 5249, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.\n\nSrivastava, for the respondent in CA 1107 /75.", "canonical_name": "R- D. Uppadhaya"}}, {"text": "M. M. L.\n\nSrivastava", "label": "LAWYER", "start_char": 5254, "end_char": 5274, "source": "ner", "metadata": {"in_sentence": "N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.\n\nSrivastava, for the respondent in CA 1107 /75.", "canonical_name": "M. M. L.\n\nSrivastava"}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 5453, "end_char": 5461, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.-Civil Appeal No.", "canonical_name": "SHINGHAL"}}, {"text": "Representation of People Act, 1951", "label": "STATUTE", "start_char": 5538, "end_char": 5572, "source": "regex", "metadata": {}}, {"text": "Balwan Singh", "label": "PETITIONER", "start_char": 5613, "end_char": 5625, "source": "ner", "metadata": {"in_sentence": "775 of 1975 has been filed under section l l 6A of the Representation of People Act, 1951, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975.", "canonical_name": "Bhagwan Singh Thakur"}}, {"text": "Pradesh Legislative Assembly", "label": "ORG", "start_char": 5654, "end_char": 5682, "source": "ner", "metadata": {"in_sentence": "775 of 1975 has been filed under section l l 6A of the Representation of People Act, 1951, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975."}}, {"text": "Sarwan Khera constituency", "label": "GPE", "start_char": 5692, "end_char": 5717, "source": "ner", "metadata": {"in_sentence": "775 of 1975 has been filed under section l l 6A of the Representation of People Act, 1951, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975."}}, {"text": "April 9, 1975", "label": "DATE", "start_char": 5820, "end_char": 5833, "source": "ner", "metadata": {"in_sentence": "775 of 1975 has been filed under section l l 6A of the Representation of People Act, 1951, hereinafter referred to as the Act, by Balwan Singh whose election to the Uttar Pradesh Legislative Assembly from the Sarwan Khera constituency at the general election of 1974, has been set aside by the Allahabad High Court by its judgment dated April 9, 1975."}}, {"text": "section 123(5)", "label": "PROVISION", "start_char": 5908, "end_char": 5922, "source": "regex", "metadata": {"linked_statute_text": "the Representation of People Act, 1951", "statute": "the Representation of People Act, 1951"}}, {"text": "Prakash Chandra", "label": "RESPONDENT", "start_char": 6079, "end_char": 6094, "source": "ner", "metadata": {"in_sentence": "His election was challenged on several grounds by an ekction petition filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency.", "canonical_name": "PRAKASH CHAND & OTHERS"}}, {"text": "Jai Chandra", "label": "RESPONDENT", "start_char": 6099, "end_char": 6110, "source": "ner", "metadata": {"in_sentence": "His election was challenged on several grounds by an ekction petition filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency."}}, {"text": "Balwan Singh", "label": "PETITIONER", "start_char": 6292, "end_char": 6304, "source": "ner", "metadata": {"in_sentence": "There were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti Dal (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No.", "canonical_name": "Bhagwan Singh Thakur"}}, {"text": "Bhartiya Kranti Dal", "label": "ORG", "start_char": 6312, "end_char": 6331, "source": "ner", "metadata": {"in_sentence": "There were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti Dal (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No."}}, {"text": "Ragunath Singh", "label": "RESPONDENT", "start_char": 6371, "end_char": 6385, "source": "ner", "metadata": {"in_sentence": "There were several candidates at the election, but the main contestants were appellant Balwan Singh of the Bhartiya Kranti Dal (B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent No."}}, {"text": "Congress (R) party", "label": "ORG", "start_char": 6411, "end_char": 6429, "source": "ner", "metadata": {"in_sentence": "2 of the Congress (R) party who secured 31,008 votes."}}, {"text": "Prakash Chandra", "label": "RESPONDENT", "start_char": 6506, "end_char": 6521, "source": "ner", "metadata": {"in_sentence": "1167 of 1975 is by election oetitioner Prakash Chandra for setting aside the judgment on issues decided against the election petitioners.", "canonical_name": "PRAKASH CHAND & OTHERS"}}, {"text": "BAL WAN SINGH V. PRAKASH CHAND", "label": "JUDGE", "start_char": 6606, "end_char": 6636, "source": "ner", "metadata": {"in_sentence": "BAL WAN SINGH V. PRAKASH CHAND ( Shingha/, J.) 3 3 7\n\nThe allegation regarding the commission of the corrupt practice referred to above was to the effect that the appellant, his workers, agents and supporters, with his consent hired and procured vehicles for the free conveyance of electors."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 7095, "end_char": 7107, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 7238, "end_char": 7250, "source": "regex", "metadata": {"statute": null}}, {"text": "section 83", "label": "PROVISION", "start_char": 7648, "end_char": 7658, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 7981, "end_char": 7993, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 8380, "end_char": 8392, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 8462, "end_char": 8474, "source": "regex", "metadata": {"statute": null}}, {"text": "October 10, 197", "label": "DATE", "start_char": 8771, "end_char": 8786, "source": "ner", "metadata": {"in_sentence": "The High Court rejected that objection by it,1 order dated October 10, 197 4, except that the names of two new persons were not allowed to be inserted in Schedule V. with which we are not concerned."}}, {"text": "Schedule V", "label": "PROVISION", "start_char": 8866, "end_char": 8876, "source": "regex", "metadata": {"statute": null}}, {"text": "Maubasta", "label": "GPE", "start_char": 9605, "end_char": 9613, "source": "ner", "metadata": {"in_sentence": "2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta, J aganpur and Tigain polling stations and further that the respondent No."}}, {"text": "aganpur", "label": "GPE", "start_char": 9617, "end_char": 9624, "source": "ner", "metadata": {"in_sentence": "2 procured tractor 9962 with trolly and hired Jeep UPW 359 and Tractor UTE 5865 with trolly and that the said vehicles were used for free conveyance of voters to Maubasta, J aganpur and Tigain polling stations and further that the respondent No."}}, {"text": "section 123(5)", "label": "PROVISION", "start_char": 9734, "end_char": 9748, "source": "regex", "metadata": {"statute": null}}, {"text": "Prakash Chandra", "label": "PETITIONER", "start_char": 10045, "end_char": 10060, "source": "ner", "metadata": {"in_sentence": "1107 has been filed by election-petitioner Prakash Chandra, as he feels aggrieved against the High Ccurt's findings on the other issues, but Mr. Yogeshwar Prasad has stated that he would not press.", "canonical_name": "PRAKASH CHAND & OTHERS"}}, {"text": "Yogeshwar Prasad", "label": "LAWYER", "start_char": 10147, "end_char": 10163, "source": "ner", "metadata": {"in_sentence": "1107 has been filed by election-petitioner Prakash Chandra, as he feels aggrieved against the High Ccurt's findings on the other issues, but Mr. Yogeshwar Prasad has stated that he would not press.", "canonical_name": "Yogeshwar Prasad"}}, {"text": "Balwan ll Singh", "label": "PETITIONER", "start_char": 10237, "end_char": 10252, "source": "ner", "metadata": {"in_sentence": "We have therefore only Balwan ll Singh's appeal for consideration. ·", "canonical_name": "Bhagwan Singh Thakur"}}, {"text": "Bindra", "label": "OTHER_PERSON", "start_char": 10311, "end_char": 10317, "source": "ner", "metadata": {"in_sentence": "It has been argued by Mr. Bindra on behalf of Balwan Singh, hereinancr referrea to as the appellant, that the High Court ought not to have entertained the elect10n petition as it was not .verified in .", "canonical_name": "Bindra"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 10511, "end_char": 10538, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 83(l)(c)", "label": "PROVISION", "start_char": 10622, "end_char": 10638, "source": "regex", "metadata": {"statute": null}}, {"text": "November 27, 1974", "label": "DATE", "start_char": 10837, "end_char": 10854, "source": "ner", "metadata": {"in_sentence": "We asked the counsel to refer us to any such objection of the appellant in the trial court, and all that he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 11701, "end_char": 11713, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 11996, "end_char": 12008, "source": "regex", "metadata": {"statute": null}}, {"text": "Ccndtict of Election Rules, 1961", "label": "STATUTE", "start_char": 12080, "end_char": 12112, "source": "regex", "metadata": {}}, {"text": "section 123", "label": "PROVISION", "start_char": 15336, "end_char": 15347, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 15889, "end_char": 15901, "source": "regex", "metadata": {"statute": null}}, {"text": "[1972) 2 S.C.R. 742", "label": "CASE_CITATION", "start_char": 16124, "end_char": 16143, "source": "regex", "metadata": {}}, {"text": "section 83", "label": "PROVISION", "start_char": 16646, "end_char": 16656, "source": "regex", "metadata": {"statute": null}}, {"text": "August 30, 197 4", "label": "DATE", "start_char": 17297, "end_char": 17313, "source": "ner", "metadata": {"in_sentence": "It will be recalled that the issues were framed on August 30, 197 4, before the making of the application for leave to amend the election petition, and issue No 2 clearly raised the question whether appellant Balwan Singh, or his workers and agents with his consent, hired or procured the vehicles for the free conveyance of the voters and whether the vehicles so hired and procured \"were used for the purpose.\""}}, {"text": "Naubasta", "label": "GPE", "start_char": 18155, "end_char": 18163, "source": "ner", "metadata": {"in_sentence": "UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain polling stations."}}, {"text": "Jaganpur", "label": "GPE", "start_char": 18165, "end_char": 18173, "source": "ner", "metadata": {"in_sentence": "UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain polling stations."}}, {"text": "Tigain", "label": "GPE", "start_char": 18178, "end_char": 18184, "source": "ner", "metadata": {"in_sentence": "UPW 359, for the free conveyance of electors to Naubasta, Jaganpur and Tigain polling stations."}}, {"text": "Blndra", "label": "OTHER_PERSON", "start_char": 18208, "end_char": 18214, "source": "ner", "metadata": {"in_sentence": "Mr. Blndra has challenged that finding .", "canonical_name": "Bindra"}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 18494, "end_char": 18506, "source": "regex", "metadata": {"statute": null}}, {"text": "February 26, 1974", "label": "DATE", "start_char": 18636, "end_char": 18653, "source": "ner", "metadata": {"in_sentence": "on February 26, 1974."}}, {"text": "Bhimpur", "label": "GPE", "start_char": 18818, "end_char": 18825, "source": "ner", "metadata": {"in_sentence": "It was thus stated, in regard to Naubasta polling station, that electors were conveyed there from Bhimpur and Basehi villages, by tractor No."}}, {"text": "Basehi", "label": "GPE", "start_char": 18830, "end_char": 18836, "source": "ner", "metadata": {"in_sentence": "It was thus stated, in regard to Naubasta polling station, that electors were conveyed there from Bhimpur and Basehi villages, by tractor No."}}, {"text": "Munshi Lal", "label": "WITNESS", "start_char": 18926, "end_char": 18936, "source": "ner", "metadata": {"in_sentence": "It was soecificallv stated that electors Munshi Lal (P.W.20)."}}, {"text": "Ram Swanm", "label": "WITNESS", "start_char": 18947, "end_char": 18956, "source": "ner", "metadata": {"in_sentence": "Ram Swanm (P.W.\n\n13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.11) of Basehi were thus taken to Naubasta."}}, {"text": "Misri Lal", "label": "WITNESS", "start_char": 18972, "end_char": 18981, "source": "ner", "metadata": {"in_sentence": "Ram Swanm (P.W.\n\n13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.11) of Basehi were thus taken to Naubasta."}}, {"text": "Radhelal", "label": "WITNESS", "start_char": 19008, "end_char": 19016, "source": "ner", "metadata": {"in_sentence": "Ram Swanm (P.W.\n\n13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.11) of Basehi were thus taken to Naubasta."}}, {"text": "Bahulal", "label": "WITNESS", "start_char": 19021, "end_char": 19028, "source": "ner", "metadata": {"in_sentence": "Ram Swanm (P.W.\n\n13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal (P.W.11) of Basehi were thus taken to Naubasta."}}, {"text": "Bhagwan Singh", "label": "WITNESS", "start_char": 19169, "end_char": 19182, "source": "ner", "metadata": {"in_sentence": "So also, it was stated that some of the workers and a)!ents who conveyed the electors were Bhagwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur."}}, {"text": "Babu Singh", "label": "WITNESS", "start_char": 19197, "end_char": 19207, "source": "ner", "metadata": {"in_sentence": "So also, it was stated that some of the workers and a)!ents who conveyed the electors were Bhagwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur."}}, {"text": "Maikoo", "label": "WITNESS", "start_char": 19225, "end_char": 19231, "source": "ner", "metadata": {"in_sentence": "So also, it was stated that some of the workers and a)!ents who conveyed the electors were Bhagwan Singh (P.W. 11) and Babu Singh of Naubasta, and Maikoo of Bhimpur."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 19392, "end_char": 19404, "source": "regex", "metadata": {"statute": null}}, {"text": "Bjndra", "label": "OTHER_PERSON", "start_char": 20130, "end_char": 20136, "source": "ner", "metadata": {"in_sentence": "It has been argued by Mr. Bjndra that the tractor really belonged to the appellant, and that his wife was only a 'benamidar' so that there could be no question of \"hiring or procuring it whether on payment c or otherwise\" within the meaning of sub-section (5) of section 123 of the Act.", "canonical_name": "Bindra"}}, {"text": "section 123", "label": "PROVISION", "start_char": 20367, "end_char": 20378, "source": "regex", "metadata": {"statute": null}}, {"text": "Vimla", "label": "OTHER_PERSON", "start_char": 20551, "end_char": 20556, "source": "ner", "metadata": {"in_sentence": "Vimla, has been clearly admitted by him in his own statement in the High Court."}}, {"text": "U.\n\nSiddiqui", "label": "WITNESS", "start_char": 20824, "end_char": 20836, "source": "ner", "metadata": {"in_sentence": "A. U.\n\nSiddiqui (P.W.2), tax clerk of the office of R.T.O. Kanpur, has proved that the tractor was registered in the name of Smt."}}, {"text": "Vimla Yadav", "label": "OTHER_PERSON", "start_char": 20951, "end_char": 20962, "source": "ner", "metadata": {"in_sentence": "Vimla Yadav, wife of appellant Balwan Singh, and that it stood in her name since May I, 1971."}}, {"text": "Zila E Parishad", "label": "ORG", "start_char": 21152, "end_char": 21167, "source": "ner", "metadata": {"in_sentence": "Balwan Singh's statement shows that she was an independent candidate for being coopted as a member of the Zila E Parishad, and it appears from the statement of Vijay Kumar Singh (P. W. 5) that she was her husband's counting agent."}}, {"text": "Vijay Kumar Singh", "label": "WITNESS", "start_char": 21206, "end_char": 21223, "source": "ner", "metadata": {"in_sentence": "Balwan Singh's statement shows that she was an independent candidate for being coopted as a member of the Zila E Parishad, and it appears from the statement of Vijay Kumar Singh (P. W. 5) that she was her husband's counting agent."}}, {"text": "s.123", "label": "PROVISION", "start_char": 22177, "end_char": 22182, "source": "regex", "metadata": {"statute": null}}, {"text": "Delhi H High Court", "label": "COURT", "start_char": 22517, "end_char": 22535, "source": "ner", "metadata": {"in_sentence": "it is not necessary for us to examine the correctness of the view taken by the Delhi H High Court in Surinder Nath Gautam's case (supra)."}}, {"text": "Surinder Nath Gautam", "label": "OTHER_PERSON", "start_char": 22539, "end_char": 22559, "source": "ner", "metadata": {"in_sentence": "it is not necessary for us to examine the correctness of the view taken by the Delhi H High Court in Surinder Nath Gautam's case (supra)."}}, {"text": "Raghunath Singh", "label": "RESPONDENT", "start_char": 23062, "end_char": 23077, "source": "ner", "metadata": {"in_sentence": "It has been stated by Vijay Kumar Singh (P.W.\n\n5) who was the polling agent of respondent Raghunath Singh, that he saw the workers of the appellant bringing voters to Naubasta polling statio11 in the trolly of tractor No."}}, {"text": "Singh", "label": "PETITIONER", "start_char": 23639, "end_char": 23644, "source": "ner", "metadata": {"in_sentence": "4 about it to Mr.\n\nSingh who was the presiding officer, and he made an endorsement on it in his presence.", "canonical_name": "Singh"}}, {"text": "B.K.D.", "label": "ORG", "start_char": 23967, "end_char": 23973, "source": "ner", "metadata": {"in_sentence": "Those persons, according to the witness, were assisted by the workers of the B.K.D. in standing in the queue at the polling booth. \""}}, {"text": "Vijay Kumar Singh", "label": "OTHER_PERSON", "start_char": 24139, "end_char": 24156, "source": "ner", "metadata": {"in_sentence": "According to Vijay Kumar Singh, the tractor and the trolly made only two trips to the polling station, the second trio being at about 3.30 p.m.\n\nThe witness has stated further that the presiding oflicer made an enquiry on his complaint, and he must have mentioned the result of the enquiry in his diary.", "canonical_name": "Vijay Kumar Singh"}}, {"text": "Shashi Bhushan Singh", "label": "OTHER_PERSON", "start_char": 24778, "end_char": 24798, "source": "ner", "metadata": {"in_sentence": "The witness was cross-examined at length, but nothing could be brought out to discredit his testimony, except that both the witness and respondent Raghunath Singh were related to one Shashi Bhushan Singh."}}, {"text": "M. P. Singh", "label": "WITNESS", "start_char": 25165, "end_char": 25176, "source": "ner", "metadata": {"in_sentence": "The statement of Vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding Officer of the Naubasta polling ."}}, {"text": "U.P. Institute of Agricultural Sciences", "label": "ORG", "start_char": 25213, "end_char": 25252, "source": "ner", "metadata": {"in_sentence": "The statement of Vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding Officer of the Naubasta polling ."}}, {"text": "Naubasta polling . station", "label": "ORG", "start_char": 25290, "end_char": 25316, "source": "ner", "metadata": {"in_sentence": "The statement of Vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6) who was an employee of the U.P. Institute of Agricultural Sciences and was the Presiding Officer of the Naubasta polling ."}}, {"text": "Vijay Knmar Singh", "label": "OTHER_PERSON", "start_char": 25392, "end_char": 25409, "source": "ner", "metadata": {"in_sentence": "4 was presented to him by Vijay Knmar Singh on February 25, 1974 at 3.30 p.m. and that he made an endorsement to that effect on the complaint.", "canonical_name": "Vijay Kumar Singh"}}, {"text": "February 25, 1974", "label": "DATE", "start_char": 25413, "end_char": 25430, "source": "ner", "metadata": {"in_sentence": "4 was presented to him by Vijay Knmar Singh on February 25, 1974 at 3.30 p.m. and that he made an endorsement to that effect on the complaint."}}, {"text": "M. P. Singh", "label": "OTHER_PERSON", "start_char": 25924, "end_char": 25935, "source": "ner", "metadata": {"in_sentence": "M. P. Singh has stated that he came out of the polling station, as the polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the \"Instructions to Presiding Orhcers\" issued by the Election Commission of India."}}, {"text": "Election Commission of India", "label": "ORG", "start_char": 26156, "end_char": 26184, "source": "ner", "metadata": {"in_sentence": "M. P. Singh has stated that he came out of the polling station, as the polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the \"Instructions to Presiding Orhcers\" issued by the Election Commission of India."}}, {"text": "Vijay Kumar\n\nSingh", "label": "WITNESS", "start_char": 27863, "end_char": 27881, "source": "ner", "metadata": {"in_sentence": "The witness has therefore corroborated the statement of Vijay Kumar\n\nSingh (P.W. 5) in several material particulars."}}, {"text": "Section 130", "label": "PROVISION", "start_char": 30478, "end_char": 30489, "source": "regex", "metadata": {"statute": null}}, {"text": "M. P.\n\nSingh", "label": "WITNESS", "start_char": 31733, "end_char": 31745, "source": "ner", "metadata": {"in_sentence": "M. P.\n\nSingh (P.W. 6) has also stated that those who got down from the tractor were seen by him going towards the B.K.D. camp."}}, {"text": "Babu Lal", "label": "WITNESS", "start_char": 32208, "end_char": 32216, "source": "ner", "metadata": {"in_sentence": "The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta\n\nwero Babu Lal (P.W.\n\n11) and Radhey Lal (P.W. 12) of village Basehi and Ram Swamo (P.W. 13), Misri Lal\n\n(R.W.\n\n13) and Munshi Lal (P.W. 20) of village Bhimpur."}}, {"text": "Radhey Lal", "label": "WITNESS", "start_char": 32232, "end_char": 32242, "source": "ner", "metadata": {"in_sentence": "The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta\n\nwero Babu Lal (P.W.\n\n11) and Radhey Lal (P.W. 12) of village Basehi and Ram Swamo (P.W. 13), Misri Lal\n\n(R.W.\n\n13) and Munshi Lal (P.W. 20) of village Bhimpur."}}, {"text": "Ram Swamo", "label": "WITNESS", "start_char": 32275, "end_char": 32284, "source": "ner", "metadata": {"in_sentence": "The election petitioners stated in the petition that the names of some of the electors who were conveyed to polling station Naubasta\n\nwero Babu Lal (P.W.\n\n11) and Radhey Lal (P.W. 12) of village Basehi and Ram Swamo (P.W. 13), Misri Lal\n\n(R.W.\n\n13) and Munshi Lal (P.W. 20) of village Bhimpur."}}, {"text": "Babu Lal", "label": "PETITIONER", "start_char": 32369, "end_char": 32377, "source": "ner", "metadata": {"in_sentence": "While Babu Lal, Radhey Lal, Ram Swamp and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant.", "canonical_name": "Babu Lal"}}, {"text": "Ram Swamp", "label": "WITNESS", "start_char": 32391, "end_char": 32400, "source": "ner", "metadata": {"in_sentence": "While Babu Lal, Radhey Lal, Ram Swamp and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant."}}, {"text": "Munshi Lal", "label": "PETITIONER", "start_char": 32405, "end_char": 32415, "source": "ner", "metadata": {"in_sentence": "While Babu Lal, Radhey Lal, Ram Swamp and Munshi Lal have been examined by the election petitioners, Misri Lal (R.W. 13) has been examined by the appellant."}}, {"text": "Kunji Lal", "label": "WITNESS", "start_char": 32819, "end_char": 32828, "source": "ner", "metadata": {"in_sentence": "and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was pait!"}}, {"text": "Hira", "label": "WITNESS", "start_char": 32830, "end_char": 32834, "source": "ner", "metadata": {"in_sentence": "and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was pait!"}}, {"text": "Babbu Prasad", "label": "WITNESS", "start_char": 32836, "end_char": 32848, "source": "ner", "metadata": {"in_sentence": "and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was pait!"}}, {"text": "Raghubar Dayal", "label": "WITNESS", "start_char": 32853, "end_char": 32867, "source": "ner", "metadata": {"in_sentence": "and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and that no fare was demanded, or was pait!"}}, {"text": "Babu Lal", "label": "PETITIONER", "start_char": 33103, "end_char": 33111, "source": "ner", "metadata": {"in_sentence": "He has however stated that Babu Lal had gone with him in the tro!ly.", "canonical_name": "Babu Lal"}}, {"text": "Munshi", "label": "WITNESS", "start_char": 33511, "end_char": 33517, "source": "ner", "metadata": {"in_sentence": "Ram Swamp has stated that a tractor and trolly carrying the flag and posters having the •ymbol of \"Haldhar Kisan\" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything."}}, {"text": "Lallu", "label": "WITNESS", "start_char": 33532, "end_char": 33537, "source": "ner", "metadata": {"in_sentence": "Ram Swamp has stated that a tractor and trolly carrying the flag and posters having the •ymbol of \"Haldhar Kisan\" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything."}}, {"text": "Sukhnandan", "label": "OTHER_PERSON", "start_char": 33539, "end_char": 33549, "source": "ner", "metadata": {"in_sentence": "Ram Swamp has stated that a tractor and trolly carrying the flag and posters having the •ymbol of \"Haldhar Kisan\" came to Bhimpur on the date of poll and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his sons went in it to the polling station to cast their votes and that they were neither asked to pay any fare for travelling by the tractor to Naubasta nor did they voluntarily pay anything."}}, {"text": "Misri Lal", "label": "OTHER_PERSON", "start_char": 34740, "end_char": 34749, "source": "ner", "metadata": {"in_sentence": "The appellant has admitted that he knew Misri Lal for 3 or 4 years, and we are unable to think that the High Court erred in rejecting his statement in face of the other evidence to which reference has cbeen made above."}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 34952, "end_char": 34964, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhagwan Smgh", "label": "WITNESS", "start_char": 34995, "end_char": 35007, "source": "ner", "metadata": {"in_sentence": "It was speciJ; ically stated in Schedule III of the election petition that Bhagwan Smgh (R.W .11) and Babu Singh of N aubasta and Maikoo of Bhimpur were the workers and agents of the appellat who conveyed the eectors to the Naubasta polling station."}}, {"text": "N aubasta", "label": "GPE", "start_char": 35036, "end_char": 35045, "source": "ner", "metadata": {"in_sentence": "It was speciJ; ically stated in Schedule III of the election petition that Bhagwan Smgh (R.W .11) and Babu Singh of N aubasta and Maikoo of Bhimpur were the workers and agents of the appellat who conveyed the eectors to the Naubasta polling station."}}, {"text": "Maikoo", "label": "PETITIONER", "start_char": 35050, "end_char": 35056, "source": "ner", "metadata": {"in_sentence": "It was speciJ; ically stated in Schedule III of the election petition that Bhagwan Smgh (R.W .11) and Babu Singh of N aubasta and Maikoo of Bhimpur were the workers and agents of the appellat who conveyed the eectors to the Naubasta polling station.", "canonical_name": "Maikoo"}}, {"text": "Babu Singh", "label": "OTHER_PERSON", "start_char": 35317, "end_char": 35327, "source": "ner", "metadata": {"in_sentence": "He has stated that it was wrong to say that he, Maikoo and\n\nBabu Singh brought any voters in tractor trolly from Bhimpur to Naubasta, or that he got any \"parchis\" distributed to any voters in the queue at the polling station."}}, {"text": "Bhagwan Singh", "label": "PETITIONER", "start_char": 35552, "end_char": 35565, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur.", "canonical_name": "Bhagwan Singh Thakur"}}, {"text": "Bhagwan Singh Thakur", "label": "PETITIONER", "start_char": 35570, "end_char": 35590, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that the election petitioners made it clear that Bhagwan Singh was Bhagwan Singh Thakur.", "canonical_name": "Bhagwan Singh Thakur"}}, {"text": "Thakur Bhagwan Singh", "label": "OTHER_PERSON", "start_char": 35999, "end_char": 36019, "source": "ner", "metadata": {"in_sentence": "As against this, the appellant has stated that he did go to Naubasta and talked to Thakur Bhagwan Singh there who was a sympathiser of\n\nB.K.D.\n\nIt therefore appears that Bhagwan Singh (R.W.11) cannot be said to be the worker named in the Schedule of the petition, and nothing can possibly turn on what he has stated."}}, {"text": "Vijai Pal Singh", "label": "WITNESS", "start_char": 37140, "end_char": 37155, "source": "ner", "metadata": {"in_sentence": "The remaining witnesses, to whose testimony our attention has been invited by Mr. Bindra, are Vijai Pal Singh (R.W.14) and appellant Balwan Singh (R.W.34)."}}, {"text": "Balwan Singh", "label": "WITNESS", "start_char": 37179, "end_char": 37191, "source": "ner", "metadata": {"in_sentence": "The remaining witnesses, to whose testimony our attention has been invited by Mr. Bindra, are Vijai Pal Singh (R.W.14) and appellant Balwan Singh (R.W.34)."}}, {"text": "Ayodhya Prasad", "label": "OTHER_PERSON", "start_char": 37301, "end_char": 37315, "source": "ner", "metadata": {"in_sentence": "Vijai Pal Singh is a self-condemned witness for whereas he stated that he was the polling agent of Ayodhya Prasad who contested the election as a Congress (0) candidate and did not see any tractor trolly conveying voters to N anbasta polling station although he remained present at the polling station, he admitted under cross-examination that he was not a polling agent at the Naubasta polling station and had made a false\n\nstatement to that effect."}}, {"text": "Iqbal Bahadur Dwivedi", "label": "OTHER_PERSON", "start_char": 38307, "end_char": 38328, "source": "ner", "metadata": {"in_sentence": "An attempt was made to examine Iqbal Bahadur Dwivedi along with the original gate pass of the Institute, but it was given up by Balwan Singh."}}, {"text": "Shinghal", "label": "JUDGE", "start_char": 38685, "end_char": 38693, "source": "ner", "metadata": {"in_sentence": "It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu\n\nBAL WAN SINGH v. PRAKASH CHAND (Shinghal, J.) 3 4 7\n\nSingh and Maikoo in the election petition, they were not examined in A defence.", "canonical_name": "SHINGHAL"}}, {"text": "Singh", "label": "PETITIONER", "start_char": 38706, "end_char": 38711, "source": "ner", "metadata": {"in_sentence": "It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu\n\nBAL WAN SINGH v. PRAKASH CHAND (Shinghal, J.) 3 4 7\n\nSingh and Maikoo in the election petition, they were not examined in A defence.", "canonical_name": "Singh"}}, {"text": "Maikoo", "label": "PETITIONER", "start_char": 38716, "end_char": 38722, "source": "ner", "metadata": {"in_sentence": "It may be mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu\n\nBAL WAN SINGH v. PRAKASH CHAND (Shinghal, J.) 3 4 7\n\nSingh and Maikoo in the election petition, they were not examined in A defence.", "canonical_name": "Maikoo"}}, {"text": "Ram Swarup", "label": "WITNESS", "start_char": 38883, "end_char": 38893, "source": "ner", "metadata": {"in_sentence": "It may be mentioned that some witnesses of the election petitioners, namely, Babu Lal (P.W.11), Ram Swarup (P.W.13) and Munshi Lal (P.W.20) named certain persons who, accordmg to them, travelled with them to the polling station Naubasta free of cost."}}, {"text": "Amarpal Singh", "label": "WITNESS", "start_char": 39364, "end_char": 39377, "source": "ner", "metadata": {"in_sentence": "Amarpal Singh (P.W.33) has lated in this connection that ?"}}, {"text": "C Rawatpur", "label": "GPE", "start_char": 39490, "end_char": 39500, "source": "ner", "metadata": {"in_sentence": "e held a diploma in motor mechamsm and was runnmg a repamng shop at C Rawatpur for motors and tractors."}}, {"text": "Rania", "label": "GPE", "start_char": 39634, "end_char": 39639, "source": "ner", "metadata": {"in_sentence": "The appellant was known to him and asked him to do the repair work of the vehicles at the B.K.D. office at Rania for Rs."}}, {"text": "Ram Swarup Sharma", "label": "OTHER_PERSON", "start_char": 39944, "end_char": 39961, "source": "ner", "metadata": {"in_sentence": "Ram Swarup Sharma, D Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairi>lg work as early as possible, and he asked Smt.", "canonical_name": "Ram Swarup Sharma"}}, {"text": "D Babu Singh", "label": "OTHER_PERSON", "start_char": 39963, "end_char": 39975, "source": "ner", "metadata": {"in_sentence": "Ram Swarup Sharma, D Babu Singh and the appellant came there at that time and the appellant asked the witness to complete the repairi>lg work as early as possible, and he asked Smt."}}, {"text": "Naubasta", "label": "OTHER_PERSON", "start_char": 40154, "end_char": 40162, "source": "ner", "metadata": {"in_sentence": "Vimla to send the trctor to Naubasta with Babu Singh for transporting voters."}}, {"text": "Ramesh", "label": "OTHER_PERSON", "start_char": 40249, "end_char": 40255, "source": "ner", "metadata": {"in_sentence": "Witness has stated further that his partner Ramesh was present at that time."}}, {"text": "Ramesh", "label": "WITNESS", "start_char": 40410, "end_char": 40416, "source": "ner", "metadata": {"in_sentence": "He did not examine Ramesh."}}, {"text": "E Uma Shankar", "label": "WITNESS", "start_char": 40419, "end_char": 40432, "source": "ner", "metadata": {"in_sentence": "E Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania."}}, {"text": "Ram Swarup", "label": "OTHER_PERSON", "start_char": 40532, "end_char": 40542, "source": "ner", "metadata": {"in_sentence": "E Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania.", "canonical_name": "Ram Swarup Sharma"}}, {"text": "Amarpal Singh", "label": "OTHER_PERSON", "start_char": 40641, "end_char": 40654, "source": "ner", "metadata": {"in_sentence": "E Uma Shankar (R.W.24) was examined to prove that the appellant did not have any election office at the house of Ram Swarup in Rania and no vehicle of the appellant was repaired there, but he has not stated anything about Amarpal Singh, and it is difficult to place reliance on his statement as he was admittedly a worker of the B.K.D. party in Rania."}}, {"text": "Rangilal", "label": "OTHER_PERSON", "start_char": 42294, "end_char": 42302, "source": "ner", "metadata": {"in_sentence": "Vimla did not even appear as a witness and no attempt was made even to examine the driver of the tractor although the appellant has stated that tractor UPG 9962 was driven by a driver whose name was Rangilal."}}, {"text": "section 123(5)", "label": "PROVISION", "start_char": 43810, "end_char": 43824, "source": "regex", "metadata": {"statute": null}}, {"text": "Ray", "label": "JUDGE", "start_char": 45199, "end_char": 45202, "source": "ner", "metadata": {"in_sentence": "We have also taken notice of the view expressed by Ray C.J. in Smt."}}, {"text": "U .P. Legislative Assembly", "label": "ORG", "start_char": 45733, "end_char": 45759, "source": "ner", "metadata": {"in_sentence": "Mr. Bindra has laid much stress on the fact that the appellant was successful at the election to the U .P. Legislative Assembly from another constituency in 1957, but his election was set aside on the ground, inter alia, that he and/or his election agent and/or other persons with his consent, had committed corrupt practice, including the corrupt practice of hiring a tractor for the conveyance of electors."}}]}
{"document_id": "1976_3_350_355_EN", "year": 1976, "text": "D. D. SURI\n\nA. K. BARREN & ORS.\n\nFebruary 6, 1976\n\n[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA, JJ.] Prerention of Corruption Act, 1947-Sec. 5(2)-All India Services (Disci pline and Appeal) Rules 1955-Rule 7(3)-Suspension order without following ad1ninislrative instructions whether valid-Meaning of investigation-lnquiry\n\nand trial-Whetller suspension co1nes to an end on retiren1ent.\n\nThe appellant was an erstwhile member of the Indian Administrative Service in the cadre of the State of Orissa.\n\nAt the relevant time in the year 1967, he \\Vas serving as Commissioner of Land Reforms, Orissa. According to the appellant he had disputes, differences and animosity with respondent No. 1, the Chief Secretary to the Government of -Orissa and respondent No. 2 who was at . the relevant time Director of Vigilance and Additional Secretary to the Government of Orissa. The First Information Report was lg1d again~ t the appellant under s. 5(2) of the Prevention of Corruption Act, 1_947, on 24·11-1967. The appellant's house was searched on 27·11-1967. An order_of suspension \\Vas made against the appellant by the Government of Orissa 'on 28-11-1967 under rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955.\n\nThe Writ Petition file<l by the appellant against his order of suspension and investigation was dismissed by the High Court in lirnine.\n\nThis Court allowed an appeal filed by special leave by the appellant against the High Court judgment and directed the High Court to admit and dispose of the petition in accordance with law.\n\nThe State Government approached the Central Government to accord sanctiori for prosecution of the appellant. In spite of reminders, the Central Government neither accorded the sanction nor refused it. Appellant was compu '.-\n\ns~1rily retired by the Govrnment in 1971.\n\nThereafter, charge-sheet was submitted against him in the Court of the Special Judge, Sambalpur. The trial concluded but becaus~ of the stay order passed by this Court judgn1ent could not be delivered. Against the order of the compulsory retirement, the appe11ant filed a writ petition in the Delhi High Court which was dismissed by a learned single Judge and against which a Letters Patent appeal is pending. 'rhe Orissa High Court dismissed the writ petition of the appellant on the ground of it having become inftuctuous since the appellant was no longer in suspension since he \\Vas compulsorily retired. The High Court also did not think it necessary to examine the legality of the investigation against the appeliant as chargesheet had already been submitted. In an appeal by special leave the appellant contended : The suspension order may be quashed on the following grounds :\n\n(1) It was passed without follov; iing the various Governmental instructions on the point.\n\n(2) The order \\Vas in violation of rule 7 (3).\n\n(3) The order was malafide.\n\nHELD : ( 1) It is true that all the instructions contained in the circulars issued by the Central Government do not seem to have been strictly followed.\n\nThat would, however, not invalidate or nullify the order of suspension made under rule 7 (3). In dealing with the cases of high officers of the Administrative Service care ought to have been taken to follow the instructions as far as possible.\n\nOn the facts of the present case. however. failure to follow the instructions fully~ does not render the order of suspension per se invalid. [353GHl\n\n(2) Under rule 7 (3) a member of the Service in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is pending, may at the discretion of the Government be placed under suspension. The\n\nexpression in\\'estigation. enquiry and trial are well known in the realn1 of the criminal Jw under the Criminal Procedure Code.\n\nIn the present cas~, the rirst Information Report was lodged and the search warrats were. issued before the sust'fension orders were passed.\n\nMost of the .allegations. against te appellant \\\\'ere in relation to his alleed acts of corruption. ad misuse o[ his official position.\n\nWhether the allegations are true or false 1s irrelevant. Order under rule 7<)) was, therefore, legal and valid.\n\n[354A-E]\n\n(3) The suspension order came to an end by the compulsory retirement of B the appellant. 1\\fter retirement from servic~ e could no longer be deeed to be under susriension.\n\nSince we are remitting the case back to the Hrgh\n\nCoirt we permit the appellant to raise the question of his salary and emoluments during the suspension period th be raised in the High Court. The counsel for the appellant, however, assured this Court that if .the appellant would be exonera', ed of the charges levelled against him and acquitted in the criminal proceedings the State Governn1ent would pay him his full pay and allowances for the periDd of suspension.\n\n[354G-H, 3558-C]\n\n(4) \\Ve do not think it advisable to decide the point of malafide in the C absence of the judgment in the criminal cases.\n\nSince the two matters are so interwoven and interconnected that !t \\vould be exoedient for the High Court to decide this issue after the Judgment is delivered in the criminal trial.\n\n[3550-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 292 of 1973. (Appeal by special leave from the judgment and order dated the 0 25-4-1972 of the Orissa Hig_h Court of Judicature at Cuttack in 0.J.C. No. 82 of 1968).\n\nS. N. Andley and A. Subbarao for the appellant.\n\nM. C. Blumdare and B. Parthasarathi for respondent No. 3.\n\nM/s. S. N. Prasad and Girish Chandra for respondent No. 4.\n\nThe Judgment of the Court was delivered by E\n\nUNTWALIA, J.-The appellant in this appeal by special leave is Shri D. D. Suri-an erstwhile member of the Indian Administrative\n\nService in the cadre of the State of Orissa.- Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of Orissa at the relevant time was impleaded as respondent no. l. He died during the pendency of this appeal.\n\nTherefore, his name is directed to be expunged.\n\nFor F the sake of convenience, however, he will be referred to hereinafter in this judgment as respondent no. l. Shri S. K. Ghosh, l.P .S. respondent no. 2 was at the relevam time Director of Vigilance and Additional Secretary to the Government of Orissa in the Political arid Services Department.\n\nHe has since retired and no notice of this appeal could be served on him.\n\nEven so the appeal proceeded to hearing as for the disposal of this appeal, his appearance was n6t necessary. The G State of, Orissa is respondent no. 3, and the Government of India is respondent number 4.\n\nRespondents 5 and 7 are other officers of the Government of Orissa.\n\nIt is an unfortunate protracted litigation with a chequered history.\n\nYet we do not find it possible to bring it to conclusion by onr judgment.\n\nThe appellant was appointed to the Indian Administrative Service and joined as an Additional District Magistrate in the State of Orissa in November, 1950.\n\nAccording to hiS'case dne to some actions which he took against some big political persons, he incurred their displeasure\n\nin the year 1952.\n\nSometime after he came on deputation to the centre but went back to Orissa in April, 1965. At the relevant time in the year 1967 he was serving as Commissioner of Land Reforms, Orissa.\n\nAccording to his case he had disputes, differences and animosity with respondent no. 1 and later with respondent no. 2 also.\n\nThe appellant by stating very many facts, which are not necessary to be enumerated in this judgment endeavoured to make out a case of male fides against respondents l and 2 and asserted that he was put to trouble and unwarranted and illegal actions were taken against him by or at the instance of respondents 1 and 2.\n\nA First Information Report was lodged and Sambalpur Vigilance P.S. Case No. 23/1967 was instituted against the appellant on November 24, 1967 under section 5(2) of the Prevention of Corruption Act, 194 7.\n\nAn application for search warrant was made before the Additional District Magistrate, Sambalpur on the same date i.e. 24-11-1967 and a search warrant was issued.\n\nThe appellant's house at Cuttack was searched on and after 27-11-1967.\n\nAn order of suspension was made against the appellant by the Government of Orissa on the 28th November, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955-hereinafter referred to as the Rules.\n\nThe appellant filed a writ petition (OJC 8211968) in the Orissa High Court in January, 1968 to challenge the order of suspension and the investigation made and proceeded against him.\n\nThe writ application was dismissed by the Orissa High Court in limine.\n\nCivil Appeal No. 679 /70 filed by special leave against the order of the OriSsa High Court was allowed by this Court on 22-10-1970.\n\nThe writ application was directed to be admitted and disposed of in accordance with law.\n\nCertain subsequent developments and events are necessary to be noted.\n\nThe State Government moved the Central Government on November 23, 1968 after stating the facts in detail to accord sanction for prosecution of the appellant as the materials collected during investigation revealed a prima facie case in relation to the charges of corruption and misuse of his official position by the appellant.\n\nIn spite of reminders the Central Government rieitber accorded sanction for tbe prosecution of the appellant nor refused it.\n\nWithout sanction of the Central Government no Charge-Sheet could be submitted against the appellant for his prosecution so long he remained in government service.\n\nIt seems, however, that the appellant was compulsorilv retired by the appropriate government on June 9,\n\n1971. Thereafter on November 8, 1971 Charge-Sheet was submitted against him in the Court of the Special Judge, Sambalpur.\n\nIn Transfer Petition No. 2/73 this Court transferred the case to the file of another Special Judge.\n\nOn the splitting up of the original case the trial of several cases proceeded against the appellant in the Court of the Special Judge.\n\nThe trial concluded but because of the stay order passed by this Court,\n\njudgment could not be delivered until the disposal of this appeal and LPA 3/73 pending in the Delhi High Court.\n\nAgainst the order of compulsory retirement, the appellant fifed a wrii petition in the Delhi\n\nHigh Court.\n\nIt was dismissed by a learned single Judge on Novem- A ber 16, 1972.\n\nLPA 3/73 is directed against the said order of dismissal.\n\nA Bench of the Orissa High Court by its order :lated chc 25th April, 1972, the order under appeal, has again dismissed the writ petition (OJC 82/1968) as being infructuous. It has taken the view that since the appellant has already retired from service he is no longer B under suspension.\n\nTherefore, the legality of the suspension order is not necessary to be examined.\n\nNor did the High Court think it necessary t_o examine the legality of ilie investigation against the appellant as Charge-Sheet had _already been submitted.\n\nMr. S. N. Andley, learned counsel for the appellant asked us to quash the suspension order and strenously urged the following three grounds :\n\n(I) That it was passed without taking the various preliminary steps of preliminary enquiry or investigation as was necessary to be done in view of the various governmental instructions.\n\n(2) That the order was not warranted by and was in violation of Rule 7 (3) of the Rules.\n\n( 3) That the charges levelled against the appellant were all baseless, frivolous and false.\n\nThey were levelled and the suspension order was made mala fide.\n\nIn support of the first submission our attention was drawn to the various executive instructions issued by the Central Government as also the State Government of Orissa to show as to how and in what manner preliminary steps had to be taken and enquiry made by the governmental authorities concerned before putting a government ser\n\nvant and especially a member of the Administrative Service under suspension.\n\nCounsel submitted that nothing was done in accordance with those instructions before the lodging of the First Information Report on November 24, 1967. The action was taken male fide in all haste without observing the requirements of the law as contained in the executive instructions.\n\nOn the other hand, Mr. M. C.\n\nBhandare, counsel for the Government of Orissa pointed out that the Vigilance Department of the State Government had made preliminary enquiries and then taken action. We do not consider it necessary to discuss in any detail or record any definite finding one way or the other in respect of this bone of contention between the parties.\n\nWe may only observe that all instructions contained in the various letters and circulars of the Central Government do not seem to have been strictly followed.\n\nBut that will not invalidate or nullify the order of suspension made under Rule 7(3) of the Rules.\n\nIn dealing with the. cases of high officers of the Administrative Service, care ought to have been taken to follow the instructions as far as possible.\n\nYet on the facts of this case we are not prepared to hold that failure to follow the instructions fully, per-se, made the order of suspension invalid.\n\nSub-rule 1 of Rule 7 of the Rules provides for the placing under suspension a member of the service against whom any disciplinary proceedmg has been initiated.\n\nUnder that sub-rule without the initiation of the disciplinary proceeding an order of suspension could not be made.\n\nUnder sub-rule 2 a member of the service who is detained in official custody for a period longer than 48 hours is to be deemed to have been suspended by the government concerned.\n\nWe shall now read sub-rule 3 of Rule 7.\n\n'A member of the Service in respect of, or against whom. an investigation, inquiry, or trial relating to a criminal charge is pending, may, at the discretion of the Govermnent under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves _moral turpitude.\"\n\nUnder the sub-rule aforesaid it is clear that a member of the service can be placed under suspension if against him an investigation, inquiry or trial relating to criminal chages is pending.\n\nThe expression 'investigation', 'inquiry', or 'trial' are we11-kno\\vn in the realm of the criminal Jaw under the Code of Criminal Procedure.\n\nIn the instant case when a First Information Report was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house, investigation within the meaning of Rule 7 (3) became pending on and from November 24, 1967.\n\nThe suspension order, therefore, made on November 28, 1967 was well within the ambit of the power of the government under the said provision of law. Most of the charges levelled against the appellant, and at this stage, we do not know whether they were right or wrong, true or false, were in relation to his alleged acts of corruption and misuse of his official position.\n\nIn our view the making of the suspension order against the appellant under rule 7(3) of the Rules was legal and valid.\n\nBut did it come to an end, if so, when? The rule provides that the suspension order may last \"until the termination of all proceedings relating to\" the charges.\n\nAppellant's counsel submitted that, as mentioned in one of the letters of the State Government to the Central Government, the investigation was complete on November 23, 1968, hence on the termination of the investigation the suspension order terminated.\n\nWe have no difficulty in rejecting this argument as unsound.\n\nUnder rule 7 (3) the suspension order can be made to continue until the terminanation of all proceedings viz. investigation, inquiry or trial which may follow the investigation.\n\nStrictly speaking, the investigation could not be said to be complete until the submission of the Charge-Sheet.\n\nFactual completion of the investigation in November, 1968 did not terminate all proceedings in relation to the charges levelled against the appellant.\n\nBut obviously the suspension order came to an end by the compulsory retirement of the appellant.\n\nAfter retirement from service he could no longer be deemed to be under suspension.\n\nDuring the hearing of the appeal and in view of certain new stands A taken in the , petition filed in this Court by the appellant, an interesting point cropped up and that is this.\n\nWhat was the effect of the appellant's compulsory retirement on his suspension ? He was not prosecuted before his retirement. What is to be the effect of his retirement on the appellant's pay and allowances for the period of his suspension viz. between November 28, 1967 and June 9, 1971.\n\nDoes rule 9 of the Rules cover the appellant's case? If so, is he entitled to an order B in his favour for paying him full pay and allowances for the said period because he was maoe to compufsorily retire without any stigma and not by way of punishment? We did not feel persuaded to decide this aspect of the matter for the first time in this appeal.\n\nSince we are remitting the case back to the High Court, we permit the appellant to raise this point there, if necessary, by amendment of his writ petition.\n\nWe may, however, hasten to add that the counsel for the State of C Orissa assured us that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings, then the State Government will pay him his full pay and allowances for the period of his suspension.\n\nEvidence at the trial is over and only the judgment has to be delivered.\n\nWithout the aid of the jucfgment in the criminal cases, we did D not find it advisable or possible to decide the third point urged on behalf of the appellant.\n\nOn the materials in the records of this case, it will not be possible to say that the charges levelled against the appellant were false and that action was 'taken against him mala fide.\n\nThe two matters are so interwoven and interconnected that we think it expedient to leave the matter for a fresh decision by the High Court after the judgment is delivered at the criminal trial which is already E concluded.\n\nWe vacate the order of stay made by this Court and direct the Trial Judge to deliver his judgment without any further delay.\n\nThe High Court, if necessary, will'go into the question of mala fides when the case goes back to it on remand and it will do so taking note, inter alia, of the judgment in the crffitinal cases.\n\nNothing we have said in this judgment is meant to prejudice either F party in the disposal of the letters patent appeal pending in the Delhi High Court in which the appellant is persuing his challenge to the order of his compulsory retirement.\n\nBut it will he desirable, may, necessary to dispose of LPA 3/1973 pending in the Delhi High Court at a very early date so that the judgment may be made use of by either party, if necessary, in the Orissa High Conrt in aid of the disposal of the case being remitted back by us to that court G\n\nIn the result we allow this appeal, set aside the order of the High Court, remit the case back to it for fresh disposal in the light of this judgment.\n\nWe make no order as to costs.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 50, "entities": [{"text": "D. D. SURI", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "D. D. SURI", "offset_not_found": false}}, {"text": "A. K. BARREN & ORS", "label": "RESPONDENT", "start_char": 12, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "A. K. BARREN & ORS", "offset_not_found": false}}, {"text": "February 6, 1976", "label": "DATE", "start_char": 33, "end_char": 49, "source": "ner", "metadata": {"in_sentence": "February 6, 1976\n\n[V. R. KRISHNA IYER, A. C. GUPTA AND N. L. UNTWALIA, JJ.]"}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 52, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 72, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Prerention of Corruption Act, 1947", "label": "STATUTE", "start_char": 109, "end_char": 143, "source": "regex", "metadata": {}}, {"text": "Sec. 5(2)", "label": "PROVISION", "start_char": 144, "end_char": 153, "source": "regex", "metadata": {"linked_statute_text": "Prerention of Corruption Act, 1947", "statute": "Prerention of Corruption Act, 1947"}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 941, "end_char": 948, "source": "regex", "metadata": {"linked_statute_text": "Prerention of Corruption Act, 1947", "statute": "Prerention of Corruption Act, 1947"}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 956, "end_char": 984, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "28-11-1967", "label": "DATE", "start_char": 1145, "end_char": 1155, "source": "ner", "metadata": {"in_sentence": "An orderof suspension \\Vas made against the appellant by the Government of Orissa 'on 28-11-1967 under rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955."}}, {"text": "Central Government", "label": "ORG", "start_char": 1600, "end_char": 1618, "source": "ner", "metadata": {"in_sentence": "The State Government approached the Central Government to accord sanctiori for prosecution of the appellant."}}, {"text": "Court of the Special Judge, Sambalpur", "label": "COURT", "start_char": 1891, "end_char": 1928, "source": "ner", "metadata": {"in_sentence": "Thereafter, charge-sheet was submitted against him in the Court of the Special Judge, Sambalpur."}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 2126, "end_char": 2142, "source": "ner", "metadata": {"in_sentence": "Against the order of the compulsory retirement, the appe11ant filed a writ petition in the Delhi High Court which was dismissed by a learned single Judge and against which a Letters Patent appeal is pending. '"}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 2248, "end_char": 2265, "source": "ner", "metadata": {"in_sentence": "rhe Orissa High Court dismissed the writ petition of the appellant on the ground of it having become inftuctuous since the appellant was no longer in suspension since he \\Vas compulsorily retired."}}, {"text": "Jw under the Criminal Procedure Code", "label": "STATUTE", "start_char": 3751, "end_char": 3787, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 5168, "end_char": 5196, "source": "ner", "metadata": {"in_sentence": "[3550-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 5382, "end_char": 5394, "source": "ner", "metadata": {"in_sentence": "S. N. Andley and A. Subbarao for the appellant.", "canonical_name": "S. N. Andley"}}, {"text": "A. Subbarao", "label": "LAWYER", "start_char": 5399, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "S. N. Andley and A. Subbarao for the appellant."}}, {"text": "C. Blumdare", "label": "LAWYER", "start_char": 5434, "end_char": 5445, "source": "ner", "metadata": {"in_sentence": "M. C. Blumdare and B. Parthasarathi for respondent No."}}, {"text": "B. Parthasarathi", "label": "LAWYER", "start_char": 5450, "end_char": 5466, "source": "ner", "metadata": {"in_sentence": "M. C. Blumdare and B. Parthasarathi for respondent No."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 5495, "end_char": 5507, "source": "ner", "metadata": {"in_sentence": "M/s. S. N. Prasad and Girish Chandra for respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 5512, "end_char": 5526, "source": "ner", "metadata": {"in_sentence": "M/s. S. N. Prasad and Girish Chandra for respondent No."}}, {"text": "E\n\nUNTWALIA", "label": "JUDGE", "start_char": 5593, "end_char": 5604, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by E\n\nUNTWALIA, J.-The appellant in this appeal by special leave is Shri D. D. Suri-an erstwhile member of the Indian Administrative\n\nService in the cadre of the State of Orissa.- Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of Orissa at the relevant time was impleaded as respondent no."}}, {"text": "D. D. Suri", "label": "LAWYER", "start_char": 5663, "end_char": 5673, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by E\n\nUNTWALIA, J.-The appellant in this appeal by special leave is Shri D. D. Suri-an erstwhile member of the Indian Administrative\n\nService in the cadre of the State of Orissa.- Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of Orissa at the relevant time was impleaded as respondent no.", "canonical_name": "D. D. SURI"}}, {"text": "A. K. Barren", "label": "LAWYER", "start_char": 5775, "end_char": 5787, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by E\n\nUNTWALIA, J.-The appellant in this appeal by special leave is Shri D. D. Suri-an erstwhile member of the Indian Administrative\n\nService in the cadre of the State of Orissa.- Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of Orissa at the relevant time was impleaded as respondent no.", "canonical_name": "A. K. BARREN & ORS"}}, {"text": "S. K. Ghosh", "label": "RESPONDENT", "start_char": 6112, "end_char": 6123, "source": "ner", "metadata": {"in_sentence": "l. Shri S. K. Ghosh, l.P .S. respondent no."}}, {"text": "G State of, Orissa", "label": "PETITIONER", "start_char": 6482, "end_char": 6500, "source": "ner", "metadata": {"in_sentence": "The G State of, Orissa is respondent no."}}, {"text": "Government of India", "label": "RESPONDENT", "start_char": 6530, "end_char": 6549, "source": "ner", "metadata": {"in_sentence": "3, and the Government of India is respondent number 4."}}, {"text": "Government of Orissa", "label": "ORG", "start_char": 6621, "end_char": 6641, "source": "ner", "metadata": {"in_sentence": "Respondents 5 and 7 are other officers of the Government of Orissa."}}, {"text": "Orissa", "label": "GPE", "start_char": 6918, "end_char": 6924, "source": "ner", "metadata": {"in_sentence": "The appellant was appointed to the Indian Administrative Service and joined as an Additional District Magistrate in the State of Orissa in November, 1950."}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 7866, "end_char": 7878, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 7886, "end_char": 7914, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Additional District Magistrate, Sambalpur", "label": "COURT", "start_char": 7978, "end_char": 8019, "source": "ner", "metadata": {"in_sentence": "An application for search warrant was made before the Additional District Magistrate, Sambalpur on the same date i.e. 24-11-1967 and a search warrant was issued."}}, {"text": "28th November, 1967", "label": "DATE", "start_char": 8248, "end_char": 8267, "source": "ner", "metadata": {"in_sentence": "An order of suspension was made against the appellant by the Government of Orissa on the 28th November, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955-hereinafter referred to as the Rules."}}, {"text": "OriSsa High Court", "label": "COURT", "start_char": 8714, "end_char": 8731, "source": "ner", "metadata": {"in_sentence": "679 /70 filed by special leave against the order of the OriSsa High Court was allowed by this Court on 22-10-1970."}}, {"text": "22-10-1970", "label": "DATE", "start_char": 8761, "end_char": 8771, "source": "ner", "metadata": {"in_sentence": "679 /70 filed by special leave against the order of the OriSsa High Court was allowed by this Court on 22-10-1970."}}, {"text": "November 23, 1968", "label": "DATE", "start_char": 8988, "end_char": 9005, "source": "ner", "metadata": {"in_sentence": "The State Government moved the Central Government on November 23, 1968 after stating the facts in detail to accord sanction for prosecution of the appellant as the materials collected during investigation revealed a prima facie case in relation to the charges of corruption and misuse of his official position by the appellant."}}, {"text": "June 9,\n\n1971", "label": "DATE", "start_char": 9650, "end_char": 9663, "source": "ner", "metadata": {"in_sentence": "It seems, however, that the appellant was compulsorilv retired by the appropriate government on June 9,\n\n1971."}}, {"text": "November 8, 1971", "label": "DATE", "start_char": 9679, "end_char": 9695, "source": "ner", "metadata": {"in_sentence": "Thereafter on November 8, 1971 Charge-Sheet was submitted against him in the Court of the Special Judge, Sambalpur."}}, {"text": "Delhi\n\nHigh Court", "label": "COURT", "start_char": 10292, "end_char": 10309, "source": "ner", "metadata": {"in_sentence": "Against the order of compulsory retirement, the appellant fifed a wrii petition in the Delhi\n\nHigh Court."}}, {"text": "Novem- A ber 16, 1972", "label": "DATE", "start_char": 10358, "end_char": 10379, "source": "ner", "metadata": {"in_sentence": "It was dismissed by a learned single Judge on Novem- A ber 16, 1972."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 10974, "end_char": 10986, "source": "ner", "metadata": {"in_sentence": "Mr. S. N. Andley, learned counsel for the appellant asked us to quash the suspension order and strenously urged the following three grounds :\n\n(I) That it was passed without taking the various preliminary steps of preliminary enquiry or investigation as was necessary to be done in view of the various governmental instructions.", "canonical_name": "S. N. Andley"}}, {"text": "State Government of Orissa", "label": "ORG", "start_char": 11691, "end_char": 11717, "source": "ner", "metadata": {"in_sentence": "In support of the first submission our attention was drawn to the various executive instructions issued by the Central Government as also the State Government of Orissa to show as to how and in what manner preliminary steps had to be taken and enquiry made by the governmental authorities concerned before putting a government ser\n\nvant and especially a member of the Administrative Service under suspension."}}, {"text": "November 24, 1967", "label": "DATE", "start_char": 12091, "end_char": 12108, "source": "ner", "metadata": {"in_sentence": "Counsel submitted that nothing was done in accordance with those instructions before the lodging of the First Information Report on November 24, 1967."}}, {"text": "M. C.\n\nBhandare", "label": "OTHER_PERSON", "start_char": 12268, "end_char": 12283, "source": "ner", "metadata": {"in_sentence": "On the other hand, Mr. M. C.\n\nBhandare, counsel for the Government of Orissa pointed out that the Vigilance Department of the State Government had made preliminary enquiries and then taken action."}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 14438, "end_char": 14464, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "November 28, 1967", "label": "DATE", "start_char": 14767, "end_char": 14784, "source": "ner", "metadata": {"in_sentence": "The suspension order, therefore, made on November 28, 1967 was well within the ambit of the power of the government under the said provision of law."}}, {"text": "June 9, 1971", "label": "DATE", "start_char": 16781, "end_char": 16793, "source": "ner", "metadata": {"in_sentence": "between November 28, 1967 and June 9, 1971."}}, {"text": "State of C Orissa", "label": "GPE", "start_char": 17361, "end_char": 17378, "source": "ner", "metadata": {"in_sentence": "We may, however, hasten to add that the counsel for the State of C Orissa assured us that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings, then the State Government will pay him his full pay and allowances for the period of his suspension."}}]}
{"document_id": "1976_3_356_359_EN", "year": 1976, "text": "STATE OF MADRAS v.\n\nA. M. NANJAN AND ANR.\n\nFebruary 9, 1976\n\n[P. K. GOSWAMI AND s. MuRTAZA FAZAL Au, JJ.]\n\nLand Acquisition Act, 1894-Section 23-Compensation-Quantum of- Increasing the an1ount of con1pe11sation appreciating the evidence oral and documentary, the admitted rise of prices of land,• the advantages and facilities of the land lvith reference to its location etc. is within the well recognised 4 principles of fixing the con1pensation and is not based on speculation or con ; ecture-Awards for otherlands are in the nature of admission of the value of the land and admissible in evidence.\n\nIn respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydroelectric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs. 500 /- per acre as against its purchase price of Rs. 230/- per acre in February 1951; but on a reference the Subordinate Judge raised it to Rs. 1800/- per acre. On appeals by the Appellant/State and the Respondent/Claimant, while dismissing the State appeal and partly allowing the respoftdent's appeal, the High Court of Madras by its common judgment raised the rate of compensation to Rs. 3000/- per acre.\n\nIn the two appeals by certificate, the appellant State contended (i) that raising the rate of compensation was without any basis and merely on speculation, (ii) that the rates at which the adjoining lands were sold for house sites cannot be safe-guides; (iii) that allowing flat rate of Rs. 3000/- per acre without due regard to the quality or classification of the land is bad in principles of fixing con1pe•sation.\n\nNegativing the contentions of the State and dismissing the apj, eals, the Court\n\nHELD ; (I) The awards given by the Land Acquisition Collector are at least relevant material and may be in the nature of admission \\N'ith regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proxiriiity of the acquired land, the rates fund iil the said documents \\vould be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards can be taken as safe guides, and are admissible in evidence for the determination of con1pensation.\n\n[358EFJ\n\n(2) In the instant case, from an exan1ination of the evidence and the documents and having regard to the location, advantages and facilities of the lnnd and the admitted rise of price of the land between the years 1951 and 1957, it cannot be said that the High Court either departed from any well recognised prin.:iple in determining or comn1itted an error in raising the amourit of compensation.\n\n[359A-B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1212 and 1213 of 1968.\n\nFrom the Judgment and Decree dated 2-5-1960 of the Madras High Court in Appeals Nos. ZO and 61 of 1960.\n\nH Lal Narain Sinha, Solicitor General, A. V. Rangam and Miss A.\n\nSubhashini for the Appellant.\n\nM. Natesan and Mrs. S. Gopalakrishnan for Respondents.\n\nMADRAS v. A. M. NANJAN (Goswumi, !.) 357\n\nThe Judgment of the Court was delivered by\n\nGosWAMI, J.-The only question that arises for consideration in these appeals by certificate of the High Court of Judicature at Madras relates to the quantum of compensation with regard to acquisition of 18.34 acres of land in Mulligoor village, Nilgiris District, belonging to the respondents.\n\nThe land in question was acquired for the purpose of a hydroelectric scheme at Kundah.\n\nA Notification under section 4(1) of the Land Acquisition Act, 1S94, was allfy published on May 1, 1957.\n\nThis land was purchased by the respondents' father by a sale deed (Ext. B-1) of February 22; 1951, for a consideration of Rs. 4218/4/- from the Nilgiris Wattle Plantations Limited.\n\nThe rate at which this purchase was made was Rs. 230/- per acre. The Collector awarded compensation at the rate of Rs. 500/- per acre.\n\nOn a reference at the instance of the claimants (respondents herein) the Subordinate Judge raised the compensation to Rs. 1800/- per acre.\n\nThe State as well as the claimants appealed to the High Court against the judgment and decree of the Subordinate Judge.\n\nBy a common judgment the High Court dismissed the State's appeal and partly allowed the claimants' appeal by raising the rate of compensation to Rs. 3000/- per acre.\n\nThat is how the two appeals are filed by the State with certificate from the High Court.\n\nThe learned Solicitor General appearing on behalf of the State submits that the High Court erred in law in raising the rate of compensation without any basis and merely on speculation.\n\nHe particularly draws our attention to an observation of the High Court in the E judgment to the effect :\n\n\" . . . the Court has ncessarily to speculate as to how much the value has increased.\n\nSometimes the Court is obliged to indulge in fair measure of conjecture in regard to the fixation of values . ..... \"\n\nHowever, when we read the entire obscr,·::Jion of the High Court with regard to the aspect of compensation we are unable to hold that the High Court based the compensation on mere speculation or conjecture.\n\nThe High Court has clearly observed that:_\n\n\" ...... fortunately in this case our decision need not depend upon mere speculatiOll Q!C conjecture as there are materials which as far as possible afford a correct basis for fixing the approximate market value\".\n\nThe learned Solicitor General next draws our attention to the various sale deeds produced in the case and took objection to the High Court's placing undue importance on two awards (Exts. B-1 O and B-11) dated September 27, 1956 and March 30, 1957, respectively.\n\nAccording to the learned Solicitor General these two awards are with regard to land at a place called Kil Kundah about ten miles from the H acquired land and cannot be said to be comparable land for the purpose ef assessment of compensation.\n\nAccording to the first award\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\n(B-10) the rate per acre was Rs. 3000/- and according to tbe second one (B-11) the rate awarded was Rs. 5263/- per acre.\n\nHe also submits that the Sale deed (Ext. A-7) of September 27, 1955, which appertains to land in the identical village Mulhgoor and which shows tbe consideration of Rs. 5000/- for one acre of land should not have been taken as a guide in view of the fact that the area was small with a large number of wattle trees and it was a speculative tn\\Rsaction.\n\nThere are three other sale deeds which the High Court took into consideration, namely, Exts.\n\nA-8, A-9 and A-10 which were transactions between March 1956 and June 1950. The land involved in these transactions was situated in Bikatti village about fou:· miles from the acquired land.\n\nThe village itself is only 2 to 4 furlongs from Mulligoor.\n\nThe rate per acre for these lands in 1956 was Rs. 6000/-.\n\nThe learned Solicitor General submits that these lands were sold as house sites and therefore cannot be safe-guides for the type of the land acquired.\n\nThe learned Solicitor General also objected to the flat rate of Rs. 3000/- granted by the High Court\" without due regard to the quality or classification of the land.\n\nHe points out that even in the award Ext. B-10 all the lands were not priced at the same rate per acre.\n\nThe rates varied from \"Rs. 3001to Rs. 5263 /- per acre considering the fertility of the soil of the fields, their location, importance and registration statistics .... \". Even so, the Land Acquisitlon Officer fixed the value of the land at Rs. 3000/-per acre in th: <tiJ '•ward taking into consideration several sale deeds.\n\nHe even fixed Rs. 5000/- per acre for .30 acres of land having regard to the bona fide sale transaction of a portion of the land covered by the same\n\nr, urvey number.\n\nWe are unable to accept the submission that the awards in question cannot be taken as safe-guides in the matter of determination of compensation.\n\nAs a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date.\n\nThe awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation.\n\nMr. N atesan, learned counsel for the respondents. bas taken us through the evidence of the witnesses examined on behalf of the appellant and we find from a perusal of. the same tha.t the High Court cannot be said to take an erroneous view when 1t observed as follows:-\n\n\"But witnesses examined on the side of the Government have admitted that even close to Survey No. 9 I I the acquired land, there are facilities like bus-stop~, shops et?.\n\nFrom the evidence it is fairly clear that Mulhgoor area 1s not less prominent than Kil-Kundah or iatti area ..... .\n\nKil-Kundah, Bikatti and Mulligoor are withm short distance\n\nMADRAS v. A. M. NANJAN (Goswami, /.) 359\n\nof one another and, it would not be proper to weigh the comparative value of the lands in the locality on delicate scales. It could reasonably be said that they are all of about equal value\".\n\nWe are satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/- per acre in this case.\n\nWe are also satisfied that the High Court has not departed from any wellrecognised principles in determining the compensation.\n\nIn the result !he appeals fail and are dimissed with one set of costs.\n\nS. R.\n\nAppeals dismissed.", "total_entities": 27, "entities": [{"text": "STATE OF MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADRAS", "offset_not_found": false}}, {"text": "A. M. NANJAN AND ANR", "label": "RESPONDENT", "start_char": 20, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "A. M. NANJAN AND ANR", "offset_not_found": false}}, {"text": "February 9, 1976", "label": "DATE", "start_char": 43, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "February 9, 1976\n\n[P. K. GOSWAMI AND s. MuRTAZA FAZAL Au, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 62, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 107, "end_char": 133, "source": "regex", "metadata": {}}, {"text": "Section 23", "label": "PROVISION", "start_char": 134, "end_char": 144, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "Mulligoor village", "label": "GPE", "start_char": 642, "end_char": 659, "source": "ner", "metadata": {"in_sentence": "In respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydroelectric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs."}}, {"text": "Nilgiris District", "label": "GPE", "start_char": 661, "end_char": 678, "source": "ner", "metadata": {"in_sentence": "In respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydroelectric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs."}}, {"text": "Kundah", "label": "GPE", "start_char": 781, "end_char": 787, "source": "ner", "metadata": {"in_sentence": "In respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydroelectric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 1167, "end_char": 1187, "source": "ner", "metadata": {"in_sentence": "On appeals by the Appellant/State and the Respondent/Claimant, while dismissing the State appeal and partly allowing the respoftdent's appeal, the High Court of Madras by its common judgment raised the rate of compensation to Rs."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2877, "end_char": 2894, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Decree dated 2-5-1960 of the Madras High Court in Appeals Nos."}}, {"text": "H Lal Narain Sinha", "label": "LAWYER", "start_char": 2931, "end_char": 2949, "source": "ner", "metadata": {"in_sentence": "H Lal Narain Sinha, Solicitor General, A. V. Rangam and Miss A.\n\nSubhashini for the Appellant."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 2970, "end_char": 2982, "source": "ner", "metadata": {"in_sentence": "H Lal Narain Sinha, Solicitor General, A. V. Rangam and Miss A.\n\nSubhashini for the Appellant."}}, {"text": "A.\n\nSubhashini", "label": "LAWYER", "start_char": 2992, "end_char": 3006, "source": "ner", "metadata": {"in_sentence": "H Lal Narain Sinha, Solicitor General, A. V. Rangam and Miss A.\n\nSubhashini for the Appellant."}}, {"text": "M. Natesan", "label": "LAWYER", "start_char": 3027, "end_char": 3037, "source": "ner", "metadata": {"in_sentence": "M. Natesan and Mrs. S. Gopalakrishnan for Respondents."}}, {"text": "S. Gopalakrishnan", "label": "LAWYER", "start_char": 3047, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "M. Natesan and Mrs. S. Gopalakrishnan for Respondents."}}, {"text": "GosWAMI", "label": "JUDGE", "start_char": 3169, "end_char": 3176, "source": "ner", "metadata": {"in_sentence": "357\n\nThe Judgment of the Court was delivered by\n\nGosWAMI, J.-The only question that arises for consideration in these appeals by certificate of the High Court of Judicature at Madras relates to the quantum of compensation with regard to acquisition of 18.34 acres of land in Mulligoor village, Nilgiris District, belonging to the respondents."}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 3573, "end_char": 3585, "source": "regex", "metadata": {"statute": null}}, {"text": "May 1, 1957", "label": "DATE", "start_char": 3644, "end_char": 3655, "source": "ner", "metadata": {"in_sentence": "A Notification under section 4(1) of the Land Acquisition Act, 1S94, was allfy published on May 1, 1957."}}, {"text": "Nilgiris Wattle Plantations Limited", "label": "ORG", "start_char": 3802, "end_char": 3837, "source": "ner", "metadata": {"in_sentence": "4218/4/- from the Nilgiris Wattle Plantations Limited."}}, {"text": "September 27, 1956", "label": "DATE", "start_char": 5669, "end_char": 5687, "source": "ner", "metadata": {"in_sentence": "B-1 O and B-11) dated September 27, 1956 and March 30, 1957, respectively."}}, {"text": "March 30, 1957", "label": "DATE", "start_char": 5692, "end_char": 5706, "source": "ner", "metadata": {"in_sentence": "B-1 O and B-11) dated September 27, 1956 and March 30, 1957, respectively."}}, {"text": "Mulhgoor", "label": "GPE", "start_char": 6277, "end_char": 6285, "source": "ner", "metadata": {"in_sentence": "A-7) of September 27, 1955, which appertains to land in the identical village Mulhgoor and which shows tbe consideration of Rs."}}, {"text": "Bikatti village", "label": "GPE", "start_char": 6738, "end_char": 6753, "source": "ner", "metadata": {"in_sentence": "The land involved in these transactions was situated in Bikatti village about fou:· miles from the acquired land."}}, {"text": "Mulligoor", "label": "GPE", "start_char": 6845, "end_char": 6854, "source": "ner", "metadata": {"in_sentence": "The village itself is only 2 to 4 furlongs from Mulligoor."}}, {"text": "N atesan", "label": "OTHER_PERSON", "start_char": 8547, "end_char": 8555, "source": "ner", "metadata": {"in_sentence": "Mr. N atesan, learned counsel for the respondents."}}, {"text": "Bikatti", "label": "GPE", "start_char": 9115, "end_char": 9122, "source": "ner", "metadata": {"in_sentence": "Kil-Kundah, Bikatti and Mulligoor are withm short distance\n\nMADRAS v. A. M. NANJAN (Goswami, /.) 359\n\nof one another and, it would not be proper to weigh the comparative value of the lands in the locality on delicate scales."}}]}
{"document_id": "1976_3_360_364_EN", "year": 1976, "text": "STATE OF PUNJAB AND ANR. v.\n\nIQBAL SINGH\n\nFebruary 12, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]\n\nB f'iiujab ('iiil Service Rules-r. 6.4-Retired Goverrunent servar1t-Pensio11\n\nand death-cum-retiren1e111 gratuitv reduced by Govenunent on the ;::round that service record not satisfactory-Pension, if a bounty paid by Go1'ernmentlf property under Arts 31(1) and 19(1)(/) of the Constifution-lf reasonable oppr, rlunity of 1naking defence should be given before reducing the pension.\n\nConstitution of l ndia-Art. 311 (2 )--Applicability of.\n\nPurporting to act under r. 6.4 of the Puniab Civil Service Rules. the State imposed a cut of 5 per cent on the pension and death-cun1-retirement gratuity of the respondent, who \\Vas a retired government servant, on the ground that his service record was not satisfactory. The High Court allowed the respondent's \\vrit petition challenging the decision of the Governmellt.\n\nDismissing the appeal of the State,\n\nHELD : The ground that superannuation pension is a bounty and is given as an act of grace is not available to the appellant. In Deoki Nandan Prasad\n\nv. The State of Bihm, [197I] Supp. S.C.R. 634, it was held by this Court (1) that pension is not a bounty payable, on the sweet will and pleasure of te (jovernment and the right of a Government servant to receive it is property under Art. 31 ( 1) of the Constitution, and so the State cannot withhold the same by a mere executive order; and (2) the claim to pension is property under Art. 19(1) (f) of the Constitution and is not saved by .cl. (5) of Art. 19.\n\n[362C-D]\n\n(2) Though the impt1gned order imposing the cut in pension and gratuity is not one of reduction in rank falling within the purview of Art. 311 (2), yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasoNable opportunity of making his defence.\n\n[362G]\n\nState of Punjab v. K. R. Erry & Sabha;:: Rai Mehta [19731 2 S.C.R. 405. applied.\n\n(3) M. \\Tarc1.1hnachar '\" The State of Mysore [1960} 1 S.C.R. 981, is inapplicable to this case because the point as to whether an opportunity to show cause was to be afforded to a retired Government servant before applying the cut in his pension in view of the principle.if natural justice of audi alteram partem was never urged or gone into in that case, nor was the question whether pension was a bounty or property arose in that case.\n\n[364 D-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1203 of 1968.\n\nFrom the order dated the 4-4-1967 of the Punjab and Haryana High Court in L.P.A. No. 104 of 1967.\n\n0. P, Sharma, for the appellant.\n\nH. K. Puri and M. C. Dhingra, for the respondent.\n\nThe Jndgment of the Court was delivered by\n\nJASWANT SINGH, J.-This appeal by certificate of fitness granted by the Punjab and Haryana High Court is directed against the judgment dated April 4, 1967 of a Division Bench of that Court passed in Letters Patent Appeal No. 104 of 1967 whereby the judgment and order dated December 19, 1966 of N arula, J. (as he then was) in Civil Writ Petition No. 298 of 1966 was affirmed.\n\nPUNJAB v. IQBAL SINGH (Jaswant Singh, J.) 3 ti l\n\nIt appears that the respondent joined the Punjab Education Department (Class II) Service by direct recruitment as senior lecturer in 1933.\n\nHe was promoted to Punjab Education Service (Class I) on October 1, 1949.\n\nHe was given the selection grade with effect from February 15, 1956 and in due course rose to the position of Director of Public Instruction-cum-Secretary to the Government of Punjab, Education Department.\n\nHe proceeded on leave preparatory to retirement on March 18, 1958, on attaining the age of superannuation. In June, 1961, he received a copy of letter No. 5137- Ed-I-60/9269 dated May 2, 1961 addressed by the Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of super annuation pension and death-cum-retirement gratuity of Rs. 417.02 np. per menscm and Rs. 17,030.25 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol. II read with para 9(1) (a) of the New Pension Rules, 1951. It was stated in the aforesaid letter that personal file of the respondent had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol. II and Government were satisfied that his service record was not satisfactory and a cut of 10% had accordingly been made in the amount of pension and death-cum-retirement gratuity admissible to him.\n\nOn January, 28, 1962, the respondent submitted representa tions to the Chief Minister and Governor of Punjab against the aforesaid decisivn of the Government to apply 10% cut in his pension and death-cum-retirement gratuity but the same proved abortive.\n\nAfter the establishment of the Board set up to examine and remove the grievances in the matters of promotion and fixation of pension etc. of the Gazetted Officers of the Government, the respondent addressed a representation to the said Board on September 14, 1964, against the aforesaid decision of the Government to apply a cut of 10% in his pension and gratuity.\n\nOn November 1. 1965, the respondent received a copy of letter No. EDI-4(64)-65/22436 dated October 21, 1965, addressed_ by the Education Commissioner and Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, intimating that in supersession of the aforesaid letter dated May 2. 1961 of the Punjab Government, it had been decided to grant to the respondent a superannuation pension and death-cum-retirement gratuity of Rs. 440.18 np per mensem and Rs. 18,927.50 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol. II read with para 9(i) (a) of. the New Peru; ion Rules, 1951. In para 3 of the letter, it was reiterated that a cut of 5 % had been made in the pension admissible to the respondent as his service record which had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol. II had not been. satisfactory.\n\nAggrieved by his communieation, the respondent filed m th~ Pun1ab and Haryana High Court at Chandigarh a petition\n\nunc.r Art1cle.s 226 and 227 of the Constitution, being Civil Writ Petition No. 298 of 1966, challenging the aforesaid decision o{ the Punjab Government which was, as already stated, allowed by Narula, J. (as he then was) by his judgment and order dated December 19 1966, following the Fnll Bench Judgment of his Court dated Octobe;\n\n25, 1966, in Civil Writ Petition No. 504 of 1954 entitled Shri K. R.\n\nErry, Retired Superintending Engineer, 45, Cecil Hotel, Simla v.\n\nThe State of Punjab(').\n\nDissatisfied with this judgment and order, the appellants preferred a Letters Patent Appeal, being L. P. A. No.\n\n104 of 1967 which did not meet with success.\n\nThereupon the appellants applied for a certificate under Article 133 of the Constitution which was granted to them.\n\nThis is how the matter is before ns.\n\nAlthough in the grounds of appeal, it has been urged by the appellants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry's( 1) case (supra) is not in accordance with law as superannuation pension is a bonnty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad v. The State of Bihar & Ors. (2) where it was held that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under Article 31 ( 1) of the Constitution and the State cannot withhold the same by a mere executive order. It was further held in that case that the claim to pension was also property under Article 19 ( l) • ( f) of the Constitution and was not saved by clause ( 5) thereof.\n\nThe learned counsel appearing for the appellants has, however, made a feeble attempt to urge that no opportunity to show cause was require<!' to be given to the respondent before passing the order jmposing the cut in his superannuation pension and death-cum-retire,\\P, Mt gratuity under clanses (a) and (b) of rule 6.4 of the I'tibjall \"Civil Service Rules (Pension Rules), as the order W11s'1/lff1administrative order and the case did not fall within th&ripurview of Article 311 (2) of the Constitution. It has-bll<ln further contended by learned counsel for the appellants that U: was the judgment of this Court in M.\n\nNarasimachar v. •The State of Mysore(•), and not the judgment in State of Punjab v. The K. R. Erry & Sobhag Rai Mehta( 4 ) which governed the present case.\n\nWe regret we are unable to accede to these contentions.\n\nThough the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling .within the purview of Article 311\n\n(2) yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.\n\nReference in this connection may be made with advantage to the decision of this Court\n\nin K. R. Erry & Sobhag Rai Mehta's case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows :-\n\n\"Where a body or authority is judicfa.I or where it has to determine a matter involviffg rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See : Province of Bombay v.\n\nKusaldas S. Advani & Ors. [1950 S.C.R. 621 (725), and Board of High School & Intermediate Education,\n\nU.P.\n\n(I) I.L.R. (1917) Punjab & Haryana 278.\n\n(3) [1960] I S.C.R. 981 : A.I.R. 1960 S.C. 247.\n\n(2) [1971] Supp. S.C.R. 634.\n\n(4) [1973] 2 S.C.R. 405.\n\nPUNJAB v. lQBAL JilNGH (Jaswant Singh, J.)\n\nJ63\n\nAllahabad v. Ghanshyam Das Gupta & Ors. (1962) Suppl.\n\n(3) S.C.R. 36.] With the profiteration of administrative decisions in the welfare state it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in Ridge v. Baldwin (1964) A.C. 40 that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority B affects, individual rights or interests, and liaving regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See : State of Orissa v. Dr. (Miss) Binapani Dei & Ors. (1967) 2 S.C.R. 625 and In re H. K. (An Infant) [1967] 2 Q.B.D. 617. In the former case it was observed as follows :- C\n\n\"An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of jUstice and £airplay.\n\nThe deciding authority, it is true, is not in the position of a Judge called upon to decide an action between. contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought fo be relied upon to his prejudice.\n\nFor that purpose the person against whom an enquiry is held must be informed of the case he is cal!ecl upon to meet and the evidence in support thereof.\n\nThe rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences.\n\nis one of the funi(amental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers.\n\nDuty to act judicially would therefore arise from the very nature of the function intended to be performed.\n\nIt need not be shown to be super-added. If there is power to decide and determine to\n\nthe prejudice of a person, duty to act judici_ally is i!Ilpl_icit in the exercise of such power.\n\nIf the essentials of 1usllce be ignored and an order to the prejudice of a person is made, the order is a nullity.\n\nThat is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.\"\n\nThese observations were made with reference to an authority which could be described as characteristically administrative. At page\n\n630 it was observed :\n\n\"It is true that the order is administrative in character, but even an administrative order which involves civil\n\nA consequences as already stated, must be made consistently with the rules of natural justice after informing the first res- ' pondent of the case of the State, the evidenve in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence.\"\n\n\nThe decision of this Court in M. Narasimachar's case (supra) on which strong reliance has been placed on behalf of the appelbnts is of no assistance to them as the point as to whether an opportunity to C show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well known maxim audi alteram partem was never urged or gone into in that case.\n\nFurthermore as pointed out by Palekar, J. while speaking for the Court in K. R. Erry & Sobhag Rai Mehta's case (supra) the question whether pension is a bounty or property did not arise in the former case.\n\nThe present case is, in our D opinion, fully covered by the judgment of this Court in K. R. Erry & Sobhag Rai Mehta's case (supra).\n\nFor the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.\n\nIn the result the appeal fails aud is hereby dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 43, "entities": [{"text": "STATE OF PUNJAB AND ANR", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB AND ANR", "offset_not_found": false}}, {"text": "IQBAL SINGH", "label": "RESPONDENT", "start_char": 29, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "IQBAL SINGH", "offset_not_found": false}}, {"text": "February 12, 1976", "label": "DATE", "start_char": 42, "end_char": 59, "source": "ner", "metadata": {"in_sentence": "v.\n\nIQBAL SINGH\n\nFebruary 12, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]"}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 62, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "Arts 31(1) and 19(1)(/)", "label": "PROVISION", "start_char": 346, "end_char": 369, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 506, "end_char": 514, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 1333, "end_char": 1340, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19(1)", "label": "PROVISION", "start_char": 1483, "end_char": 1493, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 19", "label": "PROVISION", "start_char": 1550, "end_char": 1557, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 1704, "end_char": 1712, "source": "regex", "metadata": {"statute": null}}, {"text": "\\Tarc1.1hnachar", "label": "RESPONDENT", "start_char": 1996, "end_char": 2011, "source": "ner", "metadata": {"in_sentence": "(3) M. \\Tarc1.1hnachar '\" The State of Mysore [1960} 1 S.C.R. 981, is inapplicable to this case because the point as to whether an opportunity to show cause was to be afforded to a retired Government servant before applying the cut in his pension in view of the principle.if natural justice of audi alteram partem was never urged or gone into in that case, nor was the question whether pension was a bounty or property arose in that case."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 2635, "end_char": 2645, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and M. C. Dhingra, for the respondent."}}, {"text": "M. C. Dhingra", "label": "LAWYER", "start_char": 2650, "end_char": 2663, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and M. C. Dhingra, for the respondent."}}, {"text": "N arula", "label": "JUDGE", "start_char": 3024, "end_char": 3031, "source": "ner", "metadata": {"in_sentence": "104 of 1967 whereby the judgment and order dated December 19, 1966 of N arula, J. (as he then was) in Civil Writ Petition No.", "canonical_name": "N arula"}}, {"text": "October 1, 1949", "label": "DATE", "start_char": 3354, "end_char": 3369, "source": "ner", "metadata": {"in_sentence": "He was promoted to Punjab Education Service (Class I) on October 1, 1949."}}, {"text": "February 15, 1956", "label": "DATE", "start_char": 3422, "end_char": 3439, "source": "ner", "metadata": {"in_sentence": "He was given the selection grade with effect from February 15, 1956 and in due course rose to the position of Director of Public Instruction-cum-Secretary to the Government of Punjab, Education Department."}}, {"text": "March 18, 1958", "label": "DATE", "start_char": 3630, "end_char": 3644, "source": "ner", "metadata": {"in_sentence": "He proceeded on leave preparatory to retirement on March 18, 1958, on attaining the age of superannuation."}}, {"text": "Chandigarh", "label": "GPE", "start_char": 3890, "end_char": 3900, "source": "ner", "metadata": {"in_sentence": "5137- Ed-I-60/9269 dated May 2, 1961 addressed by the Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of super annuation pension and death-cum-retirement gratuity of Rs."}}, {"text": "Punjab", "label": "GPE", "start_char": 3944, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "5137- Ed-I-60/9269 dated May 2, 1961 addressed by the Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of super annuation pension and death-cum-retirement gratuity of Rs."}}, {"text": "New Pension Rules, 1951", "label": "STATUTE", "start_char": 4227, "end_char": 4250, "source": "regex", "metadata": {}}, {"text": "January, 28, 1962", "label": "DATE", "start_char": 4615, "end_char": 4632, "source": "ner", "metadata": {"in_sentence": "On January, 28, 1962, the respondent submitted representa tions to the Chief Minister and Governor of Punjab against the aforesaid decisivn of the Government to apply 10% cut in his pension and death-cum-retirement gratuity but the same proved abortive."}}, {"text": "November 1. 1965", "label": "DATE", "start_char": 5236, "end_char": 5252, "source": "ner", "metadata": {"in_sentence": "On November 1."}}, {"text": "Punjab Government", "label": "ORG", "start_char": 5570, "end_char": 5587, "source": "ner", "metadata": {"in_sentence": "1961 of the Punjab Government, it had been decided to grant to the respondent a superannuation pension and death-cum-retirement gratuity of Rs."}}, {"text": "Art1", "label": "PROVISION", "start_char": 6282, "end_char": 6286, "source": "regex", "metadata": {"statute": null}}, {"text": "s 226 and 227", "label": "PROVISION", "start_char": 6290, "end_char": 6303, "source": "regex", "metadata": {"statute": null}}, {"text": "Narula", "label": "JUDGE", "start_char": 6469, "end_char": 6475, "source": "ner", "metadata": {"in_sentence": "298 of 1966, challenging the aforesaid decision o{ the Punjab Government which was, as already stated, allowed by Narula, J. (as he then was) by his judgment and order dated December 19 1966, following the Fnll Bench Judgment of his Court dated Octobe;\n\n25, 1966, in Civil Writ Petition No.", "canonical_name": "N arula"}}, {"text": "K. R.\n\nErry", "label": "PETITIONER", "start_char": 6672, "end_char": 6683, "source": "ner", "metadata": {"in_sentence": "504 of 1954 entitled Shri K. R.\n\nErry, Retired Superintending Engineer, 45, Cecil Hotel, Simla v.\n\nThe State of Punjab(').", "canonical_name": "K. R.\n\nErry"}}, {"text": "State of Punjab", "label": "RESPONDENT", "start_char": 6749, "end_char": 6764, "source": "ner", "metadata": {"in_sentence": "504 of 1954 entitled Shri K. R.\n\nErry, Retired Superintending Engineer, 45, Cecil Hotel, Simla v.\n\nThe State of Punjab(').", "canonical_name": "STATE OF PUNJAB AND ANR"}}, {"text": "Article 133", "label": "PROVISION", "start_char": 6986, "end_char": 6997, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 7191, "end_char": 7223, "source": "ner", "metadata": {"in_sentence": "Although in the grounds of appeal, it has been urged by the appellants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry's( 1) case (supra) is not in accordance with law as superannuation pension is a bonnty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad v. The State of Bihar & Ors. ("}}, {"text": "K. R. Erry", "label": "PETITIONER", "start_char": 7227, "end_char": 7237, "source": "ner", "metadata": {"in_sentence": "Although in the grounds of appeal, it has been urged by the appellants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry's( 1) case (supra) is not in accordance with law as superannuation pension is a bonnty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad v. The State of Bihar & Ors. (", "canonical_name": "K. R.\n\nErry"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 7683, "end_char": 7693, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 19", "label": "PROVISION", "start_char": 7868, "end_char": 7878, "source": "regex", "metadata": {"statute": null}}, {"text": "Civil Service Rules", "label": "STATUTE", "start_char": 8291, "end_char": 8310, "source": "regex", "metadata": {}}, {"text": "Article 311", "label": "PROVISION", "start_char": 8422, "end_char": 8433, "source": "regex", "metadata": {"linked_statute_text": "Civil Service Rules", "statute": "Civil Service Rules"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 8915, "end_char": 8926, "source": "regex", "metadata": {"linked_statute_text": "Civil Service Rules", "statute": "Civil Service Rules"}}, {"text": "Sobhag Rai Mehta", "label": "OTHER_PERSON", "start_char": 9216, "end_char": 9232, "source": "ner", "metadata": {"in_sentence": "Reference in this connection may be made with advantage to the decision of this Court\n\nin K. R. Erry & Sobhag Rai Mehta's case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows :-\n\n\"Where a body or authority is judicfa."}}, {"text": "[1973] 2 S.C.R. 405", "label": "CASE_CITATION", "start_char": 9833, "end_char": 9852, "source": "regex", "metadata": {}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 9879, "end_char": 9892, "source": "ner", "metadata": {"in_sentence": "PUNJAB v. lQBAL JilNGH (Jaswant Singh, J.)\n\nJ63\n\nAllahabad v. Ghanshyam Das Gupta & Ors. ("}}, {"text": "England", "label": "GPE", "start_char": 10094, "end_char": 10101, "source": "ner", "metadata": {"in_sentence": "With the profiteration of administrative decisions in the welfare state it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in Ridge v. Baldwin (1964) A.C. 40 that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority B affects, individual rights or interests, and liaving regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard."}}, {"text": "(1967) 2 S.C.R. 625", "label": "CASE_CITATION", "start_char": 10628, "end_char": 10647, "source": "regex", "metadata": {}}, {"text": "M. Narasimachar", "label": "OTHER_PERSON", "start_char": 13112, "end_char": 13127, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in M. Narasimachar's case (supra) on which strong reliance has been placed on behalf of the appelbnts is of no assistance to them as the point as to whether an opportunity to C show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well known maxim audi alteram partem was never urged or gone into in that case."}}, {"text": "Palekar", "label": "JUDGE", "start_char": 13548, "end_char": 13555, "source": "ner", "metadata": {"in_sentence": "Furthermore as pointed out by Palekar, J. while speaking for the Court in K. R. Erry & Sobhag Rai Mehta's case (supra) the question whether pension is a bounty or property did not arise in the former case."}}]}
{"document_id": "1976_3_365_368_EN", "year": 1976, "text": "COAL MINES PROVIDENT FUND COMMISSIONER\n\nDHANBAD & OTHER\n\nJ. LALA & SONS\n\nFebruary 13, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J\n\nCoal Mines Provident Fund and Bonus Schen1e Act 1948 (XLVI of 1948)- Seclion IOF and 78-Payn1e11t of dun1ages payable by the ernpioyer-W/lether the Coal Mines Prorident Fund Con1nlissioner should give a11 hearillf? to the en1ployer-Mea11i11g of the words '\\wtch da1nages\" ..... \"as it 1nay think -fit to .inipose\".\n\nSection 1 OF of the Coal Mines Provident Fund and Bonus Scheme Act 1948 is a penal section under which for default in the payment of any Provi- dent Fund contribution, the Central Government may recover from such employer or person as the case may bi!, such damages, not exceeding 25% of the amount of arrears, as it may think fit to impose. ln respect of the period from July to September, 1968, the respondent employer was asked to pay a sum of Rs. 1455.50 as damages being 25o/o of the arrears of Provident Fund contributions by the appellant to which he filed an objection explaining the delay.\n\nThe employer's request for waiving the damages was negatived.\n\nThe writ application of the employer against that order was allowed by the High Court on two grounds, riz. (i) that the computation of damages should arise upon consideration of the facts and circumstances, and (ii) the authorities should have given an opportunity to the employer to represent the case.\n\nDismissing the appeal by special leave, the Court, HELD: (1) The provisions contained in s. 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and seco_nd, for this purpose he may conduct such enquiry as he may deem necessary.\n\nTherefore, an enquiry is contemplated.\n\nSection 78(3) speaks of reasonable opportunity being given to an employer to represent his case.\n\nThe provision in s. 1 OF of the Act also indicates that determination of damages is not a mechanical process.\n\nThe words of importance in s. lOF of the Act are \"such damages not exceeding 25 per cent of the amount of arrears as it may think fit to imnose\".\n\nHere the two important features are these : \"First the words of importance are \"damages not exceeding 25%\" show that the determination of damages is not an inflexible application of a rigid formula.\n\nSecond, the words \"as it may think fit to impose\" in s. 10F show that the authorities are required to apply their mind to the facts and circumstances of the case.\n\n[368A-C]\n\n(2) When a body or authority has to determine a matter involving rights judicially, the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests.\n\n[368E-F]\n\nIndian Sugars & Manufacturers l, td. v. Amravati Services Co-operative\n\nSociety Ltd. & Anr. fl9761 2 S.C.R. 740 and State of Puniab v. K. R. Erry & G Sobhag Rai Mehta [1973] 2 S.C.R. 405, applied.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1363 of I 974.\n\nAppeal by special leave from the judgment and order dated the 20th May, 1971 of the Patna High Court at Patna in C.WJ.C. No. 306 of 1969.\n\nL. N. Sinha (Ind Giri.ih Chandra, for the appellants H\n\nS. N. Mishra, B. P. Singh and A. K. Srivastava, for the respondents.\n\n9-L522SC!/76\n\nA The Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal by special leave turns on the question whether the Coal Mines Provident Fund Commissioner is to hear an employer before making an order requiring the employer to pay damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1948 (hereinafter referred to as the Act).\n\nB The employer being the respondent to this appeal was directed by\n\na letter dated 3 I 4 January, 1969 to pay provident fund contributions amounting to Rs. 5821.21 for the months of July to September, 1968 and damages at the rate of 25 per cent on the above dues amounting to Rs. 1455.50. The employer was required to pay damages under the provisions of section 1 OF of the Act.\n\nThe employer filed an objection explaining the circumstances under which there was delay in the payment of provident fund contributions.\n\nThe employer prayed that damages might not be imposed at the rate of 25 per cent for the delay in payment.\n\nThe employer paid the provident fund contributions.\n\nThe employer was informed that damages charged on the delayed payments of provident fund contribution could not be waived.\n\nThe employer thereafter filed an application in the High Court for an order that the demand notice be quashed.\n\nThe High Court acceded to the application of the employer.\n\nThe High Court gave two reasons.\n\nFirst, that the computation of amount of damages should arise upon consideration of facts and circumstances and a mechanical computation of damages is not contemplated.\n\nSecond, the authorities should have given opportunity to the employer to represent the case.\n\nThe High Court did not accept the contention of the employer that section lOF of the Act suffered from the vice of excessive delegation.\n\nThe provision contained in section 1 OF of the Act are as follows:-\n\n\"Where an employer makes default in the payment of any contribution or bonus or any charges payable by him under any scheme framed under this act, or where any person who is required to transfer provident fund accumulations in accordance with the provisions of section 3D makes default in the transfer of such accumulations, the Central Government may recover from such employer or person, as the case may be, such damages, not exceeding twenty-five per cent of the amount of arrears, as it may think fit to impose.\"\n\nThe Central Government under sub-section (1) of section lOC of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed thereunder, to the Coal Mines Provident Fund Commissioner or any other officer.\n\nThe Central Government in exercise of the power conferred under section lOC(l) of the Act by notification dated 1st October,\n\nCOAL MINES COMMR. V. J. LALA (Ray, C.J.) 36 7\n\n1966 directed that powers exercisable by it under sections lOA and A lOF of the Act and specified in column ( 1) of the Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C ( 1) of the Act. There is a Schedule attached to the notification where sliding scale of damages has been fixed by the Central Government under section 1 OF of the Act.\n\nThe Schedule\n\nB attached to the notification is as follows :-\n\n\"Sliding rate of recovery of damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1949.\"\n\nS.No. of Period of default default during One Over Over Over Over Over the year. month one two three four five or less month months months months months up to up to up to up to two three four five months months months months\n\n2 3 4 5 6 7\n\n!st default 2%of 5% of 18% of 15% of 20%of 25%of arrears arrears arrefili arrears arrears arrears 2nd default 5% \" 10% .. 15% .. 20%,, 25%\" 25%\" 3rd default 10% ,, 15% \" 20% .. 25% ,, 25%\" 25% \" 4th default 15% .. 20%\" 25% .. 25% .. 25% .. 25% \" 5th default 20% ,, 25%\" 25%\" 25% \" 25%\" 25% ,. 6th or subsequent 25% \" 25% .. 25%\" 25%\" 25% .. 25% \" default\n\nUnder section 78 of the Act the Coal Mines Provident Fund Commissioner or any other officer authorised in that behalf by the Central Government may, by order, determine the amount due from any employer under any provision of this Act or any scheme framed thereunder and for this purpose may conduct such enquiry as he may deem necessary.\n\nSection 78 (3) also contemplates giving of reasonable opportunity to represent the case.\n\nThe High Court held that the provisions of section 78 are attracted in the case of an order relating to determination of damages for delay in payment of contribution under the Act.\n\nThe Solicitor General contended that section 78 of the Act does not apply for two reasons.\n\nFirst, section 78 of the Act would be applicable only where liability is to be determined. Neither liability to pay nor default in payment is disputed in the present case. Second, under section 1 OF of the Act the amount of damages is quantified and a\n\npersonal hearing is not necessary because the employer has said everything in his representation and an order for payment of damages. is not one of punishment.\n\nThe provisions contained in section 7 8 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary.\n\nTherefore, an enquiry is contemplated .. Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case. The provisions in section 1 OF of the Act also indicate that detennination of damages is not a mechanical process.\n\nThe. words of importance in section 1 OF of the Act are \"such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose\".\n\nHerc the two important features are these.\n\nFirst, the words of importance arc \"damages not exceeding 25 per cent\".\n\nThese words show that the determination of damages is not an inflexible application of a rigid formula.\n\nSecond, the words \"as it may think fit to impose\" in section 1 OF of the Act show that the -authorities are required to apply their mind to the facts and circumstances of the case.\n\nThis Court in The India Sugars and Refineries Ltd. v. Amravathi Service Co-op. Society Ltd. & Anr. etc.(1) said that \"situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated.\n\nA duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that additional price would be paid.\n\nThe facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved\".\n\nWhen a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests.\n\nAgain, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. (See State of Punjab v. K. R.\n\nErry & Sobhag Rai Mehta. ( 2)\n\nThe High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were determined.\n\nThe appeal is, therefore, dismissed with costs.\n\ns. R.\n\nAppeal dismissed.", "total_entities": 42, "entities": [{"text": "COAL MINES PROVIDENT FUND COMMISSIONER\n\nDHANBAD & OTHER", "label": "PETITIONER", "start_char": 0, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "COAL MINES PROVIDENT FUND COMMISSIONER, DHANBAD & OTHER", "offset_not_found": false}}, {"text": "J. LALA & SONS", "label": "RESPONDENT", "start_char": 57, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "J. LALA & SONS", "offset_not_found": false}}, {"text": "February 13, 1976", "label": "DATE", "start_char": 73, "end_char": 90, "source": "ner", "metadata": {"in_sentence": "COAL MINES PROVIDENT FUND COMMISSIONER\n\nDHANBAD & OTHER\n\nJ. LALA & SONS\n\nFebruary 13, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J\n\nCoal Mines Provident Fund and Bonus Schen1e Act 1948 (XLVI of 1948)- Seclion IOF and 78-Payn1e11t of dun1ages payable by the ernpioyer-W/lether the Coal Mines Prorident Fund Con1nlissioner should give a11 hearillf?"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 93, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 110, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 124, "end_char": 141, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Section 1", "label": "PROVISION", "start_char": 461, "end_char": 470, "source": "regex", "metadata": {"statute": null}}, {"text": "Coal Mines Provident Fund and Bonus Scheme Act 1948", "label": "STATUTE", "start_char": 481, "end_char": 532, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 633, "end_char": 651, "source": "ner", "metadata": {"in_sentence": "Section 1 OF of the Coal Mines Provident Fund and Bonus Scheme Act 1948 is a penal section under which for default in the payment of any Provi- dent Fund contribution, the Central Government may recover from such employer or person as the case may bi!,"}}, {"text": "s. 78", "label": "PROVISION", "start_char": 1518, "end_char": 1523, "source": "regex", "metadata": {"linked_statute_text": "OF of the Coal Mines Provident Fund and Bonus Scheme Act 1948", "statute": "OF of the Coal Mines Provident Fund and Bonus Scheme Act 1948"}}, {"text": "Section 78(3)", "label": "PROVISION", "start_char": 1771, "end_char": 1784, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 1886, "end_char": 1890, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10F", "label": "PROVISION", "start_char": 2380, "end_char": 2386, "source": "regex", "metadata": {"statute": null}}, {"text": "[1973] 2 S.C.R. 405", "label": "CASE_CITATION", "start_char": 2889, "end_char": 2908, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2920, "end_char": 2948, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "L. N. Sinha", "label": "PETITIONER", "start_char": 3122, "end_char": 3133, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha (Ind Giri.ih Chandra, for the appellants H\n\nS. N. Mishra, B. P. Singh and A. K. Srivastava, for the respondents."}}, {"text": "H\n\nS. N. Mishra", "label": "LAWYER", "start_char": 3175, "end_char": 3190, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha (Ind Giri.ih Chandra, for the appellants H\n\nS. N. Mishra, B. P. Singh and A. K. Srivastava, for the respondents."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 3192, "end_char": 3203, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha (Ind Giri.ih Chandra, for the appellants H\n\nS. N. Mishra, B. P. Singh and A. K. Srivastava, for the respondents."}}, {"text": "A. K. Srivastava", "label": "LAWYER", "start_char": 3208, "end_char": 3224, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha (Ind Giri.ih Chandra, for the appellants H\n\nS. N. Mishra, B. P. Singh and A. K. Srivastava, for the respondents."}}, {"text": "RAY", "label": "JUDGE", "start_char": 3308, "end_char": 3311, "source": "ner", "metadata": {"in_sentence": "9-L522SC!/76\n\nA The Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal by special leave turns on the question whether the Coal Mines Provident Fund Commissioner is to hear an employer before making an order requiring the employer to pay damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1948 (hereinafter referred to as the Act).", "canonical_name": "RAY"}}, {"text": "section 1", "label": "PROVISION", "start_char": 3975, "end_char": 3984, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 5059, "end_char": 5068, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3D", "label": "PROVISION", "start_char": 5362, "end_char": 5372, "source": "regex", "metadata": {"statute": null}}, {"text": "OC of the Act is authorised to delegate any power exercisable by it under the Act", "label": "STATUTE", "start_char": 5676, "end_char": 5757, "source": "regex", "metadata": {}}, {"text": "Coal Mines Provident Fund Commissioner", "label": "ORG", "start_char": 5799, "end_char": 5837, "source": "ner", "metadata": {"in_sentence": "The Central Government under sub-section (1) of section lOC of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed thereunder, to the Coal Mines Provident Fund Commissioner or any other officer."}}, {"text": "COAL MINES COMMR.", "label": "JUDGE", "start_char": 5987, "end_char": 6004, "source": "ner", "metadata": {"in_sentence": "The Central Government in exercise of the power conferred under section lOC(l) of the Act by notification dated 1st October,\n\nCOAL MINES COMMR."}}, {"text": "V. J. LALA", "label": "JUDGE", "start_char": 6005, "end_char": 6015, "source": "ner", "metadata": {"in_sentence": "V. J. LALA (Ray, C.J.) 36 7\n\n1966 directed that powers exercisable by it under sections lOA and A lOF of the Act and specified in column ( 1) of the Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C ( 1) of the Act."}}, {"text": "Ray", "label": "JUDGE", "start_char": 6017, "end_char": 6020, "source": "ner", "metadata": {"in_sentence": "V. J. LALA (Ray, C.J.) 36 7\n\n1966 directed that powers exercisable by it under sections lOA and A lOF of the Act and specified in column ( 1) of the Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C ( 1) of the Act.", "canonical_name": "RAY"}}, {"text": "OA and A lOF of the Act", "label": "STATUTE", "start_char": 6094, "end_char": 6117, "source": "regex", "metadata": {}}, {"text": "section 3C", "label": "PROVISION", "start_char": 6373, "end_char": 6383, "source": "regex", "metadata": {"linked_statute_text": "OA and A lOF of the Act", "statute": "OA and A lOF of the Act"}}, {"text": "section 1", "label": "PROVISION", "start_char": 6528, "end_char": 6537, "source": "regex", "metadata": {"linked_statute_text": "OA and A lOF of the Act", "statute": "OA and A lOF of the Act"}}, {"text": "section 78", "label": "PROVISION", "start_char": 7336, "end_char": 7346, "source": "regex", "metadata": {"linked_statute_text": "Sliding rate of recovery of damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1949", "statute": "Sliding rate of recovery of damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1949"}}, {"text": "Section 78", "label": "PROVISION", "start_char": 7669, "end_char": 7679, "source": "regex", "metadata": {"linked_statute_text": "Sliding rate of recovery of damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1949", "statute": "Sliding rate of recovery of damages under section lOF of the Coal Mines Provident Fund and Bonus Scheme Act, 1949"}}, {"text": "section 78", "label": "PROVISION", "start_char": 7802, "end_char": 7812, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 7978, "end_char": 7988, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78", "label": "PROVISION", "start_char": 8040, "end_char": 8050, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 8219, "end_char": 8228, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 8475, "end_char": 8484, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78(3)", "label": "PROVISION", "start_char": 8735, "end_char": 8748, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 8850, "end_char": 8859, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 8976, "end_char": 8985, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 9377, "end_char": 9386, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_369_378_EN", "year": 1976, "text": "WORKMEN OF MIS FIRESTONE TYRE & RUBBER CO.\n\nOF 11\\IDIA (P) LIMITED\n\nFIRESTONE TYRE & RUBBER COMPANY\n\nFebruary 13, 1976\n\n(V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.J\n\n' Lay-off-Meaning of-Section 2(kkk) of the Industrial Disputes Act (Act\n\nXIV of 1947), 1947.\n\nLay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act (Act XIV of 1947), 1947, to lay-off workmen-Section 2(kkk), 25A, 25B(2) (i) and 25C of the Act-Scope of-Effect of s. 251.\n\nConzpensation-\"Lay-off compensation\"-Whether laid-off workmen who do 1101 come under Chapter VA of the Industrial Disputes Act, 1947 by virtue of s. 2SA are entitled to any co1npensation.\n\nIndustrial Disputes Act (Act XIV of 1947), 1947-Section 10(1), 33(c)(2), powers of the tribunal /court to award lay-off conipensation.\n\nThe respondent-company manufacturing tyres in Bombay, due to the general strike in its factory between the oeriod 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lav-off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office.\n\nThe workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively.\n\nThe workmen were not given their wages or compensation for the period of lay-off.\n\nAn industrial dispute was raised and referred to the tribunal by the Delhi Administration even when the lay-off was in operation. The Presiding Officer of the Additional Industrial Tribunal, Delhi held that the work.men were not entitled to any layoff compensation.\n\nThe workmen in Madras filed petitions under s. 33C(2) of the Industrial Disputes Act for computation of their wages for the period of their lay-off.\n\nThe Presiding officer of the Additional Labour Court. Madras, holding that the lay-off was justified, dismissed their applications.\n\nOn appeal to this Court by special leave, HELD : ( 1) The sim!)le dictionary meaning according to the concise Oxford Dictionary of the term \"lay-off' is \"period during which a workman is temporarily discharged\".\n\nLay-off means the failure, refusal or inability of employer on account of contingencies mentioned in cl. (kkk) of s. 2 of the Industrial Disputes Act, 1947, to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment. It has' been called a temporary discharge of the workmen or a temporary suspension of his contract of service.\n\nStrictly speaking, it is not so.\n\nIt is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment.\n\nMere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in cl. (kkk) of s. 2 is not a temporary discharge of the workman.\n\n[372A, 374A, B, G] Goya Cotton & Jute Mith Ltd. v. Gaya Cotton & Jute Mills Labour L'nion\n\nJ l 9521 IT Labour Law Journal 37, referred to.\n\n(2) (i) That the power to lay-off a workman is inherent in the definition in .:l. (kkk) of s. 2 is not correct, since no words in the definition clause to indicate the conferment of any power on the employer to lay-off a \\Vorkman can be found.\n\nHis failure or inability to give employment, by itself militates against the theory of conferment of power.\n\nNo section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to lay-off a workman.\n\nTQere is no provision in the Act specifically providing that an employer would be entitled to lay-off his workmen\n\nfor the reasons prescribed by s. 2 (kkk). Such a power, therefore, must be found out from the terms of contract of service or the Standing Orders governing the Establishment.\n\n[374 B-G]\n\n(ii) In the instant case, the number of workmen being only ~3, there being no Standing Orders certified under the Industrial Employment (Standing Orders) Act (Act 20 of 1946), 1946, and there being no contract of service conferring any such right of lay-off, the inescapable conclusion that the workmen were laid-off without any authority of law or the power m the management under ll the contract of service.\n\n[374 G-H] The Management of Hotel [mperial, New Delhi & others V. Hotel Workers' Union [1960] 1 S.C.R. 476 and V. P. Gindroniya v. State of Madhya Pradesh & Ors. [1970] 3 S.C.R. 448, referred to.\n\nVeiyra (M.A.) Fernandez\n\n(C.P.) and another, [19561 1 Labour La\\V Journal, 54 7. reversed.\n\nWorkmen oj Dewan Tea Estate and Ors. v. The Management [19641 5 C S.C.R. 548, applied.\n\nSanghi Jeevarai Ghewar Chand & Ors. v. Secretary, Madras Chillies. Grains Kirana Merchants Workers' Union and Anr. [1969] 1 S.C.C. 366, distinguished.\n\n(3) If the terms of a cop.tract of service or the statutory terms engrafted in the Standing Orders do not give the power to lay-off to the employer, the employer would be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the fu11 wages of the concerned workman.\n\nIf, however, the terms of employment confer a right of lay-off on the management. then in the case of an Industrial Establishment which is governed by Chapter VA, compensation will be payable in accordance wit& the provisions contained therein.\n\nBut compensation or no compensation will be payable in the case of an Industrial Establishment to which the provisions of Chapter VA do not apply and it will be so as per the terms of empJ9yment. [377-B-Dl\n\nKanhaiya Lal Gupta v. Ajeet Kumar Dey and others, [1967] II Labour Law Journal. 761 and Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others, [1972] 1 Labour Law Journal, 284, approved.\n\nK. T. Rolling Mills Private Ltd. and another v. M. R. Meher and others, A.l.R. 1963 Bombay 146. reversed.\n\n(4) In a reference under s. 10(1) of the Act. it is ooen to the tribunal or court to award coIIl{Jensation which may not be equal to the full amount of basic wages and dearness allowance.\n\nBut no such oower exists in the Labour F Court under s. 33C(2) of the Act.\n\nOnly the money due has to be quantified.\n\nIf the lay-off could be held to be in accordance with the terms of contract of service. no com!Jensation at all could be allowed under s. 33C(2) of the Act, while in the reference some compensation could be allowed. [378-B-C]\n\n[In the instant case as regards the workmen in the Delhi case. the court held 75% of the basic wages and dearness a11owance would be the adequate compensation for the lay-off period.]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2307 of 1969\n\n(Appeal by Special leave from the Award dated the ls! April 1969 of the Addi. Industrial Tribunal, Delhi in I. D. No. 83 of 1968) and Civil Appeals Nos. 1857-1859/70. (Appeals by Special Leave from the Judgment and Order dated the 17th November 1969 of the Addi. Labour Court. Madras in claim Petition Nos. 627 and 629 of 1968).\n\nM. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals.\n\nS. N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857- 59/70) for respondents in both the appeals.\n\nI The Judgment of the Court was delivered by\n\nUNTWALIA, J.-As the main question for determination in these t' appeals by special leave is common, they have been heard together and\n\nare being disposed of by this judgment.\n\nCivil Appeal No. 2307 of 1969\n\nThe respondent company in this appeal has its Head Office at Bombay. It manufactures tyres at its Bombay factory and sells the tyres and other accessories in the markets throughout the country.\n\nThe company has a Distribution office at Nicholson Road, Delhi.\n\nThere was a strike in the Bombay factory from 3rd March, 1967 to !6th May, 1967 and again from 4th October, 1967. As a result of the strike there was a short supply of tyres etc. to the Distribution office.\n\nIn the Delhi Office, there were 30 employees at the relevant time. 17 workmen out of 30 were laid-off by the management as per their notice dated the 3rd February, 1968, which was to the following effect:\n\n\"Management is unable to give employment to the following workmen due to much reduced production in the company's factory resulting from strike in one of the factory departments.\n\nThese workmen are, therefore, laid-off in accordance with law with effect from 5th February, 1968.\"\n\nThe lay-off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April, 1968.\n\nThe workmen were not given their wages or compensation for the period of lay-off.\n\nAn industrial dispute was raised and referred by the Delhi Administration on the 17th April, 1968 even when the layoff was in operation.\n\nThe reference was in the following terms :\n\n\"Whether the action of the management to 'lay-off' 17 workmen with effect from 5th Feb. 1968 is illegal and/or unjustified, and if so, to what relief are these workmen entitled?\"\n\nThe Presiding Officer of the Additional Industrial Tribunal, Delhi has held that the workmen are not entitled to any lay-off compensation.\n\nHence this is an appeal by their Union.\n\nWe were informed at the Bar that some of the workmen out of the batch, of 17 have settled their disputes with the management and their cases were not represented by the Union in this appeal.\n\nHeuce this judgment will not affect the compromise or the settlement arrived at between the management and some of the workmen.\n\nThe question which for our determination is whether the management had a right to lay-off their workmen and whether the workmen are entitled to claim wages or compensation.\n\nThe simple dictionary meaning according to the Concise Oxford Dictionary of the term 'lay-off' is \"period during which a workman is temporarily discharged.\" The term 'lay-off' has been wellknown in the industrial arena.\n\nDisputes were often raised in relation to the 'lay-off' of the workmen in various industries. Sometime compensation was awarded for the period of lay-oft but many a time when the lay-off was found to be justified workmen were not found entitled to any wages or compensation. In Gaya Cotton & lute Mills Ltd. v. Gaya Cotton & Jute Mills Labour Union( 1) the standing order of the company provided that the company could under certain circumstances \"stop any machine or machines or department or departments, wholly or partially for any period or periods without notice or without compensation in lieu of notice.\" In such a situation for the closure of the factory for a certain period, no claim for compensation was allowed by the Labour Appellate Tribunal of India. We are aware of the distinction betwen a lay-off and a closure. But just to point out the history of the law we have referred to this case.\n\nThen came an amendment in the Industrial Disputes Act, 194 7 -hereinafter referred to as the Act-by Act 43 ot 1953. [n section 2 clause (kkk) was added to say:\n\n\"lay-off\" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched.\n\nExplanation-Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause :\n\nProvided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day :\n\nProvided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day.\"\n\n(I) [19521 II Labour Law Journal, 37.\n\nBy the same Amending Act, Chapter VA was introduced in the Act to provide for lay-off and retrenchment compensation. Section 2SA excluded the Industrial Establishment in which less than SO workmen on an average per working day had been employed in the preceding calendar month from the application of Sections 2SC to 2SE. Section 25-C provides for the right of laid-off workmen for compensation and broadly speaking compensation allowable is 50% of the total of the basic wages and dearness allowance that would have been payable to the workman had he not been laid-off. It would be noticed that the sections dealing with the matters of lay-off in Chapter VA are not applicable to certain types of Industrial Establishments. The respondent is one such Establishment because it employed only 30 workmen at its Delhi Office at the relevant time. In such a situation the question beset with difficulty of solution is whether the laid-off workmen were entitled to any compensation, if so, what'?\n\nWe shall now read section 25-J. It says:\n\n\"(!) The provisions of this Chapter shall have effect notwithstanding anything inconsisent therewith contained in any other law including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 : Provided that where under the provisions of any other Act or Rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.\n\nFor the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to layoff and retrenchment shall be determined in accordance with the provisions of this Chapter.\"\n\nThe effect of the provisions aforesaid is that for the period of lay-off in an Industrial Establishment to which the said provisions apply, compensation will have to be paid in accordance with section 25C. But if a workman is entitled to benefits which are more favourable to him than those provided in the Act, he shall continue to be entitled to t]je more favourable benefits. The rights and liabilities of employers and workmen in so far as it relate to lay-off and retrenchment, except as provided in section 25J, have ot to be determined in accordance with the provisions of Chapter VA.\n\nThe ticklish question which does not admit of an easy answer Is as to the source of the power of management to lay-off a workman. The employer has a right to terminate the services of a workman.\n\nTherefore, his power to retrench presents no difficulty as retrenchment means the termination by the employer of the service of a workman for any reason whatsoever as mentioned in clause ( oo) of section 2 of the\n\nAct. But lay-off means the failure, refusal or inability of employer on account of contingencies mentioned in clause (kkk) to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment. It has been called a temporary discharge of the workman or a temporary suspension of his contract of service.\n\nStrictly speaking, it is not so. It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment.\n\nMr. S. N. Andley submitted with reference , o the explanation and the provisions appended to clause (kkk) that the power to lay-off a workman is inherent in the definition. We do not find any words in the definition clause to indicate the conferment of any power on the employer to lay-off a workman.\n\nHis fail., re or inability to give employment by itself militates against the theory of conferment of power. The power to lay-off for the failure or inability to give employment has to be searched somewhere else. No section in the Act confers this power.\n\nThere are two small matters which present some difliculty in the solution of the problem.\n\nIn explanation ( 1) appended to sub-section\n\n(2) of section 25B the words used are :\n\n\"he has been laid-off under an agreement or as permitted by standing order made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment.\" indicating that a workman can be laid-off under the Industrial Disputes Act also.\n\nBut it is strange to find that no section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to Jay-off a workman.\n\nClause (ii) of section 25E says :\n\n\"No compensation shall be paid to a workman who has been laid-off-- If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day.\" This indicates that there is neither a temporary discharge of the workman nor a temporary suspension of his contract of service. Under the general law of Master and Servant. an employer may discharge an employee either temporarily or premanently but that cannot be without adequate notice.\n\nMere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause (kkk) of section 2 is not a temporary discharge of the workman. Such a power, therefore, must be found out from the terms of contract of service or the Standing Orders governing the establishment. In the instant case the number of workmen being only 30, there were no Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946. Nor was there any term of contract of service conferring any such right of lay-off. In such a situation the conclusion seems to be inescapable that the workmen were laid-off without any authority of Jaw or the power in the management under the contract of service. In Industrial Establishments where there is a power in the management to lay-off a workman and to which the\n\nprovisions of Chapter VA apply, the qestion of payment of compensa- A tion will be governed and determined by the said provisions. Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay-off compensation. This case, therefore, goes out of Chapter VA. Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10 ( 1 ) of the Act, it is open to the Tribunal or the Court to a ward a lesser sum finding the justifiability B of the lay-off.\n\nIn The Management of Hotel Imperial, New Delhi & others v .\n\nHotel Workers' Union(') in a case of suspension of a workman it was said by Wanchoo, J. as he then was, delivering the judgment on behalf of the Court at page 482:\n\n\"Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work. he will have to pay wages during the so-called period of suspension. Where, however. there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.\"\n\nThe same principle was reiterated in V. P. Gindroniya v. State of Madhya Pradesh & Ors. (2) We have referred to the suspension cases because in our opinion the principles governing the case of lay-off arc very akin to those applicable to a suspension case.\n\nIn Veiyra (M. A.) v. Fernandez (C. P.) and another(') a Bench of the Bombay High Court opined that under the general law the employer was free to dispense with the services of a workman, but under the Industrial Disputes Act he was under an obligation to lay him off; that being so, the action of lay-off by the employer could not be questioned as being ultra vires.\n\nWe do not think that the view expressed by the Bomby High Court is correct.\n\nThere is an important decision of this Court in Workmen of Dewan Tea Estate and Ors. v. The Management(') on which reliance was placed heavily by Mr. M. K. Ramamurti appearing for the appel)ant and also. by r. Andley for the respondent. One of the quest10n for consideration was whether section 25C of the Act recognises the common law right of the management to declare a lay-off for reasons other than those specified in the relevant clause of the Standing Order. While considering this question, Gajcndragadkar, J. as he then was. said at page 554:\n\n\"The question which we are concerned with at this stage is _. jh'hether _it__ ca~_Jie said that s.25C recognises a common law\n\n(I) [1960] 1S.C.R.476.\n\n\n(3) [1956] 1 Labour Law Journal, 547.\n\n\nright of the industrial employer to lay off his workmen. This question must, in our opinion, be answered in the negative.\n\nWhen the laying off of the workmen is referred to in s. 25C, it is the laying off as defined by s. 2 (kkk) and so, workmen who can claim the benefit of s. 25C must be workmen who are laid off and laid off for reasons contemplated by s. 2 (kkk); that is all that s. 25C means.\n\nThen follows a sentence which was pressed into service by the respondent. It says :\n\n\"lf any case is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and layoff would be permissible only where one or the other of the factors mentioned by s. 2 (kkk) is present, and for such lay off compensation would be awarded under s. 25C.\" In our opinion, in the context, the sentence aforesaid means that if the power of lay-off is there in the Standing Orders but the grounds of lay-off are not covered by them, rather, are governed by the provisions of the Act, then lay-off would be permissible only on one or the other of the factors mentioned in clause (kkk). Subsequent discussions at pages 558 and 559 lend ample support to the appellant's argument that there is no provision in the Act specifically providing that an employer would be entitled to lay-off his workmen for the reasons prescribed by section 2 (kkk).\n\nMr. Andley placed strong reliance upon the decision of this Court in Sanjhi leevraj Ghewar Chand & Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Workers' Union & Anr.( 1) The statute under\n\nCOl)sideration in this case was the Payment of Bonus Act, 1965 and it was held that the Act was intended to be a comprehensive and exhaustive Jaw dealing with the entire subject of bonus of the persons to whom it should apply. The Bonus Act was not to apply to certain Establishments.\n\nArgument before the Court was that bonus was. payable de hors the Act in such establishment also.\n\nThis argument was repelled and in that connection it was observed at page 381 :\n\n\"It will be noticed that though the Industrial Disputes Act confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for investigation and settlement of disputes raised thereunder.\n\nThere was, therefore, no question of Parliament having to delete or modify item 5 in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus thereunder by any categorical exclusion in the present case.\" And finally it was held at page 385 :\n\n\"Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the\n\n(I) [1969] 1 s.c.c. 366.\n\nr ,\n\nWORKMEN v. FIRliSTONE TYRE & RUBBER co. (Untwalia, J.) 377\n\nobject of the Act and its scheme, it is not possible to accept the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the Industrial Disputes Act or other corresponding law.\" In a case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory term• engrafted in the Standing Orders do not give the power of lay-off to the employer, the employer will be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen.\n\nIf. however, the terms of employment confer a right of lay-off on the management, then, in the\n\ncase of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein.\n\nBut compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment.\n\nIn Kanhaiya Lal Gupta v. Ajeet Kuniar Dey and others(1) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer bas no right to lay-off a workman without paying him wages.\n\nA learned single Judge of the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others.(2 ) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another v. M. R.\n\nMeher and other(') that it is not open to the Industrial Tribunal under the Act to award lay-off compensation to workmen employed in an 'Industrial Establishment' to which S. 25-C does not apply, is not correct. The source of the power of the employer to lay-off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment.\n\nIn the case of the Delhi office of the respondent the Tribunal bas held that the lay-off was justified. It was open to the Tribunal to award a lesser amount of compensation than the full wages. Instead of sending back the case to the Tribunal, we direct that 75% of the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay-off. As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management.\n\nCivil Appeals 1857-1859 (NL) of 1970 In these appeals the facts are identical to those in the other appeal.\n\nThere were only 33 employees in the Madras Office of the respondent company. Certain workmen were laid-off for identical reasons from the\n\n(I) [1957] II Labour Law Journal, 761.\n\n(2) [1972] I Labour Law Journal, 284.\n\n(3) A.T.R. 1963 Bombay, 146.\n\n5th February, 1968. The lay-off was lifted on the 29th April, 1968.\n\nThe concerned workmen filed petitions under section 33C (2) of the Act for computation of their wages for the period of lay-off. Holding that the lay-off was justified and valid the Presiding Officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay-off.\n\nHence these appeals.\n\nIn a reference under section 10 ( 1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under section 33C (2) of the Act.\n\nOnly the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C (2) of the Act, while, in the reference some compensation could be allowed.\n\nSimilarly on the view expressed above that the respondent company had no power to lay-off any workmen, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay-off.\n\nD For the reasons stated above all the appeals are allowed. In Civil Appeal No. 2307 /1969 in place of the order of the Tribunal, an order is made on the lines indicated above. And in Civil Appeals 1857 to 1859/1970 the orders of the Labour Court are set aside and the cases of the appellants are remitted back to that Court for computation and quanfification of the sums payable to the concerned workmen for the period of lay-off. There will be no order as to costs in any of the E appeals.\n\nS.R.\n\nAppeals allowed:- Orders in CA 2307/69 mocFlicd: CAs 1857-1859/70 remitted hock to the Tribunal.", "total_entities": 107, "entities": [{"text": "WORKMEN OF MIS FIRESTONE TYRE & RUBBER CO.\n\nOF 11\\IDIA (P) LIMITED", "label": "PETITIONER", "start_char": 0, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "WORKMEN OF M/S FIRESTONE TYRE & RUBBER CO. OF INDIA (P) LIMITED", "offset_not_found": false}}, {"text": "FIRESTONE TYRE & RUBBER COMPANY", "label": "RESPONDENT", "start_char": 68, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "FIRESTONE TYRE & RUBBER COMPANY", "offset_not_found": false}}, {"text": "February 13, 1976", "label": "DATE", "start_char": 101, "end_char": 118, "source": "ner", "metadata": {"in_sentence": "OF 11\\IDIA (P) LIMITED\n\nFIRESTONE TYRE & RUBBER COMPANY\n\nFebruary 13, 1976\n\n(V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.J\n\n' Lay-off-Meaning of-Section 2(kkk) of the Industrial Disputes Act (Act\n\nXIV of 1947), 1947."}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 121, "end_char": 139, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ", "label": "JUDGE", "start_char": 144, "end_char": 162, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Section 2(kkk)", "label": "PROVISION", "start_char": 187, "end_char": 201, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 209, "end_char": 232, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act", "label": "STATUTE", "start_char": 260, "end_char": 356, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 2(kkk), 25A, 25B(2)", "label": "PROVISION", "start_char": 401, "end_char": 428, "source": "regex", "metadata": {"linked_statute_text": "Lay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act", "statute": "Lay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act"}}, {"text": "s. 251", "label": "PROVISION", "start_char": 471, "end_char": 477, "source": "regex", "metadata": {"linked_statute_text": "Lay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act", "statute": "Lay-off-Right of the management of an Industrial Establishment under the Industrial Disputes Act"}}, {"text": "Chapter VA of the Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 565, "end_char": 612, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2S", "label": "PROVISION", "start_char": 626, "end_char": 631, "source": "regex", "metadata": {"linked_statute_text": "Chapter VA of the Industrial Disputes Act, 1947", "statute": "Chapter VA of the Industrial Disputes Act, 1947"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 669, "end_char": 692, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 10(1), 33(c)(2)", "label": "PROVISION", "start_char": 717, "end_char": 740, "source": "regex", "metadata": {"linked_statute_text": "Industrial Disputes Act", "statute": "Industrial Disputes Act"}}, {"text": "Bombay", "label": "GPE", "start_char": 851, "end_char": 857, "source": "ner", "metadata": {"in_sentence": "The respondent-company manufacturing tyres in Bombay, due to the general strike in its factory between the oeriod 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lav-off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office."}}, {"text": "4th October 1967", "label": "DATE", "start_char": 967, "end_char": 983, "source": "ner", "metadata": {"in_sentence": "The respondent-company manufacturing tyres in Bombay, due to the general strike in its factory between the oeriod 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lav-off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office."}}, {"text": "Delhi", "label": "GPE", "start_char": 1079, "end_char": 1084, "source": "ner", "metadata": {"in_sentence": "The respondent-company manufacturing tyres in Bombay, due to the general strike in its factory between the oeriod 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lav-off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office."}}, {"text": "Madras", "label": "GPE", "start_char": 1148, "end_char": 1154, "source": "ner", "metadata": {"in_sentence": "The respondent-company manufacturing tyres in Bombay, due to the general strike in its factory between the oeriod 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lav-off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office."}}, {"text": "22nd April 1968", "label": "DATE", "start_char": 1249, "end_char": 1264, "source": "ner", "metadata": {"in_sentence": "The workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively."}}, {"text": "29th April 1968", "label": "DATE", "start_char": 1269, "end_char": 1284, "source": "ner", "metadata": {"in_sentence": "The workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively."}}, {"text": "Delhi Administration", "label": "ORG", "start_char": 1452, "end_char": 1472, "source": "ner", "metadata": {"in_sentence": "An industrial dispute was raised and referred to the tribunal by the Delhi Administration even when the lay-off was in operation."}}, {"text": "Additional Industrial Tribunal, Delhi", "label": "COURT", "start_char": 1542, "end_char": 1579, "source": "ner", "metadata": {"in_sentence": "The Presiding Officer of the Additional Industrial Tribunal, Delhi held that the work.men were not entitled to any layoff compensation."}}, {"text": "s. 33C(2)", "label": "PROVISION", "start_char": 1694, "end_char": 1703, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 1711, "end_char": 1734, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Additional Labour Court. Madras", "label": "COURT", "start_char": 1829, "end_char": 1860, "source": "ner", "metadata": {"in_sentence": "The Presiding officer of the Additional Labour Court."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2260, "end_char": 2264, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 2272, "end_char": 2301, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2795, "end_char": 2799, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 3077, "end_char": 3081, "source": "regex", "metadata": {"linked_statute_text": "the Industrial Disputes Act, 1947", "statute": "the Industrial Disputes Act, 1947"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 3704, "end_char": 3708, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 3975, "end_char": 4018, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1960] 1 S.C.R. 476", "label": "CASE_CITATION", "start_char": 4359, "end_char": 4378, "source": "regex", "metadata": {}}, {"text": "[1970] 3 S.C.R. 448", "label": "CASE_CITATION", "start_char": 4434, "end_char": 4453, "source": "regex", "metadata": {}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 5915, "end_char": 5923, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33C(2)", "label": "PROVISION", "start_char": 6132, "end_char": 6141, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33C(2)", "label": "PROVISION", "start_char": 6332, "end_char": 6341, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 6609, "end_char": 6637, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 7001, "end_char": 7017, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "Jitendra Sharma", "label": "LAWYER", "start_char": 7022, "end_char": 7037, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals."}}, {"text": "Janardan Sharma", "label": "LAWYER", "start_char": 7042, "end_char": 7057, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals."}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 7100, "end_char": 7112, "source": "ner", "metadata": {"in_sentence": "S. N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857- 59/70) for respondents in both the appeals.", "canonical_name": "S. N. Andley"}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 7115, "end_char": 7129, "source": "ner", "metadata": {"in_sentence": "S. N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857- 59/70) for respondents in both the appeals."}}, {"text": "B. R. Mehta", "label": "LAWYER", "start_char": 7134, "end_char": 7145, "source": "ner", "metadata": {"in_sentence": "S. N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857- 59/70) for respondents in both the appeals."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 7250, "end_char": 7258, "source": "ner", "metadata": {"in_sentence": "I The Judgment of the Court was delivered by\n\nUNTWALIA, J.-As the main question for determination in these t' appeals by special leave is common, they have been heard together and\n\nare being disposed of by this judgment."}}, {"text": "3rd March, 1967", "label": "DATE", "start_char": 7763, "end_char": 7778, "source": "ner", "metadata": {"in_sentence": "There was a strike in the Bombay factory from 3rd March, 1967 to !"}}, {"text": "to !6th May, 1967", "label": "DATE", "start_char": 7779, "end_char": 7796, "source": "ner", "metadata": {"in_sentence": "There was a strike in the Bombay factory from 3rd March, 1967 to !"}}, {"text": "4th October, 1967", "label": "DATE", "start_char": 7812, "end_char": 7829, "source": "ner", "metadata": {"in_sentence": "6th May, 1967 and again from 4th October, 1967."}}, {"text": "3rd February, 1968", "label": "DATE", "start_char": 8075, "end_char": 8093, "source": "ner", "metadata": {"in_sentence": "17 workmen out of 30 were laid-off by the management as per their notice dated the 3rd February, 1968, which was to the following effect:\n\n\"Management is unable to give employment to the following workmen due to much reduced production in the company's factory resulting from strike in one of the factory departments."}}, {"text": "5th February, 1968", "label": "DATE", "start_char": 8390, "end_char": 8408, "source": "ner", "metadata": {"in_sentence": "These workmen are, therefore, laid-off in accordance with law with effect from 5th February, 1968.\""}}, {"text": "22nd April, 1968", "label": "DATE", "start_char": 8521, "end_char": 8537, "source": "ner", "metadata": {"in_sentence": "The lay-off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April, 1968."}}, {"text": "17th April, 1968", "label": "DATE", "start_char": 8704, "end_char": 8720, "source": "ner", "metadata": {"in_sentence": "An industrial dispute was raised and referred by the Delhi Administration on the 17th April, 1968 even when the layoff was in operation."}}, {"text": "5th Feb. 1968", "label": "DATE", "start_char": 8884, "end_char": 8897, "source": "ner", "metadata": {"in_sentence": "The reference was in the following terms :\n\n\"Whether the action of the management to 'lay-off' 17 workmen with effect from 5th Feb. 1968 is illegal and/or unjustified, and if so, to what relief are these workmen entitled?\""}}, {"text": "Presiding Officer of the Additional Industrial Tribunal, Delhi", "label": "COURT", "start_char": 8989, "end_char": 9051, "source": "ner", "metadata": {"in_sentence": "The Presiding Officer of the Additional Industrial Tribunal, Delhi has held that the workmen are not entitled to any lay-off compensation."}}, {"text": "Labour Appellate Tribunal of India", "label": "COURT", "start_char": 10612, "end_char": 10646, "source": "ner", "metadata": {"in_sentence": "In such a situation for the closure of the factory for a certain period, no claim for compensation was allowed by the Labour Appellate Tribunal of India."}}, {"text": "Then came an amendment in the Industrial Disputes Act", "label": "STATUTE", "start_char": 10789, "end_char": 10842, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 2", "label": "PROVISION", "start_char": 10908, "end_char": 10917, "source": "regex", "metadata": {"linked_statute_text": "Then came an amendment in the Industrial Disputes Act", "statute": "Then came an amendment in the Industrial Disputes Act"}}, {"text": "Chapter VA was introduced in the Act", "label": "STATUTE", "start_char": 12407, "end_char": 12443, "source": "regex", "metadata": {}}, {"text": "Section 2S", "label": "PROVISION", "start_char": 12498, "end_char": 12508, "source": "regex", "metadata": {"linked_statute_text": "Chapter VA was introduced in the Act", "statute": "Chapter VA was introduced in the Act"}}, {"text": "Sections 2S", "label": "PROVISION", "start_char": 12682, "end_char": 12693, "source": "regex", "metadata": {"linked_statute_text": "Chapter VA was introduced in the Act", "statute": "Chapter VA was introduced in the Act"}}, {"text": "Section 25", "label": "PROVISION", "start_char": 12703, "end_char": 12713, "source": "regex", "metadata": {"linked_statute_text": "Chapter VA was introduced in the Act", "statute": "Chapter VA was introduced in the Act"}}, {"text": "section 25", "label": "PROVISION", "start_char": 13392, "end_char": 13402, "source": "regex", "metadata": {"linked_statute_text": "Chapter VA was introduced in the Act", "statute": "Chapter VA was introduced in the Act"}}, {"text": "Industrial Employment (Standing Orders) Act, 1946", "label": "STATUTE", "start_char": 13585, "end_char": 13634, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25C", "label": "PROVISION", "start_char": 14802, "end_char": 14813, "source": "regex", "metadata": {"statute": null}}, {"text": "section 25J", "label": "PROVISION", "start_char": 15114, "end_char": 15125, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 15594, "end_char": 15603, "source": "regex", "metadata": {"statute": null}}, {"text": "S. N. Andley", "label": "LAWYER", "start_char": 16095, "end_char": 16107, "source": "ner", "metadata": {"in_sentence": "Mr. S. N. Andley submitted with reference , o the explanation and the provisions appended to clause (kkk) that the power to lay-off a workman is inherent in the definition.", "canonical_name": "S. N. Andley"}}, {"text": "section 25B", "label": "PROVISION", "start_char": 16792, "end_char": 16803, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Employment (Standing Orders) Act, 1946", "label": "STATUTE", "start_char": 16916, "end_char": 16965, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 17105, "end_char": 17128, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25E", "label": "PROVISION", "start_char": 17401, "end_char": 17412, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 18050, "end_char": 18059, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Employment (Standing Orders) Act, 1946", "label": "STATUTE", "start_char": 18345, "end_char": 18394, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Otherwise Chapter VA is not a complete Code", "label": "STATUTE", "start_char": 18901, "end_char": 18944, "source": "regex", "metadata": {}}, {"text": "section 10", "label": "PROVISION", "start_char": 19196, "end_char": 19206, "source": "regex", "metadata": {"linked_statute_text": "Otherwise Chapter VA is not a complete Code", "statute": "Otherwise Chapter VA is not a complete Code"}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 19471, "end_char": 19478, "source": "ner", "metadata": {"in_sentence": "Hotel Workers' Union(') in a case of suspension of a workman it was said by Wanchoo, J. as he then was, delivering the judgment on behalf of the Court at page 482:\n\n\"Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 20559, "end_char": 20576, "source": "ner", "metadata": {"in_sentence": "In Veiyra (M. A.) v. Fernandez (C. P.) and another(') a Bench of the Bombay High Court opined that under the general law the employer was free to dispense with the services of a workman, but under the Industrial Disputes Act he was under an obligation to lay him off; that being so, the action of lay-off by the employer could not be questioned as being ultra vires."}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 20691, "end_char": 20714, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bomby High Court", "label": "COURT", "start_char": 20905, "end_char": 20921, "source": "ner", "metadata": {"in_sentence": "We do not think that the view expressed by the Bomby High Court is correct."}}, {"text": "M. K. Ramamurti", "label": "LAWYER", "start_char": 21085, "end_char": 21100, "source": "ner", "metadata": {"in_sentence": "v. The Management(') on which reliance was placed heavily by Mr. M. K. Ramamurti appearing for the appel)ant and also.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "r. Andley", "label": "OTHER_PERSON", "start_char": 21142, "end_char": 21151, "source": "ner", "metadata": {"in_sentence": "by r. Andley for the respondent."}}, {"text": "section 25C", "label": "PROVISION", "start_char": 21222, "end_char": 21233, "source": "regex", "metadata": {"statute": null}}, {"text": "Gajcndragadkar", "label": "JUDGE", "start_char": 21434, "end_char": 21448, "source": "ner", "metadata": {"in_sentence": "While considering this question, Gajcndragadkar, J. as he then was."}}, {"text": "s.25C", "label": "PROVISION", "start_char": 21584, "end_char": 21589, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25C", "label": "PROVISION", "start_char": 21856, "end_char": 21862, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21899, "end_char": 21903, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25C", "label": "PROVISION", "start_char": 21955, "end_char": 21961, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 22036, "end_char": 22040, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25C", "label": "PROVISION", "start_char": 22065, "end_char": 22071, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 22367, "end_char": 22371, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 25C", "label": "PROVISION", "start_char": 22447, "end_char": 22453, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 23022, "end_char": 23031, "source": "regex", "metadata": {"statute": null}}, {"text": "Andley", "label": "OTHER_PERSON", "start_char": 23044, "end_char": 23050, "source": "ner", "metadata": {"in_sentence": "Mr. Andley placed strong reliance upon the decision of this Court in Sanjhi leevraj Ghewar Chand & Ors."}}, {"text": "Payment of Bonus Act, 1965", "label": "STATUTE", "start_char": 23280, "end_char": 23306, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 23746, "end_char": 23769, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Parliament", "label": "ORG", "start_char": 24221, "end_char": 24231, "source": "ner", "metadata": {"in_sentence": "There was, therefore, no question of Parliament having to delete or modify item 5 in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus thereunder by any categorical exclusion in the present case.\""}}, {"text": "Third Schedule", "label": "PROVISION", "start_char": 24273, "end_char": 24287, "source": "regex", "metadata": {"linked_statute_text": "the Payment of Bonus Act, 1965", "statute": "the Payment of Bonus Act, 1965"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 24291, "end_char": 24314, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 25172, "end_char": 25195, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 26150, "end_char": 26170, "source": "ner", "metadata": {"in_sentence": "In Kanhaiya Lal Gupta v. Ajeet Kuniar Dey and others(1) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer bas no right to lay-off a workman without paying him wages."}}, {"text": "Punjab and Haryana High Court", "label": "COURT", "start_char": 26422, "end_char": 26451, "source": "ner", "metadata": {"in_sentence": "A learned single Judge of the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others.(2 ) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another v. M. R.\n\nMeher and other(') that it is not open to the Industrial Tribunal under the Act to award lay-off compensation to workmen employed in an 'Industrial Establishment' to which S. 25-C does not apply, is not correct."}}, {"text": "S. 25", "label": "PROVISION", "start_char": 26849, "end_char": 26854, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33C", "label": "PROVISION", "start_char": 28024, "end_char": 28035, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional Labour Court, Madras", "label": "COURT", "start_char": 28187, "end_char": 28218, "source": "ner", "metadata": {"in_sentence": "Holding that the lay-off was justified and valid the Presiding Officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay-off."}}, {"text": "section 10", "label": "PROVISION", "start_char": 28349, "end_char": 28359, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33C", "label": "PROVISION", "start_char": 28570, "end_char": 28581, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33C", "label": "PROVISION", "start_char": 28782, "end_char": 28793, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33C(2)", "label": "PROVISION", "start_char": 29159, "end_char": 29173, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_379_386_EN", "year": 1976, "text": "STATE OF UTTAR PRADESH v.\n\nRAM KISHAN & OTHERS\n\nFebruary 13, 1976\n\n37~\n\n[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.]\n\nAppeal by State against acquittal-I11terference with the deisio_n of the High Court by the Supreme Court under Art. 136 of the Constltullon-lf the High Court reads the prosecution evidence by introducing an extraneous gloss for the purpose of its conclusion, resulting in failure of justice. this Court should interfere.\n\n\"Material prejudice'' to the acc11.ed-Alteratio11 of the conviction to section 326/34 in appeal when the original charge and conviction were under s. 302/149 is not a \"nwterial preiudicl'\"-Criminal Procedure Code (Act V of 1898- Sections 222, 223 and 225) The accused and the deceased are close relatives. as. per the following pedigree:-\n\nRam Khelawan (2)\n\nVishwanath Shankar\n\n(PW)SI S2\n\nSheo Murat (Acd) SI\n\nShyam Lal (Acd)\n\nRam Kishan (Acd) S2\n\nRamcharan (1)\n\nBairam (3)\n\nKanker\n\nShobha (Acd) S3\n\nKhuddi (4)\n\nShivnath Jagannath\n\n(PW2)\n\nMotiLal (Acd) S4\n\nBhagwantia (Sister) DI\n\nVishwanath, Kanker, deceased Channu, Jagannath, accused Ram Kishan E along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house.\n\nOn March 18, 1969, Vishwanath tried to pacify the quarrel between his brother Kankar's wife and Bhagwantia his cousin-sister and when she refused to heed to his words, he gave one or two slaps to Bhagwantia. The real brothers of Bhagwantia viz.. Ram Kishan, Shobha. Moti Lal and Shyamlal s /o Ram Krishan-all accused, went the next day to Vishwanath's house and demanJed an explanation for beating Bhagwantia and wanted a settlement. Since Vishwanath said there was nothing in fact to be settled, Rani. Kishan :nstigated the F rest to beat Vishwanath. Shobha caught hold of Vishwanath while Sheo Murat dealt knife blows which resulted in two grievous incised injuries. Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and h\\'O abrasions to which he succumbed. On the above version of the incident by the injured Vishwanath, PW I in the complaint and in evidence at the trial, which was unerringly corroborated by PWs 9, 10. 13 and unshaken in the cross-examination, the Sessions Court convicted Sheo Murat under s. 302/149 I.P.C. for G causin?: the death of Channu and under s. 307 /149 I.P.C. for attemnting to murder Vishwanath, though the charges were under s. 302, 307 and 148-, I.P.C., and sentenced him to death under s. 302, I.P .C .. seven years' rigorous imprisonment under s. 307 I.P .C. and to two years' rigorous imprisonment under s. 148. l.P.C.\n\nAccused Ram Kishan. Shobha. Moti Lal and Shyamlal, the respondents in this Court were convicted under s. 302/149 I.P.C., under s. 307 read with s. 149 I.P.C. and s. 147 l.P.C. They were sentenced to one year's rigorous imprisonment under s. 147\n\nI.P.C. to seven vears' rigorous imprisonment under s. 307 /149 I.P.C. and to imprisonment for life H under s. 307 /149.\n\nThe accused appealed to the High Court and there was a reference under s. 374 Cr. P.C. for the confirmation of death sentence.\n\nBy a common judgment, the High Court (i) set aside the conviction and sentences\n\nof all the present respondents and also that of Shco Murat under s. 148, 1.P.C.:\n\n(ii) maintained the convictions under s. 307 l.P.C. and also under s. 302 I.P.C'.. but altered the death sentence to one of life imprisonment and rejected the reference.\n\nThis Court rejected the State's special leave petition against the alteration of the death sentence but granted s!)ecial leave against the acquittal of the respondents alone and issued non-bailable warrants.\n\nAllo¥.ing the appeal, and convicting the .<lccused and sentencing them to different terms with the benefit of set off under s. 428, Cr.P.C. (Act 2 of 1973), the Court,\n\nHELD : ( 1) It is well-established that in an appeal gainst acquittal, this Court is slow to interfere under Art. 136 of the Constitution with the decision of the High Court. The possibility that it may just be reasonably feasible for the Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal.\n\n[383-D-E]\n\n(2) Jn the instant case, the injuries on the two victims are \"res ipso loquitor\" and tell-tale.\n\nThe prosecution case that Vishwanath was caught by Shobha and Channu \\Vas caught hold of by Motilal and Shyamlal is corrobor<.1ted by the medical evidence.\n\nNone of the stab ¥.:ounds are on any Dart of the hand'> or arms which would have necessarily been caused. if the victims were not caught hold of by a person or persons, while they were athtcked with a knife.\n\nIt would be unnatural to expect that the victims \\vould not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands.\n\nAnd in that process if they were not caught hold of by some person or persons, there would have been one or two injurie~ on the hands or arms.\n\nThe High Court completely ignored this most relevant and important aspect in the prosecution. when it observed :\n\n\"It is not at all dear from the prosecution evidence whether Shobha kept on holding Vishwanath till the very end i.e. till both the knife _injuries had been caused to him, or whether he let go his hold as soon\n\nas Sheo Murat started the attack\".\n\n\"There is nothing in the prosecution evidence to indicate \\vhat order those injuries were caused to Channu and \\Vhether or not the injuries on the back were caused first\". ' This erroneous view taken by the High Court of the prosecution evidence adduced in this case and the introduction by the High Court of an extraneous gloss for the purpose of its conclusion viz .•\n\n\"After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses\". resulted in failure of justice. [383G-H, 384C-E]\n\n(3) No prejudice is caused in the instant case to the accused by alteration of the conviction to section<; 326/34 although they had been originallv charged under s. 302/149 and ss. 307 /149, I.P.C. on the particular facts-of the prosecu- . tion case which clearly pointed to participation by the respective accused with the two attacks and which they had to meet in the trial. r385F-G]\n\nCRIMINAL APPELLATE JURISDICTION : CRIMINAL APPEAL No. 253 of 1971.\n\nAppeal by Special leave from the Judgment and Order dated ( 11.2.1 Q71 of !he Allahabad High Court in Criminal \".npeal \"lo. 1285/7('.\n\n0. P. Rana, for the appellant • Shiv Pujan Singh, for the respondent\n\nThe Judgment of the Court was delivered by\n\nU.P. STATE V. RAM K!SHAN (Goswami, I.) 881\n\nGoswAMI, J.-This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal. of the High Court of Allahabad.\n\nBairam, Ram Khelawan and Rhuddi are three sons of one Ram Charan.\n\nThe injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Bairam.\n\nAccused Shea Murat, Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan. Accused Shyam Lal is the son of accused Ram Kishan.\n\nShiv Nath (PW 2) and Jagan Nath are sons of Bhuddi.\n\nThus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur.\n\nIn this ancestral hcuse Vishwanath, Kankar, Chhannu, Jagan Nath and accused Ram Kishan along with his mother and married younger sister Bhagwantia resided.\n\nAll others along with the rest of the four accused lived in a nearby separate house.\n\nOn March 18, 1969, certain quarrel ensued between Bhagwantia and Kankar's wife Patia.\n\nVishwanath tried to pacify both the quarrelling women.\n\nSince Bhagwantia did not heed to Vishwanath's words, the latter gave her one or two slaps.\n\nRam Kishan and his brothers were not in the village on that day but learning about this incident on the following day accused Sheo Murat, Ram Kishan, Shobha, Moti Lal and Shyam Lal went to Vishwanath's place at about 7.00 or\n\n8.00 P.M. What followed may be described in the words of the in jured Vishwanath :\n\n\"On the next day at 7 or 8 P.M. I was sitting at the door of my osara. My younger brothers, Kankar and Chhannu, were sitting at a short distance from me at the weU.\n\nSheonath, my cousin, was also sitting near Kankar and Chhannu.\n\nA burning lantern was hanging from a bamboo pole outside the osara; and there was sufficient light from it.\n\nRam Kishan, Shobha, Shea Murat, Shyam Lal and Moti, accused present in the court, came there, Ram Kishan asked from me as to why I had slapped Bhagwantia and that I should come out and settle np.\n\nI stood up and said, \"Brother, what will you settle up\".\n\nAt this Ram Kishan instigated his companions saying, \"Beat the salas\".\n\nAt once Shobha caught hold of my hand and Sheo Murat dealt knife-blows to me.\n\nChhannu, my younger brother, came to save me, whereupon Shyam Lal and Moti caught hold of him and Shea Murat started giving knife-blows to him.\n\nOn hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them.\n\nChhannu and I fell down on sustaining injuries.\n\nThen all the five accused persons ran away with the knife.\"\n\nWhat has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9), Phool Chand (PW 10)\n\nand Sohan (PW 13). The story given by these witnesses remains H absolutely unshaken in the scanty cross-examination by the defence.\n\nIndeed there was little or no cross-examination with regard to the incident itself.\n\n1D-1.522SCI /76\n\nDeceased Chhannn had the following external injuries on his person as stated by Dr. U. P. Singh who held the autopsy :\n\n(1) Incised stab wound t Xl/3\", on right side chest, l\"\n\nmedical to right nipple going into the chest cavity.\n\n(2) Incised stab wound t\" X t\" X 1\" lo the right of left nipple and 1\" below it, going into the chest cavity. ( 3) Incised stab wound t\" X !\"abdominal cavity deep, on lower part of right side abdomen. ( 4) Incised stab wound t\" X t\" on lower part of abdomen,\n\n3\" above the joint of hip-bones. ( 5) Incised stab wound t\" X t\" X lt\" deep, on left hip. ( 6) Incised stab wound t\"X f' chest cavity deep, on left side back, 6\" below scapula. ( 7) Abrasion Y' X t\" on lateral aspect of right elbow.\n\n(8) Abrasion t\" X t\" on lateral aspect of right hand.\n\nInternal examination revealed that the cartilage of fifth rib had been cut under injury No. (3).\n\nThere were punctured wouuds in the chest cavity in relation to injury Nos. (1), (2) and (6). Right vertrical of heart had a punctured wouud !\" X t\" and the pericardia! cavity contained blood.\n\nThe upper lobe of left lung had a punctured \\Vound t'' X t\" in relation to injury No. 2.\n\nIn the opinion of the Doctor death was due to shock and haemorrhage resulting from injuries to heart and lungs.\n\nAnother Doctor Siddiqui (PW 5) found the following injuries on the person of Vishwanath :-\n\n( 1) Incised wound t\" X t\" X H\" deep, on front side of lower part of neck, directed downwards, backwards and leftwards.\n\nThe wound was in the middle of the neck and 1\" above the bone.\n\nOn coughing air passed through the wound.\n\n(2) Incised wound t\"Xt\"X3\" or more than this, abdominal cavity deep, H\" above and to the left of umbilious.\n\nDirection of wound was backwards, slightly upwards and towards centre of abdomen.\n\nThe injuries were fresh and described by the Doctor as dangerous.\n\nG All the five accused were charged under section 302/149 IPC for causing the death of Chhannu and also under section 307 /149 IPC\n\nfor attempting to murder Vishwanath.\n\nWhile Sheo Murat was charged under section 149 IPC the other four accused were charged ( also under section 14 7 IPC.\n\nThe Sessions Judge convicted accused Sheo Murat under section 148, 307 and 302 IPC.\n\nHe was sentenced to death under section 302 IPC, to seven years rigorous impri- H sonment under section 307 IPC, and to two years rigorous imprison- ; ment under section 148 IPC.\n\nAccused Ram Kishan, Shobha. Moti Lal and Sh yam Lal (the present respondents) were convicted nuder section 302/149 IPC, section 307 read with section 149 and section\n\nU.P. STATE v. RAM KISHAN (Goswamz, J.) 3 83\n\n147 IPC.\n\nThese four accused were sentenced to one year's rigorous A imprisonment under section 147 IPC, to seven years' rigorons impri- EOnment under section 307 /149 IPC and to imprisonment for life\n\nunder section 302/149 IPC.\n\nThe sentences of all the accused were to run concurrently.\n\nThe accused appealed to the High Court.\n\nThere was also a reference under section 3 7 4, Criminal Procedure Code, to the High Court for confirmation of the death sentence on\n\nSheo Murat. Both the matters were heard together by the High B Court and a common judgment was delivered on February 11, 1971.\n\nThe High Court maintained conviction and sentence of the accused Sheo Murat under section 307 IPC and also maintained .his conviction under section 302 I PC but reduced the sentence to imprisonment for life.\n\nThe conviction and sentence of Shea Murat under section 148 IPC were, however, set aside.\n\nThe conviction and sentence of the four other accused (the present respondents) were set C aside. The State prayed for special leave against the rejection of the reference by reducing the death sentence to imprisonment for life but this Court rejected the same.\n\nThe State's special leave application with regard to the respondents' acquittal was, however, admitted on October 13, 1971 and non-bailable warrants were issued against them. We are, therefore, not concerned in this appeal with the conviction of accused Sheo Murat, who was the assailant of the deceased as well as oi Vishwanath.\n\nWe have to consider whether the High Court has committed a grave and palpable error in acquitting the respondents resulting in miscarriage oi justice.\n\nIt is well-settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court, even though it has interfered with the conviction by the trial court, where the same is reached after a proper appreciation of the entire evidence. The possibility that it may just be reasonably feasible for this Court to take a different view of the evidence from that of the High Court is not the test in an appeal against acquittal. Even so, we are unable in this case to sustain the order of the High Court for the reasons, which will presently follow.\n\nWe have already quoted the evidence of Vishwanath which is unerringly corroborated by all the other eye witnesses. Both the trial court as well as the Hight Court believed the evidence.\n\nIndeed the High Court lias observed and, in our opinion, rightly that \"there is no infirmity in the prosecution case\". We then find that the High Court G has read the evidence in a rather unusual way which is at once obvious when we peruse the judgment.\n\nWe are not told wherefrom the High Court could describe the evidence as follows :- \" \"After reaching the house of Vishwanath they (the accused persons) entered into a conversation which became heated and ultimately ended in exchange of abuses\".\n\nThe High Court also observed that- H \"it is not at all clear from the prosecution evidence whether Shobha kept on holding Vishwanath till the very end i.e.\n\ntill both the knife injuries had been caused to him, or whether he let go his hold as soon as Shea Murat started the attack\".\n\nThe High Court further observed that-\n\n\"there is nothing in the prosecution evidence to indicate in what order those injuries were caused to Chhannu, and whether or not the injuries on the back were caused first\".\n\nThe High Court further gave unusual importance to the statement of PW 13 when he deposed in cross-examination to the following effects:-\n\n\"I cannot remember whether the two persons who had caught hold of Chhannu had held him from the front or from the back or from the side. Further, I do not remember whether they were holding) him each with both his arms or whether each of them held him only with one arm. I do not recollect whether Shea Murat had caused injuries to Chhannu from the front side or from the back side\".\n\nWe are unable to appreciate how the evidence of PW 13, who could not remember certain details, could help the court in coming to any conclusion for the purpose of displacing the clear and unambiguous prosecution evidence.\n\nThe injuries on the two victims are res, ipso loquiter and tell-tale.\n\nAccused Shobha caught hold of Vishwanath's hands and Shea Murat gave him two stab blows, one on the neck and the other on the abdomen.\n\nWhen deceased Chhannu advanced in order to save Vishwanath he was caught by accused Shyam Lal and Moti Lal and Shea Murat gave as many as six stab injuries in quick succession. None of these stab wounds are on any part of the hands or arms which would have necessarily been caused if the victims were not caught hold of by a person or persons while they were attacked with a knife. It would be unnatural to expect that the victims would not have exercised their natural instinct of self preservation by trying to stave off the stab injuries by raising their hands.\n\nAnd in that process if they were not caught hold of by some person or persons there would have been one or two injuries on the hands or arms. This wonld clearly go to show that the story that Vishwanath was caught by Shobha and Chhannu was caught by Moti Lal and Shyam Lal, as deposed to by the PWs, stands corroborated by the medical evidence.\n\nThe High Court completely ignored this most relevant and important aspect in the prosecution case but felt satisfied to acquit the accused on the sole ground that there was no evidence to show whether Shobha caught Vishwanath all the time when the two blows were given and also whether Moti Lal and Shyam Lal were catching hold of deceased Chhannu during the entire period of the assault. The High Court particularly felt in that direction because PW 13 being an independent witness co;; ld not recollect certain things to which we have already referred to above. The injuries would clearly show that the victims were caught hold of by a person or persons when these were inflicted upon them.\n\nWe are clearly of opinion that this is a completely erroneous view of the prosecution evidence adduced in this case resulting in failure of justice. We are further satisfied that if the High Court had not read\n\nU.P. STATE v. RAM KRISHAN (Goswami, J.) 385\n\nthe, evidence by introducing al). extraneous gloss for the purpose of its A conclusion it could not have acquitted the accused.\n\nIt is also evidence that the accused came in a body to challenge Vishwanath for the previous day's incident. Although the four respondents were unarmed, Sheo Murat had a knife with him. There is nothing to show from the evidence that Vishwanath gave any provocation to the accused persons. He only replied to the challenge by saying \"Brother, what will you settle np\" ? j\\t this Ram Kishan instigted the other accused persons saying \"beat tl1e salas\".\n\nAt once accused Shobha caught held of Vishwanath's hands and Sheo Murat stabbed! him twice with his knife.\n\nAssuming the respondents had no earlier knowledge about Sheo Murat's carrying a knife, from this moment they came to know that Sheo Murat had a knife with which he had already stabbed Vishwanath. What did they then do wheu deceased Chhannu came to the aid of Vishwanath to save him from further assault? Now Moti Lal and Shyam Lal canght hold of Chhannu and Sheo Murat inflicted several stab blows in quick succession. It is, therefore, clear that Moti Lal and Shyam Lal shared the common intention with Sheo Murat in inflicting stab injuries to Chhannu by participating in the assault.\n\nSheo Murat has been convicted under section 302 IPC. We may only give these two accused Moti Lal and Shyam Lal benefit of doubt with regard to participation with Sheo Murat in the common intention\n\nto cause death of Chhannu. It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when E Sheo Murat was inflicting the stab wounds. There is no escape from the conclusion on this evidence that Moti Lal and Shyam Lal shared at least th~ common intention with Shea Murat to cause grievous hurt under section 326 IPC.\n\nA clear case has been established against both the accused persons under section 326/34 IPC. They are, thelffore, convicted under section 326/34 IPC and sentenced to four years' rigorous imprisonment.\n\nWith regard to accused Ram Kishan he merely instigated by saying \"beat the salas''. He is the person who started the affair by challenging Vishwanath and also instigating the other accused persons to beat.\n\nFrom this alone it is not possible to attribu!El to him any common intention to cause more than simple assault.\n\nHe is, therefore, found guilty only under section ~323/109 IPC.\n\nHe is, therefore, convicted G under section 323/l 09 IPC and sentenced to rigorous iniprisonment for one year.\n\nAccused Shobha, who caught hold of Vishwanath to facilitate the two stab injuries on him by Sheo Murat, is also guilty under section 326/34 IPC. We are prepared to give him the benefit of doubt only with regard to section 307 IPC but the evidence clearly establishes H the case under section 326/34 IPC.\n\nHe is accordingly convicted under section 326/34 IPC and sentenced to four years' rigorous imprisonment.\n\nA We should observe that no prejudice is caused to the accused by\n\nalteration of the conviction to section 326/34 although they had been originally charged under section 302/ 149 and section 307 !l'19 IPC on the particular facts of the prosecution case which clearly pointed to participation by the respective accused in the two attacks and which they had to meet in the trial.\n\nSince the respondents are detained in jail in pursuance of the non-bailable warrants issued by this Court on October 13, 1971, at the time of granting special leave, they will be entitled to the benefit of section 438, Criminal Procedure Codes, and that period shall be set off against the sentences which we have passed in this apepal.\n\nIn the result the judgment of the High Court is set aside, the appeal is allowed and the four accused stand convicted and sentenced as aforesaid subject to the observations mentioned above.\n\nS.R.\n\nAppeal allowed.\n\n' \\", "total_entities": 168, "entities": [{"text": "STATE OF UTTAR PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF UTTAR PRADESH", "offset_not_found": false}}, {"text": "RAM KISHAN & OTHERS", "label": "RESPONDENT", "start_char": 27, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "RAM KISHAN & OTHERS", "offset_not_found": false}}, {"text": "February 13, 1976", "label": "DATE", "start_char": 48, "end_char": 65, "source": "ner", "metadata": {"in_sentence": "STATE OF UTTAR PRADESH v.\n\nRAM KISHAN & OTHERS\n\nFebruary 13, 1976\n\n37~\n\n[P. N. BHAGWATI AND P. K. GOSWAMI, JJ.]"}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 73, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 92, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 224, "end_char": 232, "source": "regex", "metadata": {"statute": null}}, {"text": "section 326", "label": "PROVISION", "start_char": 506, "end_char": 517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 582, "end_char": 588, "source": "regex", "metadata": {"statute": null}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 624, "end_char": 647, "source": "regex", "metadata": {}}, {"text": "Sections 222, 223 and 225", "label": "PROVISION", "start_char": 664, "end_char": 689, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Ram Khelawan", "label": "WITNESS", "start_char": 775, "end_char": 787, "source": "ner", "metadata": {"in_sentence": "per the following pedigree:-\n\nRam Khelawan (2)\n\nVishwanath Shankar\n\n(PW)SI S2\n\nSheo Murat (Acd) SI\n\nShyam Lal (Acd)\n\nRam Kishan (Acd) S2\n\nRamcharan (1)\n\nBairam (3)\n\nKanker\n\nShobha (Acd) S3\n\nKhuddi (4)\n\nShivnath Jagannath\n\n(PW2)\n\nMotiLal (Acd) S4\n\nBhagwantia (Sister) DI\n\nVishwanath, Kanker, deceased Channu, Jagannath, accused Ram Kishan E along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house."}}, {"text": "S2", "label": "PROVISION", "start_char": 820, "end_char": 822, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "S2", "label": "PROVISION", "start_char": 879, "end_char": 881, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "S3", "label": "PROVISION", "start_char": 931, "end_char": 933, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Shivnath Jagannath", "label": "WITNESS", "start_char": 947, "end_char": 965, "source": "ner", "metadata": {"in_sentence": "per the following pedigree:-\n\nRam Khelawan (2)\n\nVishwanath Shankar\n\n(PW)SI S2\n\nSheo Murat (Acd) SI\n\nShyam Lal (Acd)\n\nRam Kishan (Acd) S2\n\nRamcharan (1)\n\nBairam (3)\n\nKanker\n\nShobha (Acd) S3\n\nKhuddi (4)\n\nShivnath Jagannath\n\n(PW2)\n\nMotiLal (Acd) S4\n\nBhagwantia (Sister) DI\n\nVishwanath, Kanker, deceased Channu, Jagannath, accused Ram Kishan E along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house."}}, {"text": "S4", "label": "PROVISION", "start_char": 988, "end_char": 990, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Ram Kishan E", "label": "RESPONDENT", "start_char": 1072, "end_char": 1084, "source": "ner", "metadata": {"in_sentence": "per the following pedigree:-\n\nRam Khelawan (2)\n\nVishwanath Shankar\n\n(PW)SI S2\n\nSheo Murat (Acd) SI\n\nShyam Lal (Acd)\n\nRam Kishan (Acd) S2\n\nRamcharan (1)\n\nBairam (3)\n\nKanker\n\nShobha (Acd) S3\n\nKhuddi (4)\n\nShivnath Jagannath\n\n(PW2)\n\nMotiLal (Acd) S4\n\nBhagwantia (Sister) DI\n\nVishwanath, Kanker, deceased Channu, Jagannath, accused Ram Kishan E along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house.", "canonical_name": "RAM KISHAN & OTHERS"}}, {"text": "Bhagwantia", "label": "OTHER_PERSON", "start_char": 1118, "end_char": 1128, "source": "ner", "metadata": {"in_sentence": "per the following pedigree:-\n\nRam Khelawan (2)\n\nVishwanath Shankar\n\n(PW)SI S2\n\nSheo Murat (Acd) SI\n\nShyam Lal (Acd)\n\nRam Kishan (Acd) S2\n\nRamcharan (1)\n\nBairam (3)\n\nKanker\n\nShobha (Acd) S3\n\nKhuddi (4)\n\nShivnath Jagannath\n\n(PW2)\n\nMotiLal (Acd) S4\n\nBhagwantia (Sister) DI\n\nVishwanath, Kanker, deceased Channu, Jagannath, accused Ram Kishan E along with his mother and sister Bhagwantia were living in the ancestral house at village Bhiwanipur, while the rest lived in a nearby separate house."}}, {"text": "Vishwanath", "label": "OTHER_PERSON", "start_char": 1256, "end_char": 1266, "source": "ner", "metadata": {"in_sentence": "On March 18, 1969, Vishwanath tried to pacify the quarrel between his brother Kankar's wife and Bhagwantia his cousin-sister and when she refused to heed to his words, he gave one or two slaps to Bhagwantia."}}, {"text": "Kankar", "label": "PETITIONER", "start_char": 1315, "end_char": 1321, "source": "ner", "metadata": {"in_sentence": "On March 18, 1969, Vishwanath tried to pacify the quarrel between his brother Kankar's wife and Bhagwantia his cousin-sister and when she refused to heed to his words, he gave one or two slaps to Bhagwantia.", "canonical_name": "Kankar"}}, {"text": "Ram Kishan", "label": "RESPONDENT", "start_char": 1483, "end_char": 1493, "source": "ner", "metadata": {"in_sentence": "The real brothers of Bhagwantia viz.. Ram Kishan, Shobha.", "canonical_name": "RAM KISHAN & OTHERS"}}, {"text": "Shobha", "label": "PETITIONER", "start_char": 1495, "end_char": 1501, "source": "ner", "metadata": {"in_sentence": "The real brothers of Bhagwantia viz.. Ram Kishan, Shobha.", "canonical_name": "Shobha"}}, {"text": "Moti Lal", "label": "OTHER_PERSON", "start_char": 1503, "end_char": 1511, "source": "ner", "metadata": {"in_sentence": "Moti Lal and Shyamlal s /o Ram Krishan-all accused, went the next day to Vishwanath's house and demanJed an explanation for beating Bhagwantia and wanted a settlement.", "canonical_name": "Moti Lal"}}, {"text": "Shyamlal", "label": "RESPONDENT", "start_char": 1516, "end_char": 1524, "source": "ner", "metadata": {"in_sentence": "Moti Lal and Shyamlal s /o Ram Krishan-all accused, went the next day to Vishwanath's house and demanJed an explanation for beating Bhagwantia and wanted a settlement.", "canonical_name": "Sh yam Lal"}}, {"text": "Ram Krishan", "label": "RESPONDENT", "start_char": 1530, "end_char": 1541, "source": "ner", "metadata": {"in_sentence": "Moti Lal and Shyamlal s /o Ram Krishan-all accused, went the next day to Vishwanath's house and demanJed an explanation for beating Bhagwantia and wanted a settlement.", "canonical_name": "RAM KISHAN & OTHERS"}}, {"text": "Rani. Kishan", "label": "OTHER_PERSON", "start_char": 1734, "end_char": 1746, "source": "ner", "metadata": {"in_sentence": "Since Vishwanath said there was nothing in fact to be settled, Rani."}}, {"text": "Sheo Murat", "label": "OTHER_PERSON", "start_char": 1828, "end_char": 1838, "source": "ner", "metadata": {"in_sentence": "Shobha caught hold of Vishwanath while Sheo Murat dealt knife blows which resulted in two grievous incised injuries.", "canonical_name": "Sheo Murat"}}, {"text": "Channu", "label": "OTHER_PERSON", "start_char": 1906, "end_char": 1912, "source": "ner", "metadata": {"in_sentence": "Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and h\\'O abrasions to which he succumbed.", "canonical_name": "Channu \\Vas"}}, {"text": "Shyam Lal", "label": "RESPONDENT", "start_char": 1958, "end_char": 1967, "source": "ner", "metadata": {"in_sentence": "Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and h\\'O abrasions to which he succumbed.", "canonical_name": "Sh yam Lal"}}, {"text": "Moti", "label": "OTHER_PERSON", "start_char": 1972, "end_char": 1976, "source": "ner", "metadata": {"in_sentence": "Channu who came to the rescue was caught hold of by Shyam Lal and Moti and Sheo Murat dealt knife blows causing five fatal incised wounds and h\\'O abrasions to which he succumbed.", "canonical_name": "Moti Lal"}}, {"text": "Vishwanath", "label": "WITNESS", "start_char": 2138, "end_char": 2148, "source": "ner", "metadata": {"in_sentence": "On the above version of the incident by the injured Vishwanath, PW I in the complaint and in evidence at the trial, which was unerringly corroborated by PWs 9, 10."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 2338, "end_char": 2344, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2349, "end_char": 2354, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 307", "label": "PROVISION", "start_char": 2401, "end_char": 2407, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2413, "end_char": 2418, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302, 307 and 148", "label": "PROVISION", "start_char": 2487, "end_char": 2506, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2509, "end_char": 2514, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 2550, "end_char": 2556, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 2609, "end_char": 2615, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 2670, "end_char": 2676, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Shobha. Moti Lal", "label": "LAWYER", "start_char": 2706, "end_char": 2722, "source": "ner", "metadata": {"in_sentence": "Shobha."}}, {"text": "Shyamlal", "label": "RESPONDENT", "start_char": 2727, "end_char": 2735, "source": "ner", "metadata": {"in_sentence": "Moti Lal and Shyamlal, the respondents in this Court were convicted under s. 302/149 I.P.C., under s. 307 read with s. 149 I.P.C. and s. 147 l.P.C. They were sentenced to one year's rigorous imprisonment under s. 147\n\nI.P.C. to seven vears' rigorous imprisonment under s. 307 /149 I.P.C. and to imprisonment for life H under s. 307 /149.", "canonical_name": "Sh yam Lal"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 2788, "end_char": 2794, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2799, "end_char": 2804, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 307", "label": "PROVISION", "start_char": 2813, "end_char": 2819, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 2830, "end_char": 2836, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2837, "end_char": 2842, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 147", "label": "PROVISION", "start_char": 2848, "end_char": 2854, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 147", "label": "PROVISION", "start_char": 2924, "end_char": 2930, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2932, "end_char": 2937, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 307", "label": "PROVISION", "start_char": 2983, "end_char": 2989, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2995, "end_char": 3000, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 307", "label": "PROVISION", "start_char": 3039, "end_char": 3045, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 374", "label": "PROVISION", "start_char": 3124, "end_char": 3130, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Shco Murat", "label": "OTHER_PERSON", "start_char": 3310, "end_char": 3320, "source": "ner", "metadata": {"in_sentence": "By a common judgment, the High Court (i) set aside the conviction and sentences\n\nof all the present respondents and also that of Shco Murat under s. 148, 1.P.C.:\n\n(ii) maintained the convictions under s. 307 l.P.C. and also under s. 302 I.P.C'.. but altered the death sentence to one of life imprisonment and rejected the reference.", "canonical_name": "Sheo Murat"}}, {"text": "s. 148, 1", "label": "PROVISION", "start_char": 3327, "end_char": 3336, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 307", "label": "PROVISION", "start_char": 3382, "end_char": 3388, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3411, "end_char": 3417, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3418, "end_char": 3423, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 428", "label": "PROVISION", "start_char": 3848, "end_char": 3854, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 3856, "end_char": 3862, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 4002, "end_char": 4010, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Channu \\Vas", "label": "OTHER_PERSON", "start_char": 4426, "end_char": 4437, "source": "ner", "metadata": {"in_sentence": "The prosecution case that Vishwanath was caught by Shobha and Channu \\Vas caught hold of by Motilal and Shyamlal is corrobor<.1ted by the medical evidence.", "canonical_name": "Channu \\Vas"}}, {"text": "Motilal", "label": "OTHER_PERSON", "start_char": 4456, "end_char": 4463, "source": "ner", "metadata": {"in_sentence": "The prosecution case that Vishwanath was caught by Shobha and Channu \\Vas caught hold of by Motilal and Shyamlal is corrobor<.1ted by the medical evidence.", "canonical_name": "Moti Lal"}}, {"text": "as Sheo Murat", "label": "OTHER_PERSON", "start_char": 5384, "end_char": 5397, "source": "ner", "metadata": {"in_sentence": "when it observed :\n\n\"It is not at all dear from the prosecution evidence whether Shobha kept on holding Vishwanath till the very end i.e. till both the knife _injuries had been caused to him, or whether he let go his hold as soon\n\nas Sheo Murat started the attack\"."}}, {"text": "\\Vhether", "label": "OTHER_PERSON", "start_char": 5531, "end_char": 5539, "source": "ner", "metadata": {"in_sentence": "\"There is nothing in the prosecution evidence to indicate \\vhat order those injuries were caused to Channu and \\Vhether or not the injuries on the back were caused first\". '"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 6163, "end_char": 6169, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 307", "label": "PROVISION", "start_char": 6178, "end_char": 6185, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6192, "end_char": 6197, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "P. Rana", "label": "LAWYER", "start_char": 6594, "end_char": 6601, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant • Shiv Pujan Singh, for the respondent\n\nThe Judgment of the Court was delivered by\n\nU.P. STATE V. RAM K!SHAN (Goswami, I.) 881\n\nGoswAMI, J.-This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal."}}, {"text": "Shiv Pujan Singh", "label": "LAWYER", "start_char": 6623, "end_char": 6639, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant • Shiv Pujan Singh, for the respondent\n\nThe Judgment of the Court was delivered by\n\nU.P. STATE V. RAM K!SHAN (Goswami, I.) 881\n\nGoswAMI, J.-This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal."}}, {"text": "GoswAMI", "label": "JUDGE", "start_char": 6749, "end_char": 6756, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant • Shiv Pujan Singh, for the respondent\n\nThe Judgment of the Court was delivered by\n\nU.P. STATE V. RAM K!SHAN (Goswami, I.) 881\n\nGoswAMI, J.-This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal.", "canonical_name": "GoswAMI"}}, {"text": "State of Uttar Pradesh", "label": "ORG", "start_char": 6813, "end_char": 6835, "source": "ner", "metadata": {"in_sentence": "P. Rana, for the appellant • Shiv Pujan Singh, for the respondent\n\nThe Judgment of the Court was delivered by\n\nU.P. STATE V. RAM K!SHAN (Goswami, I.) 881\n\nGoswAMI, J.-This appeal by special leave at the instance of the State of Uttar Pradesh is against the judgment of acquittal."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 6881, "end_char": 6904, "source": "ner", "metadata": {"in_sentence": "of the High Court of Allahabad."}}, {"text": "Bairam", "label": "PETITIONER", "start_char": 6907, "end_char": 6913, "source": "ner", "metadata": {"in_sentence": "Bairam, Ram Khelawan and Rhuddi are three sons of one Ram Charan.", "canonical_name": "Bairam"}}, {"text": "Ram Khelawan", "label": "OTHER_PERSON", "start_char": 6915, "end_char": 6927, "source": "ner", "metadata": {"in_sentence": "Bairam, Ram Khelawan and Rhuddi are three sons of one Ram Charan."}}, {"text": "Rhuddi", "label": "PETITIONER", "start_char": 6932, "end_char": 6938, "source": "ner", "metadata": {"in_sentence": "Bairam, Ram Khelawan and Rhuddi are three sons of one Ram Charan."}}, {"text": "Ram Charan", "label": "OTHER_PERSON", "start_char": 6961, "end_char": 6971, "source": "ner", "metadata": {"in_sentence": "Bairam, Ram Khelawan and Rhuddi are three sons of one Ram Charan."}}, {"text": "Shankar", "label": "PETITIONER", "start_char": 7004, "end_char": 7011, "source": "ner", "metadata": {"in_sentence": "The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Bairam."}}, {"text": "Kankar", "label": "PETITIONER", "start_char": 7013, "end_char": 7019, "source": "ner", "metadata": {"in_sentence": "The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Bairam.", "canonical_name": "Kankar"}}, {"text": "Chhannu", "label": "OTHER_PERSON", "start_char": 7033, "end_char": 7040, "source": "ner", "metadata": {"in_sentence": "The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Bairam.", "canonical_name": "Channu \\Vas"}}, {"text": "Bairam", "label": "PETITIONER", "start_char": 7053, "end_char": 7059, "source": "ner", "metadata": {"in_sentence": "The injured Vishwanath (PWI), Shankar, Kankar and deceased Chhannu are sons of Bairam.", "canonical_name": "Bairam"}}, {"text": "Shea Murat", "label": "OTHER_PERSON", "start_char": 7070, "end_char": 7080, "source": "ner", "metadata": {"in_sentence": "Accused Shea Murat, Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan.", "canonical_name": "Sheo Murat"}}, {"text": "Shobha", "label": "PETITIONER", "start_char": 7094, "end_char": 7100, "source": "ner", "metadata": {"in_sentence": "Accused Shea Murat, Ram Kishan, Shobha and Moti Lal are sons of Ram Khelawan.", "canonical_name": "Shobha"}}, {"text": "Shiv Nath", "label": "WITNESS", "start_char": 7193, "end_char": 7202, "source": "ner", "metadata": {"in_sentence": "Shiv Nath (PW 2) and Jagan Nath are sons of Bhuddi."}}, {"text": "Jagan Nath", "label": "WITNESS", "start_char": 7214, "end_char": 7224, "source": "ner", "metadata": {"in_sentence": "Shiv Nath (PW 2) and Jagan Nath are sons of Bhuddi."}}, {"text": "Bhuddi", "label": "OTHER_PERSON", "start_char": 7237, "end_char": 7243, "source": "ner", "metadata": {"in_sentence": "Shiv Nath (PW 2) and Jagan Nath are sons of Bhuddi."}}, {"text": "Bhiwanipur", "label": "GPE", "start_char": 7368, "end_char": 7378, "source": "ner", "metadata": {"in_sentence": "Thus all of them have branched off from Ram Charan and all the members have got share in their ancestral house at village Bhiwanipur."}}, {"text": "Jagan Nath", "label": "OTHER_PERSON", "start_char": 7434, "end_char": 7444, "source": "ner", "metadata": {"in_sentence": "In this ancestral hcuse Vishwanath, Kankar, Chhannu, Jagan Nath and accused Ram Kishan along with his mother and married younger sister Bhagwantia resided."}}, {"text": "March 18, 1969", "label": "DATE", "start_char": 7627, "end_char": 7641, "source": "ner", "metadata": {"in_sentence": "On March 18, 1969, certain quarrel ensued between Bhagwantia and Kankar's wife Patia."}}, {"text": "Patia", "label": "OTHER_PERSON", "start_char": 7703, "end_char": 7708, "source": "ner", "metadata": {"in_sentence": "On March 18, 1969, certain quarrel ensued between Bhagwantia and Kankar's wife Patia."}}, {"text": "Sheonath", "label": "OTHER_PERSON", "start_char": 8335, "end_char": 8343, "source": "ner", "metadata": {"in_sentence": "My younger brothers, Kankar and Chhannu, were sitting at a short distance from me at the weU.\n\nSheonath, my cousin, was also sitting near Kankar and Chhannu."}}, {"text": "Mohan", "label": "OTHER_PERSON", "start_char": 9089, "end_char": 9094, "source": "ner", "metadata": {"in_sentence": "On hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them."}}, {"text": "Phool Chand", "label": "OTHER_PERSON", "start_char": 9096, "end_char": 9107, "source": "ner", "metadata": {"in_sentence": "On hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them."}}, {"text": "Budhi", "label": "OTHER_PERSON", "start_char": 9109, "end_char": 9114, "source": "ner", "metadata": {"in_sentence": "On hearing their instigation, Mohan, Phool Chand, Budhi and others came over there and began to forbid them."}}, {"text": "Shiv Nath", "label": "OTHER_PERSON", "start_char": 9341, "end_char": 9350, "source": "ner", "metadata": {"in_sentence": "What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9), Phool Chand (PW 10)\n\nand Sohan (PW 13)."}}, {"text": "Hansla Prasad", "label": "WITNESS", "start_char": 9359, "end_char": 9372, "source": "ner", "metadata": {"in_sentence": "What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9), Phool Chand (PW 10)\n\nand Sohan (PW 13)."}}, {"text": "Phool Chand", "label": "WITNESS", "start_char": 9381, "end_char": 9392, "source": "ner", "metadata": {"in_sentence": "What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9), Phool Chand (PW 10)\n\nand Sohan (PW 13)."}}, {"text": "and Sohan", "label": "WITNESS", "start_char": 9402, "end_char": 9411, "source": "ner", "metadata": {"in_sentence": "What has been stated above by Vishwanath has been repeated by Shiv Nath (PW 2), Hansla Prasad (PW 9), Phool Chand (PW 10)\n\nand Sohan (PW 13)."}}, {"text": "Chhannn", "label": "OTHER_PERSON", "start_char": 9646, "end_char": 9653, "source": "ner", "metadata": {"in_sentence": "1D-1.522SCI /76\n\nDeceased Chhannn had the following external injuries on his person as stated by Dr. U. P. Singh who held the autopsy :\n\n(1) Incised stab wound t Xl/3\", on right side chest, l\"\n\nmedical to right nipple going into the chest cavity.", "canonical_name": "Channu \\Vas"}}, {"text": "U. P. Singh", "label": "OTHER_PERSON", "start_char": 9721, "end_char": 9732, "source": "ner", "metadata": {"in_sentence": "1D-1.522SCI /76\n\nDeceased Chhannn had the following external injuries on his person as stated by Dr. U. P. Singh who held the autopsy :\n\n(1) Incised stab wound t Xl/3\", on right side chest, l\"\n\nmedical to right nipple going into the chest cavity."}}, {"text": "Siddiqui", "label": "WITNESS", "start_char": 10926, "end_char": 10934, "source": "ner", "metadata": {"in_sentence": "Another Doctor Siddiqui (PW 5) found the following injuries on the person of Vishwanath :-\n\n( 1) Incised wound t\" X t\" X H\" deep, on front side of lower part of neck, directed downwards, backwards and leftwards."}}, {"text": "section 302", "label": "PROVISION", "start_char": 11532, "end_char": 11543, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 11548, "end_char": 11551, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 307", "label": "PROVISION", "start_char": 11600, "end_char": 11611, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11617, "end_char": 11620, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 149", "label": "PROVISION", "start_char": 11695, "end_char": 11706, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11707, "end_char": 11710, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 14", "label": "PROVISION", "start_char": 11760, "end_char": 11770, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11773, "end_char": 11776, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 148, 307 and 302", "label": "PROVISION", "start_char": 11833, "end_char": 11857, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11858, "end_char": 11861, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 302", "label": "PROVISION", "start_char": 11896, "end_char": 11907, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11908, "end_char": 11911, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 307", "label": "PROVISION", "start_char": 11960, "end_char": 11971, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 11972, "end_char": 11975, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 148", "label": "PROVISION", "start_char": 12026, "end_char": 12037, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12038, "end_char": 12041, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ram Kishan", "label": "PETITIONER", "start_char": 12052, "end_char": 12062, "source": "ner", "metadata": {"in_sentence": "Accused Ram Kishan, Shobha.", "canonical_name": "RAM KISHAN & OTHERS"}}, {"text": "Sh yam Lal", "label": "RESPONDENT", "start_char": 12085, "end_char": 12095, "source": "ner", "metadata": {"in_sentence": "Moti Lal and Sh yam Lal (the present respondents) were convicted nuder section 302/149 IPC, section 307 read with section 149 and section\n\nU.P. STATE v. RAM KISHAN (Goswamz, J.) 3 83\n\n147 IPC.", "canonical_name": "Sh yam Lal"}}, {"text": "section 302", "label": "PROVISION", "start_char": 12143, "end_char": 12154, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12159, "end_char": 12162, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 307", "label": "PROVISION", "start_char": 12164, "end_char": 12175, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 149", "label": "PROVISION", "start_char": 12186, "end_char": 12197, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12260, "end_char": 12263, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 147", "label": "PROVISION", "start_char": 12344, "end_char": 12355, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12356, "end_char": 12359, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 307", "label": "PROVISION", "start_char": 12407, "end_char": 12418, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12424, "end_char": 12427, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 302", "label": "PROVISION", "start_char": 12464, "end_char": 12475, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12480, "end_char": 12483, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 12620, "end_char": 12629, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 12635, "end_char": 12658, "source": "regex", "metadata": {}}, {"text": "February 11, 1971", "label": "DATE", "start_char": 12829, "end_char": 12846, "source": "ner", "metadata": {"in_sentence": "Both the matters were heard together by the High B Court and a common judgment was delivered on February 11, 1971."}}, {"text": "section 307", "label": "PROVISION", "start_char": 12931, "end_char": 12942, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 12943, "end_char": 12946, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 302", "label": "PROVISION", "start_char": 12989, "end_char": 13000, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 148", "label": "PROVISION", "start_char": 13106, "end_char": 13117, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 13118, "end_char": 13121, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "October 13, 1971", "label": "DATE", "start_char": 13518, "end_char": 13534, "source": "ner", "metadata": {"in_sentence": "The State's special leave application with regard to the respondents' acquittal was, however, admitted on October 13, 1971 and non-bailable warrants were issued against them."}}, {"text": "Goswami", "label": "JUDGE", "start_char": 18461, "end_char": 18468, "source": "ner", "metadata": {"in_sentence": "We are further satisfied that if the High Court had not read\n\nU.P. STATE v. RAM KRISHAN (Goswami, J.) 385\n\nthe, evidence by introducing al).", "canonical_name": "GoswAMI"}}, {"text": "section 302", "label": "PROVISION", "start_char": 19793, "end_char": 19804, "source": "regex", "metadata": {"statute": null}}, {"text": "IPC", "label": "STATUTE", "start_char": 19805, "end_char": 19808, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chhanu", "label": "OTHER_PERSON", "start_char": 20150, "end_char": 20156, "source": "ner", "metadata": {"in_sentence": "It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when E Sheo Murat was inflicting the stab wounds.", "canonical_name": "Channu \\Vas"}}, {"text": "E Sheo Murat", "label": "OTHER_PERSON", "start_char": 20162, "end_char": 20174, "source": "ner", "metadata": {"in_sentence": "It is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injuries which were facilitated by their catching hold of Chhanu when E Sheo Murat was inflicting the stab wounds."}}, {"text": "section 326", "label": "PROVISION", "start_char": 20373, "end_char": 20384, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 20385, "end_char": 20388, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326", "label": "PROVISION", "start_char": 20464, "end_char": 20475, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 20479, "end_char": 20482, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326", "label": "PROVISION", "start_char": 20521, "end_char": 20532, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 20536, "end_char": 20539, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "IPC", "label": "STATUTE", "start_char": 20972, "end_char": 20975, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 323", "label": "PROVISION", "start_char": 21014, "end_char": 21025, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 21031, "end_char": 21034, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326", "label": "PROVISION", "start_char": 21215, "end_char": 21226, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 21230, "end_char": 21233, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 307", "label": "PROVISION", "start_char": 21304, "end_char": 21315, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 21316, "end_char": 21319, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326", "label": "PROVISION", "start_char": 21374, "end_char": 21385, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 21389, "end_char": 21392, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326", "label": "PROVISION", "start_char": 21429, "end_char": 21440, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 21444, "end_char": 21447, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 326", "label": "PROVISION", "start_char": 21600, "end_char": 21611, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 302", "label": "PROVISION", "start_char": 21663, "end_char": 21674, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "section 307", "label": "PROVISION", "start_char": 21684, "end_char": 21695, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "IPC", "label": "STATUTE", "start_char": 21702, "end_char": 21705, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 438", "label": "PROVISION", "start_char": 22086, "end_char": 22097, "source": "regex", "metadata": {"linked_statute_text": "IPC", "statute": "Indian Penal Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 22099, "end_char": 22122, "source": "regex", "metadata": {}}]}
{"document_id": "1976_3_387_397_EN", "year": 1976, "text": "DHANYALAKSHMI RICE MILLS ETC.\n\nA v. ' THE COMMISSIONER OF CIVIL SUPPLIES AND Ai'\\IOTHER\n\nFebruary 16, 1976 t\n\n[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]\n\nPractice and Procedure-Representation by millers for permission to export rice-Pern1its granted on pay111ent of surcharge to tneet expenses of adnlinistra tive machinery set up to ensure export-Writ of n1andamus to refund n1oney collected-When n1ay be issued by this Court.\n\nIndian Contract Act (9 of 1872), s. 72-Scope of.\n\nThe respondent-State Government was exercising po\\vers delegated to it by the Central Government under the Essential Commodities Act, 1955. It introduced an 'Incentive Export Scheme' under which, millers, who delivered 50% of their purchases to the Food Corporation of India towards mill levy, would be eligible for exporting rice either within the State from one block to another or to States outside, on payment of, administrative charges. On the representation of the millers (appellants) that they could not sell rice locally because there was no demand, and that unless they were allowed to move rice outside the blocks or outside the State there \\vould be deterioration of stocks resulting in loss to both trade and the consuming public, the State passed orders permitting the export of rice subject to the fulfilment of their commitments to the Food Corporation and the payment of administrative charges; and lso set up the necessary administrative machinery for ensuring such export.\n\nPermits \\\\.'ere accordingly granted on tern1s and on condition of payment of the surcharge fixed. and the millers paid the surcharge and received the benefits under the permits. Thereafter, they claimed refund of the administrative surcharge on the ground that the State had no right to collect it and that they made the payments under mistake of law.\n\nWhere the State collected administrative charges but could not grant permits, the State refunded the money, but, where millers obtained permits and had taken advantage thereof, the State contended that there was no mistake on the part of the millers and that the payments were made voluntarily with full knowledge of facts and in discharge of their contractual obligations.\n\nThe millers filed writ petitions praying for directions to the State to refund the administrative surcharges collected from them, but the High Court held that they were not entitled to the relief on the grounds of delay. insufficiency of particulars regarding expenses and charges incurred by the Government, and the payments being voluntary.\n\nDismissing the appeals to this Court, HELD : The petitions were rightly dismissed by the High Court. Also, since various questions of fact are involved as to \\Yhethef there was really a mistake, or whether it was a case of voluntary payment pursuant to contractual rights and obligations, the remedy under Art. 226 is not appropriate in the present cases. [396C-D]\n\n(a) A mandamus will go where there is a specific legal right. If there G is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done.\n\nA writ of mandamus for recovery of mohey could be issued only \\Vhcn the petitioner was entitled to recover that mol'l.ey under some statute.\n\nAn order for payment of money may sometimes be made to enforce a statutory obligation. A mandaQ1us for refund of tax could be issued when the assessments were held to be illegal; but contractual obligations cannot be enforced through a writ of mandamus. Normally, the parties are relegated H to a sult to enforce civil liability arising out of a breach of contract or a tort, to pay an amount of money.\n\nMandamus may also be refused where there is an alternative remedy which is equally convenient, beneficial and effectual.\n\n[395F-396C]\n\nR. v. Bristol and Exeter Railway Co. 1845(3) Ry. & Can. Cas. 777; Lekh Rai v. Deputy Custodian, (1966] 1 S.C.R. 120; Har Shankar & Ors. v. Deputy Excise and Taxation Commisisoner & Ors., A.l.R. 1975 S.C. 1121; Sales Tax Officer Banaras & Ors. v. Kanhaiya Lal Mukundalal Saraf, (1959] S.C.R. !350; Suganmal v. State of Madhya Pradesh & Ors., A.I.R. 1965 S.C. 1740; Burmah Construction Co. v. State of Orissa, (1962] Supp. 1 S.C.R. 242 and State of Kera/a v. Aluminium Industries Ltd., 16 S.T.C. 689, referred to.\n\n(b) The ground of delay on which the High Conrt, in the exercise of. its discretion, refused to grant a mandamus is not confined purely to the penod of limitation. Though some of the petitions were filed within 3 years from the date of payment, the delay is bound up with matters relating to the conduct of parties in regard to payments pursuant to agreements between the parties.\n\n[395B-C]\n\n(c) In the present cases, several petitioners have joined in the writ petitions.\n\nSince each has an individual and independent cause of action, such a combina- C lion would be open to the objection of misjoinder even in a suit. [395C-D]\n\n( d) The issues regarding limitation, estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative purposes of the scheme and allocating the expenses with regard to the quality as well as quantity of rice covered by the permits, are triable more appropriately in a suit. [395D]\n\n(e) The plea of mistake is a bare averment in the writ petition. The payments did not disclose the circumstances under '\"hich the alleged mistake occurred nor the circumstances in which the legal position became known to the millers. Whether there was a mistake in paying the amounts and when exactly the mistake occurred, are also issues triable in a suit. [396D-E]\n\n(f) The Government did not support its demand for administrative charges either as a tax or a fee, but as a condition of the permit and as a term of agreement between the parties to meet the maintenance and supervision expenses for the Scheme of export permits.\n\nUnder s. 72, Contract Act, 1872, if one party, under a mistake of law, pays to another money which is not due by contract or otherwise, that money has to be repaid.\n\nThe mistake is material only so far as it leads to the payment being made v.ithout consideration. But if a mistake of law bad led to the formation of a contract. s. 21 of the Contract Act enacts that such a contract is not, for that reason. voidable; and if money is paid under that contract, it cannot be said that the money was paid under mistake of laVi'.\n\nIt 'vas paid because it was due under a valid contract, and if it had not been paid, payment could have been enforced.\n\n[396E-397A]\n\n The State of Kerala etc. v. K. P. Govindan Tapioca Exporter etc. [1975] 2 S.C.R. 635; State of Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261 and Shiba Prasad Singh v. Srish Chandra Nandi, 76 I.A. 244, referred to.\n\n(g) Where the High Court has. in the exercise of its discretion, refused to grant a writ of mandamus, this Court does not ordinari1y interfere. [394E]\n\nMunicipal Corporation of Greater Bombay v.\n\nAdvance Builders (India) Private Limited. rt9721 1 S.C.R. 408 at p. 420 and D. Cawasii & Co. v.\n\nState of Mysore (1975] 2 S.C.R. 511 at p, 527, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals No. 2390-2391 ( of 1972.\n\n(From the Judgment and Order dated 27-3-1972 of the High Court of Andhra Pradesh in Writ Petition Nos. 3976-3977 of 1971.)\n\nH Civil Appeal No. 604 of 1975\n\n(From the Judgment and Order dated 28-3-1973 of the Andhra Pradesh High Court in Writ Petition No. 685/72).\n\nCivil Appeals Nos. 2423-2437\n\n(From the Judgment and Order dated 27-3-1972 of the Andhra Pradesh High Court in Writ Petitions Nos. 3974, 3975, 3978, 4015, 4016, 4017, 4018, 4019, 4020, 4021, 4247, 4246, 4248, 4249 and 5779/71).\n\nCivil Appeal Nos. 2584-2586 of 1972 B\n\n(From the Judgment and Order dated 28-3-1972 of the Andhra Pradesh High Court in Writ Petition No. 606 and 620, 622/72).\n\nCivil Appeals Nos. 281-286 of 1973\n\n(From the Judgment and Order dated 28-3-1972 of the Andhra Pradesh High Court in Writ Petitions Nos. 4642, 4643, 4644, 4701, 4702 and 5776 of 1971)\n\nCivil Appeals No. 539-540 of 1973\n\n(From the Judgment and Order dated 27.3.1972 of the High Court of Andhra Pradesh in Writ Petition Nos. 5170, 5173/71).\n\nCivil Appeals No. 2019-2034 of 1973.\n\n(From the Judgment and Order dated 28.3.1972 of the Andhra Pradesh High Court in Writ Petitions Nos. 4512, 4588, 4589, 4590, 4591, 4679, 4683, 4684, 4690, 4943, 4953, 4983, 5115, 5117 and 5118 of 1971)\n\nCivil Appeal No. 653-662/74\n\n(From the Judgment and Order dated 28.3.1972 of the High Court of Andhra Pradesh in Writ Petitions Nos. 603, 607, 609, 621, 627, 629, 738, 739, 744 and 746/72).\n\nCivil Appeals Nos. 637, 1837-1842 of 1973.\n\n(From the Judgment and Order dated 27.3.1972 of the Andhra F Pradesh High Court in Writ Petitions Nos. 343/72 and 5669/71, 254, 256, 260, 334, 562/72).\n\nA. K. Sen, for the appellants in CAs 2390-2391 & 2423- -2437 /72.\n\nP. A. Chowdhary, for the appellants in Cas 2019-2034/73.\n\nN. Bhaskar Rao, for the appellants in CAs 2390-2391, 2423- 2437 /72.\n\nB. Kanta Rao, for all the appellants.\n\nA. K. Sen with S. Markandeya and N. Madhusudan Raj, for the appellants in CAs 604/75, 2584-2586/72 and 653-662/74.\n\nA. K. Sen with N. Madhusudan Raj and G. N. Rao, for the appellants in CAs 281-286/73.\n\nA P. Ram Reddv with P. P. Rao, for the respondents in CAs 2390- 2391 & 2423-2437/72, 281-282, 539, 540, 2019-2034/73; IT. 2-4 in CA No. 664/75, 653-662/74 and 2584-2586/72; rr. 1-3 in CA\n\n1042/73 and for rr. in CA 636173, 1837-1841/73.\n\nP. P. Rao for Respondent No. 1 in CA 604/75.\n\nS. P. Nayar and Girish Chandra for respondent No. 1 in CAs B 653-662/74 & rr. in CAS 2584-2586/72.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThese appeals arc by certificate from the common judgment dated 27 March, 1972 of the Andhra Pradesh High Court dismissing the writ petitions of the appellants.\n\nThe appellants filed the writ petitions for an appropriate writ or C order directing the respondent State of Andhra Pradesh to refund the sums of money collected from the appellants as administrative surcharges.\n\nThe appellants are dealers in foodgrains and held licences issued in accordance with the provisions of relevant statutes and control orders.\n\nUnder the provisions of the Essential Commodities Act, 1955 various Control Orders have been issued for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices.\n\nThe Control Orders contemplate regulation or prohibition or production, supply and distribution of essential commodities and trade and commerce therein.\n\nThe State Government exercising powers delegated to it by the Central Government in accordance with the provisions of the Essential Commodities Act issued severnl measures to achieve the objectives of the Control Orders.\n\nThe Government of Andhra Pradesh introduced a scheme known as \"Incentive Export Scheme\".\n\nUnder that Scheme all millers who delivered 50 per cent of their purchases to the Food Corporation of India towards mill levy would be eligible for export under the Scheme. Incentive export permits were to be granted in the ratio of 2 : 3. The ratio meant that if a miller delivered two additional wagons to the Food Corporation of India he would be entitled to export three wagons on private trade account. The last date for delivering rice to the Food Corporation of India was fixed as 20 May, 1971. The last date for issue of permits was fixed as 31 May, 1971.\n\nPermits were of four types. The A type of permits was for export from one block to another within the State. Under these permits admi.nistrative charge were Rs. 2.50 per quintal.\n\nThe B type of permits was for export from the State o.f Andhra Pradesh to other States in the South.\n\nThe administrative charges under the B type permits were Rs. 10/- per quintal.\n\nThe C type pe1mits was for export to any State outside Andhra Pradesh. The administrative charges for C type permits were Rs. 8 /- per quintal.\n\nThe fourth\n\nI ) ,\n\ntype of permits was for export of broken rice under the A type or the C type permits and the surcharges were Re. 1.00 per qmntal.\n\nBy an Order dated 24 July, 1967 under section 5. of the Essential Commodities Act 1955 the Central Government directed that the powers conferred n it by section 3 ( 1) of the Essentil Commodities Act 1955 to make orders to provide for matters specified m clauses\n\n(a)'. (b), (c), (d), (e), (f), (h),\n\n(i) and\n\n(j) of sub-section\n\n(2) thereof shall, in relation to foodstufls be exercisable also by a State Government subject to the conditions ( 1) that such power shall be exercised by a State government subject to such d1recttons, if any, as may be issued by the Central Government in this behalf, and (2) that before making aay order relating to any matter specified in clauses (a) and ( c) or in regard to regulation of transport of any foodstuffs under clause\n\n(d) of section 3 (2) of the Essential Commodities Act, the State Government shall also obtain prior concurrence of the Central Government.\n\nBy an Order dated 30 September, 1967 in exercise of powers cQl; Jferred by section 5 of the Essential Commodities Act the Central Government made an amendment to the order dated 24 July, 1967.\n\nThe amendment was to the effect that before making an order relating to any matter specified in clauses (a), (c) and (f) or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff uader clause ( d) the State Government shall obtain the prior concurrence of the . Central Government.\n\nThe State of Andhra Pradesh by an order dated 22 July, 1968 pursuant to the representation of the millers for export of rice outside the block but within the State passed orders that permits for export of rice would be issued subject to the fulfilment of their commitments and that administrative charge of Rs. 2.50 per quintal of rice would be collected from the millers before the issue of permits.\n\nUnder the Southern States (Regulation of Export of Rice) Order, 1964, Andhra Pradesh Rice and Paddy (Restriction on Movement) Order, 1965 and the Andhra Pmdesh Rice Procurement (Levy and Restriction on Sale) Order, l 967 every dealer or miller was required to supply a minimum quantity of rice to the State Government or its nominees and the balance, that is to say levy free rice, could be sold in the open market or exported to the places outside the block or State under permit issued by the State Government.\n\nThe reprcsentat; on of the millers for permission to exnort rice outs; dc the block or the State was that the denial of permission to export rice would result in deterioration of stocks and consequ~.1tial loss to both the trade and consuming public.\n\nThe appellants applied for and obtained permits by fulfilling two principal conditions. One was to satisfy the statutory requirements of supply to the Food Corporation of India and the other was payment of administrative surcharges for every quintal of rice.\n\nIn the petitions before the High Court the appellants alleged that they paid the surcharge under \"trying circumstances\", \"mistaken belief and impression\" that \"the respondent has the right to collect the surcharge\". The appellants alw alleged that having come to know about\n\nthe\n\n1correct le~! .vosit!on in the matter they asked the respondents to refn'ild te _adm1; ll1Strallve surcharges. The respondents refnsed to refnnd any adm1mstrallve surcharge.\n\nThe appellants contended iu the petitions that the respondent Government has no right to collect any administrative surcharge, and, therefore the amount should be refunded. The appellants alleged that they made the payments m1der mistake of law.\n\nThe High Court held that the levy of administrative surcharge \"is not backed by valid legislative sanction\". The High Court said that the agreements between the State and the appellant millers for export were an executive scheme undertaken by the State but liability to pay tax must be covered by the statute. The High Court expressed the view that there could be no estoppel when both parties are under a mistake of law.\n\nThe High Court however held that the appellants were not entitled to any relief on three grounds. First, th~ administrative surcharges were paid voluntarily by t11e appellants. The appellants themselves represented for issue of permits. The appellants obtained the permits.\n\nThey exported rice under the permits. The High Court, therefore, held that the appellants cannot claim refund of the entire amount without giving due credit for the expenses or charges incurred by the Government for the issue of permits and for the supervision of export, transport and other administrative charges. The second reason given by the High Court was that the Court would not be justified in exercising discretion in favour of the appellants who voluntarily paid the administrative charges, obtained the permits and derived considerable profits therefrom. The third reason given by the High Court was that there was undue delay in claiming the refund.\n\nTh.3 appellants contended that the three grounds on which the High Court dismissed the writ petitions were unsustainable. It is said on behalf of one of the appellants (Civil Appeals No. 2584 to 2586 of 1972) that in their application dated 10 February, 1970 for refund of charges paid by them the appellants gave particulars of payments showing the dates of payment, quantity covered by the permit, the amount of charges paid, the number of permit against which payment was made as well as the challan under which the payment was made.\n\nThereafter the appellants called upon the Collector to furnish copies of regulations under which surcharge was collected. The Collector by letter dated 28 July 1970 informed the appellants that the State Government alone was competent tO! give the copy of the relevant rule or regulation under which surcharge was collected.\n\nThe appellants referred to the letters dated 22 December, 1970 and 2 January, 1971 by which the State Government refused to grant certified copy of the rule or regulation on the ground that it was part of the official correspondence not meant to be supplied to the private party. In this background the appellants contended that since 10 February, 1970 when the appellants demanded refund the appellants from time to time made application for refund and the last reminder was on 30 December, 1971. Some of the appellants filed their writ petitions in the\n\nI ,\n\nHigh Court in the month of September, 1970 and some of them filed A their writ petitions in the month of January 1972. It was, therefore, said that the applications for refund were all made within three years from the date of paymentand the High Court should not have dismisse<.l the writ petitions on the ground of delay.\n\nThe appellants next contended that the pleadings were not vague and the appellants in Civil Appeals No. 2584 to 2586 of 1972 gave B all details of the payments and, therefore, the High Court should not have dismissed the writ petitions on the ground of vagueness of particulars and pleadings.\n\nIt was also said on behalf of the appellants that if the levy as well as collection of administrative surcharges was without authority of law the High Court was in error in refusing any relief to the appellants on the ground that the payments were voluntarily made.\n\nThe appellants relied on the decision of this Court in The State of Kerala etc. v. K. P. Govindan Tapioca Exporter etc.(') as an authority for the proposition t!iat the levy of administrative surcharge is illegal. In the Tapioca case (supra) under the. Kerala Tapioca Manufacture and Export (Control) Order, 1966 no person could export tapioca except in accordance with permit. The State Government levied administrative surcharge under a scheme. The State contended that the administrative surcharge was in effect and substance a licence fee charged in exercise of the police powers of the State for permitting the appellants by grant of permits to export tapioca. This Court held that the scheme was not an order under any of the provisions of the Essential Commodities Act and no licence fee or fee for grant of permit was imposed by the Kerala Tapioca Control Order. The Kerala Tapioca Control Order only provided for levy of administrative surcharge. The Kerala Tapioca Control Order came into existence on 9 June, 1966.\n\nEven before the promulgation of the Order administrative surcharge was levied under a scheme formulated by the State Government on 15 April, 1966 published in the Kerala Gazette on 3 May, 1966. The rate of administrative surcharge levied on tapioca under the scheme dated 15 April, 1966 varied from time to time.\n\nThis Court found that the order dated 15 April, 1966 formulating the scheme was not an order under any of the provisions of section 3 of the Essential Commodities Act.\n\nThe Scheme did not impose any licence fee.\n\nThe scheme merely provided for levying of administrative surcharge.\n\nThe orders levying administrative surcharge which followed the Tapioca Control Order did not refer to the exercise of any power under the Order.\n\nTherefore, this Court held that the administrative surcharge in the Tapioca case (supra) was bad and the realisations were without any authority of law.\n\nThe appellants contended relying on the decision of this Court in State of Madhya Pradesh v. Bhailal Bhai( 2) that the High Court in exercise of powers under Article 226 has power to order refund and repayment of tax illegally collected.\n\nThe appellants submitted that the State had no power under any statute or any authority to\n\n(1) [~97$) 2 S.C.R. 635.\n\n\nA impose and collect administrative surcharge and, therefore, the payments which were made by the appellants were made under mistake of law and the State was liable to refund them.\n\nThe appellants contended that the administrative surcharge was neither in the nature of a fee nor was it a tax and there was no authority of law to support the levy and collection of administrative surcharge. It was said on behalf of the appellants that neither the Essential Commodities Act, 1955 nor the Southern States (Regulation of Export of Rice) Order, 1964 nor the Andhra Pradesh Rice and Paddy Order, 1965 nor the Andhra Pradesh Rice Procurement (Levy and Restriction on Sale) Order, 1967 conferred any power to levy administrative surcharge.\n\nThe respondents contended that the permits were granted pursuant to the representation of the appellants that unless they were allowed the movement of rice to places outside their blocks or outside the State they could not sell rice locally because there was no demand.\n\nThe respondents further said that for ensuring export of rice the administrative machinery had to be set up.\n\nThe permits were granted on terms and conditions of payment of surcharge and the appellants voluntarily paid sur, harge and received benefits unJcr permits.\n\nThe respondents also said that the permits were contractual obligations between the appellants and the respondents.\n\nThe High Court in exercise of its discretion refused to grant a mandamus on a consideration of facts and circumstances of the case.\n\nThe two principal matters which weighed with the High Court are these.\n\nFirst, the appellants voluntarily paid the amounts and derived full advantage and benefit by utilizing the permits.\n\nSecond, there is undue delay in claiming refund.\n\nWhere the High Court has in exercise of discretion refused to grant a writ of mandamus, this Court does not ordinarily interfere. (See Municipal Corporation of Greater Bombay v. Advance Builders (India) Private Limited;(!) D. Cawasji & Co. v. State of Mysore.(')\n\nRefund of illegal taxes stands on a different footing from claiming refund of surcharge paid under terms and conditions of permits. The only basis of tax is legislative sanction and if the legislative sanction fails, the collection of tax cannot be sustained. In the present case the claim for refund is to be judged between the rival contentions.\n\nThe appellants contend that there is no legislative sanction for collection of administrative surcharge.\n\nThe respondents on the other hand support the collection of administrative surcharge first as a condition for permit and second as an item of maintenance charges in the main\n\ntenance and supervision of the scheme for export of rice.\n\nThe respondents also contend that the appellants have no right to claim refund under section 72 of the Indian Contract Act because the payments were neither under mistake of law nor under coercion.\n\nIt is said by the respondents that there is no coercion because the export scheme was voluntary.\n\nAgain, it is said that there is no mistake because the payments made were in fact due as part of the export scheme initiated at the instance of the appellants.\n\nThe respondents deny the claim of the appellants on the further ground that the\n\n(I) [1972] I S.C.R. 408 at p. 420.\n\n\nI p\n\nappellants having derived the benefit and caused detriment to the Govermuent are estopped from questioning the validity of the payments voluntarily made. Another ground on which the respondents challenge the claim of the appellants is that the .Payments were part of the consideration of the agreement entered into by the appellants with State. If it be assumed that the agreements are illegal, the respondent contends that the appellant being a party to the same cannot sue for recovery of money paid.\n\nAll the matters were covered by the common judgment.\n\nIn so!lle cases the claims were beyond three years from the date of the payments.\n\nIn some cases they were within a lesser time but the ground of delay on which the High Court exercised discretion is not confined purely to period of limitation but is bound up with matters relating to conduct of parties in regard to payments pursuant to agreements\n\nbetween the parties.\n\nThe remedy under Article 226 is not appropriate in the present cases for these reasons as well.\n\nFirst, several petitioners have joined.\n\nEach petitioner has individual and independent cause of action.\n\nA suit by such a combination of plaintiffs would be open to misjoinder.\n\nSecond, there are triable issues like limitation, estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative surcharges of the scheme and allocating the expenses with regard to quality as well as quantity of rice covered by the permits.\n\nThe appellants contended that in all cases of claim for refund of money, the payments were voluntary and, therefore, the High Court was in error in refusing refund because of ti]e voluntary character of payment.\n\nIn cases relating to refund of payments of tax which is illegal the voluntary character of payment is that tax payer has no say but is compelled to pay.\n\nIn the present cases the questions arc whether it can be said that payments of administrative charges were voluntary in order to reap benefits of export of rice covered by the permits.\n\nThe contention of the respondents that the export scheme was framed at the instance of the appellants and that the administrative surcharge is the consideration for preparation, maintenance and supervision of the scheme raises questions which can be solved by a suit.\n\nA mandamus will go where there is a specific legal right.\n\nMandamus may be refused where there is an alternative remedy which is equally convenient, beneficial and effectual. If there is no other means of obtaining justice, the writ of mandamus is oranted to enable justice to be done. . Those are cases where justic.;' cannot be done ?nl.ess a mandmus is to go.\n\nR. V. Bristol and Exeter Rqtlway Co. ( ) is an authority for the proposition where the Corporation could b.e compelled to pay a sum of money pursuant to an agreement which could not be enforced by action because the agreemet w; s not under seal.\n\nThis Court in Lekh Raj v. Deputy Custodian( ). and Har Shnkar & Ors. v. Deputy Excise and Taxation Comm1ss1oner & Ors.,( ) held that contractual obligations cannot be enforced through a wnt of mandamus.\n\n(1) 1845 (3) Ry.& Can. Cas. 777.\n\n(2) [1966] I S.C.R.120,\n\n(3) A.I.R. 1975 S.C. 1121.\n\nThe view of this Court in Sales Tax Officer, Banaras & Ors. v.\n\nKanhaiya Lal Mukundalal Saraf(') was that a mandamus could be issued when the assessments were found to be illegal.\n\nIn Suganmal\n\nv. State of Madhya Pradesh & Ors. (2) this Court said that the mandamus for recovery ofmoney could be issued only when the petitioner was entitled to recover that money under some statute.\n\nIn Burmah Construction Co. v. State of Orissa( 3) this Court said that normally the parties are relegated to a suit to enforce civil liability arising out of a breach of contract or a tort to pay an amount of money.\n\nAn order for payment of money may sometimes be made to enforce a statutory obligation.\n\nIn the State of Kera/a v. Aluminium lndustries Ltd. (4) the refund claimed was by reason of the moneys being paid under mistake of law and the collection having been made wrongly.\n\nThe petitions solely for the writ of mandamus directing the State to refund the moneys in the present case have been rightly refused by the High Court on the grounds of delay, insufficiency of particulars and pleadings, and voluntary payments.\n\nThe additional reasons in our opinion are that various questions of fact arise as to whether there was really mistake or it was a case of voluntary payment pursuant to contractual rights and obligations.\n\nThe plea of mistake is a bare averment in the writ petitions. The payments did not disclose the circumstances under which the alleged mistake occurred and the circumstances in which the legal position became known to the appellants.\n\nThe respondents contradicted the plea of mistake.\n\nA triable issue arose as to whether there was a mistake in paying the amounts and when exactly the mistake occurred and under what circumstances.\n\nSection 72 of the Contract Act states that a person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.\n\nThe mistake is material only so far as it leads to the payment being made without consideration. This Court has said that the true principle is that if one party under a mistake of law pays to another money which is not due by contract or otherwise that is to be repaid.\n\nWhen there is a clear and unambiguous position of law which entitles a party to the relief claimed by him equitable considerations are not imported.\n\nA contract entered into under a mistake of law of both parties falls under section 21 of the Contract Act and not section 72. If a mistake of law had led to the formation of a contract, section 21 enacts that the contract is not for that reason voidable.\n\nIf money is paid under that contract, it cannot be said that the money was paid under mistake of law; it was paid because it was dne under a valid contract, and if it had not been paid payment could have been enforced. (See Shiba Prasad Singh v.\n\nSrish Chandra Nandi( 5 ) See also Pollock & Mulla--Contract Act 9th Ed. by J. L. Kapur pp. 519-520). In the present case, the respondents do not support the demand for administrative charges either as a tax or as a fee but as a term and condition of permit and as a\n\n(1) [1959] S.C.R. 1350.\n\n(3) [19621Supp.1 S.C.R. 242.\n\n(5) 76 I.A. 244.\n\n(2) A.LR. 1965 S.C. 1740.\n\n(4) 16 S.T.C. 689.\n\nDHANYALAKSHMI RICE Mil-LS V. C.C.S. (Ray, C.J.) 397\n\nterm of agreement between the parties for the maintenance and supervision expenses for the scheme for export permits of rice from one block to another within the State or outside the State.\n\nIt may be stated here that in cases where the State collected administrative charges but could not grant permits the State refunded moneys to such person.\n\nIt is only where millers have obtained permits and taken advantage thereof that the State contends that there is no mistake and that the payments were made voluntarily with full knowledge of facts.\n\nFor these reasons the appeals are dismissed. If the parties are so advised they may institute suits and all rival contentions would be open to both parties. Parties will pay and bear their own costs.\n\nV.P.S.\n\nAppeals dismissed .\n\n11-1522SCI/76", "total_entities": 68, "entities": [{"text": "DHANYALAKSHMI RICE MILLS ETC", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "DHANYALAKSHMI RICE MILLS ETC", "offset_not_found": false}}, {"text": "THE COMMISSIONER OF CIVIL SUPPLIES AND Ai'\\IOTHER", "label": "RESPONDENT", "start_char": 38, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF CIVIL SUPPLIES AND ANOTHER", "offset_not_found": false}}, {"text": "February 16, 1976", "label": "DATE", "start_char": 89, "end_char": 106, "source": "ner", "metadata": {"in_sentence": "A v. ' THE COMMISSIONER OF CIVIL SUPPLIES AND Ai'\\IOTHER\n\nFebruary 16, 1976 t\n\n[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 111, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 128, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 139, "end_char": 153, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 455, "end_char": 474, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 72", "label": "PROVISION", "start_char": 488, "end_char": 493, "source": "regex", "metadata": {"linked_statute_text": "Indian Contract Act", "statute": "Indian Contract Act"}}, {"text": "Central Government under the Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 583, "end_char": 643, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Food Corporation of India", "label": "ORG", "start_char": 754, "end_char": 779, "source": "ner", "metadata": {"in_sentence": "It introduced an 'Incentive Export Scheme' under which, millers, who delivered 50% of their purchases to the Food Corporation of India towards mill levy, would be eligible for exporting rice either within the State from one block to another or to States outside, on payment of, administrative charges."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2876, "end_char": 2884, "source": "regex", "metadata": {"statute": null}}, {"text": "(1966] 1 S.C.R. 120", "label": "CASE_CITATION", "start_char": 3889, "end_char": 3908, "source": "regex", "metadata": {}}, {"text": "s. 72", "label": "PROVISION", "start_char": 5897, "end_char": 5902, "source": "regex", "metadata": {"statute": null}}, {"text": "Contract Act, 1872", "label": "STATUTE", "start_char": 5904, "end_char": 5922, "source": "regex", "metadata": {}}, {"text": "s. 21", "label": "PROVISION", "start_char": 6219, "end_char": 6224, "source": "regex", "metadata": {"linked_statute_text": "Contract Act, 1872", "statute": "Contract Act, 1872"}}, {"text": "[1975] 2 S.C.R. 635", "label": "CASE_CITATION", "start_char": 6616, "end_char": 6635, "source": "regex", "metadata": {}}, {"text": "[1964] 6 S.C.R. 261", "label": "CASE_CITATION", "start_char": 6677, "end_char": 6696, "source": "regex", "metadata": {}}, {"text": "(1975] 2 S.C.R. 511", "label": "CASE_CITATION", "start_char": 7080, "end_char": 7099, "source": "regex", "metadata": {}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 8820, "end_char": 8829, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, for the appellants in CAs 2390-2391 & 2423- -2437 /72."}}, {"text": "P. A. Chowdhary", "label": "LAWYER", "start_char": 8887, "end_char": 8902, "source": "ner", "metadata": {"in_sentence": "P. A. Chowdhary, for the appellants in Cas 2019-2034/73."}}, {"text": "N. Bhaskar Rao", "label": "LAWYER", "start_char": 8945, "end_char": 8959, "source": "ner", "metadata": {"in_sentence": "N. Bhaskar Rao, for the appellants in CAs 2390-2391, 2423- 2437 /72."}}, {"text": "B. Kanta Rao", "label": "LAWYER", "start_char": 9015, "end_char": 9027, "source": "ner", "metadata": {"in_sentence": "B. Kanta Rao, for all the appellants."}}, {"text": "S. Markandeya", "label": "LAWYER", "start_char": 9069, "end_char": 9082, "source": "ner", "metadata": {"in_sentence": "A. K. Sen with S. Markandeya and N. Madhusudan Raj, for the appellants in CAs 604/75, 2584-2586/72 and 653-662/74."}}, {"text": "N. Madhusudan Raj", "label": "LAWYER", "start_char": 9087, "end_char": 9104, "source": "ner", "metadata": {"in_sentence": "A. K. Sen with S. Markandeya and N. Madhusudan Raj, for the appellants in CAs 604/75, 2584-2586/72 and 653-662/74."}}, {"text": "G. N. Rao", "label": "LAWYER", "start_char": 9207, "end_char": 9216, "source": "ner", "metadata": {"in_sentence": "A. K. Sen with N. Madhusudan Raj and G. N. Rao, for the appellants in CAs 281-286/73."}}, {"text": "A P. Ram Reddv", "label": "LAWYER", "start_char": 9257, "end_char": 9271, "source": "ner", "metadata": {"in_sentence": "A P. Ram Reddv with P. P. Rao, for the respondents in CAs 2390- 2391 & 2423-2437/72, 281-282, 539, 540, 2019-2034/73; IT."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 9277, "end_char": 9286, "source": "ner", "metadata": {"in_sentence": "A P. Ram Reddv with P. P. Rao, for the respondents in CAs 2390- 2391 & 2423-2437/72, 281-282, 539, 540, 2019-2034/73; IT."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 9540, "end_char": 9551, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar and Girish Chandra for respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 9556, "end_char": 9570, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar and Girish Chandra for respondent No."}}, {"text": "RAY", "label": "JUDGE", "start_char": 9684, "end_char": 9687, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThese appeals arc by certificate from the common judgment dated 27 March, 1972 of the Andhra Pradesh High Court dismissing the writ petitions of the appellants."}}, {"text": "provisions of the Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 10222, "end_char": 10271, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 10733, "end_char": 10758, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 10837, "end_char": 10865, "source": "ner", "metadata": {"in_sentence": "The Government of Andhra Pradesh introduced a scheme known as \"Incentive Export Scheme\"."}}, {"text": "20 May, 1971", "label": "DATE", "start_char": 11411, "end_char": 11423, "source": "ner", "metadata": {"in_sentence": "The last date for delivering rice to the Food Corporation of India was fixed as 20 May, 1971."}}, {"text": "31 May, 1971", "label": "DATE", "start_char": 11473, "end_char": 11485, "source": "ner", "metadata": {"in_sentence": "The last date for issue of permits was fixed as 31 May, 1971."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 11724, "end_char": 11738, "source": "ner", "metadata": {"in_sentence": "The B type of permits was for export from the State o.f Andhra Pradesh to other States in the South."}}, {"text": "section 5", "label": "PROVISION", "start_char": 12183, "end_char": 12192, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act 1955", "label": "STATUTE", "start_char": 12201, "end_char": 12231, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 12298, "end_char": 12307, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "Essentil Commodities Act 1955", "label": "STATUTE", "start_char": 12320, "end_char": 12349, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 12918, "end_char": 12927, "source": "regex", "metadata": {"linked_statute_text": "the Essentil Commodities Act 1955", "statute": "the Essentil Commodities Act 1955"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 12939, "end_char": 12964, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "30 September, 1967", "label": "DATE", "start_char": 13069, "end_char": 13087, "source": "ner", "metadata": {"in_sentence": "By an Order dated 30 September, 1967 in exercise of powers cQl; Jferred by section 5 of the Essential Commodities Act the Central Government made an amendment to the order dated 24 July, 1967."}}, {"text": "section 5", "label": "PROVISION", "start_char": 13126, "end_char": 13135, "source": "regex", "metadata": {"linked_statute_text": "the Essentil Commodities Act 1955", "statute": "the Essentil Commodities Act 1955"}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 13143, "end_char": 13168, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Andhra Pradesh", "label": "ORG", "start_char": 13614, "end_char": 13637, "source": "ner", "metadata": {"in_sentence": "The State of Andhra Pradesh by an order dated 22 July, 1968 pursuant to the representation of the millers for export of rice outside the block but within the State passed orders that permits for export of rice would be issued subject to the fulfilment of their commitments and that administrative charge of Rs."}}, {"text": "22 July, 1968", "label": "DATE", "start_char": 13656, "end_char": 13669, "source": "ner", "metadata": {"in_sentence": "The State of Andhra Pradesh by an order dated 22 July, 1968 pursuant to the representation of the millers for export of rice outside the block but within the State passed orders that permits for export of rice would be issued subject to the fulfilment of their commitments and that administrative charge of Rs."}}, {"text": "10 February, 1970", "label": "DATE", "start_char": 17342, "end_char": 17359, "source": "ner", "metadata": {"in_sentence": "2584 to 2586 of 1972) that in their application dated 10 February, 1970 for refund of charges paid by them the appellants gave particulars of payments showing the dates of payment, quantity covered by the permit, the amount of charges paid, the number of permit against which payment was made as well as the challan under which the payment was made."}}, {"text": "28 July 1970", "label": "DATE", "start_char": 17791, "end_char": 17803, "source": "ner", "metadata": {"in_sentence": "The Collector by letter dated 28 July 1970 informed the appellants that the State Government alone was competent tO!"}}, {"text": "22 December, 1970", "label": "DATE", "start_char": 18010, "end_char": 18027, "source": "ner", "metadata": {"in_sentence": "The appellants referred to the letters dated 22 December, 1970 and 2 January, 1971 by which the State Government refused to grant certified copy of the rule or regulation on the ground that it was part of the official correspondence not meant to be supplied to the private party."}}, {"text": "2 January, 1971", "label": "DATE", "start_char": 18032, "end_char": 18047, "source": "ner", "metadata": {"in_sentence": "The appellants referred to the letters dated 22 December, 1970 and 2 January, 1971 by which the State Government refused to grant certified copy of the rule or regulation on the ground that it was part of the official correspondence not meant to be supplied to the private party."}}, {"text": "30 December, 1971", "label": "DATE", "start_char": 18444, "end_char": 18461, "source": "ner", "metadata": {"in_sentence": "In this background the appellants contended that since 10 February, 1970 when the appellants demanded refund the appellants from time to time made application for refund and the last reminder was on 30 December, 1971."}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 20161, "end_char": 20186, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "9 June, 1966", "label": "DATE", "start_char": 20423, "end_char": 20435, "source": "ner", "metadata": {"in_sentence": "The Kerala Tapioca Control Order came into existence on 9 June, 1966."}}, {"text": "15 April, 1966", "label": "DATE", "start_char": 20569, "end_char": 20583, "source": "ner", "metadata": {"in_sentence": "Even before the promulgation of the Order administrative surcharge was levied under a scheme formulated by the State Government on 15 April, 1966 published in the Kerala Gazette on 3 May, 1966."}}, {"text": "3 May, 1966", "label": "DATE", "start_char": 20619, "end_char": 20630, "source": "ner", "metadata": {"in_sentence": "Even before the promulgation of the Order administrative surcharge was levied under a scheme formulated by the State Government on 15 April, 1966 published in the Kerala Gazette on 3 May, 1966."}}, {"text": "section 3", "label": "PROVISION", "start_char": 20876, "end_char": 20885, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act", "label": "STATUTE", "start_char": 20893, "end_char": 20918, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 226", "label": "PROVISION", "start_char": 21492, "end_char": 21503, "source": "regex", "metadata": {"statute": null}}, {"text": "was said on behalf of the appellants that neither the Essential Commodities Act, 1955", "label": "STATUTE", "start_char": 22086, "end_char": 22171, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 72", "label": "PROVISION", "start_char": 24493, "end_char": 24503, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 24511, "end_char": 24530, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 226", "label": "PROVISION", "start_char": 25936, "end_char": 25947, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 72", "label": "PROVISION", "start_char": 29956, "end_char": 29966, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 30613, "end_char": 30623, "source": "regex", "metadata": {"statute": null}}, {"text": "section 72", "label": "PROVISION", "start_char": 30652, "end_char": 30662, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 30724, "end_char": 30734, "source": "regex", "metadata": {"statute": null}}, {"text": "J. L. Kapur", "label": "OTHER_PERSON", "start_char": 31116, "end_char": 31127, "source": "ner", "metadata": {"in_sentence": "by J. L. Kapur pp."}}]}
{"document_id": "1976_3_398_412_EN", "year": 1976, "text": "COMMISSIONER OF INCOME TAX BIHAR, PATNA\n\nSAHU JAIN LIMITED\n\nFebruary 16, 1976\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.)\n\nlncon1e Tax Act, 1922-Section 23A(l)-Undistributed profits of a company -Company in which public are substantially interested-Acting in co1Icert- Rclatio11ship aniongst shareholders if decisive-Family concern.\n\nSahu Jain was a private limited company during the assessment years 1952-53 and 1953-54.\n\nAll the shareholders of the company are the family members of ~Ir. S. P. Jain except two employees who held 20 out of 50,000 shares and excepting the three Companies ,.vhich were also sister concerns.\n\nUnder s. 23A of the lncome Tax Act. 1922, prior to its amendment in the year 1955, where the Income Tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any Company are less than 60 per cent of the assessable income of the company as reduced by the Income Tax and Super 1ax payable by the company in respect thereof, he shall unless he is satisfied that having regard to the loss incurred by the company in earlier years or to the smallness of the profit made,. the payment of a dividend or a larger dividend than declared would be un 4 reasonable, make an order in writing that the undistributed portion of the income of the company of that previous year as compllted for incon1e tax purposes and reduced by the amo.unt of income tax and supertax payable by the company in respect thereof shall be deemed to have been distributed as dividends amongst the shareholders.\n\nThe proviso to the said section provides that the provisions of the section \\VOuld not apply to any company in which the public are substantially interested if shares of the company carrying not less than 25 per cent of the voting power have been allotted unconditionally to or acquired unconditionally by the public or beneficially held by public. The Income Tax Officer held that the provisions of s. 23A were attracted in the case of the company for both the years.\n\nThe Appellate Assistant Commissioner confirmed the order of the Income Tax Officer. The Tribunal held that s. 23A \\Vas not applicable to the co1npany in respect of both the assessment years.\n\nThe Tribunal held that unless it is presumed that because of relationship Shri S. P. Jain, Smt. Rama Jain and Shri A. K. Jain should be regarded as acting in concert there is no other material on record on the basis of which sucha conclusion could be supported.\n\nOn a reference made by the Tribunal, the High Court answered the question in favour of the assessee and against the Revenue.\n\nIn an appeal by special leave the appellant contended :\n\n1. 80 per cent of the share capital was held by S. P. Jain and his wife and t\\vo sons; one of whom \\vas a minor throughout the period and another for a portion of the period and that the remaining shares were held by the company which \\Vere under the control of S. P. Jain and that only 20 sh3resout of 50,000 shares were held by two employees under the control of S. P. Jain.\n\n2. A. K. Jain was appointed as a Director when he \\Vas a minor and he became a Managing Director on a salary of Rs. 6,000/ per month when he \\Vas 20 years old.\n\n3. S. P. Jain who was a Director resigned making room for his Private Secretary for appointment as Director.\n\n4. The Company showed a loss of Rs. 2 lacs and odd in a transaction iR H hessian and the same was shown as profit by Smt. Rama Jain wife of S. P.\n\nJain.\n\n5. S. P. Jain, A. K. Jain. R. Sharma and N. C. Jain were the promoters pf the company and were signatories to the Memorandum of Association.\n\nI '\n\nC.l.T. V. SAHU JAIN LTD. 399\n\nThe respondent contended :\n\n1. Smt. Rama Jain and A. K. Jain were independent assessees.\n\nA .. _. ~· Jan was taking independent decisions as a competent Director. Mere re1ationsh1p would not lead to the conclusion that the said two shareholders acted in concert with S. P. Jain.\n\n2. A. K. Jain was an independent shareholder and was not under the control of S. P. Jain or any other Director or shareholder.\n\n3. N. C. Jain was Director from 1950 to 1954 and S. P. Jain became B Managing Director subject to the approval of the Government. A. K. Jain was appointed as Deputy Managing Director on a remuneration of Rs. 6,0001per month subject to the approval of the Central Government.\n\n4. The transactions like one of hessian are common transactions and no undue importance can be attached to it.\n\n5. Merely because .some persons are promoters or employees of a Company that would not affect their character as shareholders of the Company.\n\nC Allowing the appeals by special leave, HELD : 1. The controversy is whether the company is one in which the public has 25 per cent or more shares. [404C]\n\n2. This Court held in the case of Commissioner of Income Tax. We.st Bengal\n\nv. East Coast Commercial Co. Ltd .• [1967] (I) SCR 321 that the word 'public\" is used in the explanation to s. 23A in contra-distinction to one or more persons who act in unison and amongst whom the voting power constitutes a block. This Court also held that the Tribunal had to decide in the first instance whether there \\vas a group of persons acting in concert holding a sufficient number of shares which may control the voting as a block. But the existence of block is not decisive. The company would still be a company in which public are substantially interested if 25 per cent or more of the voting power has been allotted unconditionally to and beneficially held by the public. This Court also held that the relationship and position as Director are not by themselves decisive. But if the relatives act not freely but with others they cannot be said to belong to the public. The test is not whether they have actually acted in concert but whether the circumstances are such that human experience tells us that it can safely be taken that they must be acting together.\n\n[406A, C-D, H, 407A]\n\n3. It is clear that this company was a family concern with only 20 shares out of 50.000 shares allotted to the two outsiders who again happened to be paid employees. The presence of these two outsiders is of the least significance in the matter of management of the affairs of the company.\n\nA. K. Jain hecame a Director even when he was a minor.\n\nHe would not ordinarily be able to play the role he is supposed to have doite in the Board meetings unless S. P. Jain was confident that the Board was carrying out its mandates with regard to the affairs of the Company. The fact that A. K. Jain and others' were authorised to sign agreements on behalf of the Company is not of 2re<lt si_gnificance. There is no evidence whatsoever to show that Rama Jain wife of S. P. Jain was at all independently acting.\n\n[409G, H, 410]\n\n4. When a company is composed mostly of family members owning lion'i!: share in the entire share capital of the company the onus to keep clear of the reach of s. 23A will be on the shareholders _by adducing some positive evidence about the absence of control by the contro1ling shareholders. [410-BJ\n\n5. No single factor can be decisive but having regard to the totality of the circumstances revealed in the case and the conduct of the transactions of the company taken with the relationship which in the circumstances of this case is not a ne2liclble element, this Court is clearly of the opinion that it is a case in which it cannot be said that the public is substantially intereste..d in 25 per cent or more shares of the company. [410D-E]\n\n6. Even if A. K. Jain is said to be a member of the public, his share~ together with the shares of Ashoka Agencies Limited is 500 less than the minimum shareholdin.e: requisite to earn the benefit of the third proviso to s. 23A read with the explanation. [410-EJ\n\n7. Between August 11, 1951 and May 1, 1952, A. K. Jain and 2 employee Directors apparently took all decisions for the company in the Board's meetings.\n\nThis is not ordinarily possible but for collaboration with the major shareholders.\n\nThis is a case where more ls meant than meets the eye.\n\n[ 41 OE~F]\n\n8. It is a clear case of all the shareholders acting in concert and in unison and the two employee Directors were merely dummies.\n\nThere is not the slightest inkling of the public being interested far less substantially interested in this company. [410G]\n\n9. The intimate relationship of the shareholders, with not the least evidence of disconcert amongst them, the ordinary expectation for individual profit in commercial undertaking; the history of the company and its continued smooth working is inconsistent with anything but full unison amongst the shareholders.\n\nThe Board's meetings are evidence of well organised, well knit, close unity of views in all affairs which in ordinary course of human conduct would not have been at all possible but for a single or concerted action in the company management by a controlling group.\n\n[410D-F]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 761 & 762. of 1971.\n\n(Appeals by Special Leave from the Judgment aud Order dated the 14-3-1969 of the Patna High Court in M.J .C. Nos. 182 and -~ 183 of 1962).\n\nB. Sen, T. A. Ramachandran and S. P. Nayar, for the appellant.\n\nHardayal Hardy, and Bishamber Lal, for respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nThese two appeals by special leave are directed against the common judgment of March 14, 1969, of the Patna High Court in the matter of two references under section 66 (1) of the Indian Income-tax Act, 1922, relating to assessment years 1953-54 and 1954-55 of the respondent (hereinafter to be referred to as the company).\n\nThe case has a rather chequered history as will appear from the facts narrated below :- The company at the material time was a private limited company and at the end of the relevant previous years, namely, August 31, 1952 and August 31, 1953, the shareholding was as follows:-\n\nNumber of shares on 31-8-1952 31-8-1953.\n\n1. Sri Ashok Kumar~Jain, 10,000 10,000 Managing Director.\n\n2. Sri R. Sharma, Director. lO 10\n\n3. Sri N. C. Jain, Director. 10 10\n\n4. Sri S. P. Jain 10,000 10,000\n\n5. Smt. Rama Jain . 10,000 10,000\n\n6. Sri Alok Prakash Jain l 10,000 10,000\n\n7. Sri Rishabh Investment Ltd. 5,000 5,000\n\n8. Dal mi a Jain Co. Ltd. 2,000 2,000\n\n9. Universal Bank; or India Ltd. 980 980\n\n10. Ashoka Agencies Ltd. , 2,000 2,000\n\n50,000 50,000\n\nOf these shareholders Rama Jain is the wife of S. P. Jain and Alok Prakash Jain and Ashok Komar Jain are the sons of S. P. Jain and Rama Jain.\n\nAshok Kumar Jain (briefly A. K. Jain), the Managing Director, attained majority on March 5, 1952, while Alok Prakash Jain was a minor during both the accounting years.\n\nThe three companies, namely, Rishabh Investment Ltd., Dalmia Jain Co. Ltd. and Universal Bank of India Ltd., are companies to which the provisions of action 23A of the Income-tax Act, 1922 .(briefly the Act) prior to its amendment by the Finance Act 1955, applied.\n\nS. P. Jain was the principal shareholder of the Universal Bank of India Ltd. holding 980 shares.\n\nAshoka Agencies Ltd. with 2000 shares was a company to which admittedly section 23A did not apply.\n\nR. Sharma and N. C. Jain holding 10 shares each were employees, N. C. Jain being the Secretary of S. P. Jain.\n\nThe Income-tax Officer by his orders of September 25, 1957 and October 30, 1957, held that section 23A was attracted in the case of the company for both the years.\n\nOn appeal, the Appellate Assistant Commissioner remanded the matter back to the Income-tax Officer for a finding on certain additional facts.\n\nThe Income-tax Officer in his remand report submitted certain additional facts to the Appellate Assistant Commissioner who in due course affirmed the orders of the Income-tax Officer.\n\nThe company appealed to the Income-tax Appellate Tribunal, Bihar, at Patna.\n\nThe Tribunal allowed the appeal by its order of January 26, 1961 (7) and held that section 23A was not applicable to the company in respect of both the assessment years.\n\nAt the instance of the Commissioner Income-tax, Bihar, the following question was referred by the Tribunal to the High Court :\n\n\"Whether on the facts and circumstances of the case the Tribunal was justified in holding that the provisions of section 23A of the Income-tax Act were not applicable to the assessee company for the assessment years 1953-54 and 1954-55\" ?\n\nThe High Court by its order of December 9, 1965, in view of two decisions of this Court, namely, Raghuvanshi Mills Ltd. v. Commissioner of Income-tax, Bombay,(') decided on December 7, 1960 and Commissioner of Income-tax Bombay v. Jubilee Mills Ltd.(2) Bombay, decided on September 1, 1962, directed the Tribunal to submit a supplementary statement of case to it :\n\n\"Whether bearing in mind the principles laid down by the Supreme Court in Raghuvanshi Mills Ltd. v. Commissioner of Income-tax (41 Income Tax Reports 613) and Commissioner of Income-tax, Bombay City v. Jubilee Mills Ltd. ( 48 Income Tax Reports 9) Shrimati Rama Jain and Sri Ashok Kumar J an, or either of them could be safely taken to have acted m concert with Sri S. P. Jain during the years in question, in respect of the affairs of the assessee company\" ?\n\n(I) [1961] 2 S.C.R. 978.\n\n(2) [1963] Supp. 1 S.C.R. 83.\n\nThe High Court also directed that \"the Tribunal may take additional evidence, if it considers it necessary to enable it to state the supplementary case as directed above\".\n\nThe Tribunal thereafter, after hearing the parties, submitted a supplementary statement of case to the High Court on September 30,\n\n1966. A controversy arose before the Tribunal with regard to entertainment of additional evidence which the Revenue wanted to adduce before it, particularly in view of the direction of the High Court, but the Tribunal did not accede to the request and additional evidence was not received.\n\nThe matter then came up before the High Court resulting in the impugned order against the Revenue.\n\nHence these two appeals by special leave.\n\nThe Revenue reiterated its grievance before the High Court about the Tribunal's refusal to entertain additional evidence without success and the matter is no longer in controversy in view of a decision of seven Judges of this Court in The Keshav Mills Co.\n\nLtd. v.\n\nCommissioner of Income-tax, Bombay North,(') affirming the earlier decisions of this Court in the case of the New Jehangir Vakil Mills Ltd. v. The Commissioner of Income-tax, Bombay North(') and The Petlad Turkey Red Dye Works Co. Ltd. Petlad v. The Commissioner of Income-tax, Bombay, Ahmedabad('). It is now well-settled that when the Tribunal has disposed of the matter and is preparing a statement of the case either under Section 66(1) or under section 66(2), there is no scope for any further or additional evidence and the power of the High Court under section 66 ( c) can be exercised only in respect of material and evidence which has already been brought on the record.\n\nIt was contended on behalf of the Revenue before the High Court that the finding of the Tribunal was perverse.\n\nMr. Sen appearing on behalf of the Revenue before us has fairly and, in our opinion, rightly not pressed this submission before us.\n\nSimilarly on behalf , of the company also it was contended before the High Court that there was no principle of law involved in drawing any inference in the cases in answer to the plea of the Revenue that the finding whether section 23A was not attracted was a mixed question of law and fact. It is not possible to hold that the question referred to the High Court is not a question of law as undoubtedly on the statement of case an important question of law does arise and the composite reference was competent.\n\nThe question that arises for consideration is whether on the facts and circumstances that are established before the Tribunal the company in the two assessment years can escape the reach of section 23A of the Act.\n\n\n(2) [1960] l S.C.R. 249.\n\n(3) [1963] Supp. 1 S.C.R. 871.\n\n' ,\n\nI r\n\nSection 23A prior to its amendment in 1956 and so far as it is A material read as follows :-\n\n\"23A ( 1). Power to assess individual members of certain companies.- Where the Income-tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the sixth month B after its accounts for that previous year are laid before the company in general meeting are less than sixty per cent, of the assessable income of the company of that previous year, as reduced by the amount of income-tax and super-tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the .company in earlier years or to the smallness of the profit C made, the payment of a dividend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income-tax purposes and reduced by the amount of income-tax and super-tax payable by the com- D pany in respect thereof shall be deemed to have been distributed as dividends amongst the share-holders as at the date of the general meeting aforesaid, and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income :\n\n• • • Provided further that this sub-section shall not apply to any company in which the public are substantially interested ..... .\n\nExplanation.-For the purpose of this sub-section, a company shall be deemed to be a company in which the public are substantially interested if shares of the company . . . . carrying not less than twenty-five per cent of the voting power have been allotted unconditionally to or acquired unconditionally by, and are at the end of' the previous year beneficially held by the public . . . . . and if any such shares have in the course of such previous year ?een the subject of dealings in any stock exchange or are m fact freely transferable by the holders to other members of the public\".\n\nIn this case the company did not declare any dividend for the assessment year 1953-54.\n\nIn the next assessment year 1954-55,\n\n~:mly. a sum of Rs. 50,000/- was distributed as dividend. It is not m dispute hat the company had sufficient requisite assessable income out of .which ufficient or larger dividend could have been paid.\n\nThere is no dispute that the payment of an adequate dividend for the first year and larger dividend for the next year would have been\n\nat all unreasonable in respect of these two assessment years.\n\nThe only controversy between the parties is with regard to the exclusion of the company from the application of section 33A in view of the third proviso read with the Explanation.\n\nIn other words, is the company one in which the public are substantially interested ? It could be so in terms of the Explanation if 25 per cent shares of the company or more had been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public and if any such shares in the course of such previous year were in fact freely transferable by the holders lo other members of the public. It was not in dispute that the shares of the company were in fact freely transferable by the holders to other members of the public. The controversy, therefore, is within a very narrow compass, namely, whether, as stated earlier, the company is one in which the public has 25 per cent or more shares allotted unconditionally to, or acquired unconditionally by it and are at the end of the previous year beneficially held by it.\n\nIt may be mentioned that section 23A ( 1), as it stood before the amendment by the Finance Act 1956, did not authorise amalgamation of the shares held by \"relatives\" as if they represented a single shareholder. It will, therefore, be a question of fact and a matter of inference in each case whether any \"relatives\" forming themselves into a company acted as a group or block in concert in controlling the affairs of the company.\n\nRelationship would not, per se, lead to such a conclusion.\n\nThe Tribunal in its order observed :\n\n\"Sri A. K. Jain became major on 5-3-1952. Therefore, as at the end of the two previous years, his holding of\n\n10,000 shares cannot ipso facto be amalgamated with the 'shareholding of Sri S. P. Jain as if he was the nominee of his father.\n\nThe shareholding of 10,000 shares by Mrs.\n\nRama Jain has also to be left out of account since, as already observed, there is no finding that Sri S. P. Jain provided the consideration for the acquisition of\n\nI 0,000 shares held by her. Assuming, therefore, that Sri S. P. Jain was controlling shareholder, the shares held by the members of the 'public' which would include Sri A. K. Jain and Mrs. Rama Jain would be at least 22,000 shares\".\n\nIn the supplementary statement of case filed by the Tribunal enclosing various orders and otller documents, it is shown that S. P.\n\nJain was Director of the company from August 3, 1950 to September 25, 1950. He was appointed Managing Director from Jnne 6, 1953, subject to approval of the Government.\n\nA. K.\n\nJain was Director of the company from August 3, 1950 even when he was a minor (his date of birth being March 5, 1934) and was appointed Deputy Managing Director from June 6, 1953, subject to approval of the Government.\n\nR. Sharma was Director from 3-8-1950 to\n\nf I\n\n7-9-1956.\n\nHe was Secretary of R._K. Dalmia and employee of Sahu A Jain Limited.\n\nH. C. Jain was Director from 25-9-1950 to 25-3-1954.\n\nHe was Secretary of S. P. Jain and employee of Ashoka Agencies Limited.\n\nFrom the above it appears that the Deputy Managing Director and the two other Directors held amongst themselves 10,000 shares B. and out of the balance 30,000 shares were held by the relations. of the Managing Director, namely, by the father, the mother and the minor brother.\n\nIt also appears that S. P. Jain along with Ashok Kumar Jain, R. Sharma and N. C. Jain were the promoters and subscribed to the Memorandum of Association at the start of the company in July 1950. It also appears Ashok Kumar Jain, Director, was getting a remuneration of Rs. 6,000/- per month w.c.f. Septem- C ber 1951 in accordance with the resolution passed in an extra-ordinary general meeting of the shareholders on October 1, 1951. At the meeting of the Board of Directors dated November 29, 1950, Ashok Kumar Jain and R, Sharma, Directors of the company, were authorised to execute managing agency agreements with different companies.\n\nAshok Kumar Jain was generally presiding over the meetings from November 1950.\n\nThe Tribunal further observed in its statement of case that -\n\n\"A perusal of the minutes or the proceedings of the general meetings does not lead to any inference that Sri S. P.\n\nJain, Smt. Rama Jain and Sri A. K. Jain were necessarily acting in concert. On the other hand, it appears that despite E his young age, Sri A. K. Jain seems to have been taking active interest in the management of the affairs of the assessee-company and the companies managed by it.\n\nUnless it is to be presumed that because of relationship, Sri S. P. Jain,\n\nSmt. Rama Jain and Sri A. K. Jain should be regarded as acting in concert, there is no other material on record on the basis of which such a conclnsion could be supported\".\n\nThe Tribunal also observed :\n\n\"that in spite of opportunity afforded by the Appellate Assistant Commissioner, the Income-tax Officer had not brought on record materials to show that the voting rights of Mrs.\n\nRama Jain or Sri A. K. Jain were controlled by Sri S. P.\n\nJain\".\n\nThe Tribunal concluded by observing that -\n\n\"The revenue had failed to establish that Sri S. P. Jain, his wife and his son Sri A. K. Jain were acting in concert\".\n\nSection 23A again came up for consideration before this Court in Commissioner of Income-tax, West Bengal v. East Coast Commercial\n\nCo. Ltd. (I).\n\nThis Court made a reference to the Raglwranshi Mills' case (supra) where it was observed :\n\n\"The word 'public' is used (in the Explantion). in contradistinction to one or more persons who act m umons and among whom the voting power constitutes a block. If such a block exists and possesses more than seventy-five per cent of the voting power, then the company cannot be said to be one in which the public are substantially interested ..... . the test is first to find out whether there is an individual or group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be 'unconditionally' and 'beneficially' held by members of the public\".\n\nThis Court further observed :\n\n\" The Tribunal had to decide in the first instance whether there was a group of persons acting in concert holding a sufficient number of shares which may control the voting as a block.\n\nBut the existence of a block is not decisive. If there be a group of persons holding control over voting, the Company would still be a Company in which the public are substantially interested, if twenty-five per cent or more of the voting power has been allotted unconditionally to and beneficially held by the public and the shares were in the previous years subject of dealings in any stock exchange in the taxable territories or were in fact freely transferable by the holders to other members of the public.\n\nThe two enquiries are distinct\".\n\n\\ ,\n\nThis Court further referred to Jubilee Mills' case (supra) and Raghu- + vanshi Mills' case (supra) and observed as follows :-\n\n\"But in Commissioner of Income-tax, Bombay City-I v.\n\nJubilee MU!s Ltd. (supra) this Court held that no direct evidence of overt act or concert between the members of the group having control over voting was necessary to prove that the Company was not one in which the public were substantially interested. It was observed. in Raghuvanshi Mills' case (supra) that 'in deciding if there is such a controlling interest, there is no formula applicable to all cases. Relationship and position as director are not by themselves decisive. If relative act, not freely, but with others, they cannot be said to belong to that body, which is described as 'public' in lhe Explanation'.\n\nIn Jubilee Mills' case (supra) this Court elaborated those observations and stated :\n\nThe test is not whether they have actually acted in concert but whether drcumstances are such that human experience tells us that it can safely be taken that they must\n\n(1)[19671 1 s.c.R. s21.\n\nbe acting together. It is not necessary to state tbe kind of evidence that will prove such concerted actings. Each case must necessarily be decided on its own facts\".\n\nThis Court finally in the above East Coast Commercial Company's case concluded as foUows :-\n\n\"On an analysis of the reasons recorded by the Tribunal and the High Court, it is clear that the Tribunal held that the Kedias did not form a controUing group because there was no evidence that they actuaUy controlled the voting, even though they held more than seventy-five per cent of the shares issued by the Company : the High Court observed that the members of the Kedia family held 4,016 shares of the Company and were in a position to control the affairs of the Company, but there was no evidence to show that they did in fact act in concert and controlled the affairs of the Company as a block. But, as already observed, if the members of the Kedia family formed a block and held more than seventy-five per cent of the voting power, it was not necessary to prove that they actuaUy exercised controlling interest. It is the holding in the aggregate of a majority of the shares issued by a person or persons acting in concert in relation to the affairs of the Company which establishes the existence of a block. It is sufficient, if having regard to their relation etc., their conduct, and their common interest, that it may be inferred that they must be acting together; evidence of actual concerted acting is normaUy difficult to obtain, and is not insisted upon\".\n\nWe may also observe in passing that it does not appear that the East Coast Co_mmercial Company's case (supra) was referred to during the hearing in, nor was it noticed by, the High Court.\n\nThe Tribunal in the supplementary statement observed as follows:-\n\n\"Unless it is to be presumed that because of relationship, F Sri S. P. Jain, Smt. Rama Jain and Sri A. K. Jain should be regarded as acting in concert, there is no other material on record on the basis of which such a conclusion could be supported\".\n\nThe High Court also observed to the same effect :\n\n\" It may be that in view of the relationship of the parties as to a group consisting of the father, two minor sons and their mother, a possible inference was that the relationship was such that they could reasonably be taken to be acting as a group in concert .... \" but \"the assessee could not be placed in the category of such a company accordingly because of close relationship\".\n\nKeeping in the forefront the test laid down by this Court in East Coast Commercial Company's case (supra), Mr. Seo on behalf of the\n\nRevenue submitted for our consideration the following facts and circumstances from which, according to counsel, an inference can be reasonably drawn about the controlling power in a block confined to a family group holding more than 75 pr cent shares :\n\n( 1) 80 per cent of the share capital ( 40,000 out of\n\n50,000) is held by S. P. Jain, his wife and two sons, one of whom was a minor throughout the period of the two accounting years and the other son,\n\nA. K.\n\nJain, for a portton of the period upto March 1952.\n\nThe remaining 20 per cent of the shares was held by the companies which were under the control by S. P. Jain and out of which 20 shares were held by two employees under the control of S. P. Jain.\n\n(2) A. K. Jain was appointed as Director in the company in August 1950 when he was a minor, aged 16 years, and he became the Managing Director on 1-2-1954 at a salary of Rs. 6,0001per month.\n\nAccording to counsel this could not have been possible if he was not the son of the controlling shareholder, S. P. Jain.\n\n( 3) S. P. Jain who was a Director resigned making room for his Private Secretary N. C. Jain for appointment as Director. ( 4) During the assessment year I 953-54 the assessee company claimed Rs. 2,02,500/- as loss in a transaction in hesslan through Messrs Kabra & Co. in settlement of August 18, 1952, and the same amount was shown as profit in hessian through the same broker by Smt. Rama Jain wife of S. P. Jain in the settlement.\n\n(5) S. P. Jain, A. K. Jain, R. Sharma and N. C. Jain were the promoters of the company and were the signatories to the Memorandum of Association.\n\nMr. Hardy, the learned counsel for the respondent, on the other hand, replied to the submissions as follows :-\n\n(1) Rama Jain and A. K. Jain are independent assessees.\n\nThe minutes of the Board's meetings clearly show A. K. Jain as a competent Director taking independent decisions.\n\nMere relationship, therefore, would not lead to the conclusion that these two shareholders acted with S. P. Jain in concert.\n\nHe, however, admits that S. P. Jain may be said to control the voting power of the minor son, Alok Prakash Jain, as his natural guardian.\n\nAccording to Mr. Hardy if Rama Jain and A. K. Jain are holding 20,000 shares out of 50,000, they cannot be held to be acting in concert with S. P. Jain and section 23A will not be attracted.\n\n(2) With rerrard to the second submission of Mr. Sen,\n\nMr. Hardy submits that there is sufficient evidence\n\nI I\n\nin the record, which is even referred to in the further statement of the case, that A. K. Jain was an independent shareholder and was not under the control of S. P. Jain or any other Director or shareholder.\n\nHe further submits that there is no evidence whatsoever that the money for purchasing the shares of A. K. Jain or even of Rama Jain was advanced by S. P. Jain.\n\n(3) With regard to the third submission of Mr. Sen, Mr.\n\nHardy had to admit that N; C. Jain was Director from 1950 to 1954 and S. P. Jain was Director from August 3, 1950 to September 25, 1950 and S. P. Jain became Managing Director of the company on June 6, 1953, subject to the approval of the Government on a remuneration of Rs. 8,000/- per month and A. K. Jain was appointed as Deputy Managing Director on a remuneration of Rs. 6,000/- per month subject to the approval of the Central Government (vide minutes of Board's meeting of June 6, 1953). According to Mr. Hardy, appointment of Directors or even Managing Director is a regular matter of the company and no particular significance should be attached to these appointments. ( 4) With regard to the fourth submission Mr. Hardy submits that such transactions are common with brokers and even the purchaser is not known in most of the cases. Hence no undue importance should be attached to the hessain transaction so as to influence the conclusion. It is also pointed out that there was no controversy about the genuineness of the hessian transaction.\n\nWe are of the view that the genuineness of the aforesaid transaction is, however, irrelevant for the purpose of considering its effect in acting in concert by the shareholders.\n\n(5) With regard to the fifth submission Mr. Hardy submits that it i~ true that S. P. Jain, A. K. Jain. R.\n\nSharma and N. C. Jain were the promoters of the company but admittedly two of them, namely, R. Sharma and N. C. Jain were outsiders. That they were employees would not affect their character as shareholders of the company or even as Directors.\n\nIt is clear that this company was a family concern with only 20 shares out of 50,000 shares allotted to two outsiders who again happened to be paid employees. The presence of these two outsiders\n\nns of the least significance in the matter of management of the affairs of the company. It is true that most of the meetings of the ; Board of Directors were presided over by A. K. Jain with either of the two employees or one of them attending the same. It must however, be noted that A. K. Jain became a Director even when he' was a minor aged 16 years.\n\nHe would not ordinarily be able to play the role he is supposed to have done in the Board's meetings unless S. P.\n\nJain was confident that the Board was carrying out his mandates with regard to the affairs of the company. It is also true that A. K.\n\nJain and the other Directors were authorised to sign agreements on behalf of the company, but this is not of great significance since this was in pursuance of a decision of the Board's meeting which could not have been passed but for the concurrence of S. P. Jain. There is. no evidence w)latsoeve~ to show that Rama Jain, wife of S. P. Jain, was at all independently acting.\n\nWhen a company is composed mostly of family members owning lion's share in the entire share capital of the company the onus to keep clear of the reach of section 23A(l) will be on the shareholders by adducing some positive evidence about the absence of control by the controlling shareholders.\n\nSo far as Rama Jain is concerned it is not possible to hold that S. P. Jain would not be able to control his wife's voting power along with that of his minor son, Alok Prakash Jain. It is true that mere relationship or being a Director is not decisive.\n\nAs a matter of fact no single factor can be, decisive but having regard to the totality of the circumstances revealed in the case and the conduct of the transactions of the company taken with the relationship which, in the circumstances of the case is not a negligible element, we are clearly of the opinion that it is a case in which it cannot be said that the 'public' is substantially interested in 25 per cent or more shares of the company.\n\nEven if we allow A. K. Jain to be a member of the 'public', he only holds I 0,000 shares and taken with 2,000 shares of Ashoka Agencies Ltd., the total shareholding comes only to 12,000• shares, that is to say, 500 less than the minimum shareholding requisite to earn the benefit of the third proviso to section 23A read with the Explanation.\n\nFurther, between August 11, 1951 and May 1, 1952, A. K. Jain and two employee-Directors, the latter having a modicum of 10 shares each, apparently took all decisions for the company in the Board's meetings. This is not ordinarily possible but for collaboration with the major shareholders.\n\nThis is a case where more is meant than meets the eye. We are unable to hold in this case, in absence of any reliable evidence to the contrary, that the voting power of the three Directors was free and uninhibited and not within the orbit of control of the other major shareholders, S. P. Jain and Rama Jain acting in concert. It is a clear case of all the shareholders acting i11' concert and in unions and the two employee-Directors were merely dummies.\n\nThere is not the slightest inkling of 'public' being interested, far less substantially interested, in this company.\n\nThere was no one who could come within the term 'public' outside the ring of the shareholders acting in concert for their own ends with a common purpose.\n\nThere is no evidence whatsoever in this case that the shareholders did not cohere together in the matter of transaction of the company's affairs.\n\nWhen the reality is manifest some reliable evidence within the special knowledge of the assessee must be forthcoming from its side to contradict the obvious in order to be covered! by the exception.\n\nThis has not happened in this case.\n\nUnless the two employees were nominees of the major sharehold ers it is ordinarily absurd to suppose that they could aspire to be and become Directors of the company.\n\nThe Appellate Assistant Commissioner in his order, which is annexed with the statement of the case, mentions that-\n\n\"In fact Shri S. P. Jain as a controlling shareholder had brought himself in as a Director of the company right from the inception of the company and was the first Director of the company from 3-8-50 to 25-9-50.\n\nFrom September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\".\n\nThe factual position, not the opinion, revealed in the above extract is more than eloquent with regard to the core of the company.\n\nHaving regard to the intimate relationship of the shareholders,\n\nwith not the least evidence of any disconcert amongst them, the rdi- E nary expectation for individual profit in commercial undertakings, natural reluctance to forego the same, the history of the company and its continued smooth working in a manner which is normally incon sistent with anything other than full unison amongst the shareholders in decisions about the conduct of company's affairs in common inter est of all, this was a company of one paramount mind operating with out the least doubt.\n\nThe Board's meetings are evidence of a well- F organised, well-knit close unity of views in all affairs and which in ordinary course of human conduct would not have been at all possible but for a single or concerted action in the company's management by a controlling group.\n\nWhen all the above conditions are present in a company, the onus would be on the assessee to satisfy by some reliable evidence that what appears on the surface is that which is real.\n\nThat is not to say that the Revenue has no burd.en to bring the case G within the mischief of section 23A.\n\nApplication of law cannot be bereft of commonsense.\n\nThe object of section 23~ being to prevent avoidance of super-tax by the shareholders by p1lmg up the profits of the company in its own hands the facts and circumstances revealed in this case clearly bring the om pany within the reach of that section.\n\nWe are unable to accede to the submissio~ of Mr: Hardy in this case that because A. K. Jain ff\n\na, n~ Rma Jam wer~ mdepndent assessees and A. K. Jain was pres1dmg m the Board s meetings and as such was taking independent\n\nA decisions and was also doing extra work for the company in Calcutta on salary basis, they should be held to be members of the 'pnblic' who were snbstantially interested in the company with the requisite shareholding for the purpose of the Explanation read with the third\n\nprovirn.\n\nThe High Court was, therefore, not right in answering the ques- B tion in favour of the assessee and against the Revenue. We, therefore, answer the original question in the negative and the revised question in the affirmative both in favour of the Revenue.\n\nThe appeals are allowed but we leave the parties to pay and bear their respective costs.\n\nP.H.P.\n\nAppeals allowed.", "total_entities": 127, "entities": [{"text": "COMMISSIONER OF INCOME TAX BIHAR, PATNA", "label": "PETITIONER", "start_char": 0, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX BIHAR, PATNA", "offset_not_found": false}}, {"text": "SAHU JAIN LIMITED", "label": "RESPONDENT", "start_char": 41, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "SAHU JAIN LIMITED", "offset_not_found": false}}, {"text": "February 16, 1976", "label": "DATE", "start_char": 60, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME TAX BIHAR, PATNA\n\nSAHU JAIN LIMITED\n\nFebruary 16, 1976\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.)"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 80, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Tax Act, 1922", "label": "STATUTE", "start_char": 134, "end_char": 147, "source": "regex", "metadata": {}}, {"text": "Section 23A(l)", "label": "PROVISION", "start_char": 148, "end_char": 162, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "S. P. Jain", "label": "RESPONDENT", "start_char": 494, "end_char": 504, "source": "ner", "metadata": {"in_sentence": "S. P. Jain except two employees who held 20 out of 50,000 shares and excepting the three Companies ,.vhich were also sister concerns.", "canonical_name": "S. P.\n\nJain"}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 635, "end_char": 641, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1922", "statute": "Tax Act, 1922"}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 1959, "end_char": 1965, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 2136, "end_char": 2142, "source": "regex", "metadata": {"statute": null}}, {"text": "Rama Jain", "label": "RESPONDENT", "start_char": 2317, "end_char": 2326, "source": "ner", "metadata": {"in_sentence": "Rama Jain and Shri A. K. Jain should be regarded as acting in concert there is no other material on record on the basis of which sucha conclusion could be supported.", "canonical_name": "Rama Jain"}}, {"text": "A. K. Jain", "label": "RESPONDENT", "start_char": 2336, "end_char": 2346, "source": "ner", "metadata": {"in_sentence": "Rama Jain and Shri A. K. Jain should be regarded as acting in concert there is no other material on record on the basis of which sucha conclusion could be supported.", "canonical_name": "A. K.\n\nJain"}}, {"text": "S. P.\n\nJain", "label": "RESPONDENT", "start_char": 3456, "end_char": 3467, "source": "ner", "metadata": {"in_sentence": "Rama Jain wife of S. P.\n\nJain.", "canonical_name": "S. P.\n\nJain"}}, {"text": "S. P. Jain", "label": "RESPONDENT", "start_char": 3473, "end_char": 3483, "source": "ner", "metadata": {"in_sentence": "S. P. Jain, A. K. Jain.", "canonical_name": "S. P.\n\nJain"}}, {"text": "R. Sharma", "label": "RESPONDENT", "start_char": 3497, "end_char": 3506, "source": "ner", "metadata": {"in_sentence": "R. Sharma and N. C. Jain were the promoters pf the company and were signatories to the Memorandum of Association.", "canonical_name": "R.\n\nSharma"}}, {"text": "N. C. Jain", "label": "RESPONDENT", "start_char": 3511, "end_char": 3521, "source": "ner", "metadata": {"in_sentence": "R. Sharma and N. C. Jain were the promoters pf the company and were signatories to the Memorandum of Association.", "canonical_name": "N. C.\n\nJain"}}, {"text": "Rama Jain", "label": "RESPONDENT", "start_char": 3683, "end_char": 3692, "source": "ner", "metadata": {"in_sentence": "Rama Jain and A. K. Jain were independent assessees.", "canonical_name": "Rama Jain"}}, {"text": "A. K. Jain", "label": "RESPONDENT", "start_char": 3697, "end_char": 3707, "source": "ner", "metadata": {"in_sentence": "Rama Jain and A. K. Jain were independent assessees.", "canonical_name": "A. K.\n\nJain"}}, {"text": "Central Government", "label": "ORG", "start_char": 4310, "end_char": 4328, "source": "ner", "metadata": {"in_sentence": "6,0001per month subject to the approval of the Central Government."}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 4927, "end_char": 4933, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 6897, "end_char": 6903, "source": "regex", "metadata": {"statute": null}}, {"text": "Ashoka Agencies Limited", "label": "ORG", "start_char": 7582, "end_char": 7605, "source": "ner", "metadata": {"in_sentence": "Even if A. K. Jain is said to be a member of the public, his share~ together with the shares of Ashoka Agencies Limited is 500 less than the minimum shareholdin.e: requisite to earn the benefit of the third proviso to s. 23A read with the explanation. ["}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 7704, "end_char": 7710, "source": "regex", "metadata": {"statute": null}}, {"text": "August 11, 1951", "label": "DATE", "start_char": 7758, "end_char": 7773, "source": "ner", "metadata": {"in_sentence": "Between August 11, 1951 and May 1, 1952, A. K. Jain and 2 employee Directors apparently took all decisions for the company in the Board's meetings."}}, {"text": "May 1, 1952", "label": "DATE", "start_char": 7778, "end_char": 7789, "source": "ner", "metadata": {"in_sentence": "Between August 11, 1951 and May 1, 1952, A. K. Jain and 2 employee Directors apparently took all decisions for the company in the Board's meetings."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 8896, "end_char": 8924, "source": "ner", "metadata": {"in_sentence": "[410D-F]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 9046, "end_char": 9062, "source": "ner", "metadata": {"in_sentence": "(Appeals by Special Leave from the Judgment aud Order dated the 14-3-1969 of the Patna High Court in M.J .C. Nos."}}, {"text": "B. Sen", "label": "OTHER_PERSON", "start_char": 9105, "end_char": 9111, "source": "ner", "metadata": {"in_sentence": "B. Sen, T. A. Ramachandran and S. P. Nayar, for the appellant."}}, {"text": "A. Ramachandran", "label": "LAWYER", "start_char": 9116, "end_char": 9131, "source": "ner", "metadata": {"in_sentence": "B. Sen, T. A. Ramachandran and S. P. Nayar, for the appellant."}}, {"text": "S. P. Nayar", "label": "OTHER_PERSON", "start_char": 9136, "end_char": 9147, "source": "ner", "metadata": {"in_sentence": "B. Sen, T. A. Ramachandran and S. P. Nayar, for the appellant."}}, {"text": "Hardayal Hardy", "label": "LAWYER", "start_char": 9169, "end_char": 9183, "source": "ner", "metadata": {"in_sentence": "Hardayal Hardy, and Bishamber Lal, for respondent."}}, {"text": "Bishamber Lal", "label": "LAWYER", "start_char": 9189, "end_char": 9202, "source": "ner", "metadata": {"in_sentence": "Hardayal Hardy, and Bishamber Lal, for respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 9265, "end_char": 9272, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nThese two appeals by special leave are directed against the common judgment of March 14, 1969, of the Patna High Court in the matter of two references under section 66 (1) of the Indian Income-tax Act, 1922, relating to assessment years 1953-54 and 1954-55 of the respondent (hereinafter to be referred to as the company)."}}, {"text": "section 66", "label": "PROVISION", "start_char": 9435, "end_char": 9445, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 9457, "end_char": 9484, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "August 31, 1952", "label": "DATE", "start_char": 9808, "end_char": 9823, "source": "ner", "metadata": {"in_sentence": "The case has a rather chequered history as will appear from the facts narrated below :- The company at the material time was a private limited company and at the end of the relevant previous years, namely, August 31, 1952 and August 31, 1953, the shareholding was as follows:-\n\nNumber of shares on 31-8-1952 31-8-1953."}}, {"text": "August 31, 1953", "label": "DATE", "start_char": 9828, "end_char": 9843, "source": "ner", "metadata": {"in_sentence": "The case has a rather chequered history as will appear from the facts narrated below :- The company at the material time was a private limited company and at the end of the relevant previous years, namely, August 31, 1952 and August 31, 1953, the shareholding was as follows:-\n\nNumber of shares on 31-8-1952 31-8-1953."}}, {"text": "31-8-1952", "label": "DATE", "start_char": 9900, "end_char": 9909, "source": "ner", "metadata": {"in_sentence": "The case has a rather chequered history as will appear from the facts narrated below :- The company at the material time was a private limited company and at the end of the relevant previous years, namely, August 31, 1952 and August 31, 1953, the shareholding was as follows:-\n\nNumber of shares on 31-8-1952 31-8-1953."}}, {"text": "31-8-1953", "label": "DATE", "start_char": 9910, "end_char": 9919, "source": "ner", "metadata": {"in_sentence": "The case has a rather chequered history as will appear from the facts narrated below :- The company at the material time was a private limited company and at the end of the relevant previous years, namely, August 31, 1952 and August 31, 1953, the shareholding was as follows:-\n\nNumber of shares on 31-8-1952 31-8-1953."}}, {"text": "Ashok Kumar~Jain", "label": "RESPONDENT", "start_char": 9929, "end_char": 9945, "source": "ner", "metadata": {"in_sentence": "Sri Ashok Kumar~Jain, 10,000 10,000 Managing Director.", "canonical_name": "Ashok Kumar~Jain"}}, {"text": "R. Sharma", "label": "RESPONDENT", "start_char": 9988, "end_char": 9997, "source": "ner", "metadata": {"in_sentence": "Sri R. Sharma, Director.", "canonical_name": "R.\n\nSharma"}}, {"text": "N. C. Jain", "label": "RESPONDENT", "start_char": 10023, "end_char": 10033, "source": "ner", "metadata": {"in_sentence": "Sri N. C. Jain, Director.", "canonical_name": "N. C.\n\nJain"}}, {"text": "Alok Prakash Jain", "label": "RESPONDENT", "start_char": 10127, "end_char": 10144, "source": "ner", "metadata": {"in_sentence": "Sri Alok Prakash Jain l 10,000 10,000\n\n7.", "canonical_name": "Alok Prakash Jain"}}, {"text": "Rishabh Investment Ltd.", "label": "RESPONDENT", "start_char": 10169, "end_char": 10192, "source": "ner", "metadata": {"in_sentence": "Sri Rishabh Investment Ltd. 5,000 5,000\n\n8."}}, {"text": "Dal mi a Jain Co. Ltd.", "label": "RESPONDENT", "start_char": 10209, "end_char": 10231, "source": "ner", "metadata": {"in_sentence": "Dal mi a Jain Co. Ltd. 2,000 2,000\n\n9."}}, {"text": "Universal Bank", "label": "RESPONDENT", "start_char": 10248, "end_char": 10262, "source": "ner", "metadata": {"in_sentence": "Universal Bank; or India Ltd. 980 980\n\n10."}}, {"text": "Ashoka Agencies Ltd.", "label": "RESPONDENT", "start_char": 10291, "end_char": 10311, "source": "ner", "metadata": {"in_sentence": "Ashoka Agencies Ltd. , 2,000 2,000\n\n50,000 50,000\n\nOf these shareholders Rama Jain is the wife of S. P. Jain and Alok Prakash Jain and Ashok Komar Jain are the sons of S. P. Jain and Rama Jain."}}, {"text": "Alok Prakash Jain", "label": "RESPONDENT", "start_char": 10404, "end_char": 10421, "source": "ner", "metadata": {"in_sentence": "Ashoka Agencies Ltd. , 2,000 2,000\n\n50,000 50,000\n\nOf these shareholders Rama Jain is the wife of S. P. Jain and Alok Prakash Jain and Ashok Komar Jain are the sons of S. P. Jain and Rama Jain.", "canonical_name": "Alok Prakash Jain"}}, {"text": "Ashok Komar Jain", "label": "RESPONDENT", "start_char": 10426, "end_char": 10442, "source": "ner", "metadata": {"in_sentence": "Ashoka Agencies Ltd. , 2,000 2,000\n\n50,000 50,000\n\nOf these shareholders Rama Jain is the wife of S. P. Jain and Alok Prakash Jain and Ashok Komar Jain are the sons of S. P. Jain and Rama Jain.", "canonical_name": "Ashok Kumar~Jain"}}, {"text": "Ashok Kumar Jain", "label": "RESPONDENT", "start_char": 10486, "end_char": 10502, "source": "ner", "metadata": {"in_sentence": "Ashok Kumar Jain (briefly A. K. Jain), the Managing Director, attained majority on March 5, 1952, while Alok Prakash Jain was a minor during both the accounting years.", "canonical_name": "Ashok Kumar~Jain"}}, {"text": "Rishabh Investment Ltd.", "label": "ORG", "start_char": 10684, "end_char": 10707, "source": "ner", "metadata": {"in_sentence": "The three companies, namely, Rishabh Investment Ltd., Dalmia Jain Co. Ltd. and Universal Bank of India Ltd., are companies to which the provisions of action 23A of the Income-tax Act, 1922 .(briefly the Act) prior to its amendment by the Finance Act 1955, applied."}}, {"text": "Dalmia Jain Co. Ltd.", "label": "ORG", "start_char": 10709, "end_char": 10729, "source": "ner", "metadata": {"in_sentence": "The three companies, namely, Rishabh Investment Ltd., Dalmia Jain Co. Ltd. and Universal Bank of India Ltd., are companies to which the provisions of action 23A of the Income-tax Act, 1922 .(briefly the Act) prior to its amendment by the Finance Act 1955, applied."}}, {"text": "Universal Bank of India Ltd.", "label": "ORG", "start_char": 10734, "end_char": 10762, "source": "ner", "metadata": {"in_sentence": "The three companies, namely, Rishabh Investment Ltd., Dalmia Jain Co. Ltd. and Universal Bank of India Ltd., are companies to which the provisions of action 23A of the Income-tax Act, 1922 .(briefly the Act) prior to its amendment by the Finance Act 1955, applied."}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 10823, "end_char": 10843, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Finance Act 1955", "label": "STATUTE", "start_char": 10893, "end_char": 10909, "source": "regex", "metadata": {}}, {"text": "Ashoka Agencies Ltd.", "label": "ORG", "start_char": 11019, "end_char": 11039, "source": "ner", "metadata": {"in_sentence": "Ashoka Agencies Ltd. with 2000 shares was a company to which admittedly section 23A did not apply."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 11091, "end_char": 11102, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1955", "statute": "the Finance Act 1955"}}, {"text": "section 23A", "label": "PROVISION", "start_char": 11321, "end_char": 11332, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1955", "statute": "the Finance Act 1955"}}, {"text": "-tax Appellate Tribunal, Bihar, at Patna", "label": "COURT", "start_char": 11757, "end_char": 11797, "source": "ner", "metadata": {"in_sentence": "The company appealed to the Income-tax Appellate Tribunal, Bihar, at Patna."}}, {"text": "January 26, 1961 (7)", "label": "DATE", "start_char": 11848, "end_char": 11868, "source": "ner", "metadata": {"in_sentence": "The Tribunal allowed the appeal by its order of January 26, 1961 (7) and held that section 23A was not applicable to the company in respect of both the assessment years."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 11883, "end_char": 11894, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1955", "statute": "the Finance Act 1955"}}, {"text": "Bihar", "label": "GPE", "start_char": 12019, "end_char": 12024, "source": "ner", "metadata": {"in_sentence": "At the instance of the Commissioner Income-tax, Bihar, the following question was referred by the Tribunal to the High Court :\n\n\"Whether on the facts and circumstances of the case the Tribunal was justified in holding that the provisions of section 23A of the Income-tax Act were not applicable to the assessee company for the assessment years 1953-54 and 1954-55\" ?"}}, {"text": "section 23A", "label": "PROVISION", "start_char": 12212, "end_char": 12223, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12231, "end_char": 12245, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Supreme Court", "label": "COURT", "start_char": 12762, "end_char": 12775, "source": "ner", "metadata": {"in_sentence": "The High Court by its order of December 9, 1965, in view of two decisions of this Court, namely, Raghuvanshi Mills Ltd. v. Commissioner of Income-tax, Bombay,(') decided on December 7, 1960 and Commissioner of Income-tax Bombay v. Jubilee Mills Ltd.(2) Bombay, decided on September 1, 1962, directed the Tribunal to submit a supplementary statement of case to it :\n\n\"Whether bearing in mind the principles laid down by the Supreme Court in Raghuvanshi Mills Ltd. v. Commissioner of Income-tax (41 Income Tax Reports 613) and Commissioner of Income-tax, Bombay City v. Jubilee Mills Ltd. ( 48 Income Tax Reports 9) Shrimati Rama Jain and Sri Ashok Kumar J an, or either of them could be safely taken to have acted m concert with Sri S. P. Jain during the years in question, in respect of the affairs of the assessee company\" ?"}}, {"text": "Shrimati Rama Jain", "label": "OTHER_PERSON", "start_char": 12953, "end_char": 12971, "source": "ner", "metadata": {"in_sentence": "The High Court by its order of December 9, 1965, in view of two decisions of this Court, namely, Raghuvanshi Mills Ltd. v. Commissioner of Income-tax, Bombay,(') decided on December 7, 1960 and Commissioner of Income-tax Bombay v. Jubilee Mills Ltd.(2) Bombay, decided on September 1, 1962, directed the Tribunal to submit a supplementary statement of case to it :\n\n\"Whether bearing in mind the principles laid down by the Supreme Court in Raghuvanshi Mills Ltd. v. Commissioner of Income-tax (41 Income Tax Reports 613) and Commissioner of Income-tax, Bombay City v. Jubilee Mills Ltd. ( 48 Income Tax Reports 9) Shrimati Rama Jain and Sri Ashok Kumar J an, or either of them could be safely taken to have acted m concert with Sri S. P. Jain during the years in question, in respect of the affairs of the assessee company\" ?"}}, {"text": "Ashok Kumar", "label": "JUDGE", "start_char": 12980, "end_char": 12991, "source": "ner", "metadata": {"in_sentence": "The High Court by its order of December 9, 1965, in view of two decisions of this Court, namely, Raghuvanshi Mills Ltd. v. Commissioner of Income-tax, Bombay,(') decided on December 7, 1960 and Commissioner of Income-tax Bombay v. Jubilee Mills Ltd.(2) Bombay, decided on September 1, 1962, directed the Tribunal to submit a supplementary statement of case to it :\n\n\"Whether bearing in mind the principles laid down by the Supreme Court in Raghuvanshi Mills Ltd. v. Commissioner of Income-tax (41 Income Tax Reports 613) and Commissioner of Income-tax, Bombay City v. Jubilee Mills Ltd. ( 48 Income Tax Reports 9) Shrimati Rama Jain and Sri Ashok Kumar J an, or either of them could be safely taken to have acted m concert with Sri S. P. Jain during the years in question, in respect of the affairs of the assessee company\" ?", "canonical_name": "Ashok Kumar~Jain"}}, {"text": "[1961] 2 S.C.R. 978", "label": "CASE_CITATION", "start_char": 13170, "end_char": 13189, "source": "regex", "metadata": {}}, {"text": "September 30,\n\n1966", "label": "DATE", "start_char": 13513, "end_char": 13532, "source": "ner", "metadata": {"in_sentence": "The Tribunal thereafter, after hearing the parties, submitted a supplementary statement of case to the High Court on September 30,\n\n1966."}}, {"text": "Section 66(1)", "label": "PROVISION", "start_char": 14655, "end_char": 14668, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66(2)", "label": "PROVISION", "start_char": 14678, "end_char": 14691, "source": "regex", "metadata": {"statute": null}}, {"text": "section 66", "label": "PROVISION", "start_char": 14788, "end_char": 14798, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 15025, "end_char": 15028, "source": "ner", "metadata": {"in_sentence": "Mr. Sen appearing on behalf of the Revenue before us has fairly and, in our opinion, rightly not pressed this submission before us."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 15379, "end_char": 15390, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 15858, "end_char": 15869, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 15952, "end_char": 15963, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 18789, "end_char": 18800, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 19767, "end_char": 19778, "source": "regex", "metadata": {"statute": null}}, {"text": "Finance Act 1956", "label": "STATUTE", "start_char": 19825, "end_char": 19841, "source": "regex", "metadata": {}}, {"text": "5-3-1952", "label": "DATE", "start_char": 20303, "end_char": 20311, "source": "ner", "metadata": {"in_sentence": "The Tribunal in its order observed :\n\n\"Sri A. K. Jain became major on 5-3-1952."}}, {"text": "August 3, 1950", "label": "DATE", "start_char": 21121, "end_char": 21135, "source": "ner", "metadata": {"in_sentence": "In the supplementary statement of case filed by the Tribunal enclosing various orders and otller documents, it is shown that S. P.\n\nJain was Director of the company from August 3, 1950 to September 25, 1950."}}, {"text": "September 25, 1950", "label": "DATE", "start_char": 21139, "end_char": 21157, "source": "ner", "metadata": {"in_sentence": "In the supplementary statement of case filed by the Tribunal enclosing various orders and otller documents, it is shown that S. P.\n\nJain was Director of the company from August 3, 1950 to September 25, 1950."}}, {"text": "A. K.\n\nJain", "label": "RESPONDENT", "start_char": 21253, "end_char": 21264, "source": "ner", "metadata": {"in_sentence": "A. K.\n\nJain was Director of the company from August 3, 1950 even when he was a minor (his date of birth being March 5, 1934) and was appointed Deputy Managing Director from June 6, 1953, subject to approval of the Government.", "canonical_name": "A. K.\n\nJain"}}, {"text": "June 6, 1953", "label": "DATE", "start_char": 21426, "end_char": 21438, "source": "ner", "metadata": {"in_sentence": "A. K.\n\nJain was Director of the company from August 3, 1950 even when he was a minor (his date of birth being March 5, 1934) and was appointed Deputy Managing Director from June 6, 1953, subject to approval of the Government."}}, {"text": "3-8-1950", "label": "DATE", "start_char": 21508, "end_char": 21516, "source": "ner", "metadata": {"in_sentence": "R. Sharma was Director from 3-8-1950 to\n\nf I\n\n7-9-1956."}}, {"text": "7-9-1956", "label": "DATE", "start_char": 21526, "end_char": 21534, "source": "ner", "metadata": {"in_sentence": "R. Sharma was Director from 3-8-1950 to\n\nf I\n\n7-9-1956."}}, {"text": "R._K. Dalmia", "label": "OTHER_PERSON", "start_char": 21557, "end_char": 21569, "source": "ner", "metadata": {"in_sentence": "He was Secretary of R._K. Dalmia and employee of Sahu A Jain Limited."}}, {"text": "Sahu A Jain Limited", "label": "ORG", "start_char": 21586, "end_char": 21605, "source": "ner", "metadata": {"in_sentence": "He was Secretary of R._K. Dalmia and employee of Sahu A Jain Limited."}}, {"text": "H. C. Jain", "label": "RESPONDENT", "start_char": 21608, "end_char": 21618, "source": "ner", "metadata": {"in_sentence": "H. C. Jain was Director from 25-9-1950 to 25-3-1954.", "canonical_name": "N. C.\n\nJain"}}, {"text": "25-9-1950", "label": "DATE", "start_char": 21637, "end_char": 21646, "source": "ner", "metadata": {"in_sentence": "H. C. Jain was Director from 25-9-1950 to 25-3-1954."}}, {"text": "25-3-1954", "label": "DATE", "start_char": 21650, "end_char": 21659, "source": "ner", "metadata": {"in_sentence": "H. C. Jain was Director from 25-9-1950 to 25-3-1954."}}, {"text": "S. P. Jain", "label": "ORG", "start_char": 21682, "end_char": 21692, "source": "ner", "metadata": {"in_sentence": "He was Secretary of S. P. Jain and employee of Ashoka Agencies Limited."}}, {"text": "October 1, 1951", "label": "DATE", "start_char": 22431, "end_char": 22446, "source": "ner", "metadata": {"in_sentence": "Septem- C ber 1951 in accordance with the resolution passed in an extra-ordinary general meeting of the shareholders on October 1, 1951."}}, {"text": "November 29, 1950", "label": "DATE", "start_char": 22495, "end_char": 22512, "source": "ner", "metadata": {"in_sentence": "At the meeting of the Board of Directors dated November 29, 1950, Ashok Kumar Jain and R, Sharma, Directors of the company, were authorised to execute managing agency agreements with different companies."}}, {"text": "R, Sharma", "label": "RESPONDENT", "start_char": 22535, "end_char": 22544, "source": "ner", "metadata": {"in_sentence": "At the meeting of the Board of Directors dated November 29, 1950, Ashok Kumar Jain and R, Sharma, Directors of the company, were authorised to execute managing agency agreements with different companies.", "canonical_name": "R.\n\nSharma"}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 23884, "end_char": 23895, "source": "regex", "metadata": {"statute": null}}, {"text": "Raglwranshi Mills", "label": "ORG", "start_char": 24065, "end_char": 24082, "source": "ner", "metadata": {"in_sentence": "This Court made a reference to the Raglwranshi Mills' case (supra) where it was observed :\n\n\"The word 'public' is used (in the Explantion)."}}, {"text": "Jubilee Mills", "label": "ORG", "start_char": 25525, "end_char": 25538, "source": "ner", "metadata": {"in_sentence": "\\ ,\n\nThis Court further referred to Jubilee Mills' case (supra) and Raghu- + vanshi Mills' case (supra) and observed as follows :-\n\n\"But in Commissioner of Income-tax, Bombay City-I v.\n\nJubilee MU!s Ltd. (supra) this Court held that no direct evidence of overt act or concert between the members of the group having control over voting was necessary to prove that the Company was not one in which the public were substantially interested."}}, {"text": "Raghu- + vanshi Mills", "label": "ORG", "start_char": 25557, "end_char": 25578, "source": "ner", "metadata": {"in_sentence": "\\ ,\n\nThis Court further referred to Jubilee Mills' case (supra) and Raghu- + vanshi Mills' case (supra) and observed as follows :-\n\n\"But in Commissioner of Income-tax, Bombay City-I v.\n\nJubilee MU!s Ltd. (supra) this Court held that no direct evidence of overt act or concert between the members of the group having control over voting was necessary to prove that the Company was not one in which the public were substantially interested."}}, {"text": "Raghuvanshi Mills", "label": "ORG", "start_char": 25948, "end_char": 25965, "source": "ner", "metadata": {"in_sentence": "in Raghuvanshi Mills' case (supra) that 'in deciding if there is such a controlling interest, there is no formula applicable to all cases."}}, {"text": "s21", "label": "PROVISION", "start_char": 26571, "end_char": 26574, "source": "regex", "metadata": {"statute": null}}, {"text": "East Coast Commercial Company", "label": "ORG", "start_char": 26777, "end_char": 26806, "source": "ner", "metadata": {"in_sentence": "This Court finally in the above East Coast Commercial Company's case concluded as foUows :-\n\n\"On an analysis of the reasons recorded by the Tribunal and the High Court, it is clear that the Tribunal held that the Kedias did not form a controUing group because there was no evidence that they actuaUy controlled the voting, even though they held more than seventy-five per cent of the shares issued by the Company : the High Court observed that the members of the Kedia family held 4,016 shares of the Company and were in a position to control the affairs of the Company, but there was no evidence to show that they did in fact act in concert and controlled the affairs of the Company as a block."}}, {"text": "Kedia family", "label": "ORG", "start_char": 27208, "end_char": 27220, "source": "ner", "metadata": {"in_sentence": "This Court finally in the above East Coast Commercial Company's case concluded as foUows :-\n\n\"On an analysis of the reasons recorded by the Tribunal and the High Court, it is clear that the Tribunal held that the Kedias did not form a controUing group because there was no evidence that they actuaUy controlled the voting, even though they held more than seventy-five per cent of the shares issued by the Company : the High Court observed that the members of the Kedia family held 4,016 shares of the Company and were in a position to control the affairs of the Company, but there was no evidence to show that they did in fact act in concert and controlled the affairs of the Company as a block."}}, {"text": "East Coast Co_mmercial Company", "label": "ORG", "start_char": 28176, "end_char": 28206, "source": "ner", "metadata": {"in_sentence": "We may also observe in passing that it does not appear that the East Coast Co_mmercial Company's case (supra) was referred to during the hearing in, nor was it noticed by, the High Court."}}, {"text": "Seo", "label": "OTHER_PERSON", "start_char": 29165, "end_char": 29168, "source": "ner", "metadata": {"in_sentence": "Keeping in the forefront the test laid down by this Court in East Coast Commercial Company's case (supra), Mr. Seo on behalf of the\n\nRevenue submitted for our consideration the following facts and circumstances from which, according to counsel, an inference can be reasonably drawn about the controlling power in a block confined to a family group holding more than 75 pr cent shares :\n\n( 1) 80 per cent of the share capital ( 40,000 out of\n\n50,000) is held by S. P. Jain, his wife and two sons, one of whom was a minor throughout the period of the two accounting years and the other son,\n\nA. K.\n\nJain, for a portton of the period upto March 1952."}}, {"text": "1-2-1954", "label": "DATE", "start_char": 30046, "end_char": 30054, "source": "ner", "metadata": {"in_sentence": "(2) A. K. Jain was appointed as Director in the company in August 1950 when he was a minor, aged 16 years, and he became the Managing Director on 1-2-1954 at a salary of Rs."}}, {"text": "Messrs Kabra & Co.", "label": "ORG", "start_char": 30465, "end_char": 30483, "source": "ner", "metadata": {"in_sentence": "2,02,500/- as loss in a transaction in hesslan through Messrs Kabra & Co. in settlement of August 18, 1952, and the same amount was shown as profit in hessian through the same broker by Smt."}}, {"text": "August 18, 1952", "label": "DATE", "start_char": 30501, "end_char": 30516, "source": "ner", "metadata": {"in_sentence": "2,02,500/- as loss in a transaction in hesslan through Messrs Kabra & Co. in settlement of August 18, 1952, and the same amount was shown as profit in hessian through the same broker by Smt."}}, {"text": "Hardy", "label": "OTHER_PERSON", "start_char": 30801, "end_char": 30806, "source": "ner", "metadata": {"in_sentence": "Mr. Hardy, the learned counsel for the respondent, on the other hand, replied to the submissions as follows :-\n\n(1) Rama Jain and A. K. Jain are independent assessees."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 31502, "end_char": 31513, "source": "regex", "metadata": {"statute": null}}, {"text": "N; C. Jain", "label": "OTHER_PERSON", "start_char": 32102, "end_char": 32112, "source": "ner", "metadata": {"in_sentence": "(3) With regard to the third submission of Mr. Sen, Mr.\n\nHardy had to admit that N; C. Jain was Director from 1950 to 1954 and S. P. Jain was Director from August 3, 1950 to September 25, 1950 and S. P. Jain became Managing Director of the company on June 6, 1953, subject to the approval of the Government on a remuneration of Rs."}}, {"text": "R.\n\nSharma", "label": "RESPONDENT", "start_char": 33412, "end_char": 33422, "source": "ner", "metadata": {"in_sentence": "R.\n\nSharma and N. C. Jain were the promoters of the company but admittedly two of them, namely, R. Sharma and N. C. Jain were outsiders.", "canonical_name": "R.\n\nSharma"}}, {"text": "section 23A(l)", "label": "PROVISION", "start_char": 34994, "end_char": 35008, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23A", "label": "PROVISION", "start_char": 36139, "end_char": 36150, "source": "regex", "metadata": {"statute": null}}, {"text": "3-8-50", "label": "DATE", "start_char": 38061, "end_char": 38067, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner in his order, which is annexed with the statement of the case, mentions that-\n\n\"In fact Shri S. P. Jain as a controlling shareholder had brought himself in as a Director of the company right from the inception of the company and was the first Director of the company from 3-8-50 to 25-9-50."}}, {"text": "25-9-50", "label": "DATE", "start_char": 38071, "end_char": 38078, "source": "ner", "metadata": {"in_sentence": "The Appellate Assistant Commissioner in his order, which is annexed with the statement of the case, mentions that-\n\n\"In fact Shri S. P. Jain as a controlling shareholder had brought himself in as a Director of the company right from the inception of the company and was the first Director of the company from 3-8-50 to 25-9-50."}}, {"text": "N. C.\n\nJain", "label": "RESPONDENT", "start_char": 38216, "end_char": 38227, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\".", "canonical_name": "N. C.\n\nJain"}}, {"text": "Rohtas Industries Ltd.", "label": "ORG", "start_char": 38447, "end_char": 38469, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\"."}}, {"text": "Bharat Collieries Ltd.", "label": "ORG", "start_char": 38471, "end_char": 38493, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\"."}}, {"text": "S. K. G. Sugar Ltd.", "label": "ORG", "start_char": 38495, "end_char": 38514, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\"."}}, {"text": "Dehri- Rohtas Light Railway Co. Ltd.", "label": "ORG", "start_char": 38516, "end_char": 38552, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\"."}}, {"text": "New Central Jute Mills Ltd.", "label": "ORG", "start_char": 38557, "end_char": 38584, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\"."}}, {"text": "25-3-54", "label": "DATE", "start_char": 38701, "end_char": 38708, "source": "ner", "metadata": {"in_sentence": "From September '50 to March '54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C.\n\nJain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri- Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant-company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. P.\n\nJain\"."}}, {"text": "section 23A", "label": "PROVISION", "start_char": 40075, "end_char": 40086, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 40156, "end_char": 40166, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta", "label": "GPE", "start_char": 40678, "end_char": 40686, "source": "ner", "metadata": {"in_sentence": "We are unable to accede to the submissio~ of Mr: Hardy in this case that because A. K. Jain ff\n\na, n~ Rma Jam wer~ mdepndent assessees and A. K. Jain was pres1dmg m the Board s meetings and as such was taking independent\n\nA decisions and was also doing extra work for the company in Calcutta on salary basis, they should be held to be members of the 'pnblic' who were snbstantially interested in the company with the requisite shareholding for the purpose of the Explanation read with the third\n\nprovirn."}}]}
{"document_id": "1976_3_413_422_EN", "year": 1976, "text": "INCOME TAX OFFICER, SHILLONG AND ANR. ETC.\n\nN. TAKIM ROY RYMBAI ETC. ETC.\n\nFebruary 17, 1976\n\n[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]\n\nIncome-tax Act, 1961-S. 10(26) (a)-Scope of-Assessee, a person belonging to Scheduled Tribe residing in the specified area-Income accruing or arising in a non-scheduled area-If entitled to exemption.\n\nSection 10(26) (a), Income-tax Act, 1961 provides that a person is entitled to exemption from income-tax if ( 1) he is a member of a Scheduled Tribe as defined in Art. 366(25) of the Constitution, (2) he is residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, or the State or Union Territories mentioned ins. 10(26)(a), and .(3) the income in respect of which.exemption is claimed is income which accrues or arises to him from any source in the area, State or Union Territories mentioned in the section.\n\nThe assessee belonged to the Jaintia Scheduled Tribe and was a permanent resident of the United Khasi-Jaintia Hills Autonoinous . District referred to in para 20 of the Sixth Schedule to the Constitution. He was employed in the Secretariat of the Assam Government, and his place of work was within the Shillong Municipality, and was not a part of the area described in para 20 of the Sixth Schedule to the Constitution. The Income-tax Officer held that the income of the . assessee from his salary arose in the non-scheduled area and was not covered by the tax exemption provided under s. 10(26)(a). In a writ petition under Art. 226 the assessee challenged the validity of s. 10(26)(a) on the 2round that the classification of meinbers of Scheduled Tribes into those haing income from a source within the scified areas and those having income from tt source outside the areas was arbitrary. The High Court struck it down as violative of Art. 14 on the ground that the exemption clause which was enacted for the benefit of the Scheduled Tribes would be frustrated if the income of such person/was made subject to tax merely because the source of that income was outside that area.\n\nAllowing the_ appeals of the Deprtment,\n\nHEW : The High Court was in error in holding that the classification\n\ncontemplated by s. 10(26)(a), Income Tax Act, 1961, was artificial and wa• F not based on any intelligible differentia. [422D]\n\nl(a). A taxation law, like any other law, has to pass the equality test of Art. 14. but given the legislative competence, the legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax. The mere fact that a tax falls more heavily on sorrie _in the same catel!:ory, is not by itself a ground to render the law invalid. It is only when, within the rarui; e of its selection, the law operates unequally and cannot be iustified on the basis of a valid classification, that there would be a G violation of Art. 14. [420B-D]\n\nEast India Tobacco Co. v. State of Andhra Pradesh, [1963) 1 S.C.R. 404 Vivan loseph Ferriera v.\n\nMunicipal Council of Greater Bombay, [1972] i S.C.C. 70 and Jaipur Hosiery Mills v. State of Rajastlian, [1970) 2 S.C.C. 27, followed.\n\n(b) Classification for the purpose of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Incpm~ Tax Act. Tbe classification made by sub-cl. (a) for the purpose H of ex:mpbon lS not l_lnrea~ ?r unk?own ut conforms. to a well recognised pattern and ts ased on tn!elhg1ble dt!J'erenlta. The obiect of this differentiation between income accnung or received from a source in the specified areas and 12-522SCl/76\n\nA the income accruin_g or received from a source outside such areas is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit such areas economically.\n\n[420F; 421E-F]\n\n(c) If it is held that a rnember of the Scheduled Tribe residing in a specified area was entitled to the exemption irrespective of whether the source of his income lay within or outside such area, it may lead to mischievous results.\n\nA non-Tribal assessee in India n1ay enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him a substantial share of the profits of the business but really give him only a nominal amou11t and thus evade tax. Also a tribal re_siOing in the scheduled areas. earning: large profits from business loc3:ted outside the specified areas would be totally exempt while a non.tribal whose source of income is a share in the same business would be taxed and thus the exemption is likely to operate unequally between individuals similarly situated. [421GH]\n\n(2) The decision in S. K. Datta, I11con1e Tax Officer and Or:r. v. Lawrence SinRh lnRty, [19681 2 S.C.R. 165, on which the High Court had relied is no authority for the proposition that the exemption granted under s. 10(26) to the members of the Scheduled Tribes residing in the specified area, as a class, could not be validly subjected to the condition contained in subcl. (a) of that provision.\n\nThe sentence that \"the exemption in question was not given to individuals either on the basis of their social status or economic resources; it was given to a class\" occurring in that case could not be torn out of the context and used for spelling out a proposition different from what was actually decided in that case. [419H; F]\n\n(3) The State is the best jude to formulate its policies and to decide bow far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic intersts embodied in Art. 46 of the Constitution. [ 422C]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 579 to 594 E of 1975.\n\nAppeals by special leave from the judgment and order dated the 11 October 1974 of the High Court at Gauhati in Civil Rule Nos. 252, 293, 305, 640 and 730 of 1976, and 24, 405, 507 & 510/71, 515 to 517 of 1972 and 165-166 of 1975.\n\nN. M. Lahiri with D. N. Mukherjee, for the appellants. (in all the F appeals)\n\nN. M. Lahiri with D. N. Mukherjee, for respondents in CAs 57') & 583-586/75.\n\nS. Chaudhuri for respondents in CAs 588 to 590/75\n\nD. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587-590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591-592/75\n\nN. M. Lahiri with D. N. Mukherjee for respondents in CAs 593-594 of 1975 Ex parte, for respondents in CAs 580-582, 593-594 of 1975.\n\nH The Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThese appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard\n\nto the interpretation and constitutional validity of sub-clause (a) of A clause (26) of s. 10 of the Income-tax Act, 1961 (for short, called the 1961 Act). The appeals will be disposed by a common judgment.\n\nR. Takin Roy Rymbai (respondent in Civil Appeal 579 of 1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi-J aintia Hills Autonomous District under the Sixth Sch~- dule of the Constituti•; m within the State of Meghalaya.\n\nHe joined B service under the Government of Assam in 1941. In the previous year relevant to the assessment year 1970-71, he was posted at Shillong as Secretary to the Government of Assam.\n\nThe Assam Secretariat building and office, which .constitute his place of work was within that quarter of the town which is included in Shillong Municipality and is not a part of the area described in para 20 of the Sixth Sche' dule. C The Income-tax Officer took the view that the assessec's income from salary in the relevant year arose in the non-scheduled area and as such, is not covered by the exemption provided under s. 10(26) (a) of the Act.\n\nThe assessee claimed that his income from salary had accrued or arisen within the specified area and, as such, he was entitled to the exemption. In the alternative, he contended that this was not a valid condition for denying him the benefit of the exemption under s. 10\n\n(26). The Income-tax Officer over-ruled these contentions and completed the assessment subjecting the assessee's salary to tax.\n\nThe assessee thereupon filed a petition under Article 226 of rhe Constitution in the High Court for impugning the assessment orders and the notices of demand for the assessment year 1970-1971, on the ground that sub-clause (a) of s. 10(26) of the Act is invalid and ultra vires Article 14 of the Constitution.\n\nThe writ petition was heard by a Bench of three learned Judges of the High Court, which held that this exemption clause has been enacted for the benefit of the Scheduled Tribes residing in specified areas.\n\nThe object of this exemption clause, according to the High Court, will be frustrated and made nugatory if the income Of a member of the Scheduled Tribe residing in the specified areas, is made subject to tax merely because the source of such an income is outside that area. In its view, the classification between members of the Scheduled Tribes having income which accrues or arises to them from any source from the Tribal area or the specified territories on the one hand, and the members of Scheduled Tribe having income which accrues or arises to them from any source outside the Tribal areas or specified territories on the other, is not based on any intelligible differentia; the classification is artificial and is not based on any substantial distinction having a rational nexus to the purpose of the law. On the contrary, the condition contained in sub-clause (a) would defeat the .vi:ry object f the exemption clause ins. 10 (26). For this enunciat10n, the High Court has sought support from this Court's\n\noservations in S. K. Dutta, Income-tax Officer and ors. v. Lawrence Smgh lngty(l).\n\n- (I) (1968] 2 S.C.R. 165.\n\nOn the above reasoning, the High Court has struck down the aforesaid sub-clause (a) as violative of Article 14 of the Constitution, allowed the writ petition and quashed the impugned notices and the orders of assessment.\n\nThe Department has now come in appeal before us after obtaining special leave under Article 136 of the Constitution.\n\nThe provisions of s. 10 of the 1961 Act are in the nature of exemptions.\n\nThe various clauses of this section indicate the incomes l<hich are to be excluded from computation of the total income of a person under this Act.\n\nFor a proper perspective, it will be useful to have a look at the historical background of this provision.\n\nThe .Indian Income-tax Act, 1922 did not contain any provision specifically exempting members of the Scheduled Tribes from the levy of income-tax. It was the Finance Act 1955 that first incorporated in the Income-tax Act, 1922 provisions for exemption of lhe Tribal people of the ea&ern region from payment Qf the tax. These provisions relating to such exemptions were further amended and recast by s. 3 of the Finance Act 1958 as follows:\n\n\"S. 4(3) XXL Any income of a member of a Scheduled Tribe defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, provided that such member is not in service of Government.\"\n\nThe 1961 Act then re-enacted this clause as under:\n\n\"10 (26) In the case \\Jf a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government.\n\nany income which accrues or arises to him.\n\n(a) from any source in the area or Union Territories aforesaid, or\n\n(b) by way of dividend or interest on securities.\" The State of Nagaland (Adaptation of Laws on Union Subjects) Order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption.\n\nThe validity of the exclusion of the Government servants from the exemption given under s. 10(26), as it stood before the amendment of 1970, came up for consideration before this Court in S.\n\nDatta, Income-tax Officer and ors. v. Lawrence Singh lngty (supra).\n\nIt was held that the classification of Tribals into Government servanlS\n\nf ..\n\nI.T.O. v. N.T.R. RYMBA! (Stirkaria, 1.)\n\nand others for purposes of this exemption was violative of Article A 14 of the Constitution and, as such, invalid. , ·\n\nThereafter, Parliament passed the Taxation Laws (Amendment) Act 42 of 1970 whereby the words \"who is not in the service of the\n\nGove=ent\" appearing in s. 10(26), were deleted.\n\nThe North Eastern Areas (Reorganization) . (Adaptation of Laws on Union Subjects), Order 1974 amended this provision further . with effect B from January 25, 1972 so that it now reads as follows:\n\n\"(26) in the case of a .member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution,· residing in any area supecified in Part. A or Part B of . the Table appended to paragraph 20 of: the Sixth Schedule to the Constitution (or in the State of Nagaland) Manipur and c Tripura or in the Union Territories of. Arunachal Pradesh .and Mizoram or in the areas covered by Notification No.\n\nTAD/R/35/50/109, .dated the 23rd February 1951, issued by the Governor of Assam under the. provisions to subparagraph (3) of the said paragraph 20 (as it stood immediately before. the co=encement of the North Eastern Areas (Reorganization) Act 1971 (81 9f 1971). any income D which accrues or. arises to him, (a) from any source in the (area,. State or Union territories) aforesaid, or . (b) by way of dividend or interest, on securities\". . / An analysis of this provision shows that in order to entitle a t person to the exemption, three conditions must co-exist : E\n\n(i) He should be a member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution;\n\n(ii) He should be residing' in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union F Territories mentioned in this provision;\n\n(iii) The income in respect ·oCwhich exemption is claimed . must be an income which accrues or. arises to him-\n\n( a) from any source .in the area, State or Union territories mentioned in the provision or\n\n(b) by way of dividend or interest, on securities\" .. ·\n\nArticle 366(25) of the Cons!it_ution provides :\n\n\"Scheduled Tribes\" means such tribes or tribal rommunities or parts of or groups within such tribes or tribal co=unities as are deemed under article 342 to be Sche- .\n\nduled. Tribes for the purposes of this Constitution.\" K Article 342 empowers the President with respect to any State or Union Terrifory, and where it is a State, after consultation with the\n\n41S\n\nSUPREME COURT REPORTS [1976) 3 S.C.ll.\n\nGovernor thereof, by public notification, to specify Tribes or Tribal communities or parts of or groups within tribes of tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes, as the case may be.\n\nClause (2) of this Article empowers the Parliament to exercise the some power by enacting a law.\n\nThe respondent belongs to J aintia Scheduled Tribe which is one of the Scheduled Tribes notified under Art. 342(1). The first condition for applicability of s. 10(26) was thus indubitably satisfied.\n\nPart II of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution lnter alia specifies the United Khasi- Jaintia Hills District as one of the Tribal Areas.\n\nAccording to the averments in the writ petition, the respondent is a permanent resident of the United Khasi-Jaintia Hills autonomous District.\n\nThis allegation has not been denied by the other side.\n\nIndeed, in the petition for special leave to appeal filed by the appellant the fact that he is a resident of a Tribal area specified in Paragraph 20 of the Sixth Schednle to the Constitution, is admitted.\n\nThe first two conditions necessary for claiming exemption under s. 10(26) existed in the present case.\n\nWhether on the facts of the case, the third condition embodied in sub-clause (a) was satisfied or not, is a question which still remains to be determined.\n\nThe High Court has advisedly left it open. The controversy has thus narrowed down into the legal issue : whether the classification made by sub-clause (a) for the purpose of the exemption under s. 10(26) between the income of a member of a Scheduled Tribe accruing or arising from any source in. the area, State or Union Territories specitietl in the aforesaid Clause (26), and the income from a source outside such area., State or Union Territories is constitutionally valiti?\n\nIn answering this question in the negative, the High Court has propounded the proposition that the object of clause (26) of s. 1~ is to grant a blanket exemption to members of Scehduled Tribes as a class residing in the specified 11reas, and that the condition contained ill sub-clauso (a) is destructive of that object. In propounding this proposition, the learned Judges seem to have relied on certain observations of this Court in Lawrence Singh lngty's case (supra).\n\nMr. Lahiri appearing for the respondent, also, reiterates thee reasoning of the High Court that the exemption was given to \\he\n\nTribal people as a class, and not on the basis of their economic re:iourccs oc sources of income. In this connection Counsel has cited a few\n\nsentences froo1 this Court's judgment in Lawrenct Singh lngty's cd, re (snpra).\n\nWith due respect to the learned Judges pf the High Court, we areulallble to accept this reasoning. The matter now in controversy was not even obliq_uely In lssiie before th!$ Court in Lawrence SinBh I/filly's cac. Therein, the only question for decision 'I/as, whether the excln ·\n\ncif the Gomnment servants from the exrmptions given In s. 4( 3) (:il:KI) Q( t1lle Indian lncome-tt.x Act, 1922 and lJtcc !>11 ms. 10 (26). llf.~\n\nl~Qlle-taJ Act 1961, ·~ vtolativo of Artlde 14 of t'be Colstituti<lit.\n\nAlthogh. sub-clause .Ca) was very much there, its validity was not, A even mdtrectly questioned. The contention of the Revenue, therein, was that the exemption from income-tax was given to members of certain Sheduled Tribes, due to their economic and social backwardness; that it was not possible to consider Government servants\n\ns socially. and economically backward and hence the exemption was justly demed to the assessee, who was a Government servant having income from salary.\n\nIt was further urged by the Revenue that once B a Tribal becomes a Government servant, he is lifted out of his social environment and assimmilated into forward sections of society and therefore he needs no more any crutch to lean on.\n\nThese arguments were found to be irrelevant and unsustainable.\n\nIn that context, the Court observed :\n\n\"The exemption in question was not given to individuals C either on the basis of their social status or economic resources. lt was given to a class.\n\nHence individuals as individuals do not come into the picture.\n\nWe fail to see in what manner the social status and economic resources of a government servant can be diJ!erent from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer architect, etc. To over-paint the picture of a government servant as the embodiment of all power and prestige would sound ironical. Today his position in the society to put at the highest is no higher than that of others who in other walks of life have the same income. For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction having regard to the purpose of the law.\" The sentences which have been underlined are the sheet-anchor of the argulllllnli advanced by Mr. Lahiri. In our opinion, they cannot\n\nbe torn ot of the context and used for spelling out a proposition\n\ndi\"erent from what was actually decided in that case.\n\nThe ratio of that decision is that within the members of the Scheduled Tribes resid- F ing in spedfied areas selected by the State for the purpose of exemplion, the miniclassification between individuals who were government 1!etvants deriving income from salary and those who were not such\n\ngovernment servants, wa:s 11ot based on intelligible differentia.\n\nSince there was no rational basis whatever for this differentiation, it wiS hold that within the range of the selection, the government servants had been unfairly discriminated against lawyers, medical practitionen, G private servants, businessmen, etc. whose income waa derived from non-government sources, and that the exclusion of government serva.ts from the exemption under s. 10(26) was bad and unconstitutinllal.\n\nThis vice Qf diSlcrimination .!rom which &. 10(26) was then sdering, was removed when the Antending Act 42 of 1970 exerd!Cd the obnoxious limb of the provision. 'I1ae dC'f.ision in Lawrew:t Singll lnaty i& thus no authority for l]a¢ H pt., sitlon th!it tho exemption arankl! under s, ~() (26). to the mem\n\nbeta ctf the Scheduled Tribe& resldinJ 10 th~ peciied arets, as a class.,\n\ncould not be validly subjected to the condition contained in subclause (a) of the provision.\n\n\\Vbile it is true that a, taxation law, cannot claim immunity from the equaiity clause in Article 14 of the Constitution, and has to pass like any other law, the equality test of that Article, it must be remembered that the State has, in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerably wide discretion in the matter of classification for taxation purposes. Given legislative competence, the legislature has ample freedom to select and classify persons, districts, goods, properties, incomes and objects which it would tax, and which it would not tax. So long as the classification made within this wide and flexib!e range by a taxing statute does not transgress the fundamental principles underlying the doctrine of equality, it is not vulnerable on the ground . of discrimination merely because it taxes or exempts from tax some incomes or objects and not others.\n\nNor the mere fact that tax falls more heavily on some in the same category, is by itself a ground to render the law invalid. It is only when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14. (See East India Tobacco Co. v.\n\nState. of Andhra Pradesh(') Vivian Joseph Ferriera v. Municipal Council of Greater Bombay;(') Jaipur Hosiery Mills v. State of Rajasthan. (>) · ·\n\nThe validity or otherwise of the classification of income envisaged by sub-clause (a), with reference to the source of income, for the purpose of the exemption under s. 10(26) is to be judged in the light of the a.hove principles .•.\n\nClassification for purposes of taxation or for exempting . from tax with reference to the source of the income is integral to the fundamental scheme of the Income-tax Act. Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern.\n\nSection 2(4S) defines total income to mean \"the total amount of income referre\\I .to in s. 5 computed i.n the manner laid down in this .-Act\" .\n\n. . Section 5 makes the. chargeability of income dependent upon \\he\n\n),%aliy of, afC~_uaJ or .recejp.t Of \\he .iJ?come. It defines the . extent of\n\nl.<!tal IIlCOII).e with reference to the residence of the . assessee, and thus . .!P, a1\\es ., qy Jni; i4e11c~ ?L taafio~ geP, Xndept, ppon. whetlier the .asssse.e '1s a resident ln India, It 1s \\he estdence m India which entails 11ab1liiy. to tax: ... A hon-resident is. nodiable in India to get his iricome\n\nas.esed, !:mt if any part of his income ac.crues or arises 'whether' directlv or indirectly th, rough any bµsiness connection in India or froni 'any property'fo India, the same would be assessable. Afi ordinzy tsident a§ defil)ed, in s. 6,. oes, mit at.tract additional .chargeability b11t ing \"not ordinarily resident\" .entitles a [ierson to parti, al .¢xelnptlo11. ftom\n\n(I} [1963] I S.C.~. 404. .. .. - . , ;\n\n(2) (1972! 1 S.C.C. 1o.\n\n(3) {1970j 2 s.c.c: 27 ..\n\n,~ .. ' : . .' . ! ,_' . ' _'•- ·. _, -.\n\nt I\n\nchargeahility as a resident, to which exemption a person who is \"ordi- A narily resident\" is not entitled-(see Kanga and Palkhivala Vol. !- Income-tax 6th Edn. p. 162).\n\nThe 1961 Act abounds in instances whereby certain sources of income have been exempted from tax, while others are assessable.\n\nSection 10 of the !961 Act, itself contains no less than.30 instances of such classification for the purpose of granting exemptions from B tax. Thi\" is so, in spite of the fact that another source of the same person's income may be assessable. A person may have agricultural inoome apart from salary or business income.\n\nThe income from the former source is not to be included in the total income of the assessee (vide s. 10(1) ); while income from the latter source is not so exempted. Again, interest realised from Scheduled banks on deposits upto a certain limit is exempt, while interest realised from nonc banking concerns is assessable.\n\nSections SOA to SOU further provide exemptions_ from tax to incomes derived from certain sources.\n\nA business man's income is assessable, hut if it is from a newly established industrial undertaking or priorit:r industry, .to that extent, the same is exempted. Section\n\nSOH pro1iil:les for deductions in cases of new industrial undertakings employing displaced persons etc.\n\nIt is not necessary to multiply such instances. Suffice it to say that classrncation of sources of income is integral to the basic scheme of the 1961 Act. It is nobody's case that the entire scheme of the Act is irrational and violative of Article 14 of the Constitution.\n\nSuch an. extravagant contention has not been canvassed before ns.\n\nThus the classifi.; ation made by the aforesaid sul>-clause (a) for .purposes of exemption is not unreal or unknown. It conforms to a well recognised pattern. l t is based on intelligible differentia.\n\nThe object of this dillerentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas is to benefit not only the \"!embers of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas: If the contention advanced by Mr. Lahid _is accepted, and a nfomber of the Scheduled Tribe residing in a specified area is held entitled to the exemption irrespective of whether the source of his income lies within or outside. such areas, it will lead to potentially mischlevious n'sults and evasion of tax by assessees who do not belong to the Scheduled Tribes. All that a non-tribal assessee in India need do would be tc enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him under the partnership a substantial share of the profits of the business while, in reality, pay the trjbal only a nominal amount. Moreover, but for the cm1diti0'1 provided in sub-clause (a), the exemption granted under s. 10(26) il• likely to operate unequally and cause inequality of trat ment between individuals similarly situated. A Tribal residing in the Scheduled areas earning large income from business located outside the sNCified areas, would be totally exempt while the non-tribal whose source of income is a share in the same business would be taxed although with reference to tlie source of the income, both were similarly situated.\n\nWe are not persuaded to accept Mr. Lahiri's argument that the making of the exemption conditional upon the classification envisaged by sub-clause (a) would deter the members of the Scheduled Tribes from joining the mainstream of national life, or, would be inconsistent with the Directive Principle embodied in Article 46. This Article contains a Directive Principle of State Policy for promotion of educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and Scheduled Tribes. Its primary objective is to provide protection to the \"weaker sections\" of society. Members of the Scheduled Tribes who . are enterprising and resourceful enough to move out of the seclusion of the tribal areas and successfully compete with their Indian brethern outside those areas and rise to remunerative positions in service or business, cease to be \"weaker sections\".\n\nIn any case, the State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic interests.\n\nIn view of what has been said above, we are of opinion that the learned Judges of the High Court were in error in holding that the D classification contemplated by sub-clause (a) of cl. (26) of s. 10 ot the 1961 Act is artificial and is not based on any intelligible differentia.\n\nWe would therefore, reverse the judgment of the High Court and hold that the aforesaid sub-clause (a) is constitutionally valid.\n\nBefore we part with this judgment, we may note that Mr. Lahiri made a detailed survey of the history of the Tribal areas of Assam and Scheduled Tribes residing in those 'autonomous' areas. Counsel also argued that virtually the source of the salary received by the asee Jay in the Tribal areas forming the State of Meghalaya, notwithstanding the fact that on account of the exigencies of service, the -Office of the assessee was located in those Wards ot Shillong which are not a part of the tribal areas. In our opinion, it is not necessary to gQ into this. question which, as already noticed, still remains open and undetermined.\n\nIn the result we allow these appeals, but in the circumstances of the case, leave the parties to pay and bear their own costs.\n\nP.B.R.\n\nAppeals al/awed.", "total_entities": 102, "entities": [{"text": "INCOME TAX OFFICER, SHILLONG AND ANR. ETC", "label": "PETITIONER", "start_char": 0, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "INCOME TAX OFFICER, SHILLONG AND ANR. ETC", "offset_not_found": false}}, {"text": "N. TAKIM ROY RYMBAI ETC. ETC", "label": "RESPONDENT", "start_char": 44, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "N. TAKIM ROY RYMBAI ETC. ETC", "offset_not_found": false}}, {"text": "February 17, 1976", "label": "DATE", "start_char": 75, "end_char": 92, "source": "ner", "metadata": {"in_sentence": "February 17, 1976\n\n[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]"}}, {"text": "R. S. 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N. Mukherjee", "label": "LAWYER", "start_char": 6124, "end_char": 6139, "source": "ner", "metadata": {"in_sentence": "N. M. Lahiri with D. N. Mukherjee, for the appellants. ("}}, {"text": "N. M. Lahiri", "label": "LAWYER", "start_char": 6185, "end_char": 6197, "source": "ner", "metadata": {"in_sentence": "in all the F appeals)\n\nN. M. Lahiri with D. N. Mukherjee, for respondents in CAs 57') & 583-586/75."}}, {"text": "S. Chaudhuri", "label": "LAWYER", "start_char": 6263, "end_char": 6275, "source": "ner", "metadata": {"in_sentence": "S. Chaudhuri for respondents in CAs 588 to 590/75\n\nD. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587-590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591-592/75\n\nN. M. Lahiri with D. N. Mukherjee for respondents in CAs 593-594 of 1975 Ex parte, for respondents in CAs 580-582, 593-594 of 1975."}}, {"text": "R. P. Agarwala", "label": "LAWYER", "start_char": 6332, "end_char": 6346, "source": "ner", "metadata": {"in_sentence": "S. Chaudhuri for respondents in CAs 588 to 590/75\n\nD. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587-590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591-592/75\n\nN. M. Lahiri with D. N. Mukherjee for respondents in CAs 593-594 of 1975 Ex parte, for respondents in CAs 580-582, 593-594 of 1975."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 6648, "end_char": 6656, "source": "ner", "metadata": {"in_sentence": "H The Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThese appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard\n\nto the interpretation and constitutional validity of sub-clause (a) of A clause (26) of s. 10 of the Income-tax Act, 1961 (for short, called the 1961 Act)."}}, {"text": "High Court of Judicature at Gauhati", "label": "COURT", "start_char": 6711, "end_char": 6746, "source": "ner", "metadata": {"in_sentence": "H The Judgment of the Court was delivered by\n\nSARKARIA, J.\n\nThese appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard\n\nto the interpretation and constitutional validity of sub-clause (a) of A clause (26) of s. 10 of the Income-tax Act, 1961 (for short, called the 1961 Act)."}}, {"text": "s. 10", "label": "PROVISION", "start_char": 6870, "end_char": 6875, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1961", "label": "STATUTE", "start_char": 6883, "end_char": 6903, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "R. Takin Roy Rymbai", "label": "RESPONDENT", "start_char": 6990, "end_char": 7009, "source": "ner", "metadata": {"in_sentence": "R. Takin Roy Rymbai (respondent in Civil Appeal 579 of 1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi-J aintia Hills Autonomous District under the Sixth Sch~- dule of the Constituti•; m within the State of Meghalaya."}}, {"text": "Meghalaya", "label": "GPE", "start_char": 7234, "end_char": 7243, "source": "ner", "metadata": {"in_sentence": "R. Takin Roy Rymbai (respondent in Civil Appeal 579 of 1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi-J aintia Hills Autonomous District under the Sixth Sch~- dule of the Constituti•; m within the State of Meghalaya."}}, {"text": "Shillong", "label": "GPE", "start_char": 7384, "end_char": 7392, "source": "ner", "metadata": {"in_sentence": "In the previous year relevant to the assessment year 1970-71, he was posted at Shillong as Secretary to the Government of Assam."}}, {"text": "Government of Assam", "label": "ORG", "start_char": 7413, "end_char": 7432, "source": "ner", "metadata": {"in_sentence": "In the previous year relevant to the assessment year 1970-71, he was posted at Shillong as Secretary to the Government of Assam."}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 7860, "end_char": 7869, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1961", "statute": "the Income-tax Act, 1961"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 8152, "end_char": 8157, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 8334, "end_char": 8345, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 8518, "end_char": 8527, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 8566, "end_char": 8576, "source": "regex", "metadata": {"statute": null}}, {"text": "(1968] 2 S.C.R. 165", "label": "CASE_CITATION", "start_char": 9912, "end_char": 9931, "source": "regex", "metadata": {}}, {"text": "Article 14", "label": "PROVISION", "start_char": 10034, "end_char": 10044, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 10240, "end_char": 10251, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 10292, "end_char": 10297, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 10610, "end_char": 10637, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "was the Finance Act 1955", "label": "STATUTE", "start_char": 10755, "end_char": 10779, "source": "regex", "metadata": {}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 10811, "end_char": 10831, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 3", "label": "PROVISION", "start_char": 11004, "end_char": 11008, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Finance Act 1958", "label": "STATUTE", "start_char": 11016, "end_char": 11032, "source": "regex", "metadata": {}}, {"text": "S. 4(3)", "label": "PROVISION", "start_char": 11047, "end_char": 11054, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1958", "statute": "the Finance Act 1958"}}, {"text": "Article 366", "label": "PROVISION", "start_char": 11129, "end_char": 11140, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1958", "statute": "the Finance Act 1958"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 11258, "end_char": 11272, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1958", "statute": "the Finance Act 1958"}}, {"text": "Article 366", "label": "PROVISION", "start_char": 11542, "end_char": 11553, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1958", "statute": "the Finance Act 1958"}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 11671, "end_char": 11685, "source": "regex", "metadata": {"linked_statute_text": "the Finance Act 1958", "statute": "the Finance Act 1958"}}, {"text": "Tripura", "label": "GPE", "start_char": 11749, "end_char": 11756, "source": "ner", "metadata": {"in_sentence": "The 1961 Act then re-enacted this clause as under:\n\n\"10 (26) In the case \\Jf a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government."}}, {"text": "State of Nagaland", "label": "ORG", "start_char": 11967, "end_char": 11984, "source": "ner", "metadata": {"in_sentence": "The State of Nagaland (Adaptation of Laws on Union Subjects) Order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption."}}, {"text": "1st December 1963", "label": "DATE", "start_char": 12062, "end_char": 12079, "source": "ner", "metadata": {"in_sentence": "The State of Nagaland (Adaptation of Laws on Union Subjects) Order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption."}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 12267, "end_char": 12276, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 12831, "end_char": 12840, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 366", "label": "PROVISION", "start_char": 13135, "end_char": 13146, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 13270, "end_char": 13284, "source": "regex", "metadata": {"statute": null}}, {"text": "Assam", "label": "GPE", "start_char": 13539, "end_char": 13544, "source": "ner", "metadata": {"in_sentence": "TAD/R/35/50/109, .dated the 23rd February 1951, issued by the Governor of Assam under the."}}, {"text": "Article 366", "label": "PROVISION", "start_char": 14111, "end_char": 14122, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 14260, "end_char": 14274, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 366(25)", "label": "PROVISION", "start_char": 14624, "end_char": 14639, "source": "regex", "metadata": {"statute": null}}, {"text": "article 342", "label": "PROVISION", "start_char": 14814, "end_char": 14825, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 342", "label": "PROVISION", "start_char": 14897, "end_char": 14908, "source": "regex", "metadata": {"statute": null}}, {"text": "Parliament", "label": "ORG", "start_char": 15361, "end_char": 15371, "source": "ner", "metadata": {"in_sentence": "Clause (2) of this Article empowers the Parliament to exercise the some power by enacting a law."}}, {"text": "Art. 342(1)", "label": "PROVISION", "start_char": 15522, "end_char": 15533, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 15576, "end_char": 15585, "source": "regex", "metadata": {"statute": null}}, {"text": "Sixth Schedule", "label": "PROVISION", "start_char": 15672, "end_char": 15686, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 16268, "end_char": 16277, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 16658, "end_char": 16667, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 1", "label": "PROVISION", "start_char": 17067, "end_char": 17071, "source": "regex", "metadata": {"statute": null}}, {"text": "Lawrence Singh lngty", "label": "OTHER_PERSON", "start_char": 17377, "end_char": 17397, "source": "ner", "metadata": {"in_sentence": "In propounding this proposition, the learned Judges seem to have relied on certain observations of this Court in Lawrence Singh lngty's case (supra).", "canonical_name": "Lawrence Singh lngty"}}, {"text": "Lahiri", "label": "OTHER_PERSON", "start_char": 17419, "end_char": 17425, "source": "ner", "metadata": {"in_sentence": "Mr. Lahiri appearing for the respondent, also, reiterates thee reasoning of the High Court that the exemption was given to \\he\n\nTribal people as a class, and not on the basis of their economic re:iourccs oc sources of income."}}, {"text": "Lawrenct Singh lngty", "label": "OTHER_PERSON", "start_char": 17726, "end_char": 17746, "source": "ner", "metadata": {"in_sentence": "In this connection Counsel has cited a few\n\nsentences froo1 this Court's judgment in Lawrenct Singh lngty's cd, re (snpra).", "canonical_name": "Lawrence Singh lngty"}}, {"text": "Lawrence SinBh", "label": "OTHER_PERSON", "start_char": 17950, "end_char": 17964, "source": "ner", "metadata": {"in_sentence": "The matter now in controversy was not even obliq_uely In lssiie before th!$ Court in Lawrence SinBh I/filly's cac.", "canonical_name": "Lawrence Singh lngty"}}, {"text": "s. 4( 3)", "label": "PROVISION", "start_char": 18103, "end_char": 18111, "source": "regex", "metadata": {"statute": null}}, {"text": "Qlle-taJ Act 1961", "label": "STATUTE", "start_char": 18196, "end_char": 18213, "source": "regex", "metadata": {}}, {"text": "s 11", "label": "PROVISION", "start_char": 20550, "end_char": 20554, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 20972, "end_char": 20981, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 21579, "end_char": 21589, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 22700, "end_char": 22710, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 23057, "end_char": 23066, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 23282, "end_char": 23296, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2(4S)", "label": "PROVISION", "start_char": 23380, "end_char": 23393, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5", "label": "PROVISION", "start_char": 23468, "end_char": 23472, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5", "label": "PROVISION", "start_char": 23529, "end_char": 23538, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 24217, "end_char": 24221, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 24792, "end_char": 24802, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 25211, "end_char": 25219, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 14", "label": "PROVISION", "start_char": 26051, "end_char": 26061, "source": "regex", "metadata": {"statute": null}}, {"text": "Lahid", "label": "OTHER_PERSON", "start_char": 26701, "end_char": 26706, "source": "ner", "metadata": {"in_sentence": "embers of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas: If the contention advanced by Mr. Lahid _is accepted, and a nfomber of the Scheduled Tribe residing in a specified area is held entitled to the exemption irrespective of whether the source of his income lies within or outside."}}, {"text": "s. 10(26)", "label": "PROVISION", "start_char": 27431, "end_char": 27440, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 46", "label": "PROVISION", "start_char": 28170, "end_char": 28180, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 10", "label": "PROVISION", "start_char": 29289, "end_char": 29294, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_423_427_EN", "year": 1976, "text": "'-~-----' 423\n\nH. H. MAHARAJ RANA HEMANT SINGHJI, DHOLPUR\n\nCOMMISSIONER OF INCOME-TAX, RAJASTHA..N\n\nFebruary 11, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]\n\nlnconze Tax Act (11 of 1922), s. 2(4A)(ii)-:-'Personal efjects',_~:h_at are.\n\nSection 2(4A) (ii), Income Tax Act, 1922, provides that 'perSOnal effects, that is to say. movable property (including wearing apparel, jewellery, and [urniture) held for personal use by the assessee or any member of his family dependent on him: shall not be included in the 'capital assets' of th~ assessee •.\n\n The context in which the expression 'personal effects' oCcurs and the C enumeration of articles like wearing apparel, jewellery an4 furniture, -show that only those articles are to be included as peisonal effects which are intimately and comm0nly used by the assessee. The dictionary meaning of the expression is also the same. Therefore, 'personal effects' mean those items which are normally. commonly or ordinarily intended for personal use and not items \\\\'hich are capable of being intended for personal use. [425E-426F-427CD]\n\nWhere the assessee was in passession of a large number of gold sovereigns, silver rupee coins and silver bars, which were used at the time of the puja D of deities on special reliious festivals or rituals. they could J!Ot be deemed to be effects• meant for personal use. Tuey are capital assets and not personal effects and so, when sold, could not be excluded while computing the capital gains liable to capital gains tax unde.r s. 12B, Income Tax Ac4 1922. [427F]\n\nG. S. Poddar v. The Commissioner of Wealth Tax, Bon1baf City, II, I.L.R.\n\n11965) Born. 1062, approved.\n\nCML APPELLATE JURISDICTION : Civil Appeal No. 779 of 1971.\n\nAppeal by special leave from the judgment and order dated the 2nd December, 1969 of the Rajasthan High Court in I.T.R. No. 5 of 1966.\n\nS. T. Desai, Rameshwar Nath, for the appellant.\n\nB. B. Ahuja and S. P. Nayar, for the respondent. .\n\nThe Judgment _of the Court was deliver.::dbY\n\n-JASWANT SINGH, J.-This appeal by special Jve is directed against the judgment dated Decmber 2,, 1969 of the High Court of Rajasthan.\n\nBriefly stated the facts giving rise to this appeal are : Maharaja G Shri Udebhan Singhji of Dholpur died issueless on October 22, 1954.\n\nOn the day following his demise all the movable valuables possessed by him were taken over and sealed by the Government of Rajasthan because of the dispute regarding succession to the gaddi.\n\nOn December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the forriler Maharaja and the aforeSaid assets which H inter alia consisted of 4,825 gold sovereign, 7 ,90,440 old silver rupee coins and silver bars weighing. 2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity\n\nas the adoptive mother and guardian 0£ the appellant on March 24, 1957.\n\nDuring the financial year 1957-58, the aforesaid sovereigns, silver coins and silver bars wete sold at the suggestion of the Government of India for a net consideration of Rs. 20,78,257. Overruling the contentions raised on behalf of the appeUant to the effect that as there was no voluntary sale chargeable to capital gains tax under section 12B of the Indian Income Tax Act, 1922, hereinafter referred to as 'the Act',, and the aforesaid items did not constitute 'capital assets' as contemplated by section 2 ( 4A) of the Act but fell within the purview of the exception carved out by clause (ii) thereof and as such were to be excluded in computing the gains because they were held for personal use by the assessee and the members of his family as was evident from the fact that they were used for the purpose of Maha Lakshmi Puja and other religious festivals and rituals in the family, and taking into account the market value of the assets as on January 1, 1954, the Income Tax Officer, Bharatpur, worked out capital gains at Rs. 3,44,,303.\n\nDissatisfied with this order, the appellant took the matter in appeal to the Appellate Assistant Commissioner but remained unsuccessful.\n\nA further appeal to the Income Tax Appe_llate Tribunal was taken by the appellant but the same also proved abortive as the Tribunal was of the view that the expression \"'personal effects\" meant such items of movable property as were necessary adjuncts to an individual's. own personality and the nature of sale befug voluntary or otherwise was irrelevant for the purpose of section 12B in.view of the decision of this Court in James Anderson v.\n\nCommissioner of Income Tax, Bombay City(!). The Tribunal, however, referred the following question of law at the instance of the appellant to the High Court of Rajasthan at Jodhput under section 66( I) of the Act:\n\n\"Whether on the facts and in the circumstances of the case the assets sold were capital assets within the mea)).~ ing of section 2( 4A) chgeable to capital gains tax under section 12B of the Income-tax Act, 1922.\"\n\nBy its order da.te<; I Decembe.r 2, 1969,, the High Court answered the question in the affirmative holding that in order that an article should constitute a part of personal effects, it is necessary that the article must be associate.ct. with the person of the JlPSSCsor. and that the aforesaid . items . consisting of gold sovereigns, silver . rupees and sjlver barS could not be deell, led to fall within the exceptit>tn::arved out by clause (ii) of s'ection, 2(4A•)· of die Act merely because they were placed before Goddess Lakshmi while performing Prija, The appellant thereun made, an appiicatiqn, to. the High Court qf ):lajasthrui' for a cettifica~ of::Jitness , which was. iefu&ed.. . T\\ieteafter, the apjien; pit _aPP, J!, e~. 10: tlii~. t\"urr: tOi: scl; il leave iii)der Article '131i of ilie Constitu!lqn \\Vhicll was granteq on May 6, 1971.\n\n. •. A~aring in support of th\"~ ap~, Mr. Desi has vcliernently contbH4ed that.the questibn i!s tt> whether an iteth bf mo:vable prt>- perty held for petsdnaHtise is a part Of r:_rsonal et~. ofan assessee shotlltt .!AA <le\\enbine<! not in a comm@itial.se118e but accorol\"g t& the\n\n: c 1) llX<!,, 'ti<- !:i.Y •3' '\"13 .•.•.•,,,. . . ~·; .. ;- . . . : .·· . \" . ' •... . . ' . . ',-·; i , ~!7?..,~·~·~·~.t.-' ;.-~.\n\nI \\~· : ;.;·;,.'.\"f:::,,-· ._., '.,.':'.', • -----·\n\nHEMANT SINGHJI v. C.I.T, (Jaswant Singh, ].) 425\n\nordinary ideas,. habits, customs and notions of the class of society to A whicll the assessee belongs or according to the well established habits, customs and traditions of his family.\n\nHe has in support of his contention reforred us to a decision in Commissioner of Wealth-tax Gujarat v. Arundhali Balkrishna(').\n\nHe has further urged that in construing section 2(4A) of the Act it must be borne in mind that the Legislature intended to lay emphasis on the nature of the use of the article rather than 9n the person of the assessee.\n\nMr. B. B. Ahuja appearing for the Revenue has, on the other hand, urged that the inte_rpretation sought to be placed on behalf of the assesse~ on the expression \"personal effects\" is not correct and while detennining whether the effects are personal it is essential to see whether they are meant for the personal use of the assessee.\n\nWe have given our earnest consideration to the submissions, of learned counsel for the parties.\n\nFor a proper decision of the point in question, it is necessary to refer to section 2 ( 4A) of the Act, the relevant po;:tion whereof ruus thus :\n\n\"2(4A). 'Capital asset' means property of any kind held by an assessee,, whether or not connected _with his business, profession or v0<; ation, but does not include-\n\n(i) ..................... .\n\n(ii) personal effects, that is to say, movable property (including wearing apparel, jewellery, and furniture) held for personal use by the assessee or any member of his family dependent on him;\" E\n\nThe expression \"personal use\" occurring in clause (ii) of the above quoted provision is very significant.\n\nA close scrutiny of the context in which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessee's person.\n\nIn other words. an intimate connection between the effects and the person of the assessee must be shown to exist to render them F ''personal eff1ts''.\n\nThe enumeration of articles like wearing apparel, Jewellery, and furniture mentioned by way of illustrations in the above quoted definition of \"personal effects\" also shows that the Legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.\n\nThe meaning assigned to the expression \"personal effects\" in various dictionaries also lends support to this view.\n\nIn the Unabridged Edition of the Random House Dictionary of the English Language at page 1075, the expression is given the following meaning :-\n\n\"Personal effects, privately owned articles consisting chiefly of clothing, toilet items etc. for intimate use by an individual\".\n\n(I) 77 I.T.R. 505.\n\nA In Black's Law Dictionary, Fourth Edition at Page 1301, the expression is assigned the following meaning :\n\n\"Personal effects.\n\nArticles associated with person, as property having more or less intimate relation to person of possessor;\" \\\n\nIn Cyclopedic Law Dictionary, Third Edition, at page 832, the expression \"personal effects\" withont qualifying words is interpreted to include generally such tangible property as is worn or carried about the person.\n\nIn 'Words and Phrases' (Permanent Edition), Volume 32 at page 277 it is stated that the words \"personal effects\" when used without qualification,, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person.\n\nAt another place at the same page, it is stated that the words \"personal effects\" are used t9 designate articles assocfated with person, as property havin~ more or less intimate relation to person of possessor or such tangible property as attends the person.\n\nBearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases the silver ]Jars or bullion can by no stretch of imagination be deemed to be \"effects\" meant for personal\n\nuse, Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions namely, the Ashtmi Day of 'Sharadh Pakh' for Maha Lakshmi Puja and for worship on the occasion of Diwali festival cannot also be designated as effects meant for persona! use.\n\nThey may have been used for puja of the deities as a matter of pride or ornamentation but it is difficult to understand how such user can be characterised as personal use. As rightly observed by the Income Tax authorities if sanctity of puja were considered so essential by the assessee, the aforesaid articles would not have been delivered by this guardian to the Banks for sale.\n\nThe language of section 5(l)(viii) of the Wealth Tax Act, 1957 which is pari materia with the definition of the expression \"personal effects\" as given in section 2 ( 4 A) (ii) of the Act is also helpful in construina the latter provision.\n\nThat provision runs as follows :-\n\n\"5. (!) Subject to the provisions of sub-section (1-A), wealth-tax shall not be p_ayable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee. ·\n\n(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee butl not including jewellery;\"\n\nH In G. S. Poddar v. The Commissioner of Wealth Tax, Bombay City-11( 1) where the assessee at the time of his appointment in the year\n\n(1) J.L.R. [1965] Born. 1062.\n\nHEMANI SINGHJI V. C.I.T. (Jaswant Singh, J.) 42 7\n\n1945 as a Justice oi the Peace was presented with two gold cas- A kets, ; i go.ld tray,, two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with wliooe business he was connected and he kept these articles in a glass\n\nhow case for display in his drawing room and in assessment year 1959-60 daimed exemption in respect of these articles under the above quoted provision i.e. under section 5(l)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold ca_skcts were B kept in tht: show case did not make them part of the furniture and the rest of tht• articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and _commonly so used. It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not con- C templated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions. It was further held in that case that the expression \"intended for personal or household use\"\n\ndid not mean capable of being intended for personal or household use.\n\nIt meant normally, commonly, or ordinarily intended D for personal or household use.\n\nThis in our opinion is the true concept of the expression \"personal use\".\n\nIt ir. also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of th(' Wealth-Tax Act.\n\nThe decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna (supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.\n\nWe are, therefore,, of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee-appe!lant and as such could not be exduded while computing the gaim.\n\nFor the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 46, "entities": [{"text": "423\n\nH. H. MAHARAJ RANA HEMANT SINGHJI, DHOLPUR", "label": "PETITIONER", "start_char": 10, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "H. H. MAHARAJ RANA HEMANT SINGHJI, DHOLPUR", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, RAJASTHA", "label": "RESPONDENT", "start_char": 59, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, RAJASTHAN", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 120, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 136, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "s. 2(4A)(ii)", "label": "PROVISION", "start_char": 187, "end_char": 199, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2(4A)", "label": "PROVISION", "start_char": 235, "end_char": 248, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 255, "end_char": 275, "source": "regex", "metadata": {}}, {"text": "s. 12B", "label": "PROVISION", "start_char": 1511, "end_char": 1517, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 1847, "end_char": 1858, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Rameshwar Nath, for the appellant."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 1860, "end_char": 1874, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, Rameshwar Nath, for the appellant."}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 1896, "end_char": 1907, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and S. P. Nayar, for the respondent. .", "canonical_name": "B. B. Ahuja"}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 1912, "end_char": 1923, "source": "ner", "metadata": {"in_sentence": "B. B. Ahuja and S. P. Nayar, for the respondent. ."}}, {"text": "Maharaja G Shri", "label": "PETITIONER", "start_char": 2187, "end_char": 2202, "source": "ner", "metadata": {"in_sentence": "Briefly stated the facts giving rise to this appeal are : Maharaja G Shri Udebhan Singhji of Dholpur died issueless on October 22, 1954.", "canonical_name": "Maharaja G Shri"}}, {"text": "Udebhan Singhji", "label": "OTHER_PERSON", "start_char": 2203, "end_char": 2218, "source": "ner", "metadata": {"in_sentence": "Briefly stated the facts giving rise to this appeal are : Maharaja G Shri Udebhan Singhji of Dholpur died issueless on October 22, 1954."}}, {"text": "Government of Rajasthan", "label": "ORG", "start_char": 2376, "end_char": 2399, "source": "ner", "metadata": {"in_sentence": "On the day following his demise all the movable valuables possessed by him were taken over and sealed by the Government of Rajasthan because of the dispute regarding succession to the gaddi."}}, {"text": "December 13, 1956", "label": "DATE", "start_char": 2462, "end_char": 2479, "source": "ner", "metadata": {"in_sentence": "On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the forriler Maharaja and the aforeSaid assets which H inter alia consisted of 4,825 gold sovereign, 7 ,90,440 old silver rupee coins and silver bars weighing."}}, {"text": "Maharaja", "label": "PETITIONER", "start_char": 2480, "end_char": 2488, "source": "ner", "metadata": {"in_sentence": "On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the forriler Maharaja and the aforeSaid assets which H inter alia consisted of 4,825 gold sovereign, 7 ,90,440 old silver rupee coins and silver bars weighing.", "canonical_name": "Maharaja G Shri"}}, {"text": "Hemant Singhji", "label": "PETITIONER", "start_char": 2494, "end_char": 2508, "source": "ner", "metadata": {"in_sentence": "On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the forriler Maharaja and the aforeSaid assets which H inter alia consisted of 4,825 gold sovereign, 7 ,90,440 old silver rupee coins and silver bars weighing."}}, {"text": "Government of India", "label": "ORG", "start_char": 2576, "end_char": 2595, "source": "ner", "metadata": {"in_sentence": "On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the forriler Maharaja and the aforeSaid assets which H inter alia consisted of 4,825 gold sovereign, 7 ,90,440 old silver rupee coins and silver bars weighing."}}, {"text": "Rajasthan Government", "label": "ORG", "start_char": 2809, "end_char": 2829, "source": "ner", "metadata": {"in_sentence": "2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity\n\nas the adoptive mother and guardian 0£ the appellant on March 24, 1957."}}, {"text": "Rajmata", "label": "OTHER_PERSON", "start_char": 2849, "end_char": 2856, "source": "ner", "metadata": {"in_sentence": "2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity\n\nas the adoptive mother and guardian 0£ the appellant on March 24, 1957."}}, {"text": "March 24, 1957", "label": "DATE", "start_char": 2930, "end_char": 2944, "source": "ner", "metadata": {"in_sentence": "2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity\n\nas the adoptive mother and guardian 0£ the appellant on March 24, 1957."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 3282, "end_char": 3293, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 3301, "end_char": 3328, "source": "regex", "metadata": {}}, {"text": "section 2", "label": "PROVISION", "start_char": 3448, "end_char": 3457, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "January 1, 1954", "label": "DATE", "start_char": 3899, "end_char": 3914, "source": "ner", "metadata": {"in_sentence": "Overruling the contentions raised on behalf of the appeUant to the effect that as there was no voluntary sale chargeable to capital gains tax under section 12B of the Indian Income Tax Act, 1922, hereinafter referred to as 'the Act',, and the aforesaid items did not constitute 'capital assets' as contemplated by section 2 ( 4A) of the Act but fell within the purview of the exception carved out by clause (ii) thereof and as such were to be excluded in computing the gains because they were held for personal use by the assessee and the members of his family as was evident from the fact that they were used for the purpose of Maha Lakshmi Puja and other religious festivals and rituals in the family, and taking into account the market value of the assets as on January 1, 1954, the Income Tax Officer, Bharatpur, worked out capital gains at Rs."}}, {"text": "Bharatpur", "label": "GPE", "start_char": 3940, "end_char": 3949, "source": "ner", "metadata": {"in_sentence": "Overruling the contentions raised on behalf of the appeUant to the effect that as there was no voluntary sale chargeable to capital gains tax under section 12B of the Indian Income Tax Act, 1922, hereinafter referred to as 'the Act',, and the aforesaid items did not constitute 'capital assets' as contemplated by section 2 ( 4A) of the Act but fell within the purview of the exception carved out by clause (ii) thereof and as such were to be excluded in computing the gains because they were held for personal use by the assessee and the members of his family as was evident from the fact that they were used for the purpose of Maha Lakshmi Puja and other religious festivals and rituals in the family, and taking into account the market value of the assets as on January 1, 1954, the Income Tax Officer, Bharatpur, worked out capital gains at Rs."}}, {"text": "Income Tax Appe_llate Tribunal", "label": "COURT", "start_char": 4157, "end_char": 4187, "source": "ner", "metadata": {"in_sentence": "A further appeal to the Income Tax Appe_llate Tribunal was taken by the appellant but the same also proved abortive as the Tribunal was of the view that the expression \"'personal effects\" meant such items of movable property as were necessary adjuncts to an individual's."}}, {"text": "section 12B", "label": "PROVISION", "start_char": 4507, "end_char": 4518, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Rajasthan at Jodhput", "label": "COURT", "start_char": 4725, "end_char": 4759, "source": "ner", "metadata": {"in_sentence": "The Tribunal, however, referred the following question of law at the instance of the appellant to the High Court of Rajasthan at Jodhput under section 66( I) of the Act:\n\n\"Whether on the facts and in the circumstances of the case the assets sold were capital assets within the mea)).~ ing of section 2( 4A) chgeable to capital gains tax under section 12B of the Income-tax Act, 1922.\""}}, {"text": "section 66( I)", "label": "PROVISION", "start_char": 4766, "end_char": 4780, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2( 4A)", "label": "PROVISION", "start_char": 4915, "end_char": 4929, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12B", "label": "PROVISION", "start_char": 4966, "end_char": 4977, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 4985, "end_char": 5005, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Desi", "label": "LAWYER", "start_char": 5904, "end_char": 5908, "source": "ner", "metadata": {"in_sentence": "A~aring in support of th\"~ ap~, Mr. Desi has vcliernently contbH4ed that.the questibn i!s tt> whether an iteth bf mo:vable prt>- perty held for petsdnaHtise is a part Of r:_rsonal et~. ofan assessee shotlltt .!AA <le\\enbine<!", "canonical_name": "Desai"}}, {"text": "section 2(4A)", "label": "PROVISION", "start_char": 6734, "end_char": 6747, "source": "regex", "metadata": {"statute": null}}, {"text": "B. B. Ahuja", "label": "LAWYER", "start_char": 6918, "end_char": 6929, "source": "ner", "metadata": {"in_sentence": "Mr. B. B. Ahuja appearing for the Revenue has, on the other hand, urged that the inte_rpretation sought to be placed on behalf of the assesse~ on the expression \"personal effects\" is not correct and while detennining whether the effects are personal it is essential to see whether they are meant for the personal use of the assessee.", "canonical_name": "B. B. Ahuja"}}, {"text": "section 2", "label": "PROVISION", "start_char": 7422, "end_char": 7431, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(l)(viii)", "label": "PROVISION", "start_char": 10980, "end_char": 10998, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 11006, "end_char": 11026, "source": "regex", "metadata": {}}, {"text": "section 2", "label": "PROVISION", "start_char": 11118, "end_char": 11127, "source": "regex", "metadata": {"linked_statute_text": "the Wealth Tax Act, 1957", "statute": "the Wealth Tax Act, 1957"}}, {"text": "HEMANI SINGHJI V. C.I.T. (Jaswant Singh", "label": "JUDGE", "start_char": 11797, "end_char": 11836, "source": "ner", "metadata": {"in_sentence": "HEMANI SINGHJI V. C.I.T. (Jaswant Singh, J.) 42 7\n\n1945 as a Justice oi the Peace was presented with two gold cas- A kets, ; i go.ld tray,, two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with wliooe business he was connected and he kept these articles in a glass\n\nhow case for display in his drawing room and in assessment year 1959-60 daimed exemption in respect of these articles under the above quoted provision i.e. under section 5(l)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold caskcts were B kept in tht: show case did not make them part of the furniture and the rest of tht• articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used."}}, {"text": "section 5(l)(viii)", "label": "PROVISION", "start_char": 12291, "end_char": 12309, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth Tax Act, 1957", "label": "STATUTE", "start_char": 12317, "end_char": 12337, "source": "regex", "metadata": {}}, {"text": "Wealth-Tax Act", "label": "STATUTE", "start_char": 13608, "end_char": 13622, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Desai", "label": "LAWYER", "start_char": 13771, "end_char": 13776, "source": "ner", "metadata": {"in_sentence": "The decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna (supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.", "canonical_name": "Desai"}}]}
{"document_id": "1976_3_428_434_EN", "year": 1976, "text": "-NINAJI RAOJJ BOUDHA & ANR. v.\n\nSTATE OF MAHARASHTRA\n\nFebruary 20, 1976\n\n[R. S. SARKARIA AND P. N. SH!NGHAL, JJ.]\n\n~ '-\n\nIndian Penal Code (Act 45 of 1860) s. 34-Common intention-Evidee showing only intention to cause grievous hurt-Victim dying but no evidenCe\n\nas to who caused the only fatal injury-If Clccused could be convicted iiilder ss. 302 and 34.\n\nNine accused were charged with offences of murder and causing hurt. The trial Court acquitted two and convicted the others under ss. 325 and 147, I.P.C.\n\nOn appeal by the State, the High Court convicted the two appellants also under s. 302 read with s. 34, I.P.C.\n\nPartly allowing their appeal to this Court,\n\nHELD : The High Court has not examined the liability of the accused with due regard to the facts and circl; lmstances of the case. Instead of giving_. a\n\ncateorical findin2, the High Court stated at one place in its judgment that the appellants must be taken to have had the knowledge that the injury which they intended to cause to the victim was \"likely to result\" in his death, and in' an other place, that the appellants were guilty of an offence under s. 300, fourthly; because they \"ought to have known that their act was so imminently 'dangerQUS having regard to the age and condition of the victim that their act must in all probability cause death or such bodily injury as is likely to cause death.\" But the evidence on record shows that the appellants did not have the commQD intention of giving a beatiil~ to the deceased when they reached his house but were only bent upon settling scores with his son. It was only when the deceased asked another witness to get ready a bullock cart for making a colhplaint about the beating of his son that the appellants inflicted injuries on him. But there was nothing to show that their intention was to inflict' a'ny fatal injury. Only one of the injuries was a forceful blow on the head . of the deceased and it resulted in his death. But the other injuries were on the back of-the neck. knees ahd right elbow of the deceased and not on anv vi1'!\n\npart of the body. Therefore, the appellants bad only the common intention of causing grievous hurt. Since there was no reliable evidence to show which of the two appellants gave the fatal blow, the appellants could only be convicted of an offence under s. 325 read with s. 34, J.P.C. [431F; 432C-D, F-G; 433E-\n\n434C]\n\n.CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 181 of 1971 Appeal by special leave from the judgment and order dated the 25th and 28th September, 1970 of the Bombay High Court Nagpur Bench in Criminal Appeal No. 24 of 1968 with Crl. A. No. 100 of 1968.\n\nliarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970. The Additional Sessions\n\nJudge of Khamgaon convicted them. of offences um!er ss. 325 and A 14 7 LP .C. and sentenced them to rigorous imprisonment for five years and a fine of Rs. 50/- for the offence under s. 325, and to rigorous imprisonment for six months and a fine of Rs. 25 /- for the offence under s. 147 I.P.C.\n\nThe High Court held, on appeal, that they were , guilty of the offence under s. 302 read with s. 34 I.P.C. and sentenced them to imprisonment for life by setting aside their acquittal for the offence of murder of Bhonaji. Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji.\n\nWe would therefore concern ourselves with the incident which resulted in Bhonaji's death and the conviction of the appellants thereoor.\n\nAppellants Ninaji and Raoji were two out of nine accused who were challaned for the commissicn of various offences in an incident which took place in mauza Narkhed in Buldana district on September\n\n29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other. It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan', near the ho\\lse of Bhonaji, because of the impounding of a she buffalo of Ananda (who was .one of the nine accused in the case) by Bhonaji's third son Madhukar and of the cow of Ninaji's nephew Narain. It was alleged that the nine accused, including the present appellants, went to 'gothan'.\n\nThere was some altercation between accused Ananda and Samadhan and the parties beat each other.\n\nSamadhan and his relations then went to their house, which was close by.\n\nSamadhan, who had received some injuries at 'gothan', went inside his house to dress them up.\n\nHis father Bhonaji sat on an 'oota' in front of the house. It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there. Reports of the incident were lodged at the police station.\n\nBhonaji succumbed to his injuries on October 2, 1966. The police investigated and challaned nine accused including appellants Ninaji and Raoji. The Additional Sessions Judge convicted them all, but acquitted\n\nParashram and Ram Das. While accused Ninaji and Raoji were convicted and sentenced as aforesaid, the remaining five accused were convicted and sentenced for offences under ss. 325 and 147 l.P.C. or/ and 325/149 and 147 1.P.C. As has been stated, this appeal is by Ninaji and Raoji in regard to the incident which took place in front of the house of Bhonaji and resulted in his death.\n\nIt has been argued by Mr. Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present\n\n13-L522SCI/76\n\nat the incident which took place at 'gothan', and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his 'oota'.\n\nWe have been taken through the evidence on the re;; ord, and w~ find that there is no justification for the argument that the fatal injury was caused to Bhonaji at 'gothan', and not in front of his house. We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonaji's house was quite near the 'gothan', there can be no doubt that the accused went to his house, after the beating which had taken place at 'gothan'.\n\nAs we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten there.\n\nThe other argument of Mr. Harjinder Singh, which however requires serious consideration, is whethe> the appellants Ninaji and Raoji have rightly been convicted by the High Court for the offence under s. 302 read with s. 34 LP .C. The finding of the High Court in this respect is as follows,-\n\n\"The evidence very clearly shows that these two persons were responsible for assaulting Bhonaji as a result of which Bhonaji died. It may be that they had in the beginning no common object or intention to assault Bhonaji but it does appear from the circumstances that these two persons, and may be Parashram, formed a common intention at that moment and both of them dealt blows on Bhonaji which were on vital parts of the body such as head and neck. The blows were given by sticks though the description of the sticks cannot be known because the sticks which have been recovered in this case cannot be said to be sticks connected with the crime as such. But from the nature of the blows which were given on the person of Bhonaji, it appears that the sticks were quite heavy and the blows of the sticks actually resulted in the death of Bhonaji.\n\nWhen the blows. were given the accused must have intended to cause those injuries to Bhonaji.\n\nThey must be taken to have knowledge that Bhonaji was an old mau and on account of the blows given by these accused his death was likely to be caused, particularly when the blows were given on vital parts of the body.\n\nThey must be taken to have knowledge that the injury they intended to cause to Bhonaji was likely to result in the death of Bhonaji.\n\nThe post-mortem examination of Bhonaji shows that there were several fractures and fissures in the head and the blows must have been dealt with quite an amount of force.\n\nThe accused Nos. 6 and 7 Ninaji and Raoji, therefore, would be guilty of an offence which would come under section 300, fourthly, because the accused Nos. 6 and 7 ought to have known toot their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death.\"\n\nA perusal of the judgment shows that while the High Court took the view, in the beginning, that the appellants had no common object or intention to assault Bhonaji, it took the view that they, and may be Parashram, \"formed a common intention at that moment.\" It is not clear from the judgment at what moment of time such a common intention could be said to have been formed by them.\n\nMoreover, the High Court has taken the view that both the appellants dealt blows on vital parts of Bhonaji's body which resulted in his death and that when the blows were given the accused \"must have intended to cause those injuries to Bhonaji\" with the knowledge that he was an old man and his death was likely to be caused by those blows.\n\nTherefore the question which requires consideration 1s whether it could be said that there was any evidence to show that more than one blow was inflicted on any vital part of Bhonaji's body and whether both the assailants conld be said to have inflicted the fatal injury with the knowledge that it was likely to cause death. The High Court has stated that the post-mortem examination showed that there were several fractures and fissures in the head and that the \"blows\" must have been dealt with quite an amount of force.\n\nThen it has been further held by the High Court that the accused ought to have known that their action in inflicting the injury was \"so imminently dangerous\" as to cause the death of an old. person like Bhonaji. As we shall show, there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and committed an apparent error of law as well. ·\n\nIt is not disputed before us that there was an incident at 'gothan' where there was a beating between the parties bf the accused and E Samadhan, and that Samadhan and his father Bhonaji returned to their house thereafter. Samadhan (P.W.19)' has himself stated that h<: went inside his house while his father Bbonaji sat outside, and that when he (Samadhan) was tying a towel on bis bead to cover the injury which bad been inflicted at 'gothan', the party of the accused came to his door and called him out. Sri Ram (P.W. 5) and Sukbdev (P.W.\n\n7) have stated much to the same effect.\n\nThe evidence on record F therefore showed that the common intention of the appellants was to settle their scores with Samadban, and nor Bhonaji. In fact the High\n\nCout has also held as follows,-\n\n\"It does not appear that any of these persons had initially any idea of assaulting either Bhonaji or Rambhau, but they seemed to be only after Samadhan.\n\nWhile Samadhan G was being asked to come out of the house, the deceased Bbonaji must have abused or said something which infuriated some of the accused persons and it is on account of this, it appears that Ninaji and Raoji and perhaps Parashram directed their attention to Bhonaji.\"\n\nIt cannot therefore be said that the common intention of the accused H was to cause the death of Bhonaji. In fact the statement of Sri Ram\n\n(P.W. ~) shows that at the time when the accmed came to Rhonaji's honse in search of Samadhan, Bhonaji was sitting on the platform or\n\n'oota'. Sukhdev (P.W. 7) has also stated to the same effect, and the statement of Samadhan (P.W. 19) also shows that his father was siting in front of the steps of the house when they asked Samadhan to come out of the house. It is therefore quite clear that the accused did not give a beating to Bhonaji even though he was sitting on the platform outside his house. On the other hand, they passed him by; while calling Samadhan to come out. They could not therefore be said to have the common intention or object of inflicting any injury on the person of Bhonaji till then.\n\nIt will be recalled that the High Court has not stated at what point of time they could be said to have formed the common intention of causing the death of Bhonaji.\n\nIt appears from the statements of Rambhau (P.W. 1) and Tulsi Ram (P.W. 10) that on returning from 'gothan' Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station. That appears to be the point of time when the accused diverted their attention to him and gave him a beating, but there is nothing to show that their intention was to inflict any fatal injury. As has been stated, the High Court has taken the view that more than one blow was given on vital parts of Bhonaji's body and that caused several fractures and fissures in the head.\n\nWe have examined the correctness of that finding.\n\nIt has been stated by Dr. Garge (P.W. 40) that he performed the post-mortem examination on the dead body of Bhonaji and that on external examination he noticed only one contusion 2\" in diameter on the right temporal region of the head. He made an internal examination and found that there was a depressed fracture of the skull, partly of the right temporal bone and right parietal bone, and fissured fractures of the left parietal, frontal and occipital bones the lines of which were \"starting from the border of depressed fracture No. ( 1) and going away in different bones.\" The witness stated further that the depressed and fissured fractures were \"due to blow by some hard and blunt substance, or by a fall from height with head downwards on a hard substance.\" It is therefore quite clear that there was only one blow on the head which caused Bhonaji's death, and the High Court misread the evidence in taking the view that more than cine blow was given on the head of the deceased.\n\nThis has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under s. 302 read with s. 34 I.P.C.\n\nHere again, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. 5) and Sukhdev (P.W. 7) have been examined as eye witnesses of the beating which was given to Bhonaji. The High Court has held that their evidence was \"acceptable\", and that there was \"nothing to cast any doubt\" on their evidence. Smt. Kalawati (P.W.\n\n2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a\n\nblow with a stick on Bhonaji's back, near the neck.\n\nShe however admitted during her cross-examination that she could not explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonaji's body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-inlaw of the deceased, being the wife of Rambhau. She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji had fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased. Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a 'khunt' near his neck. In his crossxamination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement could not also therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev (P.W. 7) for consideration.\n\nHe merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did not state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt. Kalawati\n\n(P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. 5) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the pa<t-mortem examination was inflicted by the one or the other of the two appellants.\n\nThe evidence on record therefore went to show that the appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his 'oota' but passed him by in search of Samadhan who was dressing his injuries inside the house.\n\nBhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that iniuries were inflicted on his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted >n the ultimate death of Bhonaii. The other injuries were on the neck (back side), knees and the right elbow of the decea•ed and were simple injuries.\n\nAs has been shown, there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the bodv and, in the absence of evidence to establish that their common intention was to cause death. it appears that the appellants had the common intention of cau<ing grievous injury with the lathi and the 'khunt'.\n\nThey could therefore be convicted of an offence under s. 325 read with s. 34 l.P.C. and not s. 302 read with s. 34 I.P.C.\n\nIt may also be mentioned that while the High Conrt stated at one place that the appellants must be taken to have the knowledge that the injury which , hey intended to cause to Bhonaji was \"likely to result\" m his death, it observed at another place that the appellants were guilty of an offence falling under section 300, fourthly, because they \"ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death.\" No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the rec<:lrd and to which reference has been made above.\n\nThe appeal is therefore allowed to the extent that the conviction of the appellants Ninaji and Raoji is altered from section 302/34 I.P.C. to one under section 325/34 l.P.C. and they are sentenced to rgorous imprisonment for five years therennder. Their sentences shall run concurrently.\n\nV.P.S.\n\nAppeal allowed in part.", "total_entities": 87, "entities": [{"text": "NINAJI RAOJJ BOUDHA & ANR", "label": "PETITIONER", "start_char": 1, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "NINAJI RAOJJ BOUDHA & ANR", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 32, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "February 20, 1976", "label": "DATE", "start_char": 54, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "v.\n\nSTATE OF MAHARASHTRA\n\nFebruary 20, 1976\n\n[R. S. SARKARIA AND P. N. SH!NGHAL, JJ.]"}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 74, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 121, "end_char": 138, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 34", "label": "PROVISION", "start_char": 156, "end_char": 161, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "ss. 302 and 34", "label": "PROVISION", "start_char": 340, "end_char": 354, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "ss. 325 and 147", "label": "PROVISION", "start_char": 486, "end_char": 501, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 503, "end_char": 508, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 590, "end_char": 596, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 607, "end_char": 612, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 614, "end_char": 619, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 300", "label": "PROVISION", "start_char": 1124, "end_char": 1130, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 325", "label": "PROVISION", "start_char": 2319, "end_char": 2325, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 2336, "end_char": 2341, "source": "regex", "metadata": {"statute": null}}, {"text": "liarjinder Singh", "label": "LAWYER", "start_char": 2646, "end_char": 2662, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970."}}, {"text": "S. B. Wad", "label": "LAWYER", "start_char": 2683, "end_char": 2692, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 2697, "end_char": 2709, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970."}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 2775, "end_char": 2783, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970."}}, {"text": "Ninaji Raoji Boudha", "label": "PETITIONER", "start_char": 2809, "end_char": 2828, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970.", "canonical_name": "NINAJI RAOJJ BOUDHA & ANR"}}, {"text": "Raoji Gianu Boudha", "label": "OTHER_PERSON", "start_char": 2869, "end_char": 2887, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 2962, "end_char": 2979, "source": "ner", "metadata": {"in_sentence": "liarjinder Singh, for the appellant\n\nS. B. Wad and M. N. Shroff, for the respondent\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970."}}, {"text": "Additional Sessions\n\nJudge of Khamgaon", "label": "COURT", "start_char": 3014, "end_char": 3052, "source": "ner", "metadata": {"in_sentence": "The Additional Sessions\n\nJudge of Khamgaon convicted them."}}, {"text": "ss. 325", "label": "PROVISION", "start_char": 3087, "end_char": 3094, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 325", "label": "PROVISION", "start_char": 3217, "end_char": 3223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 147", "label": "PROVISION", "start_char": 3315, "end_char": 3321, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3322, "end_char": 3327, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3407, "end_char": 3413, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 3424, "end_char": 3429, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3430, "end_char": 3435, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bhonaji", "label": "PETITIONER", "start_char": 3543, "end_char": 3550, "source": "ner", "metadata": {"in_sentence": "25 /- for the offence under s. 147 I.P.C.\n\nThe High Court held, on appeal, that they were , guilty of the offence under s. 302 read with s. 34 I.P.C. and sentenced them to imprisonment for life by setting aside their acquittal for the offence of murder of Bhonaji.", "canonical_name": "Bhonaji"}}, {"text": "Ninaji", "label": "PETITIONER", "start_char": 3552, "end_char": 3558, "source": "ner", "metadata": {"in_sentence": "Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji.", "canonical_name": "Ninaji"}}, {"text": "Raoji", "label": "PETITIONER", "start_char": 3563, "end_char": 3568, "source": "ner", "metadata": {"in_sentence": "Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji.", "canonical_name": "Raoji"}}, {"text": "s. 325", "label": "PROVISION", "start_char": 3614, "end_char": 3620, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s.149", "label": "PROVISION", "start_char": 3631, "end_char": 3636, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3637, "end_char": 3642, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Samadhan", "label": "PETITIONER", "start_char": 3768, "end_char": 3776, "source": "ner", "metadata": {"in_sentence": "Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji.", "canonical_name": "E Samadhan"}}, {"text": "Rambhau", "label": "OTHER_PERSON", "start_char": 3781, "end_char": 3788, "source": "ner", "metadata": {"in_sentence": "Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji."}}, {"text": "Harjinder Singh", "label": "LAWYER", "start_char": 3794, "end_char": 3809, "source": "ner", "metadata": {"in_sentence": "Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji.", "canonical_name": "Harjinder Singh"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 4053, "end_char": 4059, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 4066, "end_char": 4071, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Buldana district", "label": "GPE", "start_char": 4412, "end_char": 4428, "source": "ner", "metadata": {"in_sentence": "Appellants Ninaji and Raoji were two out of nine accused who were challaned for the commissicn of various offences in an incident which took place in mauza Narkhed in Buldana district on September\n\n29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other."}}, {"text": "September\n\n29, 1966", "label": "DATE", "start_char": 4432, "end_char": 4451, "source": "ner", "metadata": {"in_sentence": "Appellants Ninaji and Raoji were two out of nine accused who were challaned for the commissicn of various offences in an incident which took place in mauza Narkhed in Buldana district on September\n\n29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other."}}, {"text": "September 29, 1966", "label": "DATE", "start_char": 4625, "end_char": 4643, "source": "ner", "metadata": {"in_sentence": "It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan', near the ho\\lse of Bhonaji, because of the impounding of a she buffalo of Ananda (who was .one of the nine accused in the case) by Bhonaji's third son Madhukar and of the cow of Ninaji's nephew Narain."}}, {"text": "Ananda", "label": "OTHER_PERSON", "start_char": 4793, "end_char": 4799, "source": "ner", "metadata": {"in_sentence": "It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan', near the ho\\lse of Bhonaji, because of the impounding of a she buffalo of Ananda (who was .one of the nine accused in the case) by Bhonaji's third son Madhukar and of the cow of Ninaji's nephew Narain."}}, {"text": "Madhukar", "label": "OTHER_PERSON", "start_char": 4870, "end_char": 4878, "source": "ner", "metadata": {"in_sentence": "It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan', near the ho\\lse of Bhonaji, because of the impounding of a she buffalo of Ananda (who was .one of the nine accused in the case) by Bhonaji's third son Madhukar and of the cow of Ninaji's nephew Narain."}}, {"text": "Narain", "label": "OTHER_PERSON", "start_char": 4913, "end_char": 4919, "source": "ner", "metadata": {"in_sentence": "It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan', near the ho\\lse of Bhonaji, because of the impounding of a she buffalo of Ananda (who was .one of the nine accused in the case) by Bhonaji's third son Madhukar and of the cow of Ninaji's nephew Narain."}}, {"text": "Samadhan", "label": "PETITIONER", "start_char": 5183, "end_char": 5191, "source": "ner", "metadata": {"in_sentence": "Samadhan, who had received some injuries at 'gothan', went inside his house to dress them up.", "canonical_name": "E Samadhan"}}, {"text": "Parashram", "label": "PETITIONER", "start_char": 5397, "end_char": 5406, "source": "ner", "metadata": {"in_sentence": "It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there.", "canonical_name": "Parashram"}}, {"text": "Trimbak", "label": "OTHER_PERSON", "start_char": 5563, "end_char": 5570, "source": "ner", "metadata": {"in_sentence": "It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there."}}, {"text": "Bhonaji", "label": "PETITIONER", "start_char": 5651, "end_char": 5658, "source": "ner", "metadata": {"in_sentence": "Bhonaji succumbed to his injuries on October 2, 1966.", "canonical_name": "Bhonaji"}}, {"text": "October 2, 1966", "label": "DATE", "start_char": 5688, "end_char": 5703, "source": "ner", "metadata": {"in_sentence": "Bhonaji succumbed to his injuries on October 2, 1966."}}, {"text": "Parashram", "label": "PETITIONER", "start_char": 5860, "end_char": 5869, "source": "ner", "metadata": {"in_sentence": "The Additional Sessions Judge convicted them all, but acquitted\n\nParashram and Ram Das.", "canonical_name": "Parashram"}}, {"text": "Ram Das", "label": "OTHER_PERSON", "start_char": 5874, "end_char": 5881, "source": "ner", "metadata": {"in_sentence": "The Additional Sessions Judge convicted them all, but acquitted\n\nParashram and Ram Das."}}, {"text": "ss. 325 and 147", "label": "PROVISION", "start_char": 6032, "end_char": 6047, "source": "regex", "metadata": {"statute": null}}, {"text": "Harjinder Singh", "label": "LAWYER", "start_char": 6271, "end_char": 6286, "source": "ner", "metadata": {"in_sentence": "It has been argued by Mr. Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present\n\n13-L522SCI/76\n\nat the incident which took place at 'gothan', and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his 'oota'.", "canonical_name": "Harjinder Singh"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 7410, "end_char": 7416, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 7427, "end_char": 7432, "source": "regex", "metadata": {"statute": null}}, {"text": "section 300", "label": "PROVISION", "start_char": 9076, "end_char": 9087, "source": "regex", "metadata": {"statute": null}}, {"text": "E Samadhan", "label": "PETITIONER", "start_char": 11155, "end_char": 11165, "source": "ner", "metadata": {"in_sentence": "It is not disputed before us that there was an incident at 'gothan' where there was a beating between the parties bf the accused and E Samadhan, and that Samadhan and his father Bhonaji returned to their house thereafter.", "canonical_name": "E Samadhan"}}, {"text": "Samadhan", "label": "WITNESS", "start_char": 11244, "end_char": 11252, "source": "ner", "metadata": {"in_sentence": "Samadhan (P.W.19)' has himself stated that h<: went inside his house while his father Bbonaji sat outside, and that when he (Samadhan) was tying a towel on bis bead to cover the injury which bad been inflicted at 'gothan', the party of the accused came to his door and called him out."}}, {"text": "Bbonaji", "label": "PETITIONER", "start_char": 11330, "end_char": 11337, "source": "ner", "metadata": {"in_sentence": "Samadhan (P.W.19)' has himself stated that h<: went inside his house while his father Bbonaji sat outside, and that when he (Samadhan) was tying a towel on bis bead to cover the injury which bad been inflicted at 'gothan', the party of the accused came to his door and called him out.", "canonical_name": "Bhonaji"}}, {"text": "Ram", "label": "WITNESS", "start_char": 11533, "end_char": 11536, "source": "ner", "metadata": {"in_sentence": "Sri Ram (P.W. 5) and Sukbdev (P.W.\n\n7) have stated much to the same effect."}}, {"text": "Sukbdev", "label": "WITNESS", "start_char": 11550, "end_char": 11557, "source": "ner", "metadata": {"in_sentence": "Sri Ram (P.W. 5) and Sukbdev (P.W.\n\n7) have stated much to the same effect."}}, {"text": "Samadban", "label": "PETITIONER", "start_char": 11724, "end_char": 11732, "source": "ner", "metadata": {"in_sentence": "The evidence on record F therefore showed that the common intention of the appellants was to settle their scores with Samadban, and nor Bhonaji.", "canonical_name": "E Samadhan"}}, {"text": "Samadhan G", "label": "PETITIONER", "start_char": 11962, "end_char": 11972, "source": "ner", "metadata": {"in_sentence": "While Samadhan G was being asked to come out of the house, the deceased Bbonaji must have abused or said something which infuriated some of the accused persons and it is on account of this, it appears that Ninaji and Raoji and perhaps Parashram directed their attention to Bhonaji.\"", "canonical_name": "E Samadhan"}}, {"text": "Rhonaji", "label": "PETITIONER", "start_char": 12436, "end_char": 12443, "source": "ner", "metadata": {"in_sentence": "In fact the statement of Sri Ram\n\n(P.W. ~) shows that at the time when the accmed came to Rhonaji's honse in search of Samadhan, Bhonaji was sitting on the platform or\n\n'oota'.", "canonical_name": "Bhonaji"}}, {"text": "Sukhdev", "label": "WITNESS", "start_char": 12523, "end_char": 12530, "source": "ner", "metadata": {"in_sentence": "Sukhdev (P.W. 7) has also stated to the same effect, and the statement of Samadhan (P.W. 19) also shows that his father was siting in front of the steps of the house when they asked Samadhan to come out of the house."}}, {"text": "Rambhau", "label": "WITNESS", "start_char": 13290, "end_char": 13297, "source": "ner", "metadata": {"in_sentence": "It appears from the statements of Rambhau (P.W. 1) and Tulsi Ram (P.W. 10) that on returning from 'gothan' Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station."}}, {"text": "Tulsi Ram", "label": "OTHER_PERSON", "start_char": 13311, "end_char": 13320, "source": "ner", "metadata": {"in_sentence": "It appears from the statements of Rambhau (P.W. 1) and Tulsi Ram (P.W. 10) that on returning from 'gothan' Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station."}}, {"text": "Garge", "label": "WITNESS", "start_char": 13977, "end_char": 13982, "source": "ner", "metadata": {"in_sentence": "It has been stated by Dr. Garge (P.W. 40) that he performed the post-mortem examination on the dead body of Bhonaji and that on external examination he noticed only one contusion 2\" in diameter on the right temporal region of the head."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 15111, "end_char": 15117, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15128, "end_char": 15133, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 15134, "end_char": 15139, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kalawati", "label": "WITNESS", "start_char": 15228, "end_char": 15236, "source": "ner", "metadata": {"in_sentence": "Kalawati (P.W. 2), Smt."}}, {"text": "Deoki Bai", "label": "WITNESS", "start_char": 15252, "end_char": 15261, "source": "ner", "metadata": {"in_sentence": "Deoki Bai (P.W. 3), Sri Ram (P.W. 5) and Sukhdev (P.W. 7) have been examined as eye witnesses of the beating which was given to Bhonaji."}}, {"text": "Tulsi Ram Chowkidar", "label": "OTHER_PERSON", "start_char": 18162, "end_char": 18181, "source": "ner", "metadata": {"in_sentence": "Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station."}}, {"text": "Bhonaii", "label": "PETITIONER", "start_char": 18509, "end_char": 18516, "source": "ner", "metadata": {"in_sentence": "Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted >n the ultimate death of Bhonaii.", "canonical_name": "Bhonaji"}}, {"text": "s. 325", "label": "PROVISION", "start_char": 19097, "end_char": 19103, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 19114, "end_char": 19119, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 19135, "end_char": 19141, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 19152, "end_char": 19157, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 19158, "end_char": 19163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 300", "label": "PROVISION", "start_char": 19475, "end_char": 19486, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 302", "label": "PROVISION", "start_char": 20176, "end_char": 20187, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 20191, "end_char": 20196, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 325", "label": "PROVISION", "start_char": 20211, "end_char": 20222, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}]}
{"document_id": "1976_3_435_444_EN", "year": 1976, "text": "HINDU RELIGIOUS ENDOWMENTS & ORS.\n\nB. SAMITRA & ORS.\n\nFebruary 20, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nOrissa Hindu Religious Endowments Act, 1951-Secs. 27, 40, 44-Whether .appointment of tru_stees by Endown1ent Com1nissioner can be made under s. 27 without deterrnining the disputed points in sec. 40-Suo moto inquiry by Endow~ ments Comrnissioner under s. 40.\n\nSome villags made an applicat:on before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under s. 27 01 LU ... UL::.:.a H.nuu h,1,; ug1ou .. .bnuo,.,.ments A;; t, 1951, for Shiva temple which is more than 100 years old and possesses about 24 acres of land.\n\nA new temple was cons.ructed in place of the old dilapid<.ted temple by the money contributed by the villagers.\n\nIt was alleged that respondents Nos. 1 to 3 were mismanaging the affairs of the temple and were not regularly performing the puJa 01 thi;; d~1ty. An enquiry v.as ordered pur:::uant to which the lnspei..:tor\n\nsubmitted his report stating that the temple was a public temple and that respondents Nos. 1 to 3 did not show accounts to the Inspector and that, therefore, names of 5 !ersons were suggested for appointment of non-hereditary trustees.\n\nA proclama, i'- n in,,.itirg cbjections regarding the suit[b.lity of 5 person' \\Vas issu rl.\n\nAf'er making a summary tnqui v in the presence of tbe villagers including respondents Nos. 1 to 3 the Additional Assistant Commissioner passed an order holding that the institution was a public one and appointed 5 non-hereditary trustees under s. 27 of the Act.\n\nHe, however, did not record any finding whether respondents Nos. 1 to 3 were hereditary trustees or not.\n\nA revision Appiication filed to the Commissioner of Hindu Religious Endowments failed.\n\nRespondents Nos. 1 to 3 filed a writ petiti'\"'n in the High Court contending that the order of appointment of non-hereditary trustees under s. 27 of the Act rncroached upon the property rights of the respondents and were without jurisdiction and void having been passed without determining under s. 41 of the Act as to whether the institution was a private or a public one and without further determining as to whether the respondent were hereditary trustees.\n\nThe appellants contended before the Hh!:h Court that the provision<; of s. 27 were independent and that it could be invoked without prior determination of the question under s. 41.\n\nThe High Court allov•ed the writ petition holding that s. 27 should be applied only where in respect of the disputed in'ititution there had been a prior determination of the controversial rights mentioned in s. 41 and that before the Assistant Endowments Commissioner cou1d nro:eed\n\nunder s. 27 of the Act to assess non-hereditary trustees it was necessary for him to come to a finding that the institution was a public one and there were no hereditary tru<; tees thereof in existen-::e and in order to come to such a finding he hould have completf'd an enquiry under s. 41 which coupled with s. 44 provided for a judicial determination of these very questions.\n\nUnder s. 41 in case of a dispute the Assistant Commissioner has power to enauire into and decide whether an institution is a public religious institution and whether a trustee holds office as a hereditary trustee.\n\nUnder s. 27, the A'isistant Commissioner has power to appoint non-hereditary trustees in respect of each religious institution in cases v.'here there are no hereditary trustees.\n\nDismissing the appeal,\n\nHELD : 1. The Assistant Commissioner can appoint non-hereditary trustees under s. 27 of the Act only where two conditions are satisfied : H\n\n(i) that the religious institution is not an excepted one, and\n\n(ii) there are no hereditary trustees of the institution.\n\nA For the exercise of the powers under s. 27. therefore, either there should~ be no dispute about the two conditions or if there is a dispute a prior determination of such dispute under s. 41 of the Act has to be made.\n\nWithout such preliminary determination an appointment of non-hereditary trustees under s. 41 since there is no specific prohibition. [4440-E]\n\n2. Under s. 27, the enquiry is of a summary character in which the affected person does not get a reasonable chance of presenting his entire! case and evidence is not required to be recorded ve1b.iiim.\n\nIt is otheivvise in case of proceedings under s. 41 where the_ enquiry has to be judicial and elabJrate. [442H, 443Al'\n\n3. It is also not correct that a duly verified application on a proper court fee is necessary for the determination of the questions enumerated in s. 41 of the Act.\n\nAn enquiry can be m-:::de suo nioto by the A5sistant En1owments Conimissioner for determination of any of the d; sputes enumerated in s. 41 s'.ncc there is no specific prohibition. [4440-E]\n\nC Civ1L APPELLATE JURISDICTION: Civil Appeal No. 128'of 1971.\n\nApeal by special leave from the judgment and order dated the 19th September, 1969 of the Orissa High Court in O.J.C. No. 1759 of 1969.\n\nGovind Das. for the appellants.\n\nEx-parte, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.\n\nThis appeal by special leave is directed against the judgment and order dated September 19, 1969, of the Orissa High Court in O.J.C. No. 1759 of 1968 allowine the writ petition filed by respondents 1 to 3 herein and quash; ng the crders. dated May 2, 1967, July 22, 1968, and December 5, 1968, passed under sections 27 and 68 of the Orissa Hindu Rellg'ous Endowments Act, 1951 (Orissa Act II of 1952) hereinafter referred to as 'the Act'.\n\nBriefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old. one which was in a dilapidated condition had been constructed with the labour aud money contributed by the villaers: that marfatdars, respondents 1 to 3 herein, were mismanaging the affairs of the insftution and were not regularly performing the seva and puia etc. of the said deity.\n\nOn July 31, 1966. the said responc!ents were directed tosubmit returns as required under section 17 of the Act.\n\nOn Ammst 4, 1966, the Inspector of Ernlowinents was directed to make an enquiry and to submit a report regarding the allegations made by the said villagers.\n\nPursuant to the said directions, the Inspector submitted his report ou September 6, 1966, stating inter alia that the\n\nHINDU RELIGIOUS ENDOWMENTS v. B. SAM!TRA (Jaswant Singh, J.) 43 7\n\ntemple was a public temple which had been recently constructed by the villagers and marfatdars; that the villagers of Banlala and marfatdars came from one family and the persons managing the insftution did not receive notice from h; m nor showed h; m the accounts and suggesting the names of five persons for appointment as trustees.\n\n011 November 4, 1966, a proclamation inviting obiectons regarding the suitability of persons suggested by the Inspector for appo'ntment as non-hereditary trustees was issued to wb:ch the aforesaid respondents objected claiming that the institution was a private one and even if it be held to be a public religious institution, they were the hereditary trustees.\n\nAfter making a summary enquiry in the presence of the villagers including respondents 1 to 3, the Additional Assistant Commissioner of Religious Endowments passed an order on May 2, 1967, holding that the institution was a public one and appointing five non-hereditary trustees under section 2 7 of the Act.\n\nThe Additional Assistant Endowments Commissioner did not, however, record any finding whether the respondents 1 to 3 were hereditary trustees or not.\n\nAggrieved by this order, respondents 1 to 3 preferred on May\n\n15. 1967 a revision application under section 9 of the Act before the Commissioner of Hindu Religious Endowments, Orissa, Bhubaneswar.\n\nOn May 27, 1967, the appointed trustees filed a petition under section 68 of the Act for obtaining possess; on of the insftution and its endowments from respondents 1 to 3.\n\nOn November 10. 1967, respondents 1 to 3 filed a petition under section 41 of the Act claiming that the institution was a private one.\n\nIt was alternatively claimed hy the said respondents that even if the temple be held to be a public one, they could not but be held to be hereditary trustees.\n\nOn July 22, 1968, an order directing delivery of possession of the instituticn and its endowments to the appointed trustees was passed under section 68 of the Act by the Assistant Commissioner of Endowments, Orissa.\n\nOn December 5, 1968, the aforesaid revision application filed by respondents 1 to 3 was dismissed by the Commissioner of F Hindu Religious Endowments and the Inspector of Endowments was directed to execute the writ of delivery of possession.\n\nOn December 26, 1968, the Inspector of Endowments made a report saying that the writ had been executed and possession as directed had been delivered to the appointed trustees on December 11, 1968.\n\nOn December 23, 1968 respondents 1 to 3 filed a petition under G.\n\nArticles 226 and 227 of the Constitution, being O.J.C. No. 1759 of 1968, before the H; gh Court of Judicature, Orissa, challenging the aforesaid orders dated May 2, 1967, July 22, 1968 and December 5, 1968 and praying that the said orders be quashed. In the said writ petition, it was contended by respondents 1 to 3 that the aforesaid orders dated May 2, 1967 passed by the Additional Assistant Endowments Commissioner appo; nting non-hereditary trustees of the institu- H tion under section 27 of the Act and order dated July 22. 1968 passed by the Assistant Endowments Commissioner directing delivery of possession of the institution and its properties to the non-hereditary\n\ntrustees under section 68 of the Act encroached upon the property ngncs oi the responoents and were w1thout junsd1ction and vo, d hav, ng beeu passecl w1mout oetenruruug unaer secuon 41 of the Act as to whemer rne tnstltutJon was a pnvate or a pubilc one and w1thout fur, ner clecenrumng as to whetner the respondents were hereditary trustees.\n\nThe said writ petition was contested on behalf of the appellants on the grouncts ma, the scheme ol the Act showed that provisions of, sect10n 27 of the Act were independent; that the exercise oi the power unuer section 2 7 was subject to final dec.sion rn appropriate proceeding; unoer secuon 41 of the Act and that it was erroneous to contend that the provisions of section 27 could not be invoked without prior deterrninat, on of the aforesaid questions under section 41 of the Act.\n\nIt was, however, conceded on behalf of the appellants at the hearing of the wnt petition before the High Court that the impugned orders could not be supported and were l1able to be quashed as even a summary enquiry had not been made before appointment of non-hereditary trustees under section 27 of the Act.\n\nIt was also conceded on behalf of the appellants that as an order under section 27 encroached upon the property rights of respondents 1 to 3 and even a summary enquiry is required to be made by observing the principles of natural just, ce, the sa:d respondents should have been given a full opportunity to substantiate their case to the effect that the institution and its properties were private and they were hereditary trustees.\n\nIt was, however, strongly contested on behalf of the appellants that the stand of respondents 1 to 3 that the orders dated May 2, 1967 and July 22, 1968 could not be passed without prior determination of the aforesaid questions under section 41 of the Act was not correct.\n\nAfter examining the relevant provisions of the Act and the Rules and taking into account the fact that respondents 1 to 3 had not been afforded an opportunity to substantiate their case and no ev'dence had been taken by the Assistant Endowments Commissioner which might have prima facie gone to show that the institution was a public one and the said respondents were not hereditary trustees, the H'gh Court held that the concession made on beha!E of the appellants herein was well founded; that it would be reasonable to confine the application of section 27 only to cases where in respect of the di<puted institution, there had been a prior determination of the controversial rights men~ tioned in section 41 and that before the Assistant Endowments Commissioner could proceed under section 27 of the Act to appoint nonhereditary trustees in respect of the relig; ous institution, it was necessary for him to come to a finding that the institution was a public one and there were no hereditary trustees thereof in ex'stence and in order to come to such a finding, he should have completed an enquiry under section 41 which coupled with section 44 provided for a judicial determination of these very questions.\n\nThe High Court further held that since marfatdari right was itself property and the Act had no application to private endowments and respondents 1 to 3 were admittedly in possession of the institution and its properties, they could not be divested of the same without a finding that the institution was public and they were not hereditary trustees.\n\nlIINDU RELIGIOUS ENDOWMENTS v. B. SAMITRA (Jaswant Singh, J.)439\n\nIt would be advantageous at this stage to reproduce the ultimate A -conclusions arrived at by the High Court :-\n\n\"Before the Assistant Eudowments Commissioner proceeds under section 27 to appoint non-hereditary trustees in respect of a reLg, ous institution, he must first come to a finding that there are no hereditary trustees already in ex, stcnce.\n\nIn order to come to such a finding he must first make an B enquiry under section 41, which taken alongwith section 44, provides for judicial determination of this very question, involving the property rights of a citizen, by the Assistant Commissioner himself, after notice to the parties and taking evidence. If no determination of this question is made, 1t will be open to the Assistant Commissioner to start an enquiry under section 41 suo motu.\n\nIt is only alter the C completion of the enquiry under section 41 that he can come to a finding about the existence or otherw:se of hereditary trustees and only thereafter he can proceed to appoint non-hereditary trustees. It is also open to him, in the course of the proceeding under section 41, to pass interim orders for preserving the institution and its properties and also for safe-guarding the r'ghts of the aggr'eved party pending final D determination of the controversy.\n\nAny order passed stra'ghtaway under section 27 which has the effect of dispossessing the hereditary trustees of their prop 0 rty without first re<ort; ng to an enauiry under section 41, would be illegal and contrary to the scheme of the Act.\"\n\nAt the hearing of this appeal, counsel for the appellants has re- E iterated the stand taken by his clients in the High Court.\n\nThe short question that arises for determination in this case is whether the Assistant Endowments Commissioner had iurisdiction to proceed under section 27 of the Act without a nrior decision of the disputes about the nature of the institution and the existence or otherwise of the hereditary trustees.\n\nFor a proper determination of the aforesaid auestion, it is necessary to refer to a few provisions of the Act and the rules made thereunder in so far as they are relevant for the purpose of this appeal.\n\nSection 1 (2) makes the Act applicable to all Hindu Public religious institutions and endowments.\n\nIt excludes from its purview Hindu private religious institutions and endowments.\n\nSection 3 (xiii) of the Act defines 'Religious Institution' as un- 'der :- - \"3 (xiii). 'religious institution' means a math, a temple and endowments attached thereto or a specific endowment and inclu<les an institution under direct management of the State Govsrnment\".\n\nA 'religious endowment' is defined in section 3(xii) as follows:-\n\n\"3 (xii). 'religious endowment' or 'endowment' means all property belonging to or given or endowed for\n\nthe support of maths or temples or given or endowed for the performance of anv service or charitv connected therewith or of any other re-ligious charity, anct' includes the institution concerned and the permises thereof and also all properties used for the purposes or benefit of the institution and includes all properties acquired from the income of the endowed property :\n\n\" Section 27 of the Act provides as under :-\n\n\"27 ( 1). The Assistant Commissioner shall, in cases where there is no hereditary trustee, appoint non-hereditary trustees in respect of each religious institution other than maths and specific endowments attached thereto, and in making such -appointments the Assistant Commissioner shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the said institution is chiefly maintained.\" Section 41 of the Act runs thus :-\n\n\"41. (1) In case of a dispute the Assistant Commissioner shall have power to enquire into and decide the following disputes and matters :-\n\n(a) whether an institution is a public religious institution;\n\n(b) whether an institution is a temple or a math ; ( c) whether a trustee holds or held office as a hereditary trustee; ( d) whether any property or money is of religious endowment or specific endowment; (e) (f)\n\n(g) ..........................\n\nProvided that the burden of proof in all disputes or matters covered by clauses (a) and (d) shall lie on the person claiming the institution to be private or the property or money to be other than that of a religious endowment or specific endowment as the case may be\".\n\nSection 44 which makes provision for appeals runs thus :-\n\n\"44. (1) Any person aggrieved by any order passed by the Assistant Commissioner under section 41 or subsections (1) and (6) of section 42 or sectioh 43 may, within thirty days from the date of receipt of the order under section 41 or section 43 or from the date of the publication of the order under section 42 as the case may be, appeal to the Commissioner.\n\n\"(2) Any party aggrieved by the order of the Commissioner under sub-section ( 1) or under sub-section (1) or\n\nlf!NDU RELIGIOUS ENDOWMENTS v. B. SAMITRA (Jaswant Singh, J.) 441\n\n(6) of section 42 may appeal to the High Court within A thirty days from the date of the order or publication thereof as the case may be.\"\n\n1 Section 68 deals with delivery of possession of a religious institution, its record, accounts and properties to its trustee or executive officer.\n\nSection 73 which bars the jurisdiction of ordinary conrts lays <down that no suit or other legal proceeding in respect of the administration of a religious institution or in respect of any matter or dispute for determining or deciding which provision is made in the Act shall be instituted in any court of law, except under, and in accordance with, the provisions of the Act.\n\nSection 74 which relates to the procedure at enquiries and appeals .and service of notice is in these terms :-\n\n\"7 4 ( 1) In relation to all proceedings before the Commissioner or the Assistant Commissioner, the orders in pursuance of which are under the provisions of this Act appealable to the High Court, the Commissioner or the Assistant Commissioner as the case may be, shall have the\n\npowers vested in a court under the Code of Civil Procedure, D 1908, when trying a suit in respect of the following matters:-\n\n(a) discovery and inspection;\n\n(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses;\n\n(c) compelling the production of documents; E\n\n(d) examining witnesses on oath; ( e) granting adjournments;\n\n(f) reception of evidence taken on affidavit; and\n\n(g) issuing commissions for the examination of witnesses.\n\nand may summon and examine suo motu any person whose evidence appears to him to be material and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898, (2)\n\n(3)\n\nThe Commissioner and the Assistant Commissioner shall with respect to all such proceedings be deemed to be persons acting judicially within the meaning of the Judicial Officers Protection Act, 1850.\n\nThe Court hearing on appeal from tl_ie order ?f the Commissioner may direct further enqmry or modify or set aside such order as the Court may deem fit and unless the appeal is summarily dismissed\n\nth~ Commissioner shall be given an opportunity of being heard before the order pas.sed by him is interfered with in any manner; provided that the operation of the order of the Commissioner shall not be stayed pending the disposal of the appeal\".\n\nA Section 76(1) confers on the State Government general power\n\nof making ruk's to carry out all or any of the purposes of the Act.\n\nSub-section (2) of the section specifically enumerates the matters with respect to which the rules can be made and clause (d) thereof enables the State Government to make rules regarding holding of enquiries, summoning and examination of witnesses and production of documents.\n\nRule 43 of the Rules framed under section 76(d) of the Act provides :\n\n\"In relation to all proceedings before the Commissioner or the Assistant Commissioner against whose orders an appeal lies to the High Court under the provisions of the Act, the Commissioner or the Assistant Commissioner as the case may be shall follow the provisions of the Civil Procedure Code, the Indian Evidence Act and the G.R.C.O. of the Orissa High Cout as far as practicable and in so far as they are consistent with the Act and the Rules.\n\nIn every other case the enouirv will always be 0f a summarv natnre and shall be conducted as in respect of suits of small cause nature with due notice to persons affected by the enquiry\".\n\nIt is important to note that the Assistant Commissioner can appoint non-hereditary trustees under section 27 of the Act only where two conditions are satisfied viz. (1) that the relieious institntion is not an excepted one and (2) that there is no hereditary trustee of the institution.\n\nFor the exercise of the power bv the Assistant Commissioner under this section, it is, therefore, absolutely necessary that either there should be no dispute about the public natnre of the institution and the non-existing of hereditary trustees or in case, there is a dispute about any of these matters, a prior determination of such dispute under section 41 of the Act has been made.\n\nWithout such preliminary determination if an aPoointment of a non-hereditary trustee is made under section 27 of the Act and a direction is given regarding delivery of Possession of the institntion etc. under section 6lr of the Act, it would be manifestly illegal and without inrisdiction.\n\nA careful scrutinv of the Provisions of the Act makes this Position amply clear.\n\nAs. Pointed out bv the HiQh Court. section 27 does not in terms provide that Assistant Commissioner should make an enquiry as to whether the institution is public or private and whether there are hereditarv trustees of the institution or not.\n\nThese auestions have to be gone into under section 41 of the Act which speCificallv deals with the investigation and decision of disputes in resnect thereof.\n\nConsequentlv. a nrior determinat; nn under section 41 that the institn\n\ntion is public and has no hereditary trustee is a sine qua non for appointment of trustees under section 27 of the Act.\n\nThis view also gains strenQth from the fact that there is a marked difference as regards the orocedure to be followed in respect of proceedings under sections 27 and 41 of the Act.\n\nWhereas an enauiry, if any, in proceedings under section 27 of the Act because of the non-appealable natnre of the order passed thereunder in view of section 44 of the Act is of a summary character in which the affected\n\nI ,\n\nHINDU RELIGIOUS ENDOWMENTS v. B. SAMITRA (Jaswant Singh,!.) 443\n\nperson does not get a reasonable chance of presenting his entire case A and evidence is not required to be recorded verbatim, it is otherwise in case of proceedings under section 41 of the Act where the enquiry has to be judicial and elaborate in view of the fact that the parties are entitled as a matter of right to be heard in support of the claim and to adduce evidence in proof thereof. (See Ramakrishna Padhy v.\n\nRamesh Chandra Das & Ors('). In the latter case, because of the complicated nature of the questions involved and the appealable B character of the orders that may be passed thereunder, the Commissioner or the Assistant Commissioner has to act like a Court and is required to follow, as far as practicable, the provisions of the Code of Civil Procedure, the Indian Evidence Act and the G.R.C.0. of the Orissa High Court in so far as they are consistent with the Act and the Rules.\n\nThis becomes clear from a conjoint reading of section 7 4 of the Act and Rule 43 of the Rules framed under the Act. It C would also be relevant to notice that there is no orovision in section 27 of the Act identical to the one contained in Order 21, Rule 63 of the Code of Civil Procedure to the effect that the summary decision given thereunder would be subject to the decision that may be given under section 41 of the Act. It has also to be pointed out that successive determination of questions under section 27 and 41 of the Act is not possible in view of the doctrine of res judicata.\n\nIt is also [) significant that the safeguard relating to appeal both on a point of fact and law (See Sri Sadasib Prakash Brahmachari, Trustee of Mahiprakash & Ors. v. The State of Orissa( 2 ) and the intervention of the High Court which is available in respect of orders made under section 41 of the Act is not available in case of orders under section 27 of the Act.\n\nThe non-availability of the valuable right of an appeal ia respect of an order under section 27 of the Act is of fundamental E importance and leads to the irresistible conclusion that section 27 cannot exist in isolation and determination of the aforesaid questions is necessary under section 41 of the Act before non-hereditary trustees can be appointed.\n\nThere can, therefore, be no manner of doubt that the Assistant Endowments Commissioner has no jurisdiction to appoint a non- F hereditary trustee of a religious institution under section 27 of the Act without prior determination of the questions that the institution is a public one and has no hereditary trustees.\n\nWe are fortified in our view by the decision of this Court in Sri Jagannath Ramanuja Das & Anr. v. State of Orissa.('). In that case, the Bihar State Board of Religious Trusts constituted under the Bihar G Hindu Religious Trusts Act, 1950 (I of 1951) passed an order in exercise of the powers conferred on it under section 59 of the Act asking the appellant to furnish to the Board a return of income and expenditure of the temple known as 'Salouna Asthal'.\n\nThe appellant replied saying that the Asthal was a private institution and not a religious one within the meaning of the Act; that the properties appertaining to the temple did not constitute a religious trust and the appellant H\n\n(!) A.LR. 1959 Orissa 98.\n\n(2) 22 (1956) C.L.T. 235.\n\n(3) A.I.R. 1954 S.C. 400.\n\nA was not a trustee within the meaning of the Act.\n\nOn getting an unfavourable answer, the appellant made an application to tne High Court of Patna under Amclc 226 of the Consnrntion challenging the demand which was dismissed.\n\nOn the matter being brought before this Court by the appellant, the aforesaid order of the Board was quashed and the respondent was directed not to interfere with the properties appertaining to the 'Salouna Asthal' without obtaining the neces- 8 sary declaration under section 43 of the Act.\n\nBefore concluding we would like to observe that we are not at all impressed by the submission made on behalf of the appellants that if the interpretation placed on the provisions of sections 27 and 41 of the Act by the Orissa High Court is taken as correct, it would become difficult to exercise eftective control on public religious institutions as c proceedings under section 41 take long time.\n\nAs rightly observed by the High Court, the courts are meant to interpret the law as it stands.\n\nIt is not their function to legislate and to imagine difficulties.\n\nThe argument cannot also be countenanced as it overlooks the explanation appended to section 7 whereunder the Commissioner has been given power to pass such interim orders as he may deem necessary for the proper maintenance, administration and management of religious insti- D tutions and endowments when a dispute concerning the same is pending.\n\nWe also find it difficult to accept the submission made by counsel for the appellants that in view of the fact that a duly verified application on proper court fee is necessary for deterrninatiou of the questions enumerated in section 41 of the Act, no enquiry under the said provisions of the Act can be held suo motu by the Assistant Endowments Commissioner.\n\nThe fact that it may be necessary for a private individual to make an application on proper court fee to the Assistant Commissioner for determination of any of the disputes enumerated in section 41 cannot, in the absence of a specific prohibition, debar the said authority from taking action suo motu under the said provisions of the Act.\n\nThis is, however, a matter with which we are not concerned in the present appeal as respondents 1 to 3 had made an application under section 41 of the Act in which unfortunately no proceedings were taken by the Assistant Commissioner.\n\nFor the foregoing reasons, we are satisfied that the High Court was right in holding that it was only after completion of the enquiry under section 41 of the Act and determination of the questions that the religious institution was not public and there were no hereditary trustees thereof that the Assistant Commissioner could appoint non-hereditary trustees and pass orders regarding delivery of possession to them of the institution.\n\nIn the result the appeal fails and is hereby dismissed.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 149, "entities": [{"text": "HINDU RELIGIOUS ENDOWMENTS & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "HINDU RELIGIOUS ENDOWMENTS & ORS", "offset_not_found": false}}, {"text": "B. SAMITRA & ORS", "label": "RESPONDENT", "start_char": 35, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "B. SAMITRA & ORS", "offset_not_found": false}}, {"text": "February 20, 1976", "label": "DATE", "start_char": 54, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "February 20, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 74, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 91, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 105, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH, JJ.", "offset_not_found": false}}, {"text": "Orissa Hindu Religious Endowments Act, 1951", "label": "STATUTE", "start_char": 126, "end_char": 169, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 27", "label": "PROVISION", "start_char": 267, "end_char": 272, "source": "regex", "metadata": {"linked_statute_text": "Orissa Hindu Religious Endowments Act, 1951", "statute": "Orissa Hindu Religious Endowments Act, 1951"}}, {"text": "sec. 40", "label": "PROVISION", "start_char": 317, "end_char": 324, "source": "regex", "metadata": {"linked_statute_text": "Orissa Hindu Religious Endowments Act, 1951", "statute": "Orissa Hindu Religious Endowments Act, 1951"}}, {"text": "s. 40", "label": "PROVISION", "start_char": 378, "end_char": 383, "source": "regex", "metadata": {"linked_statute_text": "Orissa Hindu Religious Endowments Act, 1951", "statute": "Orissa Hindu Religious Endowments Act, 1951"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 524, "end_char": 529, "source": "regex", "metadata": {"linked_statute_text": "Orissa Hindu Religious Endowments Act, 1951", "statute": "Orissa Hindu Religious Endowments Act, 1951"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 1583, "end_char": 1588, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 1936, "end_char": 1941, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 2092, "end_char": 2097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2329, "end_char": 2334, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 2431, "end_char": 2436, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2494, "end_char": 2499, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 2647, "end_char": 2652, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 2728, "end_char": 2733, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 3007, "end_char": 3012, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 3032, "end_char": 3037, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 41", "label": "PROVISION", "start_char": 3108, "end_char": 3113, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 3323, "end_char": 3328, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 27", "label": "PROVISION", "start_char": 3599, "end_char": 3604, 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"PROVISION", "start_char": 5461, "end_char": 5479, "source": "regex", "metadata": {"statute": null}}, {"text": "Endowments Act, 1951", "label": "STATUTE", "start_char": 5510, "end_char": 5530, "source": "regex", "metadata": {}}, {"text": "Orissa Act II of 1952", "label": "STATUTE", "start_char": 5532, "end_char": 5553, "source": "regex", "metadata": {}}, {"text": "June 23, 1966", "label": "DATE", "start_char": 5656, "end_char": 5669, "source": "ner", "metadata": {"in_sentence": "Briefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old."}}, {"text": "Bantala", "label": "GPE", "start_char": 5701, "end_char": 5708, "source": "ner", "metadata": {"in_sentence": "Briefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old."}}, {"text": "Nayagarh", "label": "GPE", "start_char": 5712, "end_char": 5720, "source": "ner", "metadata": {"in_sentence": "Briefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old."}}, {"text": "Puri District", "label": "GPE", "start_char": 5738, "end_char": 5751, "source": "ner", "metadata": {"in_sentence": "Briefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old."}}, {"text": "Orissa", "label": "GPE", "start_char": 5822, "end_char": 5828, "source": "ner", "metadata": {"in_sentence": "Briefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old."}}, {"text": "section 27", "label": "PROVISION", "start_char": 5878, "end_char": 5888, "source": "regex", "metadata": {"linked_statute_text": "Orissa Act II of 1952", "statute": "Orissa Act II of 1952"}}, {"text": "Lokenatheshwar Deb", "label": "OTHER_PERSON", "start_char": 6056, "end_char": 6074, "source": "ner", "metadata": {"in_sentence": "Briefly stated, the facts giving rise to this appeal are : On June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub- Division of Puri District filed an application before the Assistant Commissioner of Endowments, Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as \"Sri Lokenatheshwar Mahadev\" stuate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog' to 'Lokenatheshwar Deb' installed in the temole which is more than hundred years old and possessed about 24 acres of land endowed by the ancestors of the villagers; that a new temple in place of the old."}}, {"text": "July 31, 1966", "label": "DATE", "start_char": 6544, "end_char": 6557, "source": "ner", "metadata": {"in_sentence": "On July 31, 1966."}}, {"text": "section 17", "label": "PROVISION", "start_char": 6630, "end_char": 6640, "source": "regex", "metadata": {"statute": null}}, {"text": "Ammst 4, 1966", "label": "DATE", "start_char": 6657, "end_char": 6670, "source": "ner", "metadata": {"in_sentence": "On Ammst 4, 1966, the Inspector of Ernlowinents was directed to make an enquiry and to submit a report regarding the allegations made by the said villagers."}}, {"text": "September 6, 1966", "label": "DATE", "start_char": 6883, "end_char": 6900, "source": "ner", "metadata": {"in_sentence": "Pursuant to the said directions, the Inspector submitted his report ou September 6, 1966, stating inter alia that the\n\nHINDU RELIGIOUS ENDOWMENTS v. B. SAM!TRA (Jaswant Singh, J.) 43 7\n\ntemple was a public temple which had been recently constructed by the villagers and marfatdars; that the villagers of Banlala and marfatdars came from one family and the persons managing the insftution did not receive notice from h; m nor showed h; m the accounts and suggesting the names of five persons for appointment as trustees."}}, {"text": "Banlala", "label": "GPE", "start_char": 7116, "end_char": 7123, "source": "ner", "metadata": {"in_sentence": "Pursuant to the said directions, the Inspector submitted his report ou September 6, 1966, stating inter alia that the\n\nHINDU RELIGIOUS ENDOWMENTS v. B. SAM!TRA (Jaswant Singh, J.) 43 7\n\ntemple was a public temple which had been recently constructed by the villagers and marfatdars; that the villagers of Banlala and marfatdars came from one family and the persons managing the insftution did not receive notice from h; m nor showed h; m the accounts and suggesting the names of five persons for appointment as trustees."}}, {"text": "November 4, 1966", "label": "DATE", "start_char": 7337, "end_char": 7353, "source": "ner", "metadata": {"in_sentence": "011 November 4, 1966, a proclamation inviting obiectons regarding the suitability of persons suggested by the Inspector for appo'ntment as non-hereditary trustees was issued to wb:ch the aforesaid respondents objected claiming that the institution was a private one and even if it be held to be a public religious institution, they were the hereditary trustees."}}, {"text": "May 2, 1967", "label": "DATE", "start_char": 7871, "end_char": 7882, "source": "ner", "metadata": {"in_sentence": "After making a summary enquiry in the presence of the villagers including respondents 1 to 3, the Additional Assistant Commissioner of Religious Endowments passed an order on May 2, 1967, holding that the institution was a public one and appointing five non-hereditary trustees under section 2 7 of the Act."}}, {"text": "section 2", "label": "PROVISION", "start_char": 7980, "end_char": 7989, "source": "regex", "metadata": {"statute": null}}, {"text": "Additional Assistant Endowments Commissioner", "label": "RESPONDENT", "start_char": 8009, "end_char": 8053, "source": "ner", "metadata": {"in_sentence": "The Additional Assistant Endowments Commissioner did not, however, record any finding whether the respondents 1 to 3 were hereditary trustees or not."}}, {"text": "May\n\n15. 1967", "label": "DATE", "start_char": 8213, "end_char": 8226, "source": "ner", "metadata": {"in_sentence": "Aggrieved by this order, respondents 1 to 3 preferred on May\n\n15."}}, {"text": "section 9", "label": "PROVISION", "start_char": 8256, "end_char": 8265, "source": "regex", "metadata": {"statute": null}}, {"text": "Bhubaneswar", "label": "GPE", "start_char": 8340, "end_char": 8351, "source": "ner", "metadata": {"in_sentence": "1967 a revision application under section 9 of the Act before the Commissioner of Hindu Religious Endowments, Orissa, Bhubaneswar."}}, {"text": "May 27, 1967", "label": "DATE", "start_char": 8357, "end_char": 8369, "source": "ner", "metadata": {"in_sentence": "On May 27, 1967, the appointed trustees filed a petition under section 68 of the Act for obtaining possess; on of the insftution and its endowments from respondents 1 to 3."}}, {"text": "section 68", "label": "PROVISION", "start_char": 8417, "end_char": 8427, "source": "regex", "metadata": {"statute": null}}, {"text": "November 10. 1967", "label": "DATE", "start_char": 8531, "end_char": 8548, "source": "ner", "metadata": {"in_sentence": "On November 10."}}, {"text": "section 41", "label": "PROVISION", "start_char": 8592, "end_char": 8602, "source": "regex", "metadata": {"statute": null}}, {"text": "July 22, 1968", "label": "DATE", "start_char": 8827, "end_char": 8840, "source": "ner", "metadata": {"in_sentence": "On July 22, 1968, an order directing delivery of possession of the instituticn and its endowments to the appointed trustees was passed under section 68 of the Act by the Assistant Commissioner of Endowments, Orissa."}}, {"text": "section 68", "label": "PROVISION", "start_char": 8965, "end_char": 8975, "source": "regex", "metadata": {"statute": null}}, {"text": "December 5, 1968", "label": "DATE", "start_char": 9044, "end_char": 9060, "source": "ner", "metadata": {"in_sentence": "On December 5, 1968, the aforesaid revision application filed by respondents 1 to 3 was dismissed by the Commissioner of F Hindu Religious Endowments and the Inspector of Endowments was directed to execute the writ of delivery of possession."}}, {"text": "December 26, 1968", "label": "DATE", "start_char": 9287, "end_char": 9304, "source": "ner", "metadata": {"in_sentence": "On December 26, 1968, the Inspector of Endowments made a report saying that the writ had been executed and possession as directed had been delivered to the appointed trustees on December 11, 1968."}}, {"text": "December 11, 1968", "label": "DATE", "start_char": 9462, "end_char": 9479, "source": "ner", "metadata": {"in_sentence": "On December 26, 1968, the Inspector of Endowments made a report saying that the writ had been executed and possession as directed had been delivered to the appointed trustees on December 11, 1968."}}, {"text": "December 23, 1968", "label": "DATE", "start_char": 9485, "end_char": 9502, "source": "ner", "metadata": {"in_sentence": "On December 23, 1968 respondents 1 to 3 filed a petition under G.\n\nArticles 226 and 227 of the Constitution, being O.J.C. 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"label": "PROVISION", "start_char": 16871, "end_char": 16881, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 41", "label": "PROVISION", "start_char": 17348, "end_char": 17358, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 44", "label": "PROVISION", "start_char": 18103, "end_char": 18113, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 18248, "end_char": 18258, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 18289, "end_char": 18299, "source": "regex", "metadata": {"statute": null}}, {"text": "section 41", "label": "PROVISION", "start_char": 18382, "end_char": 18392, "source": "regex", "metadata": {"statute": null}}, {"text": "section 43", "label": "PROVISION", "start_char": 18396, "end_char": 18406, "source": "regex", "metadata": {"statute": null}}, {"text": "section 42", "label": "PROVISION", "start_char": 18462, "end_char": 18472, "source": "regex", "metadata": {"statute": null}}, {"text": "Jaswant Singh", "label": "JUDGE", "start_char": 18675, "end_char": 18688, "source": "ner", "metadata": {"in_sentence": "\"(2) Any party aggrieved by the order of the Commissioner under sub-section ( 1) or under sub-section (1) or\n\nlf!NDU RELIGIOUS ENDOWMENTS v. 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{"document_id": "1976_3_445_492_EN", "year": 1976, "text": "D VENKATA REDDY\n\nR SULTAN & OTHERS\n\nFebruary 24, 1976\n\n(P. K. GOSWAMI ANDS. MURTAzA FAzAL ALI, JJ.)\n\nRepresentation of the People Act (43 of 1951 ), ss. 81 and 86(5)-App/ication for a1ne11dment of petition for giring material part; culars-To what extent 1nay be allowed~A mendrnent allowed in \\iolation of s. 86(5) without objection-If could be challenged in appeal to Supre1ne Court.\n\nElection petition-Approach of court to evidence regci.ding corrupt practices--T ainted and interested evidencc-J\\/tcessi1y for corroboration- Attitude of court to poll verdict-Material particulars and evidence, scdpe.\n\nThe nspondent, who wa~ a Muslim, was the Congress candidate for election to the State Legit1lative Assembly.\n\nHe challenged the appellant's elect; on, and the High Court allowed the election petition on three grounds (l) that the appellant committed a corrupt practice under s. 123 ( 1), Representation of the Pl!ople Act, 19•51 in that he offered a bribe to the Jespondent to indu1.,,'e him not to contest the election; (2) that the appellant committed corrupt prac .. tice under s. 123(3A) in that he issued and personally distributed a pamphlet containing communal allegations. with a view to create ill-feeling among the voters; and (3) that the appellant'si agents distributed that pamphlet with the appellant's contest.\n\nAllowing the appeal to this_ Court, HELD : ( 1) (a) While it ii; necessary to protect the purity of elections by ensuring that the candidares do not secure the valuable votes of the people by undue influence, fraud, communal propaganda. bribery or other corrupt practices, the valuable verdict of the people at the polls must be given due\n\nres_pct and should not be disregarded or et at naught on vague, frivolous or E fanciful ailegations, or on evidence which is of a shaky or pre-varicating character. [450F-G, HJ\n\n(b) The onus lies heavily on the election-petitioner to make out a strong case for setting aside the election.\n\nHe must, in onler to succeed, plead \\>II material particulars and prove them by clear and cogent evidence.\n\n[450G; 451K]\n\n( c) The al1egations of corru'1t practice being in the nature of a quasicriminal charge, mu9t be proved beyond reasonable doubt. When the electionpetitioner seeks to prove the charge by purely partisan evidence of his workers, agents. supporters and friends, the court would have to approach the evidence with great care and caution, and would, as a matter of prudence, th-Ough not as a rule of law, require corroboration of such evidence from independent quarters, unless the court is fully sati9fied that the evidence is so creditworthy and true, that no corroboration to lend further assurance is necessary.\n\n[451A-C]\n\n(d) The attempt of the agents or supporters of the defeated candidate is always to get the election set aside by fair mean9 or foul and the evidence of such witnesses, must, therefore, be regarded as highly interested and tainted evidence. [451C-D]\n\n(e) When, the evidence led by the election-petitione-r, even thoug:h consis tent. is fraught with inherent iinprobabilities and replete with unnatural tendencies, the .court may refuse to accept such evidence, because consistency alone is not the conclusive test of truth. It is, however, difficult to lay down any rule of universal application and each case will have to be decided on its own facts. f451D-El Bhanu Kumar Shastri\" v. Mohan Lal Sukhadia & Ors., [1971] I S.C.C. 370; Rahim Khan v. Khurshid AhmPd & Ors .. r1974l 2 S.C.C. 660; Abdul Hussain Mir v. Shomsul Hurln nnd rn\"'thPr. p9751 4 ~.C.C. 533 and Ghasi Ram v.\n\nDal Singh & Ors. (1968] 3 S.C.R. 102, followed.\n\n14-L522SCI/76\n\n(2) In the present case, the High Coun correctly adumbrated the legal propositions but had not correctly applied them to the facts and evidence. It also applied different standards in appreciating the evidence. It readily accepted the evidence of two witnesses on one issue while rejecting as partisan and in .. terested on another issue.\n\n[453A-D]\n\n(3) The cumulative effect of' thei inherent improbabilities and the intrinsic infirmities of the evidence for the respondent, and the n.nnatural conduct of th\"C: respondent and his witnesses, lead to the conclusion that the respondent had failed to prove the allegation of the offer of bribe.\n\n[465B-C]\n\n(a) The respondent bore a serious animus against the appellant and yet it If was alleged that the appellant offered him a bribe even though they were not well-acquainted with each other.\n\n[458G; 460D]\n\n(b) The offer was alleg\\;:d to have been made in the presence of two witnesses, in a crowded place, and pressed upon the respondc11t even though he spurned it.\n\nThe High Court is not right in its view that an offer could have been made as alleged, and 1hat only for actual payment a secluded place could be chosen.\n\n[ 458F-H; 459B-C]\n\n(c) The High Court is also not right in its view that because the appellant\n\n....J.. was at the Taluk Office when the respondent went there the appellant would have offered the bribe. On the contrary, the respondent, for that very reason, might have concocted the story of the offer of bribe,\n\n[457E-FJ\n\n(d) The High Court failed to consider, (i) that while it is easy to make an allegation of offer of bribe, it is vry difficult for the person against whom it is made to rebut it; [457G-H]\n\n(ii) that the allegation was sought to be proved by the respondent, by the partisan and highly interested testimony of two witnesses and \\Vas sought to\n\nbe corroborated by the equally interested testimony of two others to whom the incident was alleged to hav~ been narrated shortly thereafter; and that the respondent had not examined any independent witness, even though such witnesses were available; [457H-458AJ\n\n(iii) that the appellant would not have attempted to bribe the respondent, because, the respondent had the support of the Congress. and eve\"n if he withdrew, the Congress would have put up another candidate. [461B-CJ\n\n(iv) that the respondent had not complained about the hribe either to the local Congress committee or to the police; and\n\n[461F-G; 464D-E]\n\n(v) that there was no reference either to the corroborating witneses or to the narration of the incident of the offer of the bribe' to those witnesses, in the petition. If it were true it isunlikly that the respondent would have omitted a reference to it.\n\n[464A-B}\n\n( e) Further. the f11.ct of repetition of the story of the offer of bribe to the two coJToborating witnesses was a material particular or an additional fact pertaining to the averments in the petition and not a mere matter of evidence.\n\nSince it was not mentioned in the petition it has to be excluded from consideration.\n\n[ 464 B-C]\n\n(f) As the alleged offer is an electoral offence of a quasi-criminal nature, the onusof proving it was initially on the respondent, but he failed to dis-. charge the onus. [ 4640-H]\n\n(g) If such a serious allegation is allowed to be proved again\"t a uccessful candidate by partisan, inrerested and improbable evidence, without any inde pendent corroboration, it would give an easy handle to the defeated candidates \"'- H to destroy the sanctity of the electoral process.\n\n[464A-465B]\n\n( 4) The respondent has. not addud any satisfactory evidence that the offendin!? pamphlet was printed by the appellant or distributed by him personally, whereas, the appellant has, through his evidence, though of a\n\nD, V. REDDY V, R. SULTAN t47\n\nnegative ch?racter, shown that the probabilities are that the appellant did not A have it pnnted and that he did not distribute it.\n\n[491E-F1\n\n(a) Distribution of an objectionable pan1phlet is a corrupt practice. under s. 123(4) and the pamphlet in the present case, containing communal propaganda comes under s. 123(3A) as w,11. [471G-H; 474Jc-r]\n\n(b) The allegation of publishing such an objectionable pamphlet is easy to make and difficult to rebut.\n\nThe court must subject the tainted and interested evictencoe regarding its publication to the strictest scrutiny because it can be B printed by the defeated candidate in any press with secrecy, circulated among his supporters and he can make them say that it was printed, published and circulated by the successful candidate. l471H-472B]\n\nBaburao Bagaji Karemoga and ors. v. Govind & Ors., [1974J 3 S, C.R. 719, followed.\n\n(c) The appellant had denied the printing: or publication of the pamphlet and the respondent failed tn discharge his ini1ial onus of proving that the ap- C pellant printed and distributed it.\n\n[4720-E]\n\n( d) Since there were a considerable number of Muslim voters in the consti- )- tuencv. thf! appellant would not have taken the risk of offending them by circulating such a pamphlet. The respondent, on the other hand, had a strong motive to reverse the apnellant's election by any possible means, and he had his own press.\n\n[472H; 474F-G, HJ\n\n(e) The High Court was wrong in its approach that since the pamphlet contained anti-Muslim propaganda it would not have been printed by the respondent.\n\nAn unsuccessful candidate, motivated by the desire to unseat a successful candidate, would stood to any device to show that the successful candidate was guilt of a corrupt practice.\n\n[472G]\n\n(f) Merely btecause the respondent disclosed the name of the press where he got some other pamphlets printed, it could not be contended by him that he would hnve disclosed the nnme of the piess which printed the offending pamphlet if he got it printed. The content5 of the namphlet were so offensive that the printer would not have taken the risk of disclosing the name of the press and expose it to legal action.\n\n[491B-C]\n\n(g) Most of the witnesses for the respondent who stated that the pamphlet was given to them before or during the election were of the turn coat type, that is. persons who claimed to have worked for the -appellant but .gave eviden~ for the respondent; and the others were in some wav or the other totally interested in the respondent or connected with him.\n\nI479F]\n\nRnhint Khan v. Khurshid Ahnied and others_. [-1974] 2 SCC 660. followed.\n\n(h) One witness gave evidence that he received the pamphlet from his wife during the election. but since shf': was riot examined, the evidence was rightly rejected by the High Court. [490H-491A]\n\n(i) The Hi2h Court held that the pamphlet was in existence before or during the election, applying the test that the pamphlet was produced by the witness who stated that it was given to him by the appellant.\n\nBut that cannot be a safe criterion because, the respondent could have handed it over to G the witness hefore he gave evidence.\n\nFurther, the probabilities are that it was not then in existence.\n\n[471C~E]\n\n(i) Respectable witness of the appellant gave evidence that no such pamphlet was circulated, for then they would have known about it. Also. c-onsidoering its provocative language, it i-; unlikely that the Government officials nosted to prevent anv communal propaganda by the candidates would have failed to notice it.\n\n[473B; 4740-H]\n\n(ii) Further. the respondent \\vould not have failed to give in the petition or in the material particulars furnished by him later, the names of the persons from whom he came to know about the pamphlet. The respandent collected\n\nmaterial.a for filing the election petition suon after the appellant was declared\n\nelected and more than a month before filing it.\n\nIn spite of such a full and comiJ1eLe opporlun1ty b.;; fore n11ng the peltuon, and later when the appellant\n\napp1i\\':d for funher particulars n:garding the dis.ribu.ion of the pamphlet, the re:.pondent merely gave the names of certain villages and i.h~ dates on which the pamt-'hlet was alleged to ha\\ e been d.stributeo; but he did not mention the name of a single person to whom the pamphlet had been dis.ributed by the appellant persona.'ly, even thougn, according to the evidenc~ led by the responuent, he was in possession of such damaging evidence against the appellant. [410Jl-41lli; 475A-B; 490c>Jo]\n\n(iii) 'fhe respondent had made several complaints to the police about var.ous n1atters but did not complain about the pan1phlet either to the p-01ice or the local Long, ess committ...e.\n\nJf h.s silence was due to legal advice, as contended, he should have given the xplanation in the petition or exam.ned the lawyer who gave such an advice.\n\n[487E-F; 490E-F]\n\n(5) (a) Section ?1 of the Representation of the Pc0ple Act, 1951, provides that the election petition shall -be filed within 45 days from the date of the election of the retufned candidate. Therefore, any allegullon of corrupt pfactice which is not made in the election petition iiled v.i1hin the time allo<wd by the statute cannot be allowed by way of an amendment under s. 86(5) because, that \\Vould amount to extending the period of limitation peremp orily fixed by the Act.\n\nThe ambit of s. 86(5) is extremely narrow. It requires three essential conditions which are the silk qua non to be fulfi.11-ed before an amendment could be allowed, n\"mely ( i) that the amendment seeks merely tu a1nplify the particulars, of a corn,:pt practice; (ii) that the corrupt practice, whose particulars are to be given, must have been previously alleged in the election petition itself, and (iii) that the amendment is, in the opinion of the court necessary for ensur:ng a fair and elfec_tive trial of the petition. The power of amendment or amplification is thus restricted only to amplify the material partilulars of any corrupt practice which had been previously alleged in the election petition, and the court has no power to allow an amendment by ptmitting the election pelitiomer to amplify the material particulars of a corrupt practice which was not specifically pleaded in the petition; for, that would a1ncunt t_o introducing a new conuilt practice after the expiry of the period of limitation-a r>esult which \\Vas never envisaged by the statute.\n\n[466H; 467B-C, E-H]\n\nSan1ant N. Balakrishha etc. v. George Fernandez & or.r, etc., [1969] 3 S.C.R. --+- 6{)3, followed. ·\n\n(b) In the present case, reading the aVerments in election petition as a whole, however_ broadly or liberally they are construed, the irresistible inference is that the respondent had laid special stress on the fact of distribution of the pamphlet by the appellant alone.\n\nWherever the averment of distribution of the pamphlet is made in the petition, it is s.tated that it was done by the appellant.\n\nThere is absolutely no averment that the pamphlet was distributed by the agents, workers or supporters or friend<; of the aopellant. Hence, it could not be contended by the respondent that the averments include not merely distiihution by the appellant, but also by his agents and workers. Since there was no pleading at all by the respondent that the pamphlet was distributed by his agenls, etc., particulars supplied by the respondent in his application for amendment of his petition on the point of distribution by agents, etc., must be compl-etely dig.\n\nre, garded.\n\nThe court al-so has no jurisdiction to allow. suh particulars to bo given with respect to the fact that the pamphlets were dtslnbu!ed by the agents and supporters of the appellant. Therefore, te amendment, 10 respect of the third ground on which the judgment of the High Court was based~ should not have been allowed, the particulars mentioned by the respondent on this item must be disregarded, the eviderice given by him should be excluded from consideration, and the finding of the High Court should be set aside.\n\n[468H-469D,\n\nE-F]\n\n(c) The attention of the High. Court was not drawn by the appellant to this aspect, but, as it is a pure question of law and amounts to violation of the statutory mandate in s. 86(5). this Court can decide on the correctness of the order of the High Court, allowing particulars regarding distribution of pamphlet by the agents etc., of the appellant.\n\n[ 469D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1170 of 1973.\n\n(From the judgment and order dated the 25-4-1973 of the Andhra ' Pradesh High Court in Election Petition No. 4 of 1972)\n\nP. Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs.\n\nVimala Markendeywu, tor the appellant. ··\n\n• B. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and K. Ven- B\n\nkata Ramiah, for the respodents.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J .-This is an appeal under s. 116A of the Representation uf the People Act, 1951 (hereinafter referred to as \"the Act') by Venkata Reddy who was Respondent No. 1 in the election petition C filed beiore the High Court of Andhra Pradesh.\n\nThe appeal anses out of the general elections held to the Andhra Pradesh Leoislative Assembly in March 1972 from Gooty Assembly constituen\\Oy.\n\nThe appellant Vcnkata Reddy, T. Papa Sab and R. Sultan (the election petitioner before the High Court) applied for Congress ticket for the Gooty Assembly Constituency seat. The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did not recommend the name of the appellant.\n\nThe Andhra Pradesh Provincial Congress Committee, however, recommended the name of R. Sultan the first respondent alone.\n\nThis recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket.\n\nThe polling to the aforesaid constituency was held on March 8, 1972 and counting was done on March 12, 1972 on which date the result was also declared. The appellant was declared elected having secured 19,974 votes polled in the constituency.\n\nRespondent No. 1 R.\n\nSultan Jost by a narrow margin of 471 votes having polled 19,503 votes.\n\nThe other respondents were accordingly defeated and we are not at a11 concerned with their cases.\n\nRespondent No. 1 R. Sultan filed an .election petitron before the Anc'hra Pradesh High Court on April 20, 1972 which was assigned to Sriramulu, J., who tried the election petition.\n\nFor the sake of convenience we shall refer to Venkata Reddy as the apoellant anJ R. Sultan who was the election petitioner before the High Court as the contesting respondent.\n\nThe contesting resJ)Ondent sought to challenge the election of the appellant on various grounds and alleged that the appellant had indulged in a Jame nmnber of corrupt practices as envisaged bv s. 123 nf the Act. namely, bribery, cornp lion, communal propaganda; impersonation of voters. exces<•\"e\n\nexpenses, improper rejection and recepton :nf ballot papers tc. The contesting respondent also filed an awhcatton before the 'fna.l Jud.e\n\nthat as number of irrerularities were committed in th~ reiectton d\n\n.acceptance of the ballot papes, the Court should allow scrutmy.\n\nH l '\n\n.and ; ecouming of the votes.\n\nThe Court, after considering the evitlence of the parties on this point, eventually allowed the application, but ultimately it held that even if there was any irregularity it had not caused any material change in the electron.\n\nThe petition was resisted by the appellant who emphatically denied all the allegations made by the contesting respondent and submitted that the elections were free and fair and that the appellant had not indulged in any corrupt practice at all. The appellant further pleaded that all the , allegations made by the contesting respondent were figment of his imagination and were totally untrue.\n\nOn the question 'ill corrupt practices, particularly the distribution of objectionable pamphlets, as !he contesting respondent had not given full and material particulars in his ckction petition, the appellant filed an application on July 7, 1972 praying that the Court may direct the contesting respondent to file better particulars by way of amendment.\n\nThe Court directed the contesting respondent to supply fresh particulars and accordingly the contesting respondent filed his application for amendment by incorporating material particulars on Augut 29, 1972.\n\nOn the pleadings of the parties the High Court framed as many as 3 S issu-s :in the present case.\n\nAfter taking the evidence of the parties the !Court decid-ed all the issues against the contesting respondent except issues Nos. 7, 26 and 27 which were decided in favour of the contesting respondent.\n\nIn view of the findings given by the learned Judge the election of the appellant was set aside, but the learned Judge refused to grant the relief to the contesting respondent for being declared as duly elected to the seat in question. It is against this decision that the appellant has come up to this Court in appeal.\n\nMr. P. Basi Reddy learned counsel for the appellant has assailed before us the findings of the High Court on issues Nos. 7, 26 and 27 as these were the only issues which affected the appellant.\n\nMr. B.\n\nShiv Sar, kar, learned counsel for the contesting respondent has endeavoured to support the judgment of the High Court by submitting that the findings arrived at by the High Court were based on a correct and proper appreciation of the evidence and the facts and circumstances of the record. In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be. preserved and maintained.\n\nThe valuable verdict of the people at the polls must be given due respect and candour and should not he disregarded or set at naught on vae, indefinite, frivolous or fanciful allegations or on evidence which is of a shakv or prevaricating character.\n\nIt is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting a'ide an election. In our country election is a fairly costly\n\nand expensive venture and the Representation of the People Act has provided sufficient safe\"uards to make the elections' fair and free.\n\nIn these circumstances. th'::refore, election results cannot be lightly brushed aside in election disputes.\n\nAt the same time it is necess.; y to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people bv undue influence, fraud. comm11nal propaganda, bribery or other corrupt practices as laid down in the Act.\n\nAnother principle that is equally well settled is that the election A petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence.\n\nThe allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt.\n\nWhere the election petitioner seeks to prove the charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the Court would have to approach lhc evidence with great care and caution, B scrutiny and circumspection, and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is sc credit-worthy and true, spotless and blemishlcss, cogent and consistent, that no corroboration to lend further assurance is necessary.\n\nIt has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the C election set aside by means fair or foul and the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which should be acted upon only if the Court is satisfied that the evidence is true and does not suffer from any infirmity.\n\nWhere, however, the evidence led by the election petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies, the Court may refuse to accept snch evi- D dence, becanse consistency alone is not the conclusive test of truth.\n\nJudicial experience shows that sometimes even a tutored or parrotlike evidence can be consistent and free from discrepancies and yet not worthy of credence. It is, however, difficult to lay down a rule of universal application because each case will have to be decided on its own facts, but in appreciating the evidence the broad features mentioned above must be borne in mind and have been emphasised by E this Court in a large catena of decisions-a few of them may be referred to here.\n\nIn Bhanu Kumar Shastri v. Mohan Lal Sukhadia and others,( 1) this Court observed as follows :\n\n\"Allegation of corrupt practice is a charge of cr; minal F nature.\n\nThe provisions in the Representation of the People Act are intended to preserve the purity of the election, buc\n\nat the same time these provisions should not be subverted for the impure purposes of maligning candidates who happen to be in the Government on the eve of the election, x x x\n\nThe Court is always vigilant to watch not only the conduct of the candidates and to protect their character from bping defamecl but also to see that the character and conduct of the public is not corroded by corrupt motive or evil pnrposes of candidates.\n\nThe genuine and bona fide aims and asnirations of candidates have to be protected on the one hand and mala fide abuse and arrogance of power will have to be censured on the other.\"\n\n(I) [1971] 1 s.c.c. 370.\n\nA Similarly in Rahim Khan v. Khurshid Ahmed & Ors.( 1) Krishna\n\nIyer, J., speaking for the Court most lucidly and aptly observed as follows :\n\n\"An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious clement of uncertainty in the verdict already rendered by the electorate.\n\nAn election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency.\n\nCourts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary.\n\nThe burden is therefore heavy on him who assails an election which has been concluded.\"\n\nTo the same effect is the decision of this Court in Abdul Hu.esain Mir\n\nv. Sltamsul Ruda and Another(') where this Court observed as follows:\n\n\"Even so, certain basic legal guidelines cannot be lost sight of while adjudging an election dispute.\n\nThe verdict at the polls wears a protective mantle in a democratic polity.\n\nThe Court will vacate such ballot count return only on proof beyond reasonable doubt of corrupt practices. Charges, such as have been imputed here, are viewed as quasi-criminal, carrying other penalties from losing a seat, and strong testimony is needed to subvert a Returning Officer's declaration. x x x x x When elections are challenged on grounds with a criminal faint, the benefit of doubt in testimonial matters belongs to the returned candidate.\n\nSimilarly in Ghasi Ram v. Dal Singh & others(•) while emphasizing the standard of proof in an election case for a corrupt practice of bribery, Hidayatullah, J., as he then was, speaking for the Court observed thus :\n\n\"In Anjaneya Reddy v. Gangi Reddy and other<-21 E.L.R. 247-it was held that the proof required to estahl'sh a corrupt practice must be almost of the character required to establish a criminal charge.\n\nIn our opinion the law requires that a corrunt prac- .tice involving bribery must be fully established.\n\nThe evidence must show clearly that the promise or gift directly or\n\n(I) [1974] 2 S.C.C. 660.\n\n(2) [15io] 4 C C 533.\n\n(3) [1968]3 S.C.R. 102.\n\nindirectly was made to an elector to vote or refrain from voting at an election.\"\n\nWe have gone through the judgment of the High Court, particularly on issue Nos. 7, 26 and 27 and find that although in his prdude to the discussion on issue No. 7 the learned Judge has referred to the various authorities and has correctly adumbrated the legal propositions he does not appear to have applied the principles enunciated in the decisions correctly to the facts or the evidence covered by this issue. It also appears that the learned Judge has applied two different standards in appreciatiµg the evidence with respect to issues Nos. 7, 26 & 27 and other issues on which he has given findings against the contesting respondent.\n\nFor instance, while he has refused to accept the evidence of a partisan or an interested witness being staunch supporters of the contesting respondent on other issues, particularly issue No. 8, he has, while dealing with the evidence of the witnesses on issue No. 7 which suffers from the self-same infirmity, readily accepted their evidence without even noticing the deep interest that these witnesses had in supporting or bolstering up the case of the contesting respondent.\n\nWe shall, however, refer to this aspect of the matter after we have dealt with the evidence led by the parties on these issues.\n\nIn the light of the principles enunciated by us we shall now proceed to discuss and examine the findings of the High Court on issue No. 7 and the evidence led thereon by the parties.\n\nIssue No. 7 was cast by the Trial Judge thus :\n\n\"Did the 1st respondent (the appellant) commit a corrupt practice under s. 123(1) of the Representation of the E People Act by making an offer to pay Rs. 25,000/- to the petitioner and trying to induce him not to contest the election ?\"\n\nTo beoin with we would like to refer to the pleadings of the contesting respcrndcnt in order to show the exact material particulars averred in the election petition itself.\n\nThe allegation which is the subject-matter of issue No. 7 is to be found in paragraph-12 of the election petition appearing at p .. 2:? of the Paper Book (Vol. I).\n\nR. Sultan the contesting respondent '!lad alleged that he had applied for a Congress ticket for Gooty Assembly constituency and was ultimately granted the said ticket by the Central Election Committee, Delhi on February !, 1972.\n\nAlt.hnuoh the n C.C. arl-hnc Congress Committee, Anantapur, had recommended the name of the contesting respondent and others, the Pcovmciat Conrcss Lomm1ttee recommended the name of the contesting respondent alone which was finally accepted by the Central Election Committee at Delhi.\n\nAfter having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2, 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper.\n\nThe contesting respondent told Mustafa that he would be reaching Gooty on February 4, 1972, for filing his nomination papers for the Gooty Assembly constituency and that Mustafa also should reach Gooty on the morning of February 4, 1972.\n\nWe might pause for a little while\n\nhere and notice two important averments.\n\nIn the first place it was the definite case of the contesting respondent that his visit to Gooty on February 4, 1972, was for the purpose of filing his nomination papers, but it appears from the evidence that he did not file his nomination on this date but some time later.\n\nSecondly during his talk with Mustafa on the telephone the contesting respondent did not ask him to bring P.W. 29 Nabi Saheb and P.W. 33 Chinna Bhemanna with him to Gooty.\n\nResuming the thread of averments in the election petition, the further facts arc that the contesting respondent reached Gooty on February 4, 1972 at about 10-00 A.M. and proceeded to Bharat Sewak Samaj-hereafter referred to as 'B.S.S.'-Building which is sometimes described as an office and sometimes as a Guest House in the evidence.\n\nP.Ws. 29 and 33 and some others were waiting for the contesting respondent at the B.S.S. Building.\n\nThe contesting respondent then, along with P.Ws. 29 and 33 went to Taluk office for obtaining a' copy of the voters list for the Gooty Assembly constituency and reached the Taluk office at about 11-00\n\nA.M.\n\nWhile he was returning from the Taluk office the appellant met the contesting respondent and wished him and after talking for some time he made an offer of Rs. 25,000/- to be paid to the contesting respondent if he. agreed to withdraw from the election and help the appellant.\n\nThis offer is said to have been made in the presence of P.Ws. 29 and 33.\n\nEven after the contesting respondent refused the offer he was again persuaded by the appellant to consider the same and on his final refusal the appellant threatened that the contesting respondent was bound to face defeat in the elections.\n\nIt was also alleged that the appellant took the refusal of the offer as a challenge and spent money lavishly to win the election.\n\nThe last part of the averment which forms the subject-matter of issue No. 8 and certain other issues has not been accepted by the High Court.\n\nThese are the only particulars mentioned in the petition with respect to the offer of bribe which is the subject-matter of issue No. 7.\n\nIn the course of the evidence, however, a new fact was sought to be introduced by the contesting respondent, namely, that P.Ws. 29 & 33 returned to the B.S.S. Building after the contestng respondent refused the offer of the appellant and then the two witnesses P.Ws. 29 & 33 narrated the entire incident to P.W. 34 Mustafa and P.W. 22 Rama- . chandraiah and others.\n\nThis fact was introduced in order to ]end corroboration to the evidence of the contesting respondent and that of P.Ws. 29 and 32.\n\nBut as this was undoubtedly a material particular or an additional fact pertaining to the averments in paragraph- 12 of the election petition and the same not having been mentioned has to be completely excluded from consideretion.\n\nWe shall. however, dilate on this matter when we deal with the evidence led by the contesting respondent on this point.\n\nIn short, therefore, the story regarding the offer of bribery and the occasion for it may be conveniently divided into three stages :\n\nStage No. 1.\n\nThis stage starts with the decision of the Central Election Committee, Delhi, in giving the Congress ticket to the conte, ting rcs,, cmdent and as consequence thereof his arrival at Hyderabad on Febru ary 2, 1972.\n\nOn reaching Hyderabad the contesting respondent\n\nwho is P.W. 16 received a telephone call from Mustafa who was asked to go to Gooty on February 4, 1971. in order to meet the contesting respondent.\n\nAccordingly the contesting respondent reach- , ed Gooty on February 4, 1972 and accompanied by P.Ws. 29 and 33 left !or the Taiuk ofiice.\n\nThis is the enu ot the drama enacted in Stage No. I.\n\nThe facts are proved by P.W. 16 the contesting respondent himself, by Mustafa P.W. 34 and by P.Ws. 29 and 33.\n\nIt may be mentioned here that all the witnesses examined to prove the facts covered by this stage are interested witnesses who are staunch supporters of the contesting respondent and there appears to be a serious discrepancy in the evidence led on this point. It appears from the evidence that when the contesting respondent reached\n\nB.S.S.\n\nBuilding apart trom P.Ws. 29 and 33, P.Ws. 34 and 22 were also present.\n\nP.Ws. 34 and 22 however did not accompany the contesting respondent to the Taluk Office.\n\nP.W. 22 Ramachandraiah says that he did not go to the Taluk office because of ill health and P. W. 34 Mustafa says that he did not go as he had some work at the Railway Station. It may also be noticed that in paragraph-12 of the election petition where the material particulars are given by the contesting respondent, while it is clearly mentioned that when the contesting respondent reached Gooty P.Ws. 29 & 33 were there, the name of P .W. 22 is not specifically mentioned as being present at Gooty.\n\nIt would appear from the evidence of P.W. 22 that he was a great friend and supporter of the contesting respondent and even the learned Judge has commented on the deep interest which P.W. 22 had shown in order to support the case of the contesting respondent. It is, therefore, difficult to believe that if P.W. n would have been present at the B.S.S. Building how could the contesting respondent have omitted to mention the name of his most confident friend and supporter in paragraph-12 of his election petition.\n\nThis taken together with the fact that P.W. 22 had given a lame excuse for not having accompanied the contesting respondent to the Taluk office clearly throws a considerable amount of suspicion on the presence of P.W. 22 at Gooty on February 4,\n\n1972. Similarly, while P.W. 34 Mustafa gives a specific reason whv he had not accompanied the contesting respondent to the Taluk office. namely, that he had some work at the Railway Station, which is also deposed to by P.W. 16 himself, yet this fact which was within the knowledge of the contesting respondent at that very time is not mentioned in the election petition.\n\nAnother important circumstance that has to be noticed is that whereas in the election petition it is the, definite case of the contesting respondent that he had to go to Gooty on February 4, 1972 for filing his nomination papers. the evidence shows that he did not file the nomination papers at all on that date but he merely applied for the voters list of the constituency.\n\nThis is important, because, while it. mav have been relevant for P.Ws. 29 & 33 to accompany the contesting respondent to the Taluk Office if it was the question of his filing nomination papers. their presence at the Taluk office was not at all necessary if the contesting respondent had merely to take a copy of the voters list which could have been done by him alone.\n\nP.W. 16 the contesting resoondent has no doubt proved the facts mentioned above.\n\nSimilarly P.W. 34 has supported the contesting\n\nIii\n\n- C\n\nrespondent regarding his having a talk with the contesting respondent on the telephone anu his bemg askta to go to Gooty on February 4,\n\n1Y7L P.ws. 29 and 33 have aiso said that they were asked by P. W. 34 Mnstafa to accompany him to Gooty in order to meet the contestmg respondent. lhus so tar as the tacts in stage No. I are concerned, whether they are true or not, they do not appear to be very relevant for the purpose of issue No. 7.\n\nStage No. II\n\nThis brings us to stage No. 2 which is the bulwark and the bedrock or the case of the contesting respondent regarding the offer of br, be said to have been made by the appellant to h!Ill.\n\nSo far as this stage 1s concerned the only evidence tnat the contesting n\"pornknt has given consists of the tesl!mony of P. Ws. L9 and 3.J apart from h, s own evidence.\n\nWe would first deal with the evidence of P.Ws. 29 and 33 before commg to the evidence of the contesting respondent himself.\n\nP.W. 29 Nab1 Saheb appears to be one of the mo't interested witnesses and a great friend and supporter-of the contesting respondent.\n\nHe admits at p. 498 of the Paper Book (Vol. I][) that both the witness and Mustafa P.W. 34 worked for the contesting respondent during the recent general elections.\n\nHe then says that Mustafa approached h, m on February 3, 1972 and requested him and PW. 33 Ch.nna Bhemanna to accompany him to Gooty.\n\nThe w:tness further admits that the contesting res, pondent R. Sultan and he had been friends for the last ten years.\n\nA suggestion was given by the appellant that his younger brother Khah Hussain was godown ke-oper oi the B.S.S. at Guntakal and he was arrested on the charge of selling goods and that the contesting respondent Sultan had helped him.\n\nThe witness admits at p. 501 of the Paper Book (Vol. III) that the pol; ce had no doubt arrested his younger brother who was a Godown Keeper of the B.S.S. and he further admits that the case was later shown out.\n\nHe, however, denied the suggestion that Sultan helped his bro- ther. It is, however, admitted by Sultan P.W. 16 at p. 307 of the Paper Book (Vol. II) that he was the Secretary of the B.S S. and was, therefore, obviously in a position to help the brother of the w'tness.\n\nIn these circumstances, therefore, to begin with, the C0urt has to approach the evidence of th; s witness with great care and caution berausc he was not only a close friend of the contesting respondent. but was also his supporter and worker and he was interested in giving evidence which may result in the election of the appellant being set aside.\n\nHe states that when the contesting respondent decided to go to the Taluk office on February 4, 1972. P.W. 34 Mustafa did not accompany the party because he had some work at the Railway Station with the result that P.W. 33 and the witness only accompanied the contesting respondent.\n\nThe witness further stated that he acconinanied the contesting resoondent to the Taluk office but P.W. 33 Ramachandra; ah stayed beh; nd as. be was not keeping goorl health.\n\nThorea'ter when the contesting respondent came out of the Taluk office the party went towards the place where the car was parked when <'n th 0 way the apoellant met them and greeted the con•e<t; ng re<pondent. There\n\nthe appellant is said to have offered Rs. 25.0001if the cotesting respondent agreed not to contest the election.\n\nSultan laughed and\n\nspurned the ofier. The witness as also P.W. 33 Chinna Bheemanna A told the appellant that Sultan the contesting respondent did not rcqu, re the money, when the appellant repeated the offer which was aga.n refused.\n\nThereafter the party returned to the B.S.S. Building where P.W. 22 Ramachandraiah and P.W. 34 Mustafa and others were wa.ting in the office of the B.S.S.\n\nBoth the witness and P.W. 33 narrated the incident relating to the offer of bribe to Mustafa P.W. 3 i and Ramachandraiah P.W. 22.\n\nP.W. 33 Chinna Bheemanna who is the other witness has narrated more or less the same facts regarding their reaching the B.S.S.\n\nBuilding at Gooty, their accompanying the contesting respondent to the Taluk office, the offer of bribe made by the appellant and the narration of the facts to P.Ws. 22 and 34. P.W. 16 the contesting respondent had also deposed to these facts. c The learned Judge has accepted the evidence of these witnesses because he thought that there was no major discrepancy in the testimony of these witnesses.\n\nFurther more, the learned Judge, has, on a consideration of the evidence of P.Ws. 23, 38, 39 and 41, held that both the contesting respondent and the appellant were present at Taluk office on February 4, 1972 near about 12 Noon and from their presence he appears to have presumed that the offer of bribe D must have been made.\n\nWe are, however, unable to agree with this somewhat unusual process of reasoning.\n\nThe mere fact that the contesting respondent and the appellant happened to be present at the Taluk office on February 4, 1972, at about the same time does not necessarily lead to the inference that the appellant must have made the offer of bribe which is quite a different fact and has to be proved separately and independently.\n\nIndeed if one has to wander in the E domain of conjectures, then it can be equally said of the contesting respondent that the presence of the appellant at the same day and time at the Taluk office furnished him an occasion to concoct and bolster up a case of the alleged offer of bribe by the appellant to the contesting respondent and in order to prove this allegation the contesting respondent had no difficulty by enlisting the support not of any independent witness but his own stooges hirelings or friends and F supporters.\n\nWhile, therefore, we agree with the finding of the learned Judge that the appellant and the contesting respondent were no doubt present at the Taluk office on February 4, 1972 it by no means follow that the story of the offer of bribe is true on this ground alone.\n\nIn fact the learned counsel for the appellant also has not disputed the fact that the contesting respondent or the appellant were actually present in the Taluk office on February 4, 1972 at the relevant time- G a fact which is proved by independent witnesses and documentary evidence.\n\nWhat the learned J µdge has overlooked is the fact that while it is very easy to make an -allegation of an offer of bribe, it 1s very difficult for the person against whom the allegation is made to rebut the same.\n\nThe learned Judge also failed to consider that the actual offer alleged to have been made by the appellant to the contesting respondent has been proved only by the partisan and highly H interested testimony of P.Ws. 29 and 33 which was sought to be corroborated by equally interested testimony of P.Ws. 22 and 34, and no attempt was made to examine any independent witness even\n\nthough the evidence was that at the B.S.S. Building, apart from P.Ws. 22 and 34 other persons were also present.\n\nSo far as P.W. 29 is concerned we have shown that he is a thoroughly interested witness being a close friend of the contesting respondent.\n\nP.W. 33 Chinna Bheemanna is also a partisan witness. He admits that he was a worker of Sultan during the last elections.\n\nHe further admits at p. 536 of the Paper Book (Vol. III) that he tried to procure the evidence of one Sunkauna for the contesting respondent in this respect.\n\nThe witness deposed thus :\n\n\"Sultan asked Sunkanna to come and give evidence in this case.\n\nYesterday when I was coming here I approached Sunkanna.\n\nBut at that time he was not in his house.\n\nThen I sent another person to Sunkanna asking him to come to Hyderabad to give evidence.\" This shows the extent to which the witness could go in order to support the case of the contesting respondent.\n\nThe witness further admits that he was a member of the B.S.S. and therefore a colleague of Sultan.\n\nIt seems to us that the evidence of P.Ws. 16, 29 and 33 regarding the oiler of bribe in the circumstances mentioned by them is inherently improbable.\n\nIn the first place it would appear from the topography of the spot where the talk between the contesting respondent. and the appellant took place that the place was a crowded one and was situated in the heart of the Taluk office surrounded by the District Munsif Court.\n\nAccording to P.W. 16 apart from the District Munsif's Court there were four other offices in that compound and that there was a crowd near the District Munsif's Court.\n\nHe also admits that there was a canteen in between the Taluk office and the District Munsif's court where people were sitting.\n\nSimilarly P. W. 29 has admitted that the canteen was situated only at a distance of 10 to 15 yards from the place where the talk regarding the offer of bribe took place and that the District Munsif's Court was at some distance from the canteen.\n\nHe also admits that the litigant public sit under the trees near the Munsif's Court.\n\nThe distance between the Munsif's Court and the place where Sultan's car was parked would be about 30 to 40 yards.\n\nIn view of these surroundings it is most unlikely that the appellant would make an offer of bribe to the contesting respondent in such an open and crowded place where he could be exposed bv Sultan at any time.\n\nThe offer of bribe was undoubtedly a criminal act and the Munsif's Court being near at hand the aopellant would bave faced a grave risk in making such an offer.\n\nFurther more, it appears that the appellant was not fully acquainted with Sultan the contesting respondent though he may have seen him once or twice.\n\nNo one makes an offer of bribe to sfrangers without knowing their reaction.\n\nFurther more. it is impossible to believe that even if the offer of the bribe is made it would be made in the presence of the witnesses who were accomoanying Sultan so that the person who makes the offer of bribe would be a party to the creation of clear evidence against him. It is absolutelv against the normal and prudent human conduct to make such an offer at a crowded place in the presence of the two witnesses who were known to be the supporters of the contesting respondent and persist in making the offer in soitc of the blunt refusal of the same by the contesting respondent.\n\nOn the other hand the natural conduct of the appellant would have\n\nbeen to take the contesting respondent to a secluded spot where he would not be seen or heard by any body and then make the ofter.\n\nIn fact P.W. 16 clearly suggests that the appellant had taken him aside but he says that the other witnesses did not part with his company and also came there and yet the appellant did not object to their presence.\n\nWe find it difficult to believe that the ofter of bribe would be made by the appellant in these circumstances.\n\nThe learned Judge, however, has tried to draw an artificial distinction between an ofter of bribe and a payment of actual bribe. He seems to think that whereas an ofter of bribe could be made in a crowded place in the presence of the witnesses as no money was to be passed, yet when actual payment of bribe was to be made it should have been done in a secluded place.\n\nThis reasoning of the learned Judge is not at all intelligible to us.\n\nUnder the provisions of s. 123(1) (A) of the Act an ofter of bribe or payment of actual bribe are both electoral offences amounting to corrupt practices which are to be visited with similar consequences.\n\nThe offences of an offer of bribe or of actual payment of bribe were of the same nature and it cannot be said that one is a lesser crime and the other is a graver one.\n\nNeither the criminal law nor the election statute seek to draw any distinction between an offer of bribe or actual payment of bribe. In these circumstances, therefore, whether it is an ofter of bribe or it is a payment of actual bribe, normal human conduct requires jj, at if a person intends to commit such an offence he would not do so in a crowded place but would try to find out a secluded spot so that complete secrecy is maintained.\n\nAlljlher important circumstance that makes the story put forward by the witness regarding the offer of bribe absolutely incredible is the absence of any. genesis or occasion for the presence of the witnesses at the Taluk office or for that matter for accompanying the contesting respondent Sultan' to the Taluk Office.\n\nTo begin with we have already indicated that in paragraph-12 of the election petition the main purpose of the visit of the contesting respondent Sultan to the Taluk office was to file his nomination papers.\n\nIndeed if this was the purpose of his visit one could have understood the significance of Sultan's asking his supporters accompanying him to the Taluk office because the filing of nomination papers is one of the most important and momentous steps in the electoral process.\n\nFrom the evidence of the witnesses as also that of Sultan the contesting respondent it is clear that Sultan did not at all go to the Taluk Office for the purpose of filing his nomination papers but had only applied for a copy of the voters list : For this purpose the presence of P.Ws. 29 and 33 was not at all necessary.\n\nEven P.W. 29 says at p. 502 of the Paper Book (Vol. III) that Sultan had told the witness that he was going to the Taluk Office to purchase the voters list.\n\nFurther more, even though the witnesses accompanied Sultan they do not appear to have given him any worthwhile assistance.\n\nBoth P.Ws. 29 and 33 categorically state that they did nothing at all at the Taluk Office except sitting in the verandah. P.W. ~9 states as follows :\n\n\"We sat in the front verandah of the Taluk Office along with Sultan. With whom Sultan spoke and what he did in the Taluk Office, I do not know.\"\n\nIt would, therefore, be clear from the evidence of this witness that except for sitting in the verandah there was absolutely no occasion for their presence at the Taluk Office, nor there was any ea. thiy reason why Sultan should have taken them to 1'he T:aluk Office except for the fact that he wanted them to witness the offer of bribe. 1'his, ho\\vever, could not be possible, becau~·~ there was nothing to show that Sultan knew before hand that he would meet the appe1lant at the Taluk Office and that the appellant would make an ot!er of bribe to him.\n\nThis circumstance, therefore, which is in some variance from the allegation made in the pleadings smacks of a concoction and throws a good deal of doubt on the presence of these two witnesses at the Taluk Office.\n\nWe have already indicated that both P.Ws. 29 and 33 are thoroughly interested witnesses.\n\nP.W. 33 apart - from being a worker of Sultan is a member of the B.S.S. of which the contesting respondent Sultan is the Secretary.\n\nThe only other witness so far as the facts in Stage No. II arc concerned is P.W. 16 the contesting respondent himself.\n\nP.\\V 16 is the most interested witness who also bears serious animus against the appellant.\n\nIt would appear from his evidence that the appellant held, at the instance of one K. Suryanarayana Reddi, filed a complaint against the contesting respondent for cheating and that the contesting respondent had filed a petition in the High Court for quashing the investigation in pursuance of the complaint.\n\nHe further stated that he had also filed a criminal complaint against Suryanarayana Reddi in Jhe Magistrate's Court at Gooty and P.Ws. 22 and 29 had been cited as witnesses in that case.\n\nApart from the animus, it would also appear that P.Ws. 22 & 29 are stock witnesses of the contesting respondent to be utilised wherever and whenever necessary.\n\nFurther more, P.W. 16 narrates an incident at the Travellers Bungalow at Anantapur which happened before the general elections of 1972 in the presence of Challa Subbarayudu, where again the appellant seems to have requested him not to contest the elections.\n\nThis fact is not mentioned in the election petition at all and it seems to us that it has been concocted for the first time in the evidence of P; W. 16 in order to give credence to his version that the appellant had made an offer of bribe.\n\nAnother inherent improbability in the version given by P.W. 16 and P.Ws. 29 & 33 regarding the offr of bribe is that the appellant himself was aspiring for the Congress ticket and was therefore folly conscious and aware of the influence that the Congress party wielded and the resources it possessed.\n\nHe was also aware that the contesting respondent Sultan was a Congress nominee having been granted the Congress ticket by the Central Election Committee and he had, therefore, the support of such a big party behind him.\n\nWould he, under these circumstances, ever dare to think of making an offer of bribe and that too at a crowded place in the presence of the witnesses, of all persons to the contesting respondent and persist in that offer even after the same was refused by the contesting respondent. These two circumstances appear to introduce an element of intrinsic infirmitv in the evidence led by the contesting respondent on this point and the story appears to us to be too good to be true.\n\nAnother important circumstance that makes the story of the contesting respondent on this point improbable and untrue is the fact that the appellant should have made an offer of bribe. as early as February 4, 1972.\n\nAccording to the evidence the last date for filing nomination papers was February 8, 1972 and for withdrawal was February 11, 1972.\n\nIf the appellant had succeeded in persuading the contesting respondent to accept his .offer and withdraw from the comest, even tnen that would not have served the purpose of the appellant because with the resourcefulness that !he Congress party possessed it could have set up any other nominee immediately who would have filed the nomination papers by February 8.\n\nIn these circumstances if the appellant was really bent upon seeing that no Congress candidate entered the field he would have made the offer of bribe, if any, either 011. February 7, 1972 or February 8, 1972, so that no chance was given to any party to sponsor any other candidate.\n\nLastly the conduct of the contesting respondent is a clear pointer to the incredibility of the version propounded by him and his witnesses on this point.\n\nAssuming that the version given by the contesting respondent is true, then it was a very serious matter so far as the prestige of the Congress party was concerned.\n\nBy offering bribe to a Congress nominee the appellant had sought to throw a challenge to the party itself.\n\nIn his election petition P.W. 16 has also mentioned the fact that the appellant had thrown a challenge on his refusal that he would be defeated.\n\nIt would appear from the evidence of P.W. 22 at p. 428 of the Paper Book (Vol. III) that after returning from the Taluk Office and having lunch, the witness, Sultan and Mustafa went to Anantapur.\n\nIt would appear from paragraph-12 of the election petition that the District Congress Committee office is situated at Anantapur.\n\nP.W. 29 also states at p. \"500 of the Paper Book (Vol. III) that P.W. 22, Mustafa P.W. 34 and Sultan left for Anantapur.\n\nP.W. 34 Mustafa also states at P. 548 of the Paper Book (Vol.\n\nIII) that when the incident about the offer of bribe by the appellant was narrated to him he said that it was monstrous to sell away the Congress ticket.\n\nIndeed if this was the feeling of P.W. 16 and his supporters, then it is impossible to believe that had the offer been made by the appellant at Gooty either Sultan or his supporters would not make a complaint of this serious incident to any of the office bearers of the District Congress Committee at Anantapur, particularly when they went to Anantapur soon after the incident from Gooty. The fact that no such report or information was sent to the District Congress Committee at Anantapur, or any where else, throws a mountain of cloud of suspicion and doubt on the version put forward by the contesting respondent.\n\nThe learned Judge has noticed some of the improbabilities mentioned above but not all of them and seems to have brushed them aside on trivial grounds and has readily accepted the evidence of the P. Ws merely because there was no major discrepancy in the evidence of the witnesses.\n\nIn our opinion, the approach .l!lllde by the learned Judge was riot correct.\n\nIf the broad probabilities and the unusual conduct of the contesting respondent and the witnesses rendered the version presented by them unbelievable or doubtful, then the Court could not refuse to take notice of such l 5-522SCI/76\n\nA cjrcumstances. For these reasons, therefore, we find ourselves unable to agree with the learned Judge that the offer of bribe at Gutty Taluk\n\nOffice as alleged by P.W. 16 and P.Ws. 29 & 33 was made by the appellant to P.W. 16. We therefore disbelieve the facts sought to be \\ proved by the contesting respondent in Stage No. II.\n\nThis bring us to the last scene of the drama, namely Stage No. III.\n\nAccording to the contesting respondertt, after the offer made by the appellant to the contesting respondent was refused by him in the 1aluk Office, the contesting respondent along with P.Ws 29 and 33 returned to the B.S.S. Building at Gooty.\n\nOn return to the B.S.S.\n\nBuilding they found P.Ws. 22 Ramachandraiah and P.W. 34 Mustata there.\n\nAccording to P.Ws 29 and 33 the witnesses were laughing and when they were asked by P.Ws. 22 & 34 they narrated the entire incident which had happened at the Taluk Oflice.\n\nAccording to P.W. 16, however, when he arrived at the B.S.S. Office after his visit to the Taluk Office P.Ws 22 and 34 asked him as to what is the news, and insteaq of replying to them P.Ws 29 & 33 narrated the incident which happened at the Taluk Office, namely, the offer of the bribe.\n\nP.Ws 29 & 33 have, however, given a slightly different version.\n\nBut what is most extraordinary in this incident is that whereas in ordinary circumstances we would have expected Sultan\n\nthe contesting respondent himself who was the hero of the whole show and to whom the offoc of the bribe had been made by the appellant to narrate the facts to his friends P.Ws. 22 and 34, but instead ilf that Sultan remained absolutely silent and P.Ws. 29 & 33 wern assigned the role of doing the talking. This conduct of the contesting respondent is not at all understandable.\n\nAgain there does not appear to be any good reason why P.W. 22 Ramachandraiah and P.W. 34 Mustafa were left behind and n()t taken to the Taluk Office.\n\nAccording to P.W. 22 he did not go because of ill health.\n\nThis appears to us to be a figment of his imagination. If P.W. 22 in spite of his ill health could come all the way from his house to the B.S.S. office and waited there right frpm morning until the afternoon, there was no reason why he should not have accompanied the contesting respondent to the Taluk Office.\n\nP.W. 34 gives a lame excuse that he had some work at the Railway station and, therefore, he could not accompany the party to the Taluk Office.\n\nIt seems to us that as the allegation regarding the offer of bribe was a totally untrue one and no independent witnesses would have been prepared to support this version, the contesting respondent hit upon a plan to prove this allegation through his supporters and friends by making two of them to overhear the alleged offer of bribe and the other two namely P.Ws. 22 & 34 to remain at the B.S.S. Office to hear the narration of the said offer and thereby produce a corroborative evidence.\n\nOtherwise we do not see any earthly reason why P.W. 34 Mustafa who was playing a leading part in the drama enacted on February 4, l 972 and who was responsible for getting the programme from the contesting respondent and collecting his other friends at Gooty should not have accompanied the contesting respondent to the Taluk Office in order to help him in getting the forms and stayed away on the lame excuse that . he had some work at the Railway Station.\n\nIt appears to us that according'\n\nto the evidence of P.W. 16 as also the averments made by him in the A election petition P.W. 34 Mustafa was taking a very prominent part in the aftairs of the contesting respondent on his return to Hyderabad.\n\nIt was he who telephoned the contesting respondent, brought his <:ompanions to Gooty, stayed at Gooty and accompanied the contest\n\ning respondent and others to Anantapur, and yet he did not accompany the contesting respondent to the Taluk Office.\n\nIt seems to us that P.Ws. 22 & 34 were deliberately made to stay at the B.S.S. Office so B as to corroborate the story put forward by P.Ws. 16, 29 and 33 being persons to whom the story was immediately narrated.\n\nApart from this there does not appear to be any object for keeping these two persons at the B.S.S. office.\n\nFinally the evidence shows that apart from P. Ws. 22 & 34 there were other persons present at the B.S.S. Office but none of them has c been examined to support the version given by P.Ws. 22 & 34. These two witnesses were close friends and supporters of P.W. 16 and their evidence would not inspire any confidence.\n\nSo. far as P .W. 22 is concerned he admits that he worked for the election of Sultan at Gooty and supported the Congress party.\n\nHe further admits that he toured various villages with Sultan.\n\nHe was also the counting agent of Sultan having been appointed by him as per Ext. A-18.\n\nHe D was also au employee of the B.S.S. and bad been appointed by Sultan.\n\nSultan was the Managing Director of Brim Stone Rubber Products Ltd. The witness was a partner of the firm which had the sole agency for the products of the aforesaid firm.\n\nApart from that the witness admitted that he was a staunch supporter of the Congress.\n\nEven the learned Judge has clearly observed that this witness was keenly interested in the future of Sultan and in this connection, while dealing E with issue No. 8, the learned Judge observed as follows :\n\n\"Because of the great enthusiasm shown by this witnes> (P.W. 22) in the witness-box while giving evidence on behalf of the petitioner, which is still fresh in my mind, I am unable to accept the evidence of this witness as disinterested evidence.\" F\n\nThe learned Judge, however, appears to have readily believed the evjdence of this witness on issue No. 7 forgetting the scathing remarks which he himself had made on the demeanour of this witness with regard to the issue No. 8.\n\nSimilarly P.W. 34 Mustafa is also an equally interested witness and admits that he worked for the Congress and he had been a friend of Sultan for ien years.\n\nHe also admits that he had worked for Sultan even in the 1962 elections.\n\nIn these circumstances, we are unable to place any reliance on the evidence of this witness.\n\nIn fact if the evidence of P .W s. 16, 29 & 33 is disbeileve do the question of the offer of bribe, then the evidence of P.Ws. 32 & 34 also falls automatically, because if there was no offer of bribe there was nothing to be narrated to these witnesses. Finally, the most important ground on which the evidence of these two witnesses has to be com\n\npletely excluded is •he fact that P.Ws. 29 & 33 narrated the incident\n\nto these two witnesses which is undoubtedly a very material particular and it is conspicuous by its complete absence in paragraph-12 of the election petition where the facts on which issue No. 7 was framed have been pleaded. The facts deposed t? by P.Ws. 22 a1!-d 34 ae not mee ly a matter of evidence but a very important matenal part1cnlar which seeks to corroborate the interested evidence of P.Ws. 16, 29 & 33 and it is difficult to beheve that had this been true the contesting respondent would not have cared to mention this fact in his petition. In this connection it may be interesting to note that P.W. 16 has admitted. in his evidence at p. 303 of the Paper Book (Vol. II) that on 15th or 16th of March, 1972 the Returning Officer had suggested to the contesting rspondent to file an e_Jection petition if he was defeated and since then the witness was making enquiries to collect material for filing an election petition. If this was really so and the contesting respondent was careful enough to gather the materials long before he filed his election petition, it is difficult to comprehend that he would make ne> mention of this important fact in his petition. ·\n\nLastly the contesting respondent states in his evidence at p. 304 of the Paper Book (Vol. II) that in respect of the threats said to have been administered by the appellant on 5th or 6th of March,· 1972, he had D drawn the attention of the police-officer and had contacted the Deputy Superintendent of Police of Guntakal. Indeed if the contesting respondent was so vigilant would he not have drawn the attention of any police officer of Gooty to the offer of bribe made by the appellant or the threats or challenge thrown by him to the contesting respondent ?\n\nIn view of the improbabilities and the compelling circumstances mentioned above, we are clearly of the opinion that the contesting respondent has not been able to prove his allegation regarding the offer of bribe made by the appellant to the contesting respondent at the Taluk Office as_ alleged by him beyond any shadow of doubt.\n\nThe learned Judge has observed that as against the evidence produced by the contesting respondent there is a bare denial by.the appellant. The learned Judge seems to have laid stress on the words that the appellant alone has denied the allegation and seems to suggest that he has not examined any witnesses in support of thel denial. The learned Judge failed to appreciate that according to P.Ws. 16, 29 & 33 there was no one else at the time when the appellant had made the offer of bribe to the contesting respondent excepting four persons, namely, P.W. 16 Sultan, P.W. 29 Nabi Saheb, P.W. 33 Chinna Bheemanna and the appellant. The three persons deposed in support of the story of the contesting respondent and the appellant was, therefore, left alone whq denied the story completely. It could not be expected of the appellant to ooncoct or procure witnesses when there could be none. As the offer of bribe was an electoral offence amounting to a corrupt practice which partakes of a quasi-criminal nature, the onus was initially on the contesting respondent to prove this fact. As the contesting respondent has failed to prove this fact, he must fail.\n\nIndeed if snch serious and momentous allegations made against snccessful candidate are allowed to , be proved by interested and partisan evidence as in the present .case without any corroboration and where\n\nthe evidence adduced is highly improbable and unworthy of credence, it\n\nA. would give an easy handle to any defeated candidate to unseat a duly elected candidate by collecting evidence of his friends and supporters which will undoubtedly destroy the very sanctity and purity of the electoral process. Thus in view of the cumulative effect of the compelling circumstances, the inherent improbabilities the intrinsic infirmities and the unnatural human conduct disclosed by the evidence produced by the contesting respondent leads us to the inescapable conclusion that the B contesting respondent has failed to prove the allegation of the offer of bribe which is the subject-matter of issue No. 7 beyond any shadow of <ioubt. Therefore issue No. 7 is decided against the contesting respondent and the finding of the learned Judge in favour of the contesting respondent on issue No. 7 is set aside.\n\nTl1is bring us now to the discussion of issues Nos. 26 & 2 7, the only C -0ther issues which remain to be decided in the present appeal. Issues Nos. 26 and 27 may be extracted thus :\n\n(26) \"Whether the 1st respondent (the appellant) committed a corrupt practice under section 123 (3-A) of the Representation of the People Act by issuing a pamphlet dated 20-2-1.972 to create ill-feelings among the voters on religious D grounds and if so, has it materially affected the result of the election of the petitioner as stated in para 39 of the Election , Petition ?''\n\n(27) \"Whether the said persons distributed the pamphlet with the consent of the 1st respondent (the appellant) ?\"\n\nThe facts comprising issues Nos. 26 & 27 are mentioned in para- graph-39 of the election petition and relate to two separate and independent allegations-( 1) the distribution of objectionable pamphlets -0f the nature of Ext. A-1, which contained communal propaganda and sought to persuade the voters to vote on purely communal grounds, personally by the appellant to various persons in various villages; and\n\n(2) the distribution of such pamphlets by the workers and agents of the appellant with his consent to a number of persons belonging to a large number of villages. It would, therefore, be seen that the two types of allegations are essentially different and cannot be said to form one composite allegation.\n\nWe have adverted to this aspect of the matter because Mr. Basi Reddy for the appellant has vehemently contended before us that no foundation has been laid by the contesting respondent in his election petition regarding the distribution of the vamphlets by the workers and agents of the appellant as indicated in item (2) supra. It was further contended that this matter does not merely constitute .a material particular of a specific fact which should have been mentioned in the petition but is a separate item of fact itself and as there is no allegation to this effect in the election petition the same should be excluded from consideration and lhe evidence given by the contesting respondent on this point must be completely ignored.\n\nThe learned counsel for the contesting respondent, however, sought to repel this argument on the ground that a broad con'- truction of the petition filed by the contesting respondent . wonld\n\nclearly show that sufficient foundation has been laid in the petition for these allegations which were later amplified by giving the material particulars after the application for amendment of the petition was made by the contesting respondent before the High Court.\n\nIn these circumstances we would like to dispose of the contention of the parties on this point before proceeding to the merits of issues Nos. 26 & 27.\n\nIn paragraph-39 of the election petition, as it stood before the amendment, the contesting respondent alleged that the appellant had issued a pamphlet dated February 20, 1972 in furtherance of his election prospects and the pamphlet issued was distributed among the voters throughout the Gooty Assembly constituency which caused illfeelings among the voters on religious grounds. It was further alleged. that by distributing the pamphlet the appellant indulged in creating hatred and ill-feelings among the voters in the constituency and therefore committed corrupt practice.\n\nIn order to understand the import of the allegations made in paragraph-39 of the petition it may be necessary to extract the relevant part of it thus :\n\n\"39. The petitioner states that /st 1espondent (the appellant) issued a pamphlet dated 20-2-72 for the furtherance of his election prospects and the pamphlet issued and distributed among the voters throughout the Gooty Assembly Constituency has caused lot of set back and it created illfeelings among the voters on religious grounds. He criticised the Muslim voters on religious and communal Jines.\n\n* * * The petitioner received several complaints in the village that the pamphlet issued and distributed by 1st resp0ndent has caused feelings of enmity, hatred between Hindus and Muslims and this has created dish; irmony among the voters. •\n\n* * The pamphlet issued and distributed' by the /st respondent is herewith enclosed as annexure No. 5.\"\n\nWe have underlined the portions on which we propose to lay particular emphasis .. It would be seen from the perusal of the allegations made in paragraph-39 extracted above that there is absolutely no avermcnt that the pamphlet issued by the appellant was distributed by the agents, workers or supporters or friends of the appellant. The only fact averred in paragraph-39 of the petition is that the pamphlet in question was distributed by the appellant alone. This fact is clearly evident from the portions extracted and underlined by us.\n\nIn these circumstances it was rightly contended by the learned counsel for the appellant that there was no pleading at all by the contesting respondent that the pamphlet was distributed by his agents, workers or\n\nsupporters and therefore the particulars supplied by the contesting respondent in his application for amendment on this point must be completely disregarded. In order to appreciate this contention it may be necessary to examine the concerned provisions of the Act. Section\n\n81 of the Act clearly provides that the election petition shall be lilecl within forty-five days from the date of election of the returned candidate and runs thus :\n\n\"81. (I) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section ( 1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates or their election are different, the later of those two dates.\" lt is obvious, therefore, that any allegation of corrupt practk~ which is not made in the election petition filed within the time allowed by the statute cannot be allowed by way of an amendment under s. 86(5) of the Act, because that would amount to extending the period of limitation p.; remptorily fixed by the Act.\n\nPower of amendment of the election petition as contained. in s. 86 ( 5) of the Act is clearly confined to allowing the particulars of any corrupt practice which has been set out and clearly alleged and specified in the election petition.\n\nSubsection (5) of s. 86 of the Act runs thus:\n\n\"The High Court may, upon such terms as to costs and\n\notherwise as it may deem fit, allow the particulars of any D corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which \"ill have the e!fect of introducing particulars of a corrupt practice not previously alleged in the petition\".\n\nlt would be seen that the ambit of this statutory provision is extremely narrow so that the power of amendment or amplification is restricted only to amplify the material particulars of any corrupt practice which had been previously alleged in the election petition.\n\nIn other words, the sub-section requires three essential conditions to he fn !-\n\nfilled before an amendment could be allowed-( 1) that the amendment\n\nseeks merely to amplify the particulars of a corrupt practke; (2) that F the corrupt practice whose particulars are to be given must have l:'een previously alleged in the election petition itself; and (3) that the amendment is, in the opinion of the Court, necessary ior ensuring a fair and effective trial of the petition. Thus the three conditions mentioned above are the sine qua non for the exercise of the power by the court under sub-s. (5) of s. 86 of the Act. It is, therefore, manifest that the Court has no power to allow the amendment by permitt- G ing the election petitioner to amplify a material particular of a corrupt practice which is not specifically pleaded in the election petition itself for that would amount to introducing a new corrupt practice after the expiry of the period of limitation-a result which was never envisaged or contemplated by the statute. This matter fell [or determination of this Court in Samant N. Balakrishna etc. v. Georf!e Fernandez and others etc.,(1) where Hidayatullah, C.J., speaking for the Court H observed as follows : - •\n\n(I) [1969J3 S.C.R. 633.\n\n\"The power . of .amendment is given in respect of particulars but there is a prohibition against an amendment which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.\n\nOne alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice he cannot be pennitted to give particulars of the corrupt practice.\n\n* * * * In the scheme of election law they are separate corrupt practices which cannot be said io grow out of the material facts related to another person.\n\nPublication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the matec\n\nrial facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice.\n\nThey constitute different causes of action.\n\nSince a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on. * * * * If the material facts of the corrupt practice are stated more or better particulars of the charge may be given later but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition.\"\n\nIn our opinion the facts of the present case and the nature of the averment contained in the election petition filed by the contesting respondent is clearly covered by the ratio of the decision cited above. It may be pertinent to note that in this case also the question is whether publication of false statements was by the candidate himself or by his agents and since what has been pleaded is only the distribution of the pamphlet by the appellant/candidate alone and not by his agents or workers with his consent, the Court had no jurisdiction to allow particulars to be giveu with respect to the fact that the pamphlet was distributed by the agents and supporters of the appellant to various persons in various villages as given in the schedule.\n\nThe learned counsel for the contesting respondent conceded the central weakness in this. part of the case but he tried to persuade us to hold that the words \"pamphlet issued and distributed among the voters throughout the Gooty Assembly Constituency\" tend to include not merely the distribution of the pamphlet by the appellant himself but also by his agents and workers; We are, however, unable to agree with this contention because reading the averments contained in paragraph-39 as a whole, however broadly or liberally the same may be construed, the irresistible\n\n.. ,\n\ninference is that the contesting respondent has laid special stress on the fact of distribution of the pamphlet by the appellant alone.\n\nAt least at three places underlined by us in the extracted portion of the\n\npleadings of the contesting respondent he has over-emphasized the fact that the distribution of the pamphlet was made by the appellant himself.\n\nWherevei:. the averment of distribution of the pamphlet is made in the election petition it is said that the same was done by the 1st respondent before the High Court, namely the appellant.\n\nIn these circumstances, therefore, we are not in a position to agree with the interpretation sought to be placed by Mr. Shiv Shankar learned counsel for the contesting respondent on the pleadings of the contesting respondent which in fact is not borne out by the allegations mentioned in paragraph-39 as extracted above.\n\nThe learned counsel for the contesting respondent with fairness and ingenuity did not pursue the matter further and submitted that if his contention regarding the wider interpretation which he sought to put is not accepted, then he would concede that th.e amendment in respect of issue No. 27 should not have been allowed and the particulars mentioned by the contesting\n\nrspondent on this item must be disregarded and the evidence given by the contesting respondent should be excluded from consideration.\n\nIt appears, however, that as the attention of the learned Judge does not appear to have been drawn to this aspect of the matter he allowed the amendment as also the evidence on issue No. 27 and ~!so proceeded to give.his finding thereon. As, however, this is a pure question of law and amounts to violation of the statutory mandate contained in s. 86 (5) of the Act, this Court has to give effect to the violation of the statutory provision.\n\nFor those reasons, therefore, we hold that there is no pleading by the contesting respondent that the pamphlet was distributed by the agents or workers of the appellant with his consent to various persons. The order of the High Court, therefore, along with the particulars given by the contesting respondent in item !A in the schedute to the application for amendment is set aside and the said amendment is deleted from the election petition.\n\nAs a legal consequence thereof the evidence given by the contesting respondent on issue No. 27 has to be excluded from consideration and the finding of the learned Judge on issue No. 27 is hereby set aside and issue No. 27 is deleted.\n\nThis disposes of the finding of the High Court so far as issue No. 27 is concerned.\n\nBefore dealing with the facts comprising issue No. 26 it may b0 necessary to mention a few circumstances which may be extremely relevant for examining the probative value of the case of the contesting re;; pondent on this issue.\n\nThe election petition was filed before the High Court on April 20, 1972 i.e. about a month and a few days after the results of the election were announced. The contesting respondent has clearly admitted in his evidence at p. 303 of the Paper Book (Vol.\n\nII) that as far back as March 15, 1972 he had started making enauiries and collcting materials for filing the election petition.\n\nThe witness stated thus :\n\n\"All this talk metween Ravindra Choudhary and myself took place at about 3-00 P.M. at the Gutti Bus-Stand on 15th or 16th of March 1972. It was on the very day when the\n\nReturning Officer suggested to me on phone to file an Election Petition that that idea entered into my mind to file an Election Petition in case I was defeated.\n\nSince then I was making enquiries to get material for filing an election petition.\n\nWhenever I used to get any information regarding the elections, I used 'to go to those places to make enquiry.\"\n\nro begin with, therefore, the contesting respondent had started making full and frantic preparations for filing election petition a month before he filed the same. In these , circumstances it can be safely presumed that before filing the election petition the contesting respondent must have collected all the materials which enabled him to give the necessary details and material particulars of the corrupt practices which he sought to allege against the appellant and which formed the bedrock of his case.\n\nAgainst this background therefore we shuuld have expected the contesting respondent to mention not only the corrupt practices committed by the appellant but also to give various particulars thereof without taking recourse to the necessity of having to amplify the particulars by virtue of an amendment and that too when reminded of the same by the appellant himself.\n\nSo far as the aliegations in paragraph-39 are concerned it would appear that prior lo the amendment no particulars or deta:b of distribution of the pamphlet had been mentioned by the contesting respondent at all.\n\nAll that was said was that the appellant had distributed the pamphlet of a communal nature in order to incite communal feelings between the Hindus and the Muslims. It was not stated to whom the pamphlets were distributed by the appellant and on what dates were the pamphlets distributed by the appellant, to the villagers.\n\nNeither the names of the villages nor of the persons to whom they were distributed were mentioned. In fact when we deal with the evidence on this point it would appear that before' filing the election petition the contesting respondent had been fully apprised of the fact that the pamphlets had\n\nbeen distributed to various persons in various villages and yet he failed to give any further particulars in the election petition. Continning the historical background of the election petition the position is that two <lays after the election petition was filed the High Court closed for vacation on April 22, 1972 and re-opened on June 10, 1972. Even after the re-opening no attempt was made by the contesting respondent to file an application for amendment nor to amplify the material particulars of the corrupt practices which he alleged in paragraph-39 of lhe petition.\n\nStrangely enough it was the appellant who filed an appEca- G -tion on July 27, 1972, i.e. after about a month and a half later, wherein he prayed to the Court that the contesting respondent may be directed to file better particulars of the corrupt practice alleged by him.\n\nEven after the contesting respondent was rem; nded by the appellant through his application the contesting respondent took full one month to file his application for amendment which was subsequently allowed by the Court. By virtue of the amendment the only pat; culars .that the contesting respondent gave were the names of the villages given\n\nin a schedule where the appellant distributed the pamphlet and the H\n\ndates on which the pamphlet was distributed.\n\nIn spite of having been given a full and complete opportunity to disclose the essential details\n\n< i'-.\n\nand the material particulars of the distribution of the pamphlet by the appellant, the contesting respondent did not mention the name of a single person to whom the pamphlet had been distributed. by the appellant, whereas the evidence led by him shows that some of the individuals to whom the pamphlet is alleged to have been given by the appellant had actually informed the contesting respondent of this fact well before the election petition was filed and quite a few months before the amendment was asked for.\n\nThis belated conduct on the part of the contesting respondent speaks volumes against the credibility of the material particulars which appear to have been given by him t?rough the amendment.\n\nThe learned Judge in approaching the veracity of the witnesses produced by the contesting respondent on this point has attached great importance to those witnesses who have themselves produced the pamphlet Ext. A-1 and seems to be of the opinion that but for the evidence of such witnesses; the evidence of other witnesses who generally spoke about the pamphlet having been given to them by the appellant should not be accepted. We are, however, of the opinion, that the approach made by the learned Judge on this aspect of the matter is not legally sound. The basic fact which had to be determined was whether the pamphlet was in existence before or during the elections, because there was no dispute that the pamphlet was undoubtedly printed somewhere. If the test applied by the learned Judge was that the pamphlet should be produced by the witnesses to whom the same was given it would be very easy for the contesting respondent to hand over the pamphlet to the witnesses before they came to depose before the Court and ask them to produce the same in the Court.\n\nThis sort of a computerised approach cannot be a safe criterion for determining the truth of the allegation that the pamphlet was actually distributed by the appellant to the witnesses conerned.\n\nBefore going to the evidence, we would like to discuss the law on the subject.\n\nDistribution of an objectionable pamphlet is undoubtedly a corrupt practice within the meaning of sub-s. (4) of s. 123 of the Act which runs thus : F\n\n\" ( 4). The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is. false and which he either believes to be false or does not believe to be true,. in relatio!1 to th~ personal character or conduct of any candidate, or m relation to the candidature or withdrawal of nv. candidate, being a statement reasonably calculated td\n\npreiud1ce the prospects of that candidate's election.\"\n\nIn fact on the allegations of the contesting respondent publication ot the pamphlet containing communal propaganda would' also attract s_ub-s. (3A) of s. 123 of the Act. The allegation of publishing an objectionable pamp?Iet s indeed very easy to make bnt very difficult to rebut.\n\nAt the sam~ l!!Ile 1t puts the Court on the strictest possible scrutiny because .obiecbonable pamphlet can be printed by any body in any\n\nPress with utmost secrecy and if a corrupt practice can be sought to\n\nbe proved merely by publication of a pamphlet then it will amount to giving a free licence to any .defeated candidate to get an objectioo.able pamphlet published and circulated to his supporters and to make them say that such pamphlet was printed or pubhshed or crrculated by the successful candidate.\n\nIn these circumstances, therefore, the Court frowns on the evidence regarding the publication of the pamphlet which comes from tainted or interested sources. In Baburao Bagaji Karemore and others v. Govind & others(') this Court laid down certain tests to judge the evidence regarding the publication or distribution oi\n\nob1ectionab!e pamphlet and observed as follows :\n\n\"It appears to us that when an election of a successful candidate is challenged, particularly on ground of corrupt practice, 1t is not unknown that attempts are made to manu facture or bring into being subsequent to the declaration of the result, documents or other material, which could be used for unseating a successful candidate.\n\nAt any rate, when any impugned document is hotly contested on that ground and it is the case of the respondent that it was brought into existence subsequently, the onus on the petitioner who challenges the election on that ground is all the more heavy.\"\n\nIn the instant case the appellant has emphatically denied the publication of the pamphlet of the nature of Ext. A-1 or the distribution of the same to any body.\n\nThus both the publication of the pamphlet and distribution thereof appears to be hotly contested by the appellant in this case. In these circumstances, therefore, it was\n\nthe bounden duty of the contesting respondent on whom lay the initial onus to prove that the pamphlet was published and distributed by the appellant.\n\nThere is absolutely no direct evidence to prove that the pamphlet concerned was in fact pnblished, printed or caused to be published or printed through any agency of the appellant.\n\nOn the other hand there is evidence to show that the contesting respondent has a press of his own and the possibility that he might himself have got the pmpblet printed with a view to set at naught the election of the appellant cannot be reasonably excluded.\n\nThe High Court seems to think that as the pamphlet contained communal propaganda and incited the Hindus against the Muslims the same could not be printed by the contesting respondent who was a Muslim himself.\n\nThis argument fails to consider that if an unsuccessful candidate, whatever be his caste or creed, files an election petition with the avowed cbject of unseating the successful candidate he generally stoops to all devices in order to show that the successful candidate was guilty of such corrupt practices which may lead the Court to unseat him. If an unsuccessful candidate is motivated by this consideration, the religion or caste to which he belongs is wholly irrelevant for the purpose which is sought to be achieved.\n\nWe do not mean to suggest for a moment that the pamphlet in yuestion was in fact printed or published by the contesting respondent but if the contesting respondent wanted to print such a pamphlet there was nothing to stop him from doing that since he had a press of his own and as be was the owner of the press the matter\n\n(0[1947! 3 c.c. 719.\n\n,. .,.\n\ncould have been kept absolutely secret.\n\nOn the other hand there is A no evidence to show that the .appellant owned any press at all.\n\nThe dominant fact in such a case which had to be proved was whether the pamphlet had come into existence either before or during the elections.\n\nUnless we believe the evidence of the witnesses pro. duced by the contesting respondent on this point in toto it will be difficult to hold that the pamphlet was published or distributed by the B appellant.\n\nThe appellant has produced respectable witnesses to show that if such an objectionable pamphlet as Ext. A-1 had been published and circulated, the witnesses would have known about it.\n\nIn other words, the appellant sought to prove the negative aspect of the existence of the pamphlet and that is all that he could have d()ne. The learned Judge appears to have brushed aside the evidence of these witnesses merely on the ground that their evidence does not exclude the C possibility of there being a pamphlet like Ext. A-1 which was not brought to their notice. Indeed if this artificial approach is made to the evidence of such a nature, then it would be asking the successful candidate to prove the impossible. We shall, however, advert to this aspect of the matter when we deal with the evidence produced by the appellant on this point.\n\nWith this preface we shall now proceed to consider the evidence produced by the contesting respondent in proof of issue No. 26.\n\nBy virtue of the application for amendment filed by the contesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many as 26 villages but at the trial the contesting respondent had adduced evidence only to show that the pamphlet was distributed by the appellant to various persons on various dates at four places, namely, Gooty, Yadiki, Gundala and Guntakal.\n\nThere were some other villages mentioned where the workers of the appellant are alleged to have distributed the pamphlet but that has to be ignored in view of our finding on issue No. 27.\n\nThe evidence adduced\n\nby the parties on this question may be reduced in the form of the following chart. In this chart the witnesses examined by the petitioner/contesting respondent are for short referred to as \"P.Ws.\" and the witnesses examined by the appellant as \"R.Ws.\".\n\nName of Date Persons to whom Evidence Village pamphlet distributed of witnesses Gooty 27-2-72 P.Ws 21 & 22 By P. Ws 21 & 22 R.Ws. 2, 14, 15, 22 and 24.\n\nYadiki 28-~-72 P.Ws.- 27, 28, 35, By P.Ws. 27, 28, 35, 37 and 40 37 & 40 R.Ws l!, 12, 13,16, 17 & 32\n\nGundala 5-3-72 P.Ws 1, 2, 3, 4, By P.Ws. 1-4 & 8 and 8.\n\nR.Ws. I & 32\n\n22-2-72 P.Ws. 24, 25, Guntakal By P.Ws. 24, 25 33 & 36 33 & 36 R.Ws. 3, 5, 7, 8, 9, 10, 25, 27, 28 & 30\n\nBefore taking up the evidence of the parties Jed on the allegations regarding the di5tribution of pamphlet by the appellant personally it may be necessary to set out a few important principles in the light of which the evidence has to be appreciated.\n\nIn the first place it may be necessary to extract the relevant portions of the pamphlet itself to show the offensive and objectionable nature of the same with a view to find out whether a person like the appellant could go to the extent of publishing such a clumsy pamphlet, which runs thus :\n\n\"Everywhere Muslims are given importance by the congress and the Congress is ruining the future of Hindus.\n\nIn every election Muslims always vote for a Muslim candidate.\n\nWhen that is the case, what is there wrong if all Hindus vote for me who is a Hindu candidate ? Muslims have committed many atrocities and still the Congress is giving importance to the Muslims.\n\nFor example, Mr. Baraktullah Khan is made Chief Minister in Rajasthan and Mr. Mohd.\n\nIsmail who is not well known in Andhra Pradesh is made the President of the Congress in the State. * * *\n\nIn Hyderabad Muslims are given too much importance.\n\nThe said Ismail in order to give representation and importance to his Mnslim religion, has given in our State nearly 20 seats to Muslims.\n\nThis is an act of axe to the Hindus.\n\nIs it not atrocities of Pakistan, horrible incidents of Bangla Dcsb, murders of Navakhali an insult to the Hindu race and religion for e\\1er ?\"\n\nA perusal of the recitals of the pamphlet would clearly reveal the fact that it is couched in a most offensive language which is bound not only to hurt and injure the sentiments of the Muslims of the constituency but has also the effect of inciting one communf!y towards another on purely communal grounds.\n\nThe allegations made in the pamphlet are sufficient to alienate not oniy the sympathy of the Muslim community completely but also of a large number of Hindus who have a secular outlook which is the very fundamental feature of our Constitutional set-up.\n\nIn the first place the evidence led by both the parties clearly disclosed that there was a considerable section of Muslim population whose votes could not have been ignored or overlooked by_ any candidate who really wanted to succeed. The first premise to start with, therefore, is whether the appellant could have taken the risk of offending the entire Muslim community and a sizable section of the Hindus also by publishing and circulating the pamphlet in question.\n\nSecondly, the language of the pamphlet is so strong and conspicuous that it is difficult to believe that the Government officers who were posted on duty in order to prevent any communal propaganda by the candidates would have misJed or failed to notice the pamphlet Ext. A-1 if in fact it was published and widely circulated in many villages.\n\nThirdly, we must not forget that the appellant had been declared elected and by succeeding in the election there was a strong and compeIJing motive on the part of the unsuccessful candidate\n\nto reverse the election of the appellant by any possible means.\n\nFinally, if the pamphlet like Ext. A-1 was really distributed and cir- A culated and the contesting respondent had come to know about the same, it is not at all probable to believe that he would have failed to give the names 9f the persons from whom he got the knowledge of the pamphlet in the material particulars which he has set out in support of his allegations in paragraph-39 of the ld1on petition.\n\nIt is against the background of these admitted facts that we now come to the B evidence led by the parties.\n\nSo far as the v:'llage Gooty is concerned the contesting respondent has examined only two witnesses to prove that the pamphlet Ext. A -l was distributed by the appellant personally.\n\nThese two witnesses arc P.Ws. 21 & 22. The evidence of P.W. 21 need not detain us because the learned Judge has disbelieved the evidence of this witness and hs observed as follows : C \"In my opinion, the evidence of Kulleyappa (P.W. 21) is not trustworthy.\n\nI do not, therefore, consider it proper to rely upon the evidence of this witness.\n\nI, accordingly reject it.\"\n\nAfter having gone through the evidence of this witness, we find ourselves in complete agreement with the opinion of the learned Judge as disclosed above.\n\nThe only other witness who remains is P.W. 22, who, as we have already pointed out while dealing with the allegation\n\nof bribery, is the most interested witness and a staunch supporter of the contesting respondent. .Even the learned Judge has commented adversely on the interested nature of the evidence of this witness as indicated by us in our judgment while dealing with issue No. 7. It woulJ appear that P.W. 22 was not only a supporter of the Congress and of the contesting respondent but was also employed by Sultan in the B.S.S.\n\nHe acted as the counting agent of Sultan and was a partner in a firm wilich was the sole agent on Brim Stone Rubber Products a company belonging to Sultan.\n\nThe learned Judge while dealing with the evidence of this witness even on this point has clearlv observed that he was prepared to fill in all the missing links in the case put forward bv the contesting respondent.\n\nIn this connection the learned fodge observed as follows :\n\n\"This witness has, no doubt, tried to plug in the loopholes, or come to the aid of the petitioner, Sultan, whenever there was none to offer the missing links in the evidence adduced on behalf of the petitioner.\n\nY. Ramachaodraiah\n\nwas also a business partner and an employee of the B.S.S.\n\nG (Bharat Sevak Samaj). Those facts, in my opinion, show that he is an interested witness.\"\n\nHaving made these comments, the learned Judge has still accepted the evidence of this witness.\n\nThis would have been sufficient to dislodge the evidence of this witness completely.\n\nBut even on its intrinsic merits the evidence of this witness does not inspire confidence.\n\nTo H begin with, the witness admits that the appellant had come to his house\n\nt 8 AM. on Sunday February 27, 1972 and requested him to help the appellant.\n\nIn the first place it is difficult to believe that the\n\nA appellant would of all persons try to enlist the help of P.W. 22 knowing fully well that he was an old friend and a staunch supporter and a close and intimate friend of the contesting respondent.\n\nP.W. 22 narrates a most interesting and incredible story.\n\nAccording to him ' when the appellant went to him and asked for his support the, witness refused and despite his refusal the appellant was foolish enough to give him the pamphlet Ext. A-1 although the witness told him clearly B that he was supporting the Congress and that he was an important person of Gooty and, therefore, it was not good for him to ask for the witness's support.\n\nThereafter the appellant is said to have made a communal appeai to the witness more or less on the same lines as mentioned in the pamphlet.\n\nThereafter the witness gave a sermon to the appellant and advised him not to seek votes on the basis of relic gion and caste.\n\nEven after all this happened, the appellant is said to have given the pamph, let to the witness.\n\nThis story appears to us to be wholly improbable and against normal human conduct.\n\nThus, in these circumstances the appellant would not have handed over the best evidence against him to his enemies, namely the pamphlet, knowing fully well that he was a staunch supporter of the contesting respondent.\n\nLastly the witness states thus : D \"On that evening I went to Guntakal, met Sultan and narrated to him what all had transpired between Venkatareddy and myself.\n\nI also showed to Sultan the pamphlet that was given to me by Venkatareddy. I read the pamphlet carefully and I gave that pamphlet to Sultan.\"\n\nIndeed if what witness stated was true and the contesting respondent was apprised of the entire story on the evening of February 27, 1972 i.e. about two months before the election petition was filed, would he have failed to mention the name of P.W. 22 and the story reyealed by him in the allegations made in paragrapb-39 of the petition regarding the distribution of the pamphlet ? Even if he had failed to do that, would the contesting respondent not have at least mentioned the name of the witness as also the details narrated by him in the material particulars in support of the allegations in paragraph-39 which were inserted by virtue of the application for amendment ? All these facts are completely absent from the averments made in paragraph-39 either before or after the amendment. All this shows that the witness has deposed to a cock and bull story which cannot be believed for a moment. For these reasons, therefore, we are not at all impressed with the evidence of P.W. 22 and we reject the same. P.W. 21 having been disbelieved by the Court below and P.W. 22 by ns there is absolutely no evidence left to prove the allegation that the pamphlet Ext. A-1 was distributed by the appellant personally in the village Gooty. Thus the contesting respondent initially fa.iled to discharge the onus which lay on him to prove the distribution of the pamphlet by the appellant to P.Ws. 21 and 22.\n\nIn the above view of the matter it may not have been necessary to deal with the evidence led by the appellant which is more or less of a negative character. Nevertheless we would only refer to the evidence of four respectable witnesses who have been examined by the appellant which throws a flood of light on the question.\n\nD.V. REDDY v. R. SULTAN (Fc.zal Ali, J.) -177\n\nR.W. 2 was a sub-Inspector of Police at Gooty and states that he hd accompanied the procession taken out by the appellant.\n\nH~ categorically states that no pamphlet like Ext. A-1 was .d1tnbutd. Ihe v:1tness had made arrangements for the process10n and 1t 1s obvious that 1f any pamphlet like Ext. A-1 had been distributed, the same would have come to his notice. The witness further deposes that many pamphlets were distributed by various contestin[l candidates and all the pamphlets coming to his notice were sent to the Superintendet of Police. 1 he learned J udoe has wmmented on the fact that the witness did not keep an acc; unt of the pamphlets distributed nor were the same called for from the office of the Superintendent of Police to whom they were forwarded.\n\nWhen the witness has categorically stated that no pamphlet like Ext.\n\nA-1 ever came to his notice, though he would have come to know of the same because he was making all the arrangements in the procession and was in charge of the election duty, that fact itself lends indirect support to lhe case of the appellant that no such pamphlet was e1er distributed. We do not mean to suggest that the evidence of this witness is conclusive but it is an important circumstantial evidence to support the case of the appellant particularly when the contesting respondent has not adduced satisfactory evidence to prove his plea.\n\nR.W. 15 is a certified clerk of Shri Kona Venkala Reduy, Advocate of Gooty and was a worke_r of the appellant. This witness states that a procession was taken out at Gooty in which the appellant had merely asked the public to vote for the Cycle symbol and that the witness along. with others had taken part in the procession. The witness denied that any pamphlet like Ext. A-1 was distributed to any body in the procession. He has been subjected to a searching cross-examination but nothing of much importance has been elicited. It is true that the witness has denied the knowledge of other pamphlets like A-70 to A-78 but that by itself is not sufficient to throw out his evidence.\n\nThe_ next witness is R.W. 22 who is an Advocate practising at Gooty smce 1921. He appears to be a respectable witness and does not bear any anmus against the contesting respondent. He has, however, frankly dm1tted that e was. working for the appellant and had participated. m the process10n wluch was taken out at Gooty. The witness categoncally states that the pamphlet like Ext. A-1 was not distributed either during the procession or later on or at any time. Although the witness was no doubt a supporter of the appellant, but being an Advoate h.e is respectable witness and there must be strong reasons to rc- 1ect his evdnce. In cr<?ss-exami'!ation nothing much of importance has been CHC1ted. The witness demed the suggestion that he was in anv way related to the appellant. ~\n\n; he last witn:ss on this point is R.W. 24 who was a Special Branch He 1aacontable with. hadq_ua'.1es t. Gooty.\n\nAcording to him Gooty PoJce Circle. was withm his 1unsd1ct1on. The witness has categorically stated that his duty ws. to cover P?litical activities, agitations, movement~ and scret enqumes. The witness further emphasised the fact\n\nthat 11 was his uty to ollt any pamphlets: which related to political matte:s or contamed ob1ect10nable language and pass on the same to his H sup.enor officers.\n\nThe witness was shown Ext. A-! and he has cate gonca!Jy stated that no such pamphlet ever came to his notice either !6-L522SCl/76\n\nduring the election or afterwards, nor did any pamphlet distributed i11 Gooty by any candidate come to his notice. This witness is undoubtedly an independent one and was not at all interested in any particular candidate. 1 he only comment against this witness was that he has not produced the daily reports about the existence of the pamphlet. It is obvious that it no such pamphlet came to his notice there was no occasion for mentioning the same in his report. The other comment made by the learned Judge was that although he had forwarded the pamphle\\s to his superior oflicers, no attempt was made by the appellant to call for the record from the superior officers. That fact would not by itself falsify the evidence of this witness. We have already observed that the language of the pamphlet was so offensive and hurting that if such a pamphlet would have been in circulation, it would be impossible to believe that an olTicer like R.W. 24 who was deputed expressly for the purpose of finding out such pamphlets would not have been able to notice the same or would have missed the pamphlet if the same was distributed in Gooty.\n\nThis circumstance, therefore, lends support to the case of the appellant that 1io such pamphlet was ever distributed by the appellant in Gooty and reinforces the case of the appellant particularly when we have seen that the two witnesses examined by the contesting respondent in support of his case have been disbelieved as unworthy of credence.\n\nThi~ brings us to the other limb of the corrupt practice alleged by the contesting respondent regarding distribution of the pamphlet by the appellant in village Yadiki. The evidence led by the contesting responden: io a composite one consisting of the witnesses who speak not only about distribution of the pamphlet by the appellant alone but also by E his workers. We have already indicated above that due to want of proper pleadings the allegations about the pamphlet having been distributed by , the appellant through his workers, agents, supporters and friends _i\n\nhas to be completely excluded from consideration. In these circum- stances we would only confine our assessment to that part of the evidence led by the parties which relates to the question of distribution of the pamphlet by the appellant personally.\n\nThe contesting respondent has examined P.Ws. 27, 28, 35 and 37 to prove-( 1) that a procession was taken out by the appellant in Yadiki on February 28, 1972; and (2) that the appellant personally distributed the pamphlet to various persons in the course of the procession, So far as the appellant is concerned he has denied that he ever took out any procession in Yadiki on February 28, 1972.\n\nIt was further narrated that February 28, 1972 being Monday was a \"Shandy Day\" on which the village market fair was held and it was, therefore, not possible to take out a procession on that day.\n\nAppellant's further case was that he had merely gone from house to house in the village in order to solicit votes for him.\n\nThis is undoubtedly permissible under the election law.\n\nIn view of the unsatisfactory nature of the evidence led by the contesting respondent on this point, it is not necessary for us to enter into an arena of controversy regarding the question whether or not the appellant took out a procession.\n\nAssuming that he did, the sole question is whether the appellant personally distributed any pamphlet to any body at Yadiki on February\n\n28, 1972 as alleged by the contesting respondent.\n\nThe evidence of PWs. 27 & 28 is almost identical because both of them al!eged to be paid workers of the appellant had participated in the procession and saw the appellant distributing the pamphlet. The appellant however, seriously disputed the fact that these witnesses had ever been hired or engaged by him for doing his election work. On the question of the issue relating to the expenses incurred by the appellant, the learned Judge clearly found that it was not proved that P.Ws. 27 & 28 had been appointed by the appellant. Even, while considering the evidence of these two witnesses on this point, the learned Judge observed thus :\n\n\"Since there were discrepancies in the matter of talking of the terms and the place where they were talked over, and the person before whom such terms were talked over, I held that it was unsafe to include the salaries of those persons in the return of election expenses filed by VenkataredJy, i.e. Ext. A-98.\n\nThough P.W. 27 and P.W. 28 did not prove that they were appointed by the 1st respondent, D. Vankatareddy, for the purposes of writing on the walJs of various villages on behalf of respondent No. !.\"\n\nThe learned Judge, however, chose to act on the evidence of these witnesses because according to him P.Ws. 35 & 37 had corroborated the evidence of these witnesses.\n\nWe will deal with the evidence of P. Ws. 35 & 37 a little later, but the fact remains that as the appellant has emphatically denied having ever appointed these witnesses as his workers, and the Judge having himself held that this fact was not proved, it was not open to the learned Judge to have still speculated that they might have been the workers of the appellant.\n\nThus there can be only two possibilities : either these two witnesses were not employed by the appellant at all in which case there would be absolutely no occasion for their presence in the procession, which according to them was only in their capacity of being workers of the appellant. If this is so then the entire evidence of these witnesses falls to the ground.\n\nAssuming, however, that they worked for the appellant, then their evidence appears to be of a turn-coat type which is interested and tained and cannot be acted upon without corroboration.\n\nWhile commenting upon the credibility of a turn-coat witness this Court in Rahim Khan v. Khurshil Ahmed and others(') observed as follows:\n\n\"But more curious is the turn-coat type of witnesses who claimed to be and often were the polling agents or workers of the appellant till the election was over, but, in the post-election period when the Respondent No. l's party had formed a Government, quietly shifted their loyalty and 11ave evidence in proof of the averments in the petition.\n\nIt is conceivable that these persons who had collaborated with the appellant in the malpractices alleged were possessed of the urge to unburden their bosoms of the truth of their own evil-doing .and hurried into the witness box to swear veraciously to what took place actually.\n\nBut the\n\n(l) [1974] 2 s.c.c. 660.\n\nmore probable explanation would be that these swivel-chair witnesses with India-rubber consciences came under the infinence of Respondent No. 1 for invisible consideration and spoke dubiously in support of their present patron.\" Moreover it seems to us that even on its intrinsic merits the evidence of these two witnesses does not inspire confidence.\n\nThey have only in a general way stated. that they had participated in the procession and that the pamphlet Ext. A-1 was distributed by the appellant and a number of other persons.\n\nThey did not give any details as to whom the pamphlets were distributed and at what place.\n\nSo far as P.W. 27 is concerned he admits that he is an illiterate person and identifies the • pamphlet only by colour and by alphabets.\n\nThis is, however, a very unconvincing identification and it is not safe to act on the same.\n\nP. W. 27 further admits that 8 or 10 clays after the election Sultan had come over to the house of Radhakrishna who had sent for both the P.Ws. 27 & 28 and they were asked to give evidence regarding the work they had clone for the appellant.\n\nThe witness further stated that he accepted the offer and wrote clown something on the paper.\n\nHe also admits that Radhakrishna had helped Sultan the contesting respondent in the elections. It is, therefore, clear that both P.Ws. 27 & 28 were procured by P.W. 35 Radhakrishna who was a supporter of the contesting respondent in the election.\n\nThe witness (P.W. 27) had voluntarily worked for the appellant and appears to have readily accepted the offer of the contesting respondent to depose for him against the appellant without having any sense of decorum or decency and appears to have transferred his loyalty to the contesting respondent.\n\nIn these circumstances, the evidence of P.W. 27 is not worthy of credence.\n\nThe evidence of P.W. 28 also suffers from the same infirmity as that of P.W. 27.\n\nApart from that the evidence of P.W. 28 does not appear to be reliable, because he admits that he was brought to Hyderabad for giving evidence and stayed there for 10 days.\n\nHe further admits that Sultan the contesting respondent was meeting his expenses.\n\nIn these circumstances, therefore, it is clear that the witness was fully tutored and then brought to give evidence for the contesting respondent. In these circumstances w~ do not choose to place any reliance on the evidence of P.Ws. 27 & 28.\n\nThe next witness on the point is P.W. 35 who is undoubtedly an interested witness inasmuch he is a supporter of Sultan who had worked for him in the election and was also his polling and counting agent.\n\nThis witness states. that a procession was taken out by the appellant at Yadiki on February 28, 1972 which was headed by drummers followed by a band set.\n\nHe says in a general manner that the appellant and his workers were distributing the pamphlets.\n\nHe identifies Ext. A-1 as a pamphlet given to him. But in cross-examination at P. 561 of the Paper Book (Vol. III) he clearly admits that the pamphlet was given to him by a worker of the appellant Venkata.\n\nReddy and not by Venkata Reddy himself.\n\nAs the evidence regarding distribution of the pamphlet by the workers has to be excluded from consideration his evidence clearly shows that the appellant himself did not give any pamphlet to him.\n\nThus his evidence does not appear to be of any assistance to the contesting respondent and we fail to understand how the learned Judge has read the\n\nBtatement of this witness as corroborating the evidenc,.· c 1 P.Ws. 27 .and 28 which is the sole ground on which the evidenc. of this witness has been accepted by the learned Judge. It seems to us that the learned Judge has completely overlooked the important admission made by P.W. 35 in his evidence which shatters the case of the contesting respondent regarding distribution of the pamphlet by the appellant to this witness.\n\nThe last witness on the point is P.W. 37.\n\nHe is also an interested witness and bears an animus against the appellant inasmuch as he is said to have filed a complaint against the appellant who is alleged to have beaten him during the election.\n\nIt appears that the police did not register any case on the basis of his complaint and according to the witness the matter is still pending in revision.\n\nThe witness further deposes that he knew the appellant since about 20 to 25 years although he gives his age as only 28 years.\n\nThis demonstrates the utter falsity of his statement.\n\nHe further admits that he was working for Sultan and that the appellant Venkata Reddy saw him working for Sultan even prior to the date when the proces- . sion was taken out at Yadiki.\n\nAccording to the witness, the pamphlet was given to him by the appellant.\n\nIt is difficult to believe that the appellant after having known that the witness was working for \"Sultan would have given such an offensive pamphlet to him and crccte\n\nadverse evidence against him.\n\nLastly, the witness admits at pp. 577- 578 of the Paper Book (Vol. III) that five or six days after the procession was taken out by the appellant Sultan had come to Yadiki and he had told Sultan about the incident.\n\nThus, according to the witness, Sultan came to know about the distribution of the pamphlet Ext. A-1 to the witness near about the end of Fabruarv and vet it is astounding that he did not make any mention of this fact eiiher in paragraph-39 of his petition or even in the material particulars which he gave by virtue of the amendment.\n\nWe have already indicated that the evidence discloses that Sultan was informed long before he filed the election petition that the pamphlet was distributed by the appellant to the named persons who were known to the appellant and yet this fact was not mentioned in the particulars given by the contesting respondent. This conduct clearly shows that the entire story is purely a figment of imagination of the contesting respondent and his supporters and has been bolstered upto unseat the appellant.\n\nFor these reasons, therefore. we are not in a position to place implicit reliance on the testimony of this witness also.\n\nIt would thus appear that\n\nven in Y adiki the contesting respondent co; Jd not get hnlrl r>f any rndependcnt witnes~ to prove the distribution of the pamphlet by the appella1;1t.\n\nAecordmg to the P.Ws. Yadiki is a big village and if a process10n was taken out by the appellant there must have been a\n\nlrge number of persons present in the procession and it is impossible to believe that the appellant could not get hold of a sinle person who was in any way unconnected with him to prove that the pamphlet like Ext. A-1 was distributed to any such person.\n\nBoth \".n the cha_rge. of the offer of bribe as also on the charge of distribu- 1JOn of ob.iecllonable pamphlet the contesting respondent has chosen to examine only those witnesses who are in some way or the other totally interested in the contesting respondent or connected with him.\n\nThus the evidence of the witnesses referred to above does not satisfactorily prove that the appellant had distributed the pamphlet Ext.\n\nA-1 to any body in Yadiki on February 28, 1972 as alleged by the contesting respondent.\n\nThe contesting respondent has, therefore, failed to prove this part of his case.\n\nIn view of this finding it is not necessary to go to the evidence produced by the appellant.\n\nNevertheless R. Ws. 11, 16 and 17 have deposed on oath that no procession was taken out in Yadiki and that no pamphlet like Ext. A-1 was ever distributed by the appellant.\n\nEven if we ignore the evidence of these witnesses, as the contesting respondent has not proved his allegation on this part of the case he must fail.\n\nWe will now deal with the allegation of the contesting respondent regarding distribution of the pamphlet by the appellant in village Gundala on March 5, 1972. On this point the contesting respondent relies on the evidence of P.Ws. 1, 2, 3, 4 and 7.\n\nHere also the evidence of these witnesses is a composite one seeking to prove the distribution of the pamphlet not only by the appellant but also by his workers, and we have got to ignore that part of the evidence which relates to the distribution of the pamphlet by the workers of th~ appellant.\n\nTo begin with, the evidence of P.Ws. l and 3 has been disbelieved by the learned Judge having regard to other items regarding payment of the bribe by the appellant to these witnesses and the Judge has held that they were in the nature of accomplices.\n\nIn this connection the learned Judpe has observed, at pp. 1319-1320 of the Paper Book (Vol. VI) as follows :\n\n\"Since P.Ws. 1 and 3 also say that they had actively helped Venkatareddy in the distribution of the offensive pamphlets, and thus they he:ped the l st respondent in committing a corrupt practice under section 123(3) and Section 123 (3-A) of the Representation of the People Act, even in regard to this corrupt practice, P.Ws. 1 and 3 can either be equated to \"accomplices\" or regarded as person who actively helped Venkatareddy in the commission of a corrupt practice.\n\nTheir evidence, even in this behalf, requires corroboration in material particulars by independent testimony.''\n\nIndeed if this is the character and tenor of these witnesses it would be difficult to place any reliance on the evidence of these witnesses on any point.\n\nFurther more, according to the evidence of these two witnesses they had actively helped the appellant in the election and now they are coming forward against the appellant and in favour '?f the contesting respondent in order to unseat the appellant.\n\nThelf evidence is also of a turn-coat type and therefore tainted.\n\nIn these circumstances no reliance can be placed on the evidence of such witnesses.\n\nHowever. even on merit.;; thev do not aopear to be reliable witnesses.\n\nP.W.1 states that he belongs to Gundala and then ten days prior to the polling the contesting respondent Sultan ha? contacted him in the village and asked him and others to cast telf votes in his favour.\n\nThe witness and others assured the contestmg respondent that they had always been v.oting for the Cong1:ess and they will, therefore. vote for him.\n\nAfter the contestmg respondent had left the village the appellant Venkata Reddy came\n\nto the village in a jeep and he asked the witness and other persons A to vote for him.\n\nBut the witness and other persons explained to the appellant that on earlier occasions all of them had voted for the Congress and so this time too they will do the same.\n\nThereupon the appellant is said to have made an appeal on communal grounds saying that the Congress is always in the habit of giving tickets to the Muslims and not to Hindus and tried to wean them away from the Congress fold.\n\nThere was thus an exchange of words between the B witness and others and ultimately the appellant paid some money to the witness.\n\nThis allegation has been disbelieved by the learned Judge.\n\nTherefore, to start with the very genesis on the basis of which the witness has deposed disappears, and there was no occasion for the appellant to have given any pamphlet to the witness.\n\nThe witness proceeds to state that after the exchange of these talks, the appellant gave the pamphlet to the witness and he took the pamphlets C to village Ammenapalli and gave the pamphlets to the voters of. that village.\n\nWe are, however, not concerned here with the distribution of the pamphlets by the workers of the appellant.\n\nThe witness identifies the pamphlet Ext. A-1 as the one having been given to him.\n\nAccording to the witness the appellant had gone to him ten days before the polling and the witness states thus at p. 125 of the Paper Book (Vol. II) : .\n\n\"It was for the first time that I came to know Venkata Reddi on the day when he visited our village i.e., ten days prior to the polling date.\"\n\nThis would mean that the appellant had contacted the witness on or about February 20, 1972.\n\nBut the definite ease made out by the contesting respondent in his petition is that so far as the village Gun- E dala is concerned the pamphlet was distributed by the appellant on March 5, 1972 i.e. only four days before the polling.\n\nIn these circumstances, therefore the evidence of this witness is falsified by the particulars given by the contesting respondent in his petition and on this ground alone his evidence has to be rejected as being contrary to the pleadings.\n\nFurther more, it appears that the witness is a staunch supporter of the Congress and on his own showing he had F been voting for the Congress in all the elections.\n\nThe witness admits at p. 134 of the Paper Book (Vol. II) that in the previous election also the witness had worked for the Congress. In these circumstances, therefore, the evidence of this witness does not appear to be creditworthy.\n\nThe next witness on the point is P.W. 2 who states that the con- G testing respondent Sultan had visited the locality and had asked him to vote for him.\n\nThereafter the appellant came to his village and was accompanied by P.W. 1.\n\nThe witness states that the appellant Venkata Reddy asked him to vote for the Swatantra Party.\n\nThis knocks the bottom out of the evidence of this witness because it is • nobody's case that the appellant was the candidate sponsored by the Swatantra Party and it is the admitted case that the appellant was H an independent candidate.\n\nThis also reveals the falsity of the story narrated by the witness.\n\nThe witness then states that after having asked the witness to vote for the Swatantra Party the appellant gave\n\nhim a paper which contained the cycle symbol.\n\nOn seeing Ext. A-l the witness identified it as the same paper which was given to him.\n\nThe witness further admits that he is illiterate and it is, therefore, not understandable how he identified the pamphlet Ext. A-1.\n\nThe witness did not show that paper to any body on that day and later on he showed it and got it read over to him and thereafter he decided to vote for the appellant as the Muslims were bad people.\n\nIn fact in an unguarded moment he has aid that he decided to vote for t)le Congress and then changed his statement as appears from the endorsement made by the Court.\n\nIn cross-examination the witness admits that ten days after the elections were over, Sultan had come to his village and asked him why he did not vote for the Congress. Thereupon the witness told him that the appellant Venkata Reddy had distributed the pamphlet and asked him to vote for him.\n\nThe witness further categorically states that he showed the pamphlet given to him by the appellant to Sultan and he was asked by Sultan to preserve !he pamphlet so that it may be used in the Court as and when necessary.\n\nAccording to the witness this event took place only ten d'1ys after the election i.e. some time in the middle of March 1972 and well before the election petition was filed.\n\nIndeed if what the witness says was absolutely true, then Sultan had come in possession of the most damaging evidence against the appellant long before the petition was filed and yet he did not choose to mention this fact either in his petition before amendment or after.\n\nEven the pamphlet was not produced along with the documents as being the pamphlet shown to him by the witness but the appellant rest contented by asking the witness to keep the pamphlet with him.\n\nIt is not at all understandable or intelligible as to why the pamphlet was not produced by the witness when he came to the witness-box for his examination-in-chief and it was left only to the question to be put by the Court after lunch break when the pamphlet was produced.\n\nCould the contesting respondent, having known these facts, take the risk that if the Court did not ask any question then the pamphlet would not be produced bv the witness at all?\n\nAll this, therefore, shows that the evirlencc of this witness is untrue and is a frame-up in order to support the allegation made by the contesting respondent against the appellant.\n\nThis brings us to the evidence of P.W. 3.\n\nThe learned Judge has also seriously commented on the credibility of this witness, so far as other allegations were concerned, and therefore to begin with the evidence of this witness is tainted. Further more, the evidence of this witness is of a turn-coat type because he is said to have worked for the appellant and after the election he deposed for the contesting respondent: P.W. 3 also gives almost a similar story as P.W. I regarding the communal appeal said to have been made by the appellant.\n\nHe also states that the appellant. paid him Rs. 500/- for working and helping him in the election.\n\nThis allegation has been disbelieved by the !.earned Judge.\n\nAnother factor which impairs the credit of this witness is his admission that at the time of the polling he was instrumental in getting the false votes cast.\n\nIn this connection the witness slates at p. 149 of the Paper Book (Vol. II) thus:\n\n\"Boya Nagamma and Venkatappa were residents of my village.\n\nThey were dead before the polling date.\n\nThe\n\nyotes were cast in their names.\n\nMyself and P.W. 1 got the votes cast in their names.\n\nVotes were cast in the names of persons who were not present on the polling date. Myself and P. W. 1 got such votes cast in the names of the villagers who were absent from the village on the polling date.\"\n\nIt would thus appear that the witness was of such low morals and characterless as he went to the extent of getting votes cast in the names of persons who were already dead or who were not at all present at the polling booths.\n\nIt is difficult to place any reliance on the evidence of a witness of such character.\n\nFor these reasons therefore we arc not in a position to place any faith on this witness.\n\nAccording to P.W. 4 Sultan had come to his village in order to solicit votes in his favour and he was accompanied by P.Ws. 1 & 3 and\n\nP.W. 22.\n\nIn the presence of these witnesses Sultan asked the witness to vote in favour of the Congress and he assured Sultan that all the villagers had decided to vote for , the Congress.\n\nIt would thus be seen that when Sultan had gone to the witness's residence P. Ws. l & 3 who had been the workers of the appellant had accompanied the adversary of the appellant even at that time.\n\nThereafter according to the witness when Venkata Reddy came to him and asked him to vote for him. and here also the P.Ws. 1 & 3 had accompanied the appellant.\n\nThis shows the unreliable character of P.Ws. l & 3.\n\nThe witness again narrates the same story that the appellant made a communal appeal to the witness and asked him on ground of religion to vote for him.\n\nThereafter the appellant give him the pamphlet.\n\nIt might be mentioned here that no case has been set out by the contesting respondent either in his petition or in the particulars given by him that the appellant had made any oral appeal of a communal nature to any person either before or after distributing the pamphlet Ext. A-1.\n\nIn these circumstances the evidence of P.Ws. 1 to 4 on the point that the appellant had made an oral appeal cannot be accepted as being contrary to the pleadings and thus the most integral part of the evidence of these witnesses falls to the ground. According to P. W. 4 the pamphlet was given by the appellant to the witness and thereafter he left.\n\nWe find it very difficult to believe that if the appellant was really serious in getting the votes of these persons he would just hand over the pamphlet and go away without trying to explain the purpose and the contents of the pamphlet, partienlarly when he knew that P.W. 5 ana others had their inclination towards the Congress.\n\nIn the first place if he knew that P.W. 4 and other villagers had their inclination towards the Con!!'\"ess and had decided to vote for the Congress, he would not risk giving the pamohlets to such persons at all. and even if he did, it is difficult to believe that he will distribute the pamphlets in such a casual and cavalier manner.\n\nFinally P.W. 4, just like other witnesses, also states that ten days after the elections were over, Sultan had come to his village and he was informed by the witness about the distribution of the offensive pamphlet and ihc oral appeal made on communal grounds made by the appellant and yet we do not find the name of any of these witnesses including P.W. 4 in the petition as being the persons to whom the pamphlets were distributed.\n\nThis appears to be a very substantial ground on which the evidence of these witnesses should\n\nbe rejected, because it proved the intrinsic falsity of the evidence.\n\nThere does not appear to be any earthly reason why, after having been informed by P.Ws. 1 to 4 and others whose case has been discussed above, the contesting respondent would not mention these facts in his election petition when the same came to his knowledge well before filing of his election petition.\n\nThe learned Judge appears to have completely overlooked this aspect of the matter which introduces an intrinsic infirmity in the evidence of the witnesses.\n\nFor these reasons we reject the evidence of P.W. 4.\n\nThe last witness on the point is P.W. 8.\n\nHis evidence is almost identical with that of P.W. 4. According to the witn, ess the contesting respondent Sultan came to the village ten days prior to the date of polling.\n\nThat would be near about February 28, 1972 and asked the witness to vote for the Congress.\n\nThe witness assured the contesting respondent that he would vote for the Congress.\n\nThree days prior to the date of polling the appellant came to the village accompanied by P.Ws. 1 & 3 and the witness informed him that they had decided to vote for the Congress.\n\nThereupon the aopellant again made a communal appeal to them, gave him a pamphlet and walked away.\n\nThus the evidence of this witness also suffers from the very same infirmities which we have pointed out in respect of P.W. 4. At p. 231 of the Paper Book (Vol. II) the witness contradicts himself and states that the appellant merely gave him a pamphlet and asked him to vote for him.\n\nHe did not say anything more.\n\nThus the story of an oral appeal is given a complete go-by in the later part of his evidence.\n\nIt is impossible to believe that the appellant would try to procure the vote of the witness knowing fully well that he had decided to vote for the Congress and quietly parted from the witness after giving him the most damaging evidence against him.\n\nFor these reasons, therefore, we are not in a position to place any reliance on the evidence of P.W. 8.\n\nThis is all the evidence that the contesting respondent has led in proof of the fact that the appellant had personally distributed the pamphlets in the village Gundala on March 5, 1972.\n\nAfter careful consideration of the evidence produced by the contesting respondent we are clearly of the opinion that the evidence is not worthy of credence and the contesting respondent has failed to prove by clear and cogent evidence that the pamphlets were distributed by the appellant personally to any person in Gundala or for that matter to P. Ws. 1, 2, 3, 4 and 8.\n\nIn view of our finding that the evidence led by the contesting respondent on this point is unsatisfactory, it is not necessary for us to refer to the evidence given in rebuttal by the appellant which is necessarily of a negative nature.\n\nThe last limb of the case comprises the alleged distribution of the pamphlet Ext. A-1 by the appellant to persons in village Guntakal on February 22, 1972. P.W. 24 is Thirupathi Rao a registered medical practitioner Guntakal.\n\nTo start with the witness admits that he worked for the Congress. The witness goes on to state that the appellant had come to his dispensary and had asked for his support, but P.W. 24 told him that he belonged to the Congress. and therefore he could not help others. Thereafter the appellant is said to have given him the pamphlct Ext. A-1 and th~ witness-pointed o?t that the pamphlet was very offensive. Thereupon the appellant is said to have made some sort of 1 a communal appeal to the witness and having left the pamphlet with him walked away. The witness has categorically stated that after the oral communal appeal was made by the appellan!:, the witness told him that he saw no difference of religion, caste, creed and that he could not support him. It is impossible to believe that the appellant know!g full well that the witness was an educated person and a Doctor pracusmg at ; Guntakal and not a mere illiterate voter would make any communal appeal to him, much less when he was told in plain terms by the witness that he was a Congress worker. In these circumstances, would the appellant still have given the pamphlet to this witness and created an unim' peachable evidence against him. There is no doubt that the witness is not an independent witness but is an interested one, because not only he was a Congress worker but also acted as a counting agent for Sultan as he admitted in his evidence. Further more, the oral appeal said to have )- been made by the appellant is not at all mentioned in the election petition. Apart from being a Congress worker he held an important position in the CoHgress party being the Vice-President of the Town Congress Committee right from 1967. The witness further admitted that being the Vice-Pres; dent of the Town Congress Committee he was an important member of the Congress arty at Guntakal. The witness further states that when Sultan came to Guntakal he showed the pamphlet to him and this happened even before the date of the polling. In fact he showed the pamphlet to Sultan five or six days before the date of the polling.\n\nIt surpasses our imagination that if an important congressman like P.W. 24 would have informed Sultan four or five days before the polling that an offensive pamphlet like Ext. A-I was given to him by the appellant, the contesting respondent would take it lying down and would t\" refrain from taking any action in the matter. We have already pointed out that Sultan was not of a quiet type of men but had made several complaints to the police officers and it is impossible to believe that if he had known Irr.on such an important source like P.W. 24 that an offensive pamphlet was being distributed during the election he would have taken no action against the appellant by moving the authorities concerned or in informing the police and the congress circles. Far from it he\n\nid not eve~ mention this fact either in his _election petition or in the particulars which he gave thereafter. We fail to understand how the contestin~ respondent could have failed to mention such an important incident in his' pleadings at any stage. This clearly shows that the evidence of P.W. 24 is not correct. The apoellant who appears to be a responsihl~ man would not have been so foolish as to have left in the hands of P.W. 24 the P\"mphlet in ouestion knmving full well his strong views in .t th~ matter.\n\nThe w_itnes_s further admitted that he was deposing to this po•nt for the first lime m the Court and he !pd not told this fact to any one else. How can we believe that P.W. 24 holding such an important post in tl1e Cong1ess oroanisation would have failed to draw the attention • of the authorWes in the Congress Partv regarding the distribution of an <>ffensive pamphlet by the appelfant which mav have seri<>nslv impaired the election J?rospects of the candidate of the Congress. For tliese reasons. therefore. we are not in a position to place any reliance on the evidence of this witness.\n\nThe next witness is P.W. 25. This witness admits that he voted for the O}ngress candidate Sultan and supported his candidature during the election. According to him fifteen days prior to the date of polling he \\ along with Sultan and others were moving in the ward canvassing for votes in favour of Sultan. Eight days prior to the date of polling, which would mean near about th\" !st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram- 1 chandra Gaud who was supporter of the appellant told the witness to help Vcnkata Reddy. The witness, however, explained to them that he had always been supporting the Congress and stood committed to Sultan and therefore he could not support the appellant. Thereafter Ramchandra Gaud threatened the witness that he would destroy the partnership business in which he was a partner if he did not help the appellant.\n\nIn view of the threat given by Ramchandrn Gaud the witness decided to work for the appellant. Thereafter the appellant gave a bundle of pamphlets containing the cycle symbol to be distributed to various persons.\n\nThat is how, according to the witness, the pamphlet came in his possession. In order to prove that he was a worker of the appellant he ,. producd Ext. A-40 which is a polling agent form assigned by the appellant. To begin with this witness also appears to be of a turn-coat type and his evidence is tainted and cannot be accepted without any corroboration. It is difficult to believe the story that it was because of duress that he agreed to work for the appellant because if that was so, then the partnership which is still continuing while the threat remains, the witness would not have dared to depose against the appellant in order to help Sultan and yet he has done it. The witness has clearly admitted that the partnership is still continuing and therefore the danger with which the witness was faced and which made him work for the appellant still continues and it is not understandable how the witness could suddenly change colours.\n\nFurther more the witness admits at p. 474 of the l.\n\nPaper Book (Vol. III) that the appellant had given the pamphlet to the T witness eight days prior to the date of polling which would mean near about February 28 or March 1, 1972, but according to the material particulars given by the contesting respondent in the election petition as amended the date of distribution of the pamphlet at Guntakal is mentioned as February 22,. 1972. Thus the evidence of this witness being contrary to the pleadings must be disregarded. In these circumstances, therefore we are not in a position to place any reliance on the evidence of this type.\n\nThis bring us to the evidence of P.W. 33. We have fullv discussed the evidence of this witness on issue No. 7 on the allegation of bribery and ha'.'C disbelieved him. We have also pointed out that P.W. 33 was a staunch supporter of the contesting respondent and appears to be an omnibus witness so as to support the contesting respondent on all points 1 and suoolv the missing links. The witness states that P.W. 18 and Venr- kata Reddy the appellant went from house to house in the ward soliciting votes. Both these persons came to the house of the witness while he was standing in front of his house. Both of them distributed Pamph- •\n\nlets and went away. The witness being a staunch supporter of the contesting respondent it is most unlikely that the appellant would distribute the pamphlet of all persons, to him. Further more, the witness only deposed in a very general manner that both P.W. 18 and the appellant\n\ngave the pampWet to him.\n\nThe witness admits that he had read the A pamphlet and yet he states that he did not complain to the police that\n\nI the pamphlet may lead to communal trouble, particular.y when the pamphlet was distribnted, according to the witness, abont fourteen or fifteen days prior to the date of polling. The witness further admits that four\n\nor five days prior to the date of polling Sultan had come to Guntakal ad\n\nthe witness had informed him about the pamphlet and yet Sultan also did not mention this fact in the material particulars given in his election B petition after the amendment. For hese reasons therefore, V'.e are satis- • lied that this witness bas merely tned to obl:ge the tontestmg respondent being his intimate friend and staunch supporter.\n\nThe last witness on this point is P.W. 36 Abdul Jabbar. Having regard to the offensive contents of the pamphlet Ext. A-1 it is impossible to believe that the appellant, even as a person of ordinary prudence, c would have distributed the pamphlet to a Muslim and a person who had also worked for Sultan.\n\nBy distributing such a pamphlet to\n\n~ a MUslim he would not only hurt the feelings of such a Muslim but would alienate the entire sympathy of the Muslim community, Only a mad person can do a thing like that or take such a suicidal step.\n\nAccording to this witness, the appellant had come to Guntakal where the witness stayed, gave him the pamphlet and went away. Thus the very short and summary manner in which the appellant handed over the pamphlet and went away clearly shows that the story of the distribution\n\nof the pamphlet by the appellant is a complete myth. According to the witness he was illiterate and he showed the pamphlet to P.W. 24 Thirupati Rao who read it out to him. P.W. 24 does not say that P.W. 36 Abdul Jabbar had come to him with the pamphlet or that he had read out its contents and explained the same to the witness. It was suggested E '\n\nby Mr. Shiv Shankar for the contesting respondent that it is possible that ...- the appellant may not have known th.at the witness was a! Muslim. We are, however, unable to accept this contention because according to the witness he was an Ayurvedic Medical Practitioner and an important person in Guntakal. It is also difficult to believe that the appellant would distribute pamphlets indiscriminately without trying to find out whether the persons to whom the pamphlets were given were Muslims or not.\n\nF P.W. 36 is also a staunch supporter of the contesting respondent. Thus the evidence of this witness does not appear to be worthy of credence.\n\nThus on a consideration of the evidence of the witnesses mentioned above, w~ are satisfied that the contesting respondent has not proved that any pamphlet was distributed by the appellant personally to P.Ws. 24, 25, 33 & 36 in Guntakal or to any other oerson for that matter. In view G of our findi'!g .that the contesting respondent has failed to prove this part .j\n\nof the case 1t 1s not necessary to refer to the evidence led by the appella'!t which is of a negativ.e character. Reference may be made to the i evidence of R.W. 28 who 1s a Labour Leader and whose evidence shows that no such pamphlet was ever distributed by the appellant. The wit- • ness states !hat he is senior stenographer attached to the D.M.O., Southe:n Ra!lway and 1s also the Assistant General Secretary of one of H the ruons of the Ra!lway employees a.t Guntakl. The witness on being sho\\\\n the pamphlet Ext. A-1 empha!Ically derued that any such pamphlet was given to him or was distributed by or ou behalf of the appel-\n\n!ant in the whole of the railway colony which consists ot as many as 6000 to 8000 voters. Indeed if the appellant had distributed the pamphlets with a view to secure votes on communal grounds, he would not have missed to distribute the pamphlets to the voters in the Railway colony \\ and if this was done the witness would have undoubtedly come to know about it. This is undoubtedly an intrinsic circumstance which supports the case of the appellant that no pamphlet of the type of Ext. A-1 was t ever distributed in Guntakal.\n\nApart from this, we may overemphasize even at the risk of repetition that there are two important infirmities appearing in the evidence led by the contesting respondent on the charge of distributing the pamphlet Ext. A-1 at various places which arc sufficient to prove the falsity of the charge. In the first place the evidence of P. Ws. I to 4, 8, 22, 24, 33 and other witnesses discussed above clearly discloses that the contesting respondent had come to know not only during the election but even a few days before polling that such a pamphlet like Ext. A- I was in existence and was also shown to the contesting respondent by the witnesses mentioned above and he was also plainly told that this pamphlet was distributed by the appellant personally. In spite of this neither the contesting respondent mentioned these facts in his petition giving the full details nor in the material particulars nor did he take any action against the appellant by reporting the matter abont the pamphlet to the authorities concerned.\n\nHe did not disclose this fact even to his own Congress organization although this was a matter which on his own showing ruined his election prospects and in all probability the Congress should have been informed about this fact.\n\nMr. Shiv Shankar appearing for the contesting respondent realized the weight of this circumstance which went to falsify the case of the contesting respondent and sucmitted that the inaction on the part of Sultan was due to the fact that he was advised by his lawyers not to take any action in the mat, er. Sultan has no doubt deposed to this effect in his evidence. Indeed if this was a fact then we should have expected that the r.ontesting respondent should have given this explanation in his election petition or should have examined the lawyer who had given him such an advice. Secondly, even if this explanation be accepted there does not appear to be any reason why the contesting respondent should not have mentioned the names of the persons who had told him that an offensive pamphlet had been distributed to them by the appellant, in his petition or in the material particulars when Sultan was definitely informed of those facts.\n\nThese two infirmities, apart from other defects, are sufficient to dislodge the case of the contesting respondent on issue No. 26, and lead us to the inevitable inference that these facts were not true and were clearly an after-thought and had been introduced for the first time in the evidence through the aid and support of purely partisan \\Vitnesses.\n\nLastly it was also urged by Mr. Shiv Shankar learned counsel for the contesting respondent that the evidence of P. W. 11 clearlv shows that the pamphlet in question was in existence during the election.\n\nThe learned Judge has disbelieved the evidence of this witness as bein• based on hearsay. The witness alleges to have received the pamphlet from his wife who was not examined as a witness.\n\nThus the very\n\nsource from which he is said to have got the pamphlet disappears and It. that being an integral part of his evidence we find it extremely unsafe to rely on the evidence of this witness and fully agree with the reasons I given by the learned Judge for disbelieving this witness.\n\nMr. Shiv Shankar learned counsel for the contesting respondent submitted that the evidence shows that pamphlets like Exts. A-70 to A-78 were undoubtedly printed by the contesting respondent and they contain the name of the Printing Press.\n\nHe argued that if the contesting respondent would have printed the pamphlet Ext. A-1 then he would have mentioned the name of the Press.\n\nWe cannot accept this argument because the pamphlet is so offensive in nature that any person who printed the same would never try to disclose publicly the name of the Press lest aCtion in law may be taken against the Press.\n\nIt was then contended that the contesting respondent being a Muslim is not likely to say such offensive and communal things against his own community. This is also a matter of pure speculation. Various persons react to different circumstances in different ways and if a person is motivated or animated by a particular purpose he can go to any length to achieve his end.\n\nTherefore the mere fact that the contesting respondent belonged to the Muslim community cannot by itself exclude the possibility of his having circulated the pamphlet Ext.\n\nA-1 and printing it so as to use it as a powerful instrument against the appellant by putting the blame on him. The contesting respondent undoubtedly owns a Press and if he wanted to do such a thing there was nothing to prevent him from achieving his object.\n\nThese arc speculative matters and in the view we take of the evidence led by the parties in this case, it is not necessary for us to give a clear finding as to who printed the pamphlet in question.\n\nAll that is necessary to be determined in view of the pleadings of the parties was whether the pamphlet in question was printed by the appellant or distributed by him personally.\n\nThe contesting respondent has not adduced any satisfactory evidence on this point whereas the appellant has through his evidence which is of a negative character shown that the probabilities were that the appellant had not distributed this pamphlet Ext.\n\nA-1.\n\nOn a careful consideration of the entire evidence and circumstances of the case, whether we apply the standard of proof by virtue of the benefit of doubt or that of prepondercnce of probabilities the conclusion is inescapable that the contesting respondent has failed to prove his allegations regarding the payment of bribe contained in issue No. 7 and the distribution of the pamphlet by the appellant personally comprised in issue No. 26. The learned Judge in accepting the case of the contesting respondent overlooked certain fundamental features, inherent improbabilities, intrinsic infirmities, the weak and interested nature of the evidence and other facts, which we have fully elaborated in our judgment.\n\nWe, therefore, hold that the appella!lt Venkata Reddy was not guilty of any corrupt practices as alleged by the contesting respondent. In these circumstances we are not in a position to allow the judgment of the High Court to stand.\n\nThe appeal is accordingly allowed and the order of the single Judge declaring the election of the appellant Venkata Reddy void and setting aside the same is hereby quashed.\n\nThe appellant would be entitled to his costs throughout.\n\nV.P.S.\n\nAppeal allowed", "total_entities": 185, "entities": [{"text": "D VENKATA REDDY", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "D VENKATA REDDY", "offset_not_found": false}}, {"text": "R SULTAN & OTHERS", "label": "RESPONDENT", "start_char": 17, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "R SULTAN & OTHERS", "offset_not_found": false}}, {"text": "February 24, 1976", "label": "DATE", "start_char": 36, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "D VENKATA REDDY\n\nR SULTAN & OTHERS\n\nFebruary 24, 1976\n\n(P. K. GOSWAMI ANDS."}}, {"text": "P. K. GOSWAMI ANDS. MURTAzA FAzAL ALI, JJ.", "label": "JUDGE", "start_char": 56, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 101, "end_char": 133, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 81 and 86(5)", "label": "PROVISION", "start_char": 149, "end_char": 165, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 306, "end_char": 314, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "s. 123", "label": "PROVISION", "start_char": 880, "end_char": 886, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "s. 123(3A)", "label": "PROVISION", "start_char": 1086, "end_char": 1096, "source": "regex", "metadata": {"linked_statute_text": "Representation of the People Act", "statute": "Representation of the People Act"}}, {"text": "(1968] 3 S.C.R. 102", "label": "CASE_CITATION", "start_char": 3600, "end_char": 3619, "source": "regex", "metadata": {}}, {"text": "s. 123(4)", "label": "PROVISION", "start_char": 7656, "end_char": 7665, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123(3A)", "label": "PROVISION", "start_char": 7747, "end_char": 7757, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 12714, "end_char": 12722, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 12834, "end_char": 12842, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 15694, "end_char": 15702, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra ' Pradesh High Court", "label": "COURT", "start_char": 16002, "end_char": 16029, "source": "ner", "metadata": {"in_sentence": "(From the judgment and order dated the 25-4-1973 of the Andhra ' Pradesh High Court in Election Petition No."}}, {"text": "P. Basi Reddy", "label": "PETITIONER", "start_char": 16067, "end_char": 16080, "source": "ner", "metadata": {"in_sentence": "4 of 1972)\n\nP. Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs.\n\nVimala Markendeywu, tor the appellant. ··", "canonical_name": "P. Basi Reddy"}}, {"text": "C. Sadasiva Reddy", "label": "LAWYER", "start_char": 16082, "end_char": 16099, "source": "ner", "metadata": {"in_sentence": "4 of 1972)\n\nP. Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs.\n\nVimala Markendeywu, tor the appellant. ··"}}, {"text": "G. Narayana Rao", "label": "LAWYER", "start_char": 16101, "end_char": 16116, "source": "ner", "metadata": {"in_sentence": "4 of 1972)\n\nP. Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs.\n\nVimala Markendeywu, tor the appellant. ··"}}, {"text": "Vimala Markendeywu", "label": "LAWYER", "start_char": 16127, "end_char": 16145, "source": "ner", "metadata": {"in_sentence": "4 of 1972)\n\nP. Basi Reddy, C. Sadasiva Reddy, G. Narayana Rao and Mrs.\n\nVimala Markendeywu, tor the appellant. ··"}}, {"text": "B. Shiv Shankar", "label": "LAWYER", "start_char": 16172, "end_char": 16187, "source": "ner", "metadata": {"in_sentence": "• B. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and K. Ven- B\n\nkata Ramiah, for the respodents."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 16189, "end_char": 16201, "source": "ner", "metadata": {"in_sentence": "• B. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and K. Ven- B\n\nkata Ramiah, for the respodents."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 16208, "end_char": 16221, "source": "ner", "metadata": {"in_sentence": "• B. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and K. Ven- B\n\nkata Ramiah, for the respodents."}}, {"text": "K. Ven- B\n\nkata Ramiah", "label": "LAWYER", "start_char": 16226, "end_char": 16248, "source": "ner", "metadata": {"in_sentence": "• B. Shiv Shankar, A. V. Rangam, Miss A. Subhashini and K. Ven- B\n\nkata Ramiah, for the respodents."}}, {"text": "FAZAL Au", "label": "JUDGE", "start_char": 16315, "end_char": 16323, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL Au, J .-This is an appeal under s. 116A of the Representation uf the People Act, 1951 (hereinafter referred to as \"the Act') by Venkata Reddy who was Respondent No."}}, {"text": "s. 116A", "label": "PROVISION", "start_char": 16353, "end_char": 16360, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation uf the People Act, 1951", "label": "STATUTE", "start_char": 16368, "end_char": 16406, "source": "regex", "metadata": {}}, {"text": "Venkata Reddy", "label": "LAWYER", "start_char": 16449, "end_char": 16462, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL Au, J .-This is an appeal under s. 116A of the Representation uf the People Act, 1951 (hereinafter referred to as \"the Act') by Venkata Reddy who was Respondent No.", "canonical_name": "D VENKATA REDDY"}}, {"text": "Vcnkata Reddy", "label": "PETITIONER", "start_char": 16721, "end_char": 16734, "source": "ner", "metadata": {"in_sentence": "The appellant Vcnkata Reddy, T. Papa Sab and R. Sultan (the election petitioner before the High Court) applied for Congress ticket for the Gooty Assembly Constituency seat.", "canonical_name": "D VENKATA REDDY"}}, {"text": "T. Papa Sab", "label": "PETITIONER", "start_char": 16736, "end_char": 16747, "source": "ner", "metadata": {"in_sentence": "The appellant Vcnkata Reddy, T. Papa Sab and R. Sultan (the election petitioner before the High Court) applied for Congress ticket for the Gooty Assembly Constituency seat.", "canonical_name": "T. Papa Sab"}}, {"text": "R. Sultan", "label": "PETITIONER", "start_char": 16752, "end_char": 16761, "source": "ner", "metadata": {"in_sentence": "The appellant Vcnkata Reddy, T. Papa Sab and R. Sultan (the election petitioner before the High Court) applied for Congress ticket for the Gooty Assembly Constituency seat.", "canonical_name": "R. Sultan"}}, {"text": "District Congress Committee, Anantapur", "label": "ORG", "start_char": 16884, "end_char": 16922, "source": "ner", "metadata": {"in_sentence": "The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did not recommend the name of the appellant."}}, {"text": "R. Sultan", "label": "PETITIONER", "start_char": 16948, "end_char": 16957, "source": "ner", "metadata": {"in_sentence": "The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did not recommend the name of the appellant.", "canonical_name": "R. Sultan"}}, {"text": "Papa Sab", "label": "OTHER_PERSON", "start_char": 16959, "end_char": 16967, "source": "ner", "metadata": {"in_sentence": "The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did not recommend the name of the appellant."}}, {"text": "Ramachandra Goud", "label": "OTHER_PERSON", "start_char": 16972, "end_char": 16988, "source": "ner", "metadata": {"in_sentence": "The District Congress Committee, Anantapur recommended the names of R. Sultan, Papa Sab and Ramachandra Goud but did not recommend the name of the appellant.", "canonical_name": "Ramachandra Goud"}}, {"text": "Andhra Pradesh Provincial Congress Committee", "label": "ORG", "start_char": 17043, "end_char": 17087, "source": "ner", "metadata": {"in_sentence": "The Andhra Pradesh Provincial Congress Committee, however, recommended the name of R. Sultan the first respondent alone."}}, {"text": "R. Sultan", "label": "RESPONDENT", "start_char": 17122, "end_char": 17131, "source": "ner", "metadata": {"in_sentence": "The Andhra Pradesh Provincial Congress Committee, however, recommended the name of R. Sultan the first respondent alone.", "canonical_name": "R. Sultan"}}, {"text": "All India Congress Committee", "label": "ORG", "start_char": 17218, "end_char": 17246, "source": "ner", "metadata": {"in_sentence": "This recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket."}}, {"text": "February 1, 1972", "label": "DATE", "start_char": 17315, "end_char": 17331, "source": "ner", "metadata": {"in_sentence": "This recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket."}}, {"text": "Venkata Reddy", "label": "PETITIONER", "start_char": 17396, "end_char": 17409, "source": "ner", "metadata": {"in_sentence": "This recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket.", "canonical_name": "D VENKATA REDDY"}}, {"text": "T. Papa Sab", "label": "PETITIONER", "start_char": 17411, "end_char": 17422, "source": "ner", "metadata": {"in_sentence": "This recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket.", "canonical_name": "T. Papa Sab"}}, {"text": "Venkata Subbayya", "label": "OTHER_PERSON", "start_char": 17427, "end_char": 17443, "source": "ner", "metadata": {"in_sentence": "This recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket."}}, {"text": "Venkata Naidu", "label": "PETITIONER", "start_char": 17511, "end_char": 17524, "source": "ner", "metadata": {"in_sentence": "This recommendation appears to have been accepted by the All India Congress Committee which gave the Congress ticket to the first respondent R. Sultan on February 1, 1972 as a result thereof the other candidates, namely, the appellant Venkata Reddy, T. Papa Sab and Venkata Subbayya decided to contest the election as independent candidates, whereas Venkata Naidu got the Congress (0) ticket.", "canonical_name": "D VENKATA REDDY"}}, {"text": "March 8, 1972", "label": "DATE", "start_char": 17609, "end_char": 17622, "source": "ner", "metadata": {"in_sentence": "The polling to the aforesaid constituency was held on March 8, 1972 and counting was done on March 12, 1972 on which date the result was also declared."}}, {"text": "March 12, 1972", "label": "DATE", "start_char": 17648, "end_char": 17662, "source": "ner", "metadata": {"in_sentence": "The polling to the aforesaid constituency was held on March 8, 1972 and counting was done on March 12, 1972 on which date the result was also declared."}}, {"text": "R.\n\nSultan Jost", "label": "RESPONDENT", "start_char": 17816, "end_char": 17831, "source": "ner", "metadata": {"in_sentence": "1 R.\n\nSultan Jost by a narrow margin of 471 votes having polled 19,503 votes."}}, {"text": "Anc'hra Pradesh High Court", "label": "COURT", "start_char": 18058, "end_char": 18084, "source": "ner", "metadata": {"in_sentence": "1 R. Sultan filed an .election petitron before the Anc'hra Pradesh High Court on April 20, 1972 which was assigned to Sriramulu, J., who tried the election petition."}}, {"text": "Sriramulu", "label": "JUDGE", "start_char": 18125, "end_char": 18134, "source": "ner", "metadata": {"in_sentence": "1 R. Sultan filed an .election petitron before the Anc'hra Pradesh High Court on April 20, 1972 which was assigned to Sriramulu, J., who tried the election petition."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 18544, "end_char": 18550, "source": "regex", "metadata": {"statute": null}}, {"text": "July 7, 1972", "label": "DATE", "start_char": 19816, "end_char": 19828, "source": "ner", "metadata": {"in_sentence": "he contesting respondent had not given full and material particulars in his ckction petition, the appellant filed an application on July 7, 1972 praying that the Court may direct the contesting respondent to file better particulars by way of amendment."}}, {"text": "Augut 29, 1972", "label": "DATE", "start_char": 20130, "end_char": 20144, "source": "ner", "metadata": {"in_sentence": "The Court directed the contesting respondent to supply fresh particulars and accordingly the contesting respondent filed his application for amendment by incorporating material particulars on Augut 29, 1972."}}, {"text": "P. Basi Reddy", "label": "PETITIONER", "start_char": 20772, "end_char": 20785, "source": "ner", "metadata": {"in_sentence": "Mr. P. Basi Reddy learned counsel for the appellant has assailed before us the findings of the High Court on issues Nos.", "canonical_name": "P. Basi Reddy"}}, {"text": "B.\n\nShiv Sar", "label": "LAWYER", "start_char": 20967, "end_char": 20979, "source": "ner", "metadata": {"in_sentence": "Mr. B.\n\nShiv Sar, kar, learned counsel for the contesting respondent has endeavoured to support the judgment of the High Court by submitting that the findings arrived at by the High Court were based on a correct and proper appreciation of the evidence and the facts and circumstances of the record."}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 21878, "end_char": 21910, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 24608, "end_char": 24640, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Krishna\n\nIyer", "label": "JUDGE", "start_char": 25394, "end_char": 25407, "source": "ner", "metadata": {"in_sentence": "1) Krishna\n\nIyer, J., speaking for the Court most lucidly and aptly observed as follows :\n\n\"An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious clement of uncertainty in the verdict already rendered by the electorate."}}, {"text": "Hidayatullah", "label": "JUDGE", "start_char": 27424, "end_char": 27436, "source": "ner", "metadata": {"in_sentence": "Similarly in Ghasi Ram v. Dal Singh & others(•) while emphasizing the standard of proof in an election case for a corrupt practice of bribery, Hidayatullah, J., as he then was, speaking for the Court observed thus :\n\n\"In Anjaneya Reddy v. Gangi Reddy and other<-21 E.L.R. 247-it was held that the proof required to estahl'sh a corrupt practice must be almost of the character required to establish a criminal charge."}}, {"text": "s. 123(1)", "label": "PROVISION", "start_char": 29581, "end_char": 29590, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Election Committee", "label": "ORG", "start_char": 30564, "end_char": 30590, "source": "ner", "metadata": {"in_sentence": "Alt.hnuoh the n C.C. arl-hnc Congress Committee, Anantapur, had recommended the name of the contesting respondent and others, the Pcovmciat Conrcss Lomm1ttee recommended the name of the contesting respondent alone which was finally accepted by the Central Election Committee at Delhi."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 30684, "end_char": 30693, "source": "ner", "metadata": {"in_sentence": "After having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2, 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper."}}, {"text": "February 2, 1972", "label": "DATE", "start_char": 30697, "end_char": 30713, "source": "ner", "metadata": {"in_sentence": "After having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2, 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper."}}, {"text": "Mustafa", "label": "OTHER_PERSON", "start_char": 30763, "end_char": 30770, "source": "ner", "metadata": {"in_sentence": "After having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2, 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper."}}, {"text": "Guntakal", "label": "GPE", "start_char": 30774, "end_char": 30782, "source": "ner", "metadata": {"in_sentence": "After having been given the Congress ticket the contesting respondent returned to Hyderabad on February 2, 1972 and a day later he was contacted on telephone by Mustafa of Guntakal one of his supporters and had a talk with him regarding the filing of his nomination paper."}}, {"text": "Gooty", "label": "GPE", "start_char": 30941, "end_char": 30946, "source": "ner", "metadata": {"in_sentence": "The contesting respondent told Mustafa that he would be reaching Gooty on February 4, 1972, for filing his nomination papers for the Gooty Assembly constituency and that Mustafa also should reach Gooty on the morning of February 4, 1972."}}, {"text": "February 4, 1972", "label": "DATE", "start_char": 31292, "end_char": 31308, "source": "ner", "metadata": {"in_sentence": "In the first place it was the definite case of the contesting respondent that his visit to Gooty on February 4, 1972, was for the purpose of filing his nomination papers, but it appears from the evidence that he did not file his nomination on this date but some time later."}}, {"text": "Nabi Saheb", "label": "WITNESS", "start_char": 31581, "end_char": 31591, "source": "ner", "metadata": {"in_sentence": "Secondly during his talk with Mustafa on the telephone the contesting respondent did not ask him to bring P.W. 29 Nabi Saheb and P.W. 33 Chinna Bhemanna with him to Gooty."}}, {"text": "Chinna Bhemanna", "label": "WITNESS", "start_char": 31604, "end_char": 31619, "source": "ner", "metadata": {"in_sentence": "Secondly during his talk with Mustafa on the telephone the contesting respondent did not ask him to bring P.W. 29 Nabi Saheb and P.W. 33 Chinna Bhemanna with him to Gooty."}}, {"text": "Mustafa", "label": "WITNESS", "start_char": 33603, "end_char": 33610, "source": "ner", "metadata": {"in_sentence": "29 & 33 narrated the entire incident to P.W. 34 Mustafa and P.W. 22 Rama- ."}}, {"text": "Rama- . chandraiah", "label": "WITNESS", "start_char": 33623, "end_char": 33641, "source": "ner", "metadata": {"in_sentence": "29 & 33 narrated the entire incident to P.W. 34 Mustafa and P.W. 22 Rama- ."}}, {"text": "Central Election Committee, Delhi", "label": "ORG", "start_char": 34331, "end_char": 34364, "source": "ner", "metadata": {"in_sentence": "This stage starts with the decision of the Central Election Committee, Delhi, in giving the Congress ticket to the conte, ting rcs,, cmdent and as consequence thereof his arrival at Hyderabad on Febru ary 2, 1972."}}, {"text": "Ramachandraiah", "label": "WITNESS", "start_char": 35518, "end_char": 35532, "source": "ner", "metadata": {"in_sentence": "P.W. 22 Ramachandraiah says that he did not go to the Taluk office because of ill health and P. W. 34 Mustafa says that he did not go as he had some work at the Railway Station."}}, {"text": "February 4,\n\n1972", "label": "DATE", "start_char": 36762, "end_char": 36779, "source": "ner", "metadata": {"in_sentence": "This taken together with the fact that P.W. 22 had given a lame excuse for not having accompanied the contesting respondent to the Taluk office clearly throws a considerable amount of suspicion on the presence of P.W. 22 at Gooty on February 4,\n\n1972."}}, {"text": "Taluk office", "label": "ORG", "start_char": 36898, "end_char": 36910, "source": "ner", "metadata": {"in_sentence": "Similarly, while P.W. 34 Mustafa gives a specific reason whv he had not accompanied the contesting respondent to the Taluk office."}}, {"text": "Mnstafa", "label": "WITNESS", "start_char": 38239, "end_char": 38246, "source": "ner", "metadata": {"in_sentence": "29 and 33 have aiso said that they were asked by P. W. 34 Mnstafa to accompany him to Gooty in order to meet the contestmg respondent."}}, {"text": "Saheb", "label": "WITNESS", "start_char": 38984, "end_char": 38989, "source": "ner", "metadata": {"in_sentence": "P.W. 29 Nab1 Saheb appears to be one of the mo't interested witnesses and a great friend and supporter-of the contesting respondent."}}, {"text": "February 3, 1972", "label": "DATE", "start_char": 39316, "end_char": 39332, "source": "ner", "metadata": {"in_sentence": "He then says that Mustafa approached h, m on February 3, 1972 and requested him and PW."}}, {"text": "Ch.nna Bhemanna", "label": "WITNESS", "start_char": 39362, "end_char": 39377, "source": "ner", "metadata": {"in_sentence": "33 Ch.nna Bhemanna to accompany him to Gooty."}}, {"text": "Khah Hussain", "label": "OTHER_PERSON", "start_char": 39590, "end_char": 39602, "source": "ner", "metadata": {"in_sentence": "A suggestion was given by the appellant that his younger brother Khah Hussain was godown ke-oper oi the B.S.S. at Guntakal and he was arrested on the charge of selling goods and that the contesting respondent Sultan had helped him."}}, {"text": "Sultan", "label": "RESPONDENT", "start_char": 39734, "end_char": 39740, "source": "ner", "metadata": {"in_sentence": "A suggestion was given by the appellant that his younger brother Khah Hussain was godown ke-oper oi the B.S.S. at Guntakal and he was arrested on the charge of selling goods and that the contesting respondent Sultan had helped him.", "canonical_name": "Sultan"}}, {"text": "Sultan", "label": "RESPONDENT", "start_char": 40011, "end_char": 40017, "source": "ner", "metadata": {"in_sentence": "He, however, denied the suggestion that Sultan helped his bro- ther.", "canonical_name": "Sultan"}}, {"text": "Sultan", "label": "WITNESS", "start_char": 40068, "end_char": 40074, "source": "ner", "metadata": {"in_sentence": "It is, however, admitted by Sultan P.W. 16 at p. 307 of the Paper Book (Vol."}}, {"text": "Ramachandra", "label": "WITNESS", "start_char": 40981, "end_char": 40992, "source": "ner", "metadata": {"in_sentence": "The witness further stated that he acconinanied the contesting resoondent to the Taluk office but P.W. 33 Ramachandra; ah stayed beh; nd as."}}, {"text": "Chinna Bheemanna", "label": "WITNESS", "start_char": 41448, "end_char": 41464, "source": "ner", "metadata": {"in_sentence": "The witness as also P.W. 33 Chinna Bheemanna A told the appellant that Sultan the contesting respondent did not rcqu, re the money, when the appellant repeated the offer which was aga.n refused."}}, {"text": "Sunkauna", "label": "OTHER_PERSON", "start_char": 45327, "end_char": 45335, "source": "ner", "metadata": {"in_sentence": "III) that he tried to procure the evidence of one Sunkauna for the contesting respondent in this respect.", "canonical_name": "Sunkauna"}}, {"text": "Sunkanna", "label": "OTHER_PERSON", "start_char": 45426, "end_char": 45434, "source": "ner", "metadata": {"in_sentence": "The witness deposed thus :\n\n\"Sultan asked Sunkanna to come and give evidence in this case.", "canonical_name": "Sunkauna"}}, {"text": "B.S.S.", "label": "ORG", "start_char": 45833, "end_char": 45839, "source": "ner", "metadata": {"in_sentence": "The witness further admits that he was a member of the B.S.S. and therefore a colleague of Sultan."}}, {"text": "s. 123(1)", "label": "PROVISION", "start_char": 49224, "end_char": 49233, "source": "regex", "metadata": {"statute": null}}, {"text": "Taluk Office", "label": "ORG", "start_char": 50949, "end_char": 50961, "source": "ner", "metadata": {"in_sentence": "From the evidence of the witnesses as also that of Sultan the contesting respondent it is clear that Sultan did not at all go to the Taluk Office for the purpose of filing his nomination papers but had only applied for a copy of the voters list : For this purpose the presence of P.Ws."}}, {"text": "K. Suryanarayana Reddi", "label": "OTHER_PERSON", "start_char": 53006, "end_char": 53028, "source": "ner", "metadata": {"in_sentence": "It would appear from his evidence that the appellant held, at the instance of one K. Suryanarayana Reddi, filed a complaint against the contesting respondent for cheating and that the contesting respondent had filed a petition in the High Court for quashing the investigation in pursuance of the complaint.", "canonical_name": "K. Suryanarayana Reddi"}}, {"text": "Suryanarayana Reddi", "label": "OTHER_PERSON", "start_char": 53302, "end_char": 53321, "source": "ner", "metadata": {"in_sentence": "He further stated that he had also filed a criminal complaint against Suryanarayana Reddi in Jhe Magistrate's Court at Gooty and P.Ws.", "canonical_name": "K. Suryanarayana Reddi"}}, {"text": "Jhe Magistrate's Court at Gooty", "label": "COURT", "start_char": 53325, "end_char": 53356, "source": "ner", "metadata": {"in_sentence": "He further stated that he had also filed a criminal complaint against Suryanarayana Reddi in Jhe Magistrate's Court at Gooty and P.Ws."}}, {"text": "Anantapur", "label": "GPE", "start_char": 53654, "end_char": 53663, "source": "ner", "metadata": {"in_sentence": "Further more, P.W. 16 narrates an incident at the Travellers Bungalow at Anantapur which happened before the general elections of 1972 in the presence of Challa Subbarayudu, where again the appellant seems to have requested him not to contest the elections."}}, {"text": "Challa Subbarayudu", "label": "OTHER_PERSON", "start_char": 53735, "end_char": 53753, "source": "ner", "metadata": {"in_sentence": "Further more, P.W. 16 narrates an incident at the Travellers Bungalow at Anantapur which happened before the general elections of 1972 in the presence of Challa Subbarayudu, where again the appellant seems to have requested him not to contest the elections."}}, {"text": "February 8, 1972", "label": "DATE", "start_char": 55371, "end_char": 55387, "source": "ner", "metadata": {"in_sentence": "According to the evidence the last date for filing nomination papers was February 8, 1972 and for withdrawal was February 11, 1972."}}, {"text": "February 11, 1972", "label": "DATE", "start_char": 55411, "end_char": 55428, "source": "ner", "metadata": {"in_sentence": "According to the evidence the last date for filing nomination papers was February 8, 1972 and for withdrawal was February 11, 1972."}}, {"text": "February 7, 1972", "label": "DATE", "start_char": 55968, "end_char": 55984, "source": "ner", "metadata": {"in_sentence": "February 7, 1972 or February 8, 1972, so that no chance was given to any party to sponsor any other candidate."}}, {"text": "District Congress Committee at Anantapur", "label": "ORG", "start_char": 57770, "end_char": 57810, "source": "ner", "metadata": {"in_sentence": "The fact that no such report or information was sent to the District Congress Committee at Anantapur, or any where else, throws a mountain of cloud of suspicion and doubt on the version put forward by the contesting respondent."}}, {"text": "Gutty Taluk", "label": "GPE", "start_char": 58663, "end_char": 58674, "source": "ner", "metadata": {"in_sentence": "For these reasons, therefore, we find ourselves unable to agree with the learned Judge that the offer of bribe at Gutty Taluk\n\nOffice as alleged by P.W. 16 and P.Ws."}}, {"text": "Mustata", "label": "WITNESS", "start_char": 59257, "end_char": 59264, "source": "ner", "metadata": {"in_sentence": "22 Ramachandraiah and P.W. 34 Mustata there."}}, {"text": "B.S.S. Office", "label": "ORG", "start_char": 59500, "end_char": 59513, "source": "ner", "metadata": {"in_sentence": "According to P.W. 16, however, when he arrived at the B.S.S. Office after his visit to the Taluk Office P.Ws 22 and 34 asked him as to what is the news, and insteaq of replying to them P.Ws 29 & 33 narrated the incident which happened at the Taluk Office, namely, the offer of the bribe."}}, {"text": "February 4, l 972", "label": "DATE", "start_char": 61575, "end_char": 61592, "source": "ner", "metadata": {"in_sentence": "Otherwise we do not see any earthly reason why P.W. 34 Mustafa who was playing a leading part in the drama enacted on February 4, l 972 and who was responsible for getting the programme from the contesting respondent and collecting his other friends at Gooty should not have accompanied the contesting respondent to the Taluk Office in order to help him in getting the forms and stayed away on the lame excuse that ."}}, {"text": "B.S.S. office", "label": "ORG", "start_char": 62713, "end_char": 62726, "source": "ner", "metadata": {"in_sentence": "Apart from this there does not appear to be any object for keeping these two persons at the B.S.S. office."}}, {"text": "Brim Stone Rubber Products Ltd.", "label": "ORG", "start_char": 63437, "end_char": 63468, "source": "ner", "metadata": {"in_sentence": "Sultan was the Managing Director of Brim Stone Rubber Products Ltd. The witness was a partner of the firm which had the sole agency for the products of the aforesaid firm."}}, {"text": "s. 16, 29 & 33", "label": "PROVISION", "start_char": 64705, "end_char": 64719, "source": "regex", "metadata": {"statute": null}}, {"text": "15th or 16th of March, 1972", "label": "DATE", "start_char": 65783, "end_char": 65810, "source": "ner", "metadata": {"in_sentence": "II) that on 15th or 16th of March, 1972 the Returning Officer had suggested to the contesting rspondent to file an e_Jection petition if he was defeated and since then the witness was making enquiries to collect material for filing an election petition."}}, {"text": "5th or 6th of March,· 1972", "label": "DATE", "start_char": 66444, "end_char": 66470, "source": "ner", "metadata": {"in_sentence": "II) that in respect of the threats said to have been administered by the appellant on 5th or 6th of March,· 1972, he had D drawn the attention of the police-officer and had contacted the Deputy Superintendent of Police of Guntakal."}}, {"text": "Gooty", "label": "OTHER_PERSON", "start_char": 66705, "end_char": 66710, "source": "ner", "metadata": {"in_sentence": "Indeed if the contesting respondent was so vigilant would he not have drawn the attention of any police officer of Gooty to the offer of bribe made by the appellant or the threats or challenge thrown by him to the contesting respondent ?"}}, {"text": "section 123", "label": "PROVISION", "start_char": 69690, "end_char": 69701, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 69715, "end_char": 69747, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "20-2-1.972", "label": "DATE", "start_char": 69776, "end_char": 69786, "source": "ner", "metadata": {"in_sentence": "26 and 27 may be extracted thus :\n\n(26) \"Whether the 1st respondent (the appellant) committed a corrupt practice under section 123 (3-A) of the Representation of the People Act by issuing a pamphlet dated 20-2-1.972 to create ill-feelings among the voters on religious D grounds and if so, has it materially affected the result of the election of the petitioner as stated in para 39 of the Election , Petition ?''"}}, {"text": "Basi Reddy", "label": "OTHER_PERSON", "start_char": 70874, "end_char": 70884, "source": "ner", "metadata": {"in_sentence": "We have adverted to this aspect of the matter because Mr. Basi Reddy for the appellant has vehemently contended before us that no foundation has been laid by the contesting respondent in his election petition regarding the distribution of the vamphlets by the workers and agents of the appellant as indicated in item (2) supra."}}, {"text": "20-2-72", "label": "DATE", "start_char": 72983, "end_char": 72990, "source": "ner", "metadata": {"in_sentence": "The petitioner states that /st 1espondent (the appellant) issued a pamphlet dated 20-2-72 for the furtherance of his election prospects and the pamphlet issued and distributed among the voters throughout the Gooty Assembly Constituency has caused lot of set back and it created illfeelings among the voters on religious grounds."}}, {"text": "Section\n\n81", "label": "PROVISION", "start_char": 74662, "end_char": 74673, "source": "regex", "metadata": {"statute": null}}, {"text": "section 100", "label": "PROVISION", "start_char": 74980, "end_char": 74991, "source": "regex", "metadata": {"statute": null}}, {"text": "section 101", "label": "PROVISION", "start_char": 74996, "end_char": 75007, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86(5)", "label": "PROVISION", "start_char": 75517, "end_char": 75525, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 75697, "end_char": 75702, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 75893, "end_char": 75898, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 86", "label": "PROVISION", "start_char": 77248, "end_char": 77253, "source": "regex", "metadata": {"statute": null}}, {"text": "Shiv Shankar", "label": "OTHER_PERSON", "start_char": 81599, "end_char": 81611, "source": "ner", "metadata": {"in_sentence": "In these circumstances, therefore, we are not in a position to agree with the interpretation sought to be placed by Mr. Shiv Shankar learned counsel for the contesting respondent on the pleadings of the contesting respondent which in fact is not borne out by the allegations mentioned in paragraph-39 as extracted above."}}, {"text": "s. 86", "label": "PROVISION", "start_char": 82652, "end_char": 82657, "source": "regex", "metadata": {"statute": null}}, {"text": "April 20, 1972", "label": "DATE", "start_char": 83802, "end_char": 83816, "source": "ner", "metadata": {"in_sentence": "The election petition was filed before the High Court on April 20, 1972 i.e. about a month and a few days after the results of the election were announced."}}, {"text": "March 15, 1972", "label": "DATE", "start_char": 84023, "end_char": 84037, "source": "ner", "metadata": {"in_sentence": "II) that as far back as March 15, 1972 he had started making enauiries and collcting materials for filing the election petition."}}, {"text": "Ravindra Choudhary", "label": "OTHER_PERSON", "start_char": 84179, "end_char": 84197, "source": "ner", "metadata": {"in_sentence": "The witness stated thus :\n\n\"All this talk metween Ravindra Choudhary and myself took place at about 3-00 P.M. at the Gutti Bus-Stand on 15th or 16th of March 1972."}}, {"text": "15th or 16th of March 1972", "label": "DATE", "start_char": 84265, "end_char": 84291, "source": "ner", "metadata": {"in_sentence": "The witness stated thus :\n\n\"All this talk metween Ravindra Choudhary and myself took place at about 3-00 P.M. at the Gutti Bus-Stand on 15th or 16th of March 1972."}}, {"text": "April 22, 1972", "label": "DATE", "start_char": 86697, "end_char": 86711, "source": "ner", "metadata": {"in_sentence": "Continning the historical background of the election petition the position is that two <lays after the election petition was filed the High Court closed for vacation on April 22, 1972 and re-opened on June 10, 1972."}}, {"text": "June 10, 1972", "label": "DATE", "start_char": 86729, "end_char": 86742, "source": "ner", "metadata": {"in_sentence": "Continning the historical background of the election petition the position is that two <lays after the election petition was filed the High Court closed for vacation on April 22, 1972 and re-opened on June 10, 1972."}}, {"text": "July 27, 1972", "label": "DATE", "start_char": 87042, "end_char": 87055, "source": "ner", "metadata": {"in_sentence": "Strangely enough it was the appellant who filed an appEca- G -tion on July 27, 1972, i.e. after about a month and a half later, wherein he prayed to the Court that the contesting respondent may be directed to file better particulars of the corrupt practice alleged by him."}}, {"text": "s. 123", "label": "PROVISION", "start_char": 89973, "end_char": 89979, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 123", "label": "PROVISION", "start_char": 90642, "end_char": 90648, "source": "regex", "metadata": {"statute": null}}, {"text": "Yadiki", "label": "GPE", "start_char": 96156, "end_char": 96162, "source": "ner", "metadata": {"in_sentence": "By virtue of the application for amendment filed by the contesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many as 26 villages but at the trial the contesting respondent had adduced evidence only to show that the pamphlet was distributed by the appellant to various persons on various dates at four places, namely, Gooty, Yadiki, Gundala and Guntakal."}}, {"text": "Gundala", "label": "GPE", "start_char": 96164, "end_char": 96171, "source": "ner", "metadata": {"in_sentence": "By virtue of the application for amendment filed by the contesting respondent and allowed by the Court a schedule has been annexed giving the names of the villages and the dates of distribution of the pamphlet which mentions as many as 26 villages but at the trial the contesting respondent had adduced evidence only to show that the pamphlet was distributed by the appellant to various persons on various dates at four places, namely, Gooty, Yadiki, Gundala and Guntakal."}}, {"text": "Gooty", "label": "WITNESS", "start_char": 96732, "end_char": 96737, "source": "ner", "metadata": {"in_sentence": "Name of Date Persons to whom Evidence Village pamphlet distributed of witnesses Gooty 27-2-72 P.Ws 21 & 22 By P. Ws 21 & 22 R.Ws."}}, {"text": "Yadiki", "label": "WITNESS", "start_char": 96805, "end_char": 96811, "source": "ner", "metadata": {"in_sentence": "Yadiki 28-~-72 P.Ws.- 27, 28, 35, By P.Ws."}}, {"text": "Gundala", "label": "WITNESS", "start_char": 96907, "end_char": 96914, "source": "ner", "metadata": {"in_sentence": "12, 13,16, 17 & 32\n\nGundala 5-3-72 P.Ws 1, 2, 3, 4, By P.Ws."}}, {"text": "Guntakal", "label": "WITNESS", "start_char": 97000, "end_char": 97008, "source": "ner", "metadata": {"in_sentence": "24, 25, Guntakal By P.Ws."}}, {"text": "Baraktullah Khan", "label": "OTHER_PERSON", "start_char": 98013, "end_char": 98029, "source": "ner", "metadata": {"in_sentence": "For example, Mr. Baraktullah Khan is made Chief Minister in Rajasthan and Mr. Mohd."}}, {"text": "Rajasthan", "label": "GPE", "start_char": 98056, "end_char": 98065, "source": "ner", "metadata": {"in_sentence": "For example, Mr. Baraktullah Khan is made Chief Minister in Rajasthan and Mr. Mohd."}}, {"text": "Mohd.\n\nIsmail", "label": "LAWYER", "start_char": 98074, "end_char": 98087, "source": "ner", "metadata": {"in_sentence": "For example, Mr. Baraktullah Khan is made Chief Minister in Rajasthan and Mr. Mohd."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 98113, "end_char": 98127, "source": "ner", "metadata": {"in_sentence": "Ismail who is not well known in Andhra Pradesh is made the President of the Congress in the State."}}, {"text": "Ismail", "label": "OTHER_PERSON", "start_char": 98249, "end_char": 98255, "source": "ner", "metadata": {"in_sentence": "The said Ismail in order to give representation and importance to his Mnslim religion, has given in our State nearly 20 seats to Muslims."}}, {"text": "Pakistan", "label": "GPE", "start_char": 98441, "end_char": 98449, "source": "ner", "metadata": {"in_sentence": "Is it not atrocities of Pakistan, horrible incidents of Bangla Dcsb, murders of Navakhali an insult to the Hindu race and religion for e\\1er ?\""}}, {"text": "Bangla Dcsb", "label": "OTHER_PERSON", "start_char": 98473, "end_char": 98484, "source": "ner", "metadata": {"in_sentence": "Is it not atrocities of Pakistan, horrible incidents of Bangla Dcsb, murders of Navakhali an insult to the Hindu race and religion for e\\1er ?\""}}, {"text": "Navakhali", "label": "OTHER_PERSON", "start_char": 98497, "end_char": 98506, "source": "ner", "metadata": {"in_sentence": "Is it not atrocities of Pakistan, horrible incidents of Bangla Dcsb, murders of Navakhali an insult to the Hindu race and religion for e\\1er ?\""}}, {"text": "Kulleyappa", "label": "WITNESS", "start_char": 101107, "end_char": 101117, "source": "ner", "metadata": {"in_sentence": "The evidence of P.W. 21 need not detain us because the learned Judge has disbelieved the evidence of this witness and hs observed as follows : C \"In my opinion, the evidence of Kulleyappa (P.W. 21) is not trustworthy."}}, {"text": "Brim Stone Rubber Products", "label": "ORG", "start_char": 102051, "end_char": 102077, "source": "ner", "metadata": {"in_sentence": "It woulJ appear that P.W. 22 was not only a supporter of the Congress and of the contesting respondent but was also employed by Sultan in the B.S.S.\n\nHe acted as the counting agent of Sultan and was a partner in a firm wilich was the sole agent on Brim Stone Rubber Products a company belonging to Sultan."}}, {"text": "Y. Ramachaodraiah", "label": "PETITIONER", "start_char": 102597, "end_char": 102614, "source": "ner", "metadata": {"in_sentence": "Y. Ramachaodraiah\n\nwas also a business partner and an employee of the B.S.S.\n\nG (Bharat Sevak Samaj)."}}, {"text": "B.S.S.\n\nG (Bharat Sevak Samaj", "label": "ORG", "start_char": 102667, "end_char": 102696, "source": "ner", "metadata": {"in_sentence": "Y. Ramachaodraiah\n\nwas also a business partner and an employee of the B.S.S.\n\nG (Bharat Sevak Samaj)."}}, {"text": "February 27, 1972", "label": "DATE", "start_char": 103138, "end_char": 103155, "source": "ner", "metadata": {"in_sentence": "on Sunday February 27, 1972 and requested him to help the appellant."}}, {"text": "Venkatareddy", "label": "PETITIONER", "start_char": 104700, "end_char": 104712, "source": "ner", "metadata": {"in_sentence": "Lastly the witness states thus : D \"On that evening I went to Guntakal, met Sultan and narrated to him what all had transpired between Venkatareddy and myself.", "canonical_name": "D VENKATA REDDY"}}, {"text": "Kona Venkala Reduy", "label": "OTHER_PERSON", "start_char": 108068, "end_char": 108086, "source": "ner", "metadata": {"in_sentence": "R.W. 15 is a certified clerk of Shri Kona Venkala Reduy, Advocate of Gooty and was a worke_r of the appellant."}}, {"text": "February 28, 1972", "label": "DATE", "start_char": 112578, "end_char": 112595, "source": "ner", "metadata": {"in_sentence": "27, 28, 35 and 37 to prove-( 1) that a procession was taken out by the appellant in Yadiki on February 28, 1972; and (2) that the appellant personally distributed the pamphlet to various persons in the course of the procession, So far as the appellant is concerned he has denied that he ever took out any procession in Yadiki on February 28, 1972."}}, {"text": "February\n\n28, 1972", "label": "DATE", "start_char": 113578, "end_char": 113596, "source": "ner", "metadata": {"in_sentence": "Assuming that he did, the sole question is whether the appellant personally distributed any pamphlet to any body at Yadiki on February\n\n28, 1972 as alleged by the contesting respondent."}}, {"text": "VenkataredJy", "label": "PETITIONER", "start_char": 114558, "end_char": 114570, "source": "ner", "metadata": {"in_sentence": "Even, while considering the evidence of these two witnesses on this point, the learned Judge observed thus :\n\n\"Since there were discrepancies in the matter of talking of the terms and the place where they were talked over, and the person before whom such terms were talked over, I held that it was unsafe to include the salaries of those persons in the return of election expenses filed by VenkataredJy, i.e. Ext.", "canonical_name": "D VENKATA REDDY"}}, {"text": "D. Vankatareddy", "label": "RESPONDENT", "start_char": 114678, "end_char": 114693, "source": "ner", "metadata": {"in_sentence": "Though P.W. 27 and P.W. 28 did not prove that they were appointed by the 1st respondent, D. Vankatareddy, for the purposes of writing on the walJs of various villages on behalf of respondent No. !.\""}}, {"text": "Radhakrishna", "label": "OTHER_PERSON", "start_char": 117637, "end_char": 117649, "source": "ner", "metadata": {"in_sentence": "P. W. 27 further admits that 8 or 10 clays after the election Sultan had come over to the house of Radhakrishna who had sent for both the P.Ws."}}, {"text": "Radhakrishna", "label": "WITNESS", "start_char": 118044, "end_char": 118056, "source": "ner", "metadata": {"in_sentence": "27 & 28 were procured by P.W. 35 Radhakrishna who was a supporter of the contesting respondent in the election."}}, {"text": "Venkata", "label": "PETITIONER", "start_char": 119737, "end_char": 119744, "source": "ner", "metadata": {"in_sentence": "III) he clearly admits that the pamphlet was given to him by a worker of the appellant Venkata.", "canonical_name": "D VENKATA REDDY"}}, {"text": "Reddy", "label": "OTHER_PERSON", "start_char": 119747, "end_char": 119752, "source": "ner", "metadata": {"in_sentence": "Reddy and not by Venkata Reddy himself."}}, {"text": "Venkata Reddy", "label": "PETITIONER", "start_char": 119764, "end_char": 119777, "source": "ner", "metadata": {"in_sentence": "Reddy and not by Venkata Reddy himself.", "canonical_name": "D VENKATA REDDY"}}, {"text": "Sultan", "label": "PETITIONER", "start_char": 121751, "end_char": 121757, "source": "ner", "metadata": {"in_sentence": "III) that five or six days after the procession was taken out by the appellant Sultan had come to Yadiki and he had told Sultan about the incident.", "canonical_name": "Sultan"}}, {"text": "Fabruarv", "label": "OTHER_PERSON", "start_char": 121958, "end_char": 121966, "source": "ner", "metadata": {"in_sentence": "A-1 to the witness near about the end of Fabruarv and vet it is astounding that he did not make any mention of this fact eiiher in paragraph-39 of his petition or even in the material particulars which he gave by virtue of the amendment."}}, {"text": "March 5, 1972", "label": "DATE", "start_char": 124488, "end_char": 124501, "source": "ner", "metadata": {"in_sentence": "We will now deal with the allegation of the contesting respondent regarding distribution of the pamphlet by the appellant in village Gundala on March 5, 1972."}}, {"text": "section 123(3)", "label": "PROVISION", "start_char": 125455, "end_char": 125469, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 123", "label": "PROVISION", "start_char": 125474, "end_char": 125485, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 125499, "end_char": 125531, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ammenapalli", "label": "GPE", "start_char": 127928, "end_char": 127939, "source": "ner", "metadata": {"in_sentence": "The witness proceeds to state that after the exchange of these talks, the appellant gave the pamphlet to the witness and he took the pamphlets C to village Ammenapalli and gave the pamphlets to the voters of."}}, {"text": "Venkata Reddi", "label": "PETITIONER", "start_char": 128389, "end_char": 128402, "source": "ner", "metadata": {"in_sentence": "\"It was for the first time that I came to know Venkata Reddi on the day when he visited our village i.e., ten days prior to the polling date.\"", "canonical_name": "D VENKATA REDDY"}}, {"text": "February 20, 1972", "label": "DATE", "start_char": 128559, "end_char": 128576, "source": "ner", "metadata": {"in_sentence": "This would mean that the appellant had contacted the witness on or about February 20, 1972."}}, {"text": "Swatantra Party", "label": "ORG", "start_char": 129762, "end_char": 129777, "source": "ner", "metadata": {"in_sentence": "The witness states that the appellant Venkata Reddy asked him to vote for the Swatantra Party."}}, {"text": "Boya Nagamma", "label": "PETITIONER", "start_char": 133578, "end_char": 133590, "source": "ner", "metadata": {"in_sentence": "II) thus:\n\n\"Boya Nagamma and Venkatappa were residents of my village."}}, {"text": "Venkatappa", "label": "PETITIONER", "start_char": 133595, "end_char": 133605, "source": "ner", "metadata": {"in_sentence": "II) thus:\n\n\"Boya Nagamma and Venkatappa were residents of my village.", "canonical_name": "D VENKATA REDDY"}}, {"text": "Myself", "label": "PETITIONER", "start_char": 133716, "end_char": 133722, "source": "ner", "metadata": {"in_sentence": "Myself and P.W. 1 got the votes cast in their names."}}, {"text": "Thirupathi Rao", "label": "WITNESS", "start_char": 140135, "end_char": 140149, "source": "ner", "metadata": {"in_sentence": "P.W. 24 is Thirupathi Rao a registered medical practitioner Guntakal."}}, {"text": "Guntakal", "label": "OTHER_PERSON", "start_char": 141085, "end_char": 141093, "source": "ner", "metadata": {"in_sentence": "It is impossible to believe that the appellant know!g full well that the witness was an educated person and a Doctor pracusmg at ; Guntakal and not a mere illiterate voter would make any communal appeal to him, much less when he was told in plain terms by the witness that he was a Congress worker."}}, {"text": "Vankata Reddy", "label": "PETITIONER", "start_char": 144566, "end_char": 144579, "source": "ner", "metadata": {"in_sentence": "st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram- 1 chandra Gaud who was supporter of the appellant told the witness to help Vcnkata Reddy."}}, {"text": "chandra Gaud", "label": "WITNESS", "start_char": 144652, "end_char": 144664, "source": "ner", "metadata": {"in_sentence": "st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram- 1 chandra Gaud who was supporter of the appellant told the witness to help Vcnkata Reddy."}}, {"text": "Vcnkata Reddy", "label": "PETITIONER", "start_char": 144725, "end_char": 144738, "source": "ner", "metadata": {"in_sentence": "st March the appellant Vankata Reddy along with others came to the house of the witness in a jeep and Ram- 1 chandra Gaud who was supporter of the appellant told the witness to help Vcnkata Reddy.", "canonical_name": "D VENKATA REDDY"}}, {"text": "Ramchandra Gaud", "label": "OTHER_PERSON", "start_char": 144919, "end_char": 144934, "source": "ner", "metadata": {"in_sentence": "Thereafter Ramchandra Gaud threatened the witness that he would destroy the partnership business in which he was a partner if he did not help the appellant.", "canonical_name": "Ramachandra Goud"}}, {"text": "Ramchandrn Gaud", "label": "OTHER_PERSON", "start_char": 145097, "end_char": 145112, "source": "ner", "metadata": {"in_sentence": "In view of the threat given by Ramchandrn Gaud the witness decided to work for the appellant.", "canonical_name": "Ramachandra Goud"}}, {"text": "February 28 or March 1, 1972", "label": "DATE", "start_char": 146423, "end_char": 146451, "source": "ner", "metadata": {"in_sentence": "III) that the appellant had given the pamphlet to the T witness eight days prior to the date of polling which would mean near about February 28 or March 1, 1972, but according to the material particulars given by the contesting respondent in the election petition as amended the date of distribution of the pamphlet at Guntakal is mentioned as February 22,."}}, {"text": "February 22,. 1972", "label": "DATE", "start_char": 146635, "end_char": 146653, "source": "ner", "metadata": {"in_sentence": "III) that the appellant had given the pamphlet to the T witness eight days prior to the date of polling which would mean near about February 28 or March 1, 1972, but according to the material particulars given by the contesting respondent in the election petition as amended the date of distribution of the pamphlet at Guntakal is mentioned as February 22,."}}, {"text": "Venr- kata Reddy", "label": "WITNESS", "start_char": 147274, "end_char": 147290, "source": "ner", "metadata": {"in_sentence": "The witness states that P.W. 18 and Venr- kata Reddy the appellant went from house to house in the ward soliciting votes."}}, {"text": "Abdul Jabbar", "label": "WITNESS", "start_char": 148593, "end_char": 148605, "source": "ner", "metadata": {"in_sentence": "The last witness on this point is P.W. 36 Abdul Jabbar."}}, {"text": "Thirupati Rao", "label": "WITNESS", "start_char": 149503, "end_char": 149516, "source": "ner", "metadata": {"in_sentence": "According to the witness he was illiterate and he showed the pamphlet to P.W. 24 Thirupati Rao who read it out to him."}}]}
{"document_id": "1976_3_493_496_EN", "year": 1976, "text": "PANDURANG DNYANOBA LAD v.\n\nDADA RAMA METHE & ORS.\n\nFebruary 24, 1976\n\n[Y, V. CHANDRACHUD, V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]\n\nBombay Tenancy & Agricultural Lands Act 1948-Section 320(6)-32(0) -Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955-\n\nSecs. 6. 7, 8 9. 28-Whether on abolition of Inams the relationship of landlord and tenant comes to an end-Whether tenants right to purchase land under tenancy act affected by abolition act.\n\nThe appellant owned a land which was held for the perfonnance of mis\n\ncellaneous inferior services and was classified as a Huzur Sanadi Inam land.\n\nC The respondents were in possession of the land as tenants and were declared as purchasers under the Bombay Tenancy & Agricultural Lands Act, 1948.\n\nThe Tenancy Act provides by section 32 that on 1st April, 1957, every tenant subject to certain conditions shall be deemed to have purchased from . his landlord the land held by him as a tenant. The Bombay Legislature passed\n\nthe Bombay Merged Territories Miscellaneous Alienations Abolition Act of\n\n1955. The appellant contended that in view of the provisions of the Abolition Act, the relationship of landlord and tenant came to an end between the appelJant and the respondents and that, therefore, respondents have no right D to purchase the land. The contention of the appellant was negatived by the AJrricultural Lands Tribunal which was confirmed in appeal by the Special Deputy Collector and in revision by the Maharashtra Revenue Tribunal. A wril petition filed by the appellant in the High Court of Bombay was summarily dismissed.\n\nDismissing the appeal by Special Leave,\n\nHELD : 1. By section 4 of the Abolition Act, all alienations in the Merged E Territories were abolished with effect from the appointed date. Sections 6, 7, 8 and 9 of the Abolition Act provide for the grant of occupancy rights ln respect of the erstwhile lnam Lands. There is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex~Inamdar\n\nand his tenant would stand eXtinguished.\n\nOn the contrary, section 28 provides that nothing contained in the Act shall in any way be deemed to effect the application of any of the provisions of the Tenancy Act to any alienated land or the mutual rights and obligations of a landlord and his tenants_ save in so F far a.11 the said provisions are in any way inconsistent with the express provisions of the Act. The provisions of the Tenancy Act contained in section 32 are in no way inconsistent with any of the express provisions of the Abolition Act. [495-A, B.C, & DJ\n\n2. Section 32(0) of the Tenancy Act applies only to tenancies created after the tiller's day.\n\n[495E]\n\n3. The object of the Abolition Act was the elimination of Tnamdan es G intermediaries and not the eviction of the tillers of the soil. [495GJ\n\n4. Section 32G(6) of the Tenancy Act shows that nothing contained in the Aholition Act can affect the tenant's right of purchase under sectian 32, even if anv land is regranted to the holder under the Abolition Act on condition that_ it was not transferable.\n\n[496A-BJ\n\nClVIJ. APPELLATE JURISDICTION : Civil Appea:l No. 475 of 1973.\n\n(Appeal by Special Leave from the Judgment and Order dated the 26-4-1972 of the Bombay High Court in Special Civil Application No. 165 of 1972)\n\n\\ 7 -L522 SCI/76\n\nA S. B. Wad and M. S. Ganesh. for the appellant.\n\nP. H. Parekh, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nCIIANDRACHUD, J.\n\nThe appellant owned a land, Survey No. 72, at Shiroli in the district of Kolhapur.\n\nThe land was held by the appellant for the performance of miscellaneous inferior services and was classified as a Huzur Sanadi Inam land. Respondents have been in possession of a portion of the land as tenants and wrc declared as purchasers under the Bombay Tenancy and Agricultural Lands Act, LXVH of 1948, (hereinafter called the Tenancy Act). Consequent upon the declaration, the Agricultural Lands Tribunal, Hatkanagale, fixed the price of the land under section 32G of the Tenancy Act.\n\nThat decision was confirmed in appeal by the Special Deputy Co!lector, Kulhapur. and in revision by the Maharashtra Revenue Tribunal. The appellant filed a petition in the Bombay High Court under article 227 of the Constitution to challenge the decision of the Revenue Tribunal but that petition was dismissed summarily by a learned Single Judge.\n\nThis appeal by special leave is directed against the order of the High Court.\n\nThe Teuancy Act provides by section 32 that on April 1, 1957, called the \"tillers day\", every tenant shall, subject to certain conditions, be deemed to have purchased from bis landlord the land held by him as a tenant.\n\nSection 32G requires the Agricultural Land Tribunal to determine the purchase price of the land in accordance with a statutory formula.\n\nThe dispute before us is not as regards the arithmetic of the price fixation but as regards whether the respondents are qualified at all to purchase the land under section 32 of the Tenancy Act. The right of a tenant to opt for a compulsory purchase of the agricultural land held by him is no longer open to constitutional doubt or difficulty.\n\nBut, the respondents' right to purchase the land is questioned by the appellant on the ground that they ceased to be tenants and have therefore no right of purchase.\n\nThis plea is founded on the orovisions of the Bombay Merged Territorie& Miscellaneous Alienations A9olition Act, XXII of 1955 (hereinafter caueu tne Alienat10ns Abolition Act). It is argued that with the abolition of Inams effected under that Act, the old relationship of landlord and tenant between the appellant and respondents came to an end, that with the re-grant of occupancy rights to the appellant a new relationship of landlord and tenant came into existence between 01cm and since the respondents did not exercise their right to repurchase the land withi,1 the period prescribed by section 32-0 of th'' Tenancy Act, they have forfeited that right.\n\nAccording to the appellant, the provision$ of the Tenancy Act and the Alienations Abolition Act are in a material respect inconsistent and the inconsistency has to be resolved by giving precedence to the latter Act.\n\n_The mrit of thee contentio_n_s depends upon the validity of the basic premise that with the abolil!on of Inams which the Alienations Abolition Act brought about, the relationship of landlord and tenant\n\n' I\n\nP. D. LAD v. D. R. METHE (Chandrachud, J.) 4 95\n\nbetween the appellant and the respondents came to an end.\n\nWe see no warrant for this premise.\n\nBy section 4 of the Alienations Abolition Act, all alienatlons in the merged territories were abolished with effect from the ppomted date.\n\nAs a result of the aboh!ion of Inams effected by sectlun 4, all alienated iands became liable under section 5 to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code, 1879.\n\nSections 6, 7, 8 and 9 of the Alienations Abolition Act provide for the grant of occupancy rights in respect of the erstwhile Inam lands.\n\nThere is no provision in that Act by virtue of which the relationship of landlord and tenant between the ex- Inamdar and his tenant would stand extinguished.\n\nOn the contrary, section 28 provides that nothing contained in the Act shall in any way be deemed to affect the application of any of the provisions of the Tenancy Act to any alienated land or, \"the mutual rights and obligations of a landlord and his tenants save in so far as the said provisions are not in any way inconsistent with the express provisions of this Act\".\n\nNone of the provisions of the Tenancy Act, particularly the provision contained in section 32 of the Tenancy Act under which tenants became entitled to purchase the lands held by them in that capacity on the tillers' day, is in any way inconsistent with any of the express provisions of the Alienations Abolition Act.\n\nSection 32 of the Tenancy Act must therefore govern the rights of the ex-Inamdar and his tenants notwithstanding the abolition of the lnams brought about by the Alienations Abolition Act.\n\nSince the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act, they are entitled to purchase the land under section 32.\n\nConsequently, it was competent to the Agricultura1 Lands Tribnnal to commence the price fixation proceedings under section 32G of the Tenancy Act.\n\nSection 32-0 of the Tenancy Act applies only to tenancies created atfer the tillers' day. It provides that in respect of such tenancies, a tenant desirous of exercising the right of purchase must give an intimation to the landlord and the Tribunal within one year f; om the commencement of his tenancy.\n\nAs observed by us, the relationship of landlord and tenant between the appellant and respondents did not come to an end on the introduction of the Alienations Abolition Act nor indeed is there any legal justification for the theory that on the cesser of that relationship a new relationship of landlord and tenant came into existence between the parties so as to attract the application of section 32-0. The object of the Alienations Abolition Act was \"to abolish . . . . alienations of miscellaneous character prevailing in the merged territories\", that is to say, to abolish the Jnam grants prevailing irt those territories.\n\nThe elimination of Inamdars as . intermediaries, not the eiction of the tillers of the soil, was the\n\nb1ect of ipat Act.\n\nBy se?ll?n 1 what was abolished was all alienat10ns, all nhts le)!ally subs1stmg m respect of alienations and all other\n\nincdent~ of such alienations; A_ tenancy created by an Inamdar is not a nht m respect of t?e ahenat1on nor an incident of the alienation.\n\nIn simple words, all nghts of the Inamdars stood determined on the\n\nintroduction of the Alienations Abolition Act; the rights of tenants continued to exist and were expressly protected by section 28 of the Alienations Abolition Act.\n\nThe provision contained in section 32G(6) of the Tenancy Act shows that nothing contained in the Alienations Abolition Act can affect the tenant's right of purchase under section 32.\n\nSection 32G ( 6) provides that if any land is re-granted to the holder under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III of the Tenancy Act on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding the land on lease created before the re-grant and such person shall. as a tenant, be deemed to have purchased the land under section 326 as if the condition that it was not transferable was not the condition of re-grant.\n\nThe Alienations Abolition Act is included in Schedule III of the Tenancy Act as item No. 21. Thus, even if the land. after the abolition of the Inam effected under the Alienations Abolition Act, was re-granted to the appellant on condition that it was not transferable, such a cqndition cannot affect the right of the respondent to purchase the land under section 32 and 32G of the Tenancy Act.\n\nIn other words, the statutory purchase of a land by a tenant under the provisions of the Tenancy Act is excepted from the restraint of nontransferability. It is undisputed that the respondents were holding the land on a lease created before theoccupancy rights were re-granted to the appellant on the abolition of the Inam.\n\nThe quetions _raised before us on behalf of the appellant merited careful cons1derat10n and we would have been happy to have the benefit of a considered judgment by the High Court.\n\nBut the Revenue\n\nTribunl was. !ight in its dcision and so the summary dismissal of\n\nhe. Wnt Petition by the High Court has not caused any failure of 1ustice.\n\nIn the result, the appeal fails and is dismissed.\n\nWe are thankful to Shri Parekh for assisting us in the case as amicus.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 59, "entities": [{"text": "PANDURANG DNYANOBA LAD", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "PANDURANG DNYANOBA LAD", "offset_not_found": false}}, {"text": "DADA RAMA METHE & ORS", "label": "RESPONDENT", "start_char": 27, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "DADA RAMA METHE & ORS", "offset_not_found": false}}, {"text": "February 24, 1976", "label": "DATE", "start_char": 51, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "February 24, 1976\n\n[Y, V. CHANDRACHUD, V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]"}}, {"text": "V. CHANDRACHUD", "label": "JUDGE", "start_char": 74, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 90, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ.", "label": "JUDGE", "start_char": 113, "end_char": 129, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Agricultural Lands Act 1948", "label": "STATUTE", "start_char": 149, "end_char": 176, "source": "regex", "metadata": {}}, {"text": "Section 320(6)", "label": "PROVISION", "start_char": 177, "end_char": 191, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act 1948", "statute": "Agricultural Lands Act 1948"}}, {"text": "Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955", "label": "STATUTE", "start_char": 199, "end_char": 270, "source": "regex", "metadata": {}}, {"text": "Agricultural Lands Act, 1948", "label": "STATUTE", "start_char": 731, "end_char": 759, "source": "regex", "metadata": {}}, {"text": "section 32", "label": "PROVISION", "start_char": 790, "end_char": 800, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act, 1948", "statute": "Agricultural Lands Act, 1948"}}, {"text": "1st April, 1957", "label": "DATE", "start_char": 809, "end_char": 824, "source": "ner", "metadata": {"in_sentence": "The Tenancy Act provides by section 32 that on 1st April, 1957, every tenant subject to certain conditions shall be deemed to have purchased from ."}}, {"text": "AJrricultural Lands Tribunal", "label": "COURT", "start_char": 1366, "end_char": 1394, "source": "ner", "metadata": {"in_sentence": "The contention of the appellant was negatived by the AJrricultural Lands Tribunal which was confirmed in appeal by the Special Deputy Collector and in revision by the Maharashtra Revenue Tribunal."}}, {"text": "Maharashtra Revenue Tribunal", "label": "COURT", "start_char": 1480, "end_char": 1508, "source": "ner", "metadata": {"in_sentence": "The contention of the appellant was negatived by the AJrricultural Lands Tribunal which was confirmed in appeal by the Special Deputy Collector and in revision by the Maharashtra Revenue Tribunal."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 1556, "end_char": 1576, "source": "ner", "metadata": {"in_sentence": "A wril petition filed by the appellant in the High Court of Bombay was summarily dismissed."}}, {"text": "section 4", "label": "PROVISION", "start_char": 1657, "end_char": 1666, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Lands Act, 1948", "statute": "Agricultural Lands Act, 1948"}}, {"text": "Sections 6, 7, 8 and 9", "label": "PROVISION", "start_char": 1785, "end_char": 1807, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 2087, "end_char": 2097, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 2485, "end_char": 2495, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32(0)", "label": "PROVISION", "start_char": 2602, "end_char": 2615, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32G(6)", "label": "PROVISION", "start_char": 2848, "end_char": 2862, "source": "regex", "metadata": {"statute": null}}, {"text": "A S. B. Wad", "label": "LAWYER", "start_char": 3342, "end_char": 3353, "source": "ner", "metadata": {"in_sentence": "165 of 1972)\n\n\\ 7 -L522 SCI/76\n\nA S. B. Wad and M. S. Ganesh."}}, {"text": "M. S. Ganesh", "label": "LAWYER", "start_char": 3358, "end_char": 3370, "source": "ner", "metadata": {"in_sentence": "165 of 1972)\n\n\\ 7 -L522 SCI/76\n\nA S. B. Wad and M. S. Ganesh."}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 3392, "end_char": 3404, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh, for the respondent."}}, {"text": "CIIANDRACHUD", "label": "JUDGE", "start_char": 3471, "end_char": 3483, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCIIANDRACHUD, J.\n\nThe appellant owned a land, Survey No."}}, {"text": "Shiroli", "label": "GPE", "start_char": 3535, "end_char": 3542, "source": "ner", "metadata": {"in_sentence": "72, at Shiroli in the district of Kolhapur."}}, {"text": "Kolhapur", "label": "GPE", "start_char": 3562, "end_char": 3570, "source": "ner", "metadata": {"in_sentence": "72, at Shiroli in the district of Kolhapur."}}, {"text": "Agricultural Lands Tribunal, Hatkanagale", "label": "COURT", "start_char": 3956, "end_char": 3996, "source": "ner", "metadata": {"in_sentence": "Consequent upon the declaration, the Agricultural Lands Tribunal, Hatkanagale, fixed the price of the land under section 32G of the Tenancy Act."}}, {"text": "section 32G", "label": "PROVISION", "start_char": 4032, "end_char": 4043, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 4237, "end_char": 4254, "source": "ner", "metadata": {"in_sentence": "The appellant filed a petition in the Bombay High Court under article 227 of the Constitution to challenge the decision of the Revenue Tribunal but that petition was dismissed summarily by a learned Single Judge."}}, {"text": "article 227", "label": "PROVISION", "start_char": 4261, "end_char": 4272, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 4520, "end_char": 4530, "source": "regex", "metadata": {"statute": null}}, {"text": "April 1, 1957", "label": "DATE", "start_char": 4539, "end_char": 4552, "source": "ner", "metadata": {"in_sentence": "The Teuancy Act provides by section 32 that on April 1, 1957, called the \"tillers day\", every tenant shall, subject to certain conditions, be deemed to have purchased from bis landlord the land held by him as a tenant."}}, {"text": "Section 32G", "label": "PROVISION", "start_char": 4712, "end_char": 4723, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 5013, "end_char": 5023, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 5953, "end_char": 5963, "source": "regex", "metadata": {"statute": null}}, {"text": "Inams which the Alienations Abolition Act", "label": "STATUTE", "start_char": 6343, "end_char": 6384, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 6594, "end_char": 6603, "source": "regex", "metadata": {"linked_statute_text": "Inams which the Alienations Abolition Act", "statute": "Inams which the Alienations Abolition Act"}}, {"text": "section 5", "label": "PROVISION", "start_char": 6831, "end_char": 6840, "source": "regex", "metadata": {"linked_statute_text": "Inams which the Alienations Abolition Act", "statute": "Inams which the Alienations Abolition Act"}}, {"text": "Bombay Land Revenue Code, 1879", "label": "STATUTE", "start_char": 6913, "end_char": 6943, "source": "regex", "metadata": {}}, {"text": "Sections 6, 7, 8 and 9", "label": "PROVISION", "start_char": 6946, "end_char": 6968, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "section 28", "label": "PROVISION", "start_char": 7261, "end_char": 7271, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Land Revenue Code, 1879", "statute": "the Bombay Land Revenue Code, 1879"}}, {"text": "None of the provisions of the Tenancy Act", "label": "STATUTE", "start_char": 7616, "end_char": 7657, "source": "regex", "metadata": {}}, {"text": "section 32", "label": "PROVISION", "start_char": 7699, "end_char": 7709, "source": "regex", "metadata": {"linked_statute_text": "None of the provisions of the Tenancy Act", "statute": "None of the provisions of the Tenancy Act"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 7935, "end_char": 7945, "source": "regex", "metadata": {"linked_statute_text": "None of the provisions of the Tenancy Act", "statute": "None of the provisions of the Tenancy Act"}}, {"text": "section 32", "label": "PROVISION", "start_char": 8290, "end_char": 8300, "source": "regex", "metadata": {"linked_statute_text": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act", "statute": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act"}}, {"text": "Agricultura1 Lands Tribnnal", "label": "ORG", "start_char": 8341, "end_char": 8368, "source": "ner", "metadata": {"in_sentence": "Consequently, it was competent to the Agricultura1 Lands Tribnnal to commence the price fixation proceedings under section 32G of the Tenancy Act."}}, {"text": "section 32G", "label": "PROVISION", "start_char": 8418, "end_char": 8429, "source": "regex", "metadata": {"linked_statute_text": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act", "statute": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 8451, "end_char": 8461, "source": "regex", "metadata": {"linked_statute_text": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act", "statute": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act"}}, {"text": "section 32", "label": "PROVISION", "start_char": 9145, "end_char": 9155, "source": "regex", "metadata": {"linked_statute_text": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act", "statute": "Since the respondents did not cease to be tenants of the appellant on the introduction of the Alienations Abolition Act"}}, {"text": "section 28", "label": "PROVISION", "start_char": 9953, "end_char": 9963, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32G(6)", "label": "PROVISION", "start_char": 10026, "end_char": 10040, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 10170, "end_char": 10180, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 32G", "label": "PROVISION", "start_char": 10183, "end_char": 10194, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 10332, "end_char": 10344, "source": "regex", "metadata": {"statute": null}}, {"text": "section 326", "label": "PROVISION", "start_char": 10609, "end_char": 10620, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule III", "label": "PROVISION", "start_char": 10751, "end_char": 10763, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32 and 32G", "label": "PROVISION", "start_char": 11062, "end_char": 11080, "source": "regex", "metadata": {"statute": null}}, {"text": "Parekh", "label": "OTHER_PERSON", "start_char": 11843, "end_char": 11849, "source": "ner", "metadata": {"in_sentence": "We are thankful to Shri Parekh for assisting us in the case as amicus."}}]}
{"document_id": "1976_3_497_503_EN", "year": 1976, "text": "BAJRANG LAL & ANR. v.\n\nSTATE OF RAJASTHAN\n\nFebruary 24, 1976\n\n[R. S. SARKARIA AND P. N. SHINGHAL, JJ.]\n\n4~7\n\nPrevention of Corruption Act (2 of 1947), s. 5(1)(d) and (2J, and Indian Penal Code (Act 45 of 1860), s. 21, Ninth-Railway Khalasis associated in the work of issuing passes to Railway employees-If 'public servants'.\n\nTwo khalasis were convicted for the offence of conspiracy to secure railway passes on forged applications, and under s. 5(1)(d} and (2), Prevention of Corruption Act, 1947.\n\nIt was the duty of the office of the Works Manager of the Railway to issue passes to railway employees for railway travc; l.\n\nThe two 'khalasi,<; were not formally appointed to work in the Pass section, but C their services were actually utilised in the office for issuing passes.\n\nIn appeal to this Court it was contended on behalf of the khalasis, inter alia, y that they are not public servants.\n\nDismissing the appeal, HELD : (I) Section 21. Ninth, l.P.C., as it stood at the reievant time included in the definition of 'public servant' every officer in the service or pay , of t, he Government. The tests for determining whether a person is an officer D of the Government. are: (a) whether he is in the service or pay of the Government: and (b) Whether he is entrusted with the performance of any public duty whether of an exalted or humble character. [500G501B1\n\nIn the present case. the two khalasis were actually allowed to deal with the preparation and issuance of railway passes. and as such, were in fact, performing public duties and dicharging public functions auxiliary to those of the Work-; Manager-who is an officer of the Government-and his office.\n\nThey were. therefore, in actual possession of the situation of a public servant E and in view of Explanation II to s. 21, l.P.C .• would be 'public servants'.\n\nThey were. therefore. rightly convicted under s. 5(1)(d) and (2), Prevention of Corruption Act. [501E-G]\n\nG. A. Monterio v. State of Aimer [19561 S.C.R. 682, followed.\n\nCRIMINAL\n\nAPPELLATE JURISDICTION : Criminal Appeal No. 198 of 1971.\n\nAppeal by special leave from the iuMment and order date the 27th July, 1971 of the Rajasthan High Court at Jodhpur in Criminal Appeal No. 666 of 1969.\n\nA. N. Mulla, S. K. Mehta and M. Qamaruddin, for the appellant.\n\nSubhag Mal Jain, for the respondent.\n\nThe Judgment of the Court was delivered by G\n\nSARKARIA, J.\n\nThis appeal by special leave is directed against a judgment of the High Court of Rajasthan. It arises out of these facts :\n\nThere is an office of the Works Manager, Northern Railway at Bikaner.\n\nAmong others, the duty of this office is to issue Railway Passes to the Railway emDloyees and their dependent family members for railway travel.\n\nSita Ram and Ganesh Ram were at the relevant time April 11, 1963 working as Pass Clerks in the office of the\n\nWorks Manager.\n\nBairancr T al and Ram Kishan, though posted as Khalasis in the Railway Carriage Shop, were associated with the work of issuing passes in the ottice ul the Works Manager. The office used to receive applications from Railway employees of the different sections under the Works Manager duly forwarded by the Foreman Incharge of the respective sections for issue of the Railway passes. It was the duty of the office hands to check the correctness of the application and the genuineness of the signatures of the forwarding officers before preparing the passes in the Railway Pass Books maintained by them.\n\nAfter checking, preparing and initialling the passes they were put to the Works Manager. If the passes were meant for a local line, they were put to the Chief Clerk of the Works Manager's office for signature.\n\nThereafter, it was the duty of the Clerks to send the passes to the concerned sections with acknowledgement slips, and the Foreman of the section was expected to pass them on to the applicants concerned.\n\nAccording to the prosecution case, during this period from December 23, 1961 and April 11, 1963, Bajrang Lal, Ram Kishan, Sita Ram an.d Ganesh Ram, all hatched a conspiracy for securing passes on forged applications.\n\nThe scheme, as untolded at the trial was that false and forged applications were prepared in collaboration by Bajrang Lal and Ram Kishan with the object of causing wrongful loss to the Railway.\n\nThe prosecution has brought material on the record to show that 15 forged applications were prepared by them to secure such passes.\n\nEx. P-46 is one of such applications prepared in the name of one Narain (P.W. 6). It is admittedly in the hand of Ram Kishan, appellant. It bears the endorsement purporting to be under the signature of the forwarding officer, Kishan (P.W. 20). The signature on this forwarding endorsement is in the hand of Bajrang Lal.\n\nThe passes Exts. P-4 7 and P-48 were prepared by Ram Kishan.\n\nThey were checked by Sita Ram.\n\nRam Kishan prepared the acknowledgement receipt in respect of the passes, Exts. P-47, and P-48, on Ext. P-140 to show that they had. been delivered to the persons in whose names they were prepared. ·\n\nSimilarly, the forged application, Ext. P-78, was prepared by Bajrang Lal, while the Pass, Ext. P-79, in respect thereof was prepared by Ram Kishan.\n\nThe slip Ext. P-140 containing an entry about tlie pass Ext. P-79 was prepared by Ram Kishan.\n\nThe application Ext. P-87 was written by Bajran!( Lt>!, while the acknowledgement receipt Ex. P-88 in the slip Ex. P-140 was prepared by Ram Kishan.\n\nRam Kishan also prepared the false acknowledgement receipt, Ex. P-76, and the acknowledgement receipt in respect of Pass No. 812080 in the slip, Ex. P-140.\n\nOn the preceding facts, Sita Ram, Ganesh Ram, Bajrang Lal and Ram Kishan were tried in respect of offences under ss. 120B. 420, 465, 471, Penal Code and under s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act, 194 7, by the Special Judge.\n\nSita Ram and Ganesh Ram were acquitted of all the charges. Bajrang\n\n' I I\n\nBAJRANG LAL v. RAJASTHAN (Sarkatia, J.) 499\n\nLal and Ram Kishan were convicted on charges under ss. 420, 468 and 471, Penal Code and sentenced to one year's rigorous imprisonment and a fine of Rs. 200/- each on each of these counts.\n\nThey were further convicted under s. 120B, Penal Code and sentenced to 6 months' rigorous imprisonment, each.\n\nThey were. also convited under s. 5(1) (d) read withs. 5(2) ofthe Prevention of Corruption Act and sentenced to one year's rigorous imprisonment and a fine of Rs. WO/-, each. It was not thought necessary to record a separate conv1c!Ion under s. 465, Penal Code.\n\nThe sentences on all the counts were directed to run concurrently.\n\nOn appeal by the convicts, the High Court set aside their conviction under ss. 420, 468 and 471, Penal Code.\n\nIt, however, maintained their conviction and sentence in respect of the offence under s. l 20B,\n\nPenal Code and s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act.\n\nIt further altered the conviction of the appellant under s. 468/471, Penal Code to one under s. 465, Penal Code and reduced the sentence on this count to six months' rigorous imprisonment with a fine of Rs. 200/- only.\n\nHence this appeal by the convicts, Bajrang Lal and Ram Kishan.\n\nBajrang Lal has since died.\n\nRam Kishan's appeal only survives for decision.\n\nThe first contention of Shri A. N. Mulla appearing for the appellants is, that Ram Kishan and Bajrang Lal were not 'public servants' within the definition of the term in s. 21, Penal Code. It is urged that the High Court was wrong in assuming that at the relevant time every person in the service or pay of the Government was a 'public servant' within the meaning of clause (10) of s. 21, Penal Code.\n\nSub-Clause (a) of clause (10) of s. 21, it is pointed out, was introduced by the Amending Act 40 of 1964 and not by Act 2 of l 9S8 referred to by the High Court in its judgment. In the alternative, it is submitted that clause (9) of s. 21 a1so, as it stood at the relevant time, did not cover the case of. the appellants, Ram Kishan and Bajrang Lal, because they were mere khalasis or menial servants and not \"officers in the service or pay of the Government\", within the contemplation of that clause.\n\nWe are unable to accept these contentions.\n\nTrue, that the High Court has wrongly referred to the Amending Act of 1958.\n\nThe relevant period is from December 23, 1961 to April 11, 1963.\n\nGause (9) of s. 21 as it stood at that time, was as follows :\n\n\"Ninth.-Every officer whose duty it is, as sach officer to take, receive, keep, or expend any property on behalf of the Government or to make any survey, assessment, or contract on behalf of the Government or to execute any revenue-process, or to investigate, or to report, on any matter affecting_ the . pecuniary interest of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the !nfraction of any law for the protection of the pecuniary mterests of the Government and every officer in the service\n\nor pay of the Government or remunerated by fees or commission for the performance of any public duty.\"\n\nThe question, is whether the appellants, Ram Kishan and Bajrang Lal, were \"officers in the service or pay of the Government\" within the meaning of this clause 'I The term 'officer' has not been defined by the Code.\n\nMr. Mulla contends that the appellants were not \"officers\" withiO the contemplation of this clause, because-( a) they were mere Khalasis and, as such, were not exercising any delegated function of the Government, and (b) they were never appointed to P\"form\n\nany public duty in the office of the Works Manager.\n\nIn this connection. reference has been made to Reg v.\n\nRamajivrao( 1) and N/zamuddin v. E. ( 2).\n\nIn Ramajivrao's case (supra), the Bombay High Court held that the word 'officer' in this clause means \"some person empkyed to exercise, to some extent and in certain circumstances, a delegated function of Government.\n\nHe is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed.\"\n\nRamajivrao's case was noticed by a Bench of the Calcutta High Court in Nizamuddin v. Queen Empress (supra) and it was ruled that an 'officer' within the terms of s. 21, clause Ninth of the Penal Code is one who is appointed to some office for the performance of some public duty.\n\nAccordingly, it was held thot a pe0n attached to the office of the Superintendent of the Salt Department was an officer in the service or pay of the Government and as such was ll public servant.\n\nThe meaning of the term 'officer' was considered by the Lahore High Court also in Abad Shah v. Emperor (3). It was opined that the term 'officer' in the aforesaid cluse means a functionary or holder of some officium or office, however humble to whom in some degree are delegated certain functions of the Government.\n\nThese cases were considered by this Court in G. A. Mnnterio\n\nv. State of Ajmer( 4 ). Approving the law enunciated by the Calcutta High Conrt in Nizamuddin's case (supra), the Court speaking through Bhagwati J .. explained the position, thus :\n\n\"The true test. ... in ordr to determine whether a person is an officer of the Government is :\n\n(1) whether he is in the service or pay of the Government. and\n\n(2) whether he is entrusted with the performance of any public duty, ---\n\n(1) (1875) 12 Born. H.C. R. 1.\n\n(3) A.I.R. 1918 Lah. 152.\n\n(2) I.LR. 28, Cal. 344.\n\n(4) [19561 S.C.R. t<:<.\n\n~ '\n\nIf both these requirements are satisfied it matters ot the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed.\"\n\nBy the application of these tests, in the above case, it wa~ held that a Class III servant working as a Metal Examiner under the control of the Railway Works Manager, was an \"officer\" of the Government within the meaning of s. 21, Clause Ninth, Penal Code.\n\nThe instant case is within the ratio of the decision in\n\nG. A.\n\nMonterio v. State of Aimer (supra). As was pointed out in that case, the Railway Works Manager is an officer of the Government, armed with some amhor, ty or representative character qua the Government.\n\nThe appellants were holding the posts of Khalasis in the C Railway Carriage Section, but were actually allowed to deal with the preparation and issuance of Railway Passes in the Office of the Works 1 Manager and as such they were, in fact, performing public duties\n\nand d1scharg.ng publ:c functions auxiliary to those of the Works Manager and his office.\n\nOn \"the strength of the evidence\" and the statement of the accused, the trial court unhesitatingly found it as an \"established fact that Bajrang Lal and Ram Kishan worked in the D Pass Section\".\n\nThis finding which is borne by the evidence of Sadhu Ram (P.W. 32), the Head-Clerk of the Works Manaer, Mohd.\n\nSajjad (P.W. 19) a.ld Mohd. Ibrahim (P.W. 34), was affirmed by the High Court.\n\nWe also find no good reason to disturb this concurrent finding of fact.\n\nThu.s, the position that emerges is that although Bajrang Lal and E Ram K1shan were not formally appointed -to work in the Pass Section, the posts held by them being of Khalasis drawing pay from the Railway Carriage Secti0n. their services were actually ut lised in the\n\nPass Section of the Office of the Works Manager.\n\nThe appellant was, therefore, in actual possession of the situation of a public servant, and in view of Explanation II to s. 21, Penal Code, would be a 'public servant' notwithstanding the defect in his right to hold F that situation.\n\nWe therefore negative the contention of Mr. Mulla and hold that the •appellant Ram Kishan was a 'public servant' within the 9th Clause of s. 21, Penal Code a!!' it stood at the material time. Consequently, the appellant's conviction for an offence under s. 5 (I) ( d) read with s. 5(2) of the Prevention of Corruption Act cannot be G assailed on that score.\n\nIt is next contended on behalf of the appellant that he had admitted only the execution of the body writing of the application Ex. P-46, and not the signature thereon purporting to be that of Narain.\n\nThe point sought. to .be made out is that without signature, the body writing of the apphcat1on would not be a \"document\" as defined in s. 29, nor would the mere scribing of the application amount to \"forgery\" under s. 463 or to 'making a false document' within the meaning of s. 464, Penal Code. ·\n\n502 SUPREME COURlr REPORTS\n\n(1976] 3 S.C.R.\n\nI The contention mnst be repelle, tl.\n\nThere is no record before us to show that Ram Kishan appellant' had specifically denied the execution of that part of the writing which purports to be the signature of \"Narayan\" applicant.\n\nNo request was made by the appellant for summoning the original record.\n\nOn the contrary, from the judgments of the courts below, it appears that Ram Kishan had categorically admitted that the application, Ex. P-46, had been written by him.\n\nNarayan (P.W. 6) testified that he had made no such application, nor had he ever asked the appellant to scribe it.\n\nThe witness unequivocally stated that this application does not bear his signature.\n\nNarayan's evidence has been believed by the courts below.\n\nThere was thus no doubt whatever that this application including the signature thereon, is a false document. The passes, Ex. P-47, P-48, P-78' and the receipt, P-88, were also proved to be in the hand of the appellant. The charge under s. 465 was thus fully brought home t(} him.\n\nThe charge of criminal conspiracy to prepare and obtain false Railway Passes with a view to cause wrongful loss to the Railway had been fully established against R, am Kishan and Bajrang Lal. The forged Passes Ex. P-4 7 and P-481 were admittedly in the hand of Ram Kishan, and the forwarding1 endorsement on the application Ex. P-46 pursuant to which these [orged Passes were prepared, was proved to be in the hand of Bajrng Lal.\n\nKishan (P.W. 20) who was supposed to have.made and signed this forwarding endorsement, testified that this writing did not bear his signature.\n\nAgain, Bajrang Lal made the false entries in the Railway Pass Book in respect of the Passes, Ex. P-4 7, P-48, Ram Kishan then prepared t)i_e acknowledgement receipt on Ex. P-140 showing that these Passes had been delivered to the persons in whose names they were prepared.\n\nSimilarly, the forged application, Ex. P-78, was prepared by Bajrang Lal and the Pass relating thereto was prepared by Ram Kishan. The slip in repect of this forged Pass is also in the band of Ram Kishan. Another instance was furnished by the application Ex. P-87 which was in the hand of Bajrang Lal, while the acknowledgement receipt Ex. P-88 was prepared by Ram Kishan.\n\nFrom the concerted conduct of Bajrang Lal and Ram Kishan in preparing these forged writings, it could unerringly be inferred that they had agreed to prepare forged RaHway Passes with the intention of causing wrongful loss to the Railway.\n\nAnd, in pursuance of the conspiracy they did prepare the fotged passes aforesaid.\n\n' We therefore find no good re4son to disturb. the conviction of the appellant recorded by the High :Court in respect of offences under ss. 120B, 465, Penal Code and' s. 5(2) of the Prevention of Corruption Act.\n\nLastly Mr. Mulla submitted that the appellant was only a small fry.\n\nThe bigger fish, the clerks had gone scot free and therefore it was unfair to inflict so harsh a sentence on the appellant Might be that some bigger partners in the crime have escaped punishment\n\n,\\ ..\n\n; \\\n\nfor want of proof. But the sentence awarded to the appellant is A the minimum prescribed by law for an offence under s. 5(2) of the Prevention of Corruption Act.\n\nThe Court had no discretion to . inflict a lesser sentence on that count.\n\nFor tbe foregoing reasons, we dismiss this appeal and uphold the conviction and sentence of tbe appellant.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 103, "entities": [{"text": "BAJRANG LAL & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "BAJRANG LAL & ANR", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN", "label": "RESPONDENT", "start_char": 23, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "February 24, 1976", "label": "DATE", "start_char": 43, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "v.\n\nSTATE OF RAJASTHAN\n\nFebruary 24, 1976\n\n[R. S. SARKARIA AND P. N. SHINGHAL, JJ.]"}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 63, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 109, "end_char": 137, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5(1)(d)", "label": "PROVISION", "start_char": 151, "end_char": 161, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Corruption Act", "statute": "Prevention of Corruption Act"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 175, "end_char": 192, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 21", "label": "PROVISION", "start_char": 211, "end_char": 216, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "s. 5(1)(d} and (2)", "label": "PROVISION", "start_char": 443, "end_char": 461, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Prevention of Corruption Act, 1947", "label": "STATUTE", "start_char": 463, "end_char": 497, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 21", "label": "PROVISION", "start_char": 934, "end_char": 944, "source": "regex", "metadata": {"linked_statute_text": "Prevention of Corruption Act, 1947", "statute": "Prevention of Corruption Act, 1947"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 1783, "end_char": 1788, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(1)(d)", "label": "PROVISION", "start_char": 1874, "end_char": 1884, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 1894, "end_char": 1922, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "A. N. Mulla", "label": "LAWYER", "start_char": 2218, "end_char": 2229, "source": "ner", "metadata": {"in_sentence": "A. N. Mulla, S. K. Mehta and M. Qamaruddin, for the appellant.", "canonical_name": "A. N. Mulla"}}, {"text": "S. K. Mehta", "label": "OTHER_PERSON", "start_char": 2231, "end_char": 2242, "source": "ner", "metadata": {"in_sentence": "A. N. Mulla, S. K. Mehta and M. Qamaruddin, for the appellant."}}, {"text": "M. Qamaruddin", "label": "OTHER_PERSON", "start_char": 2247, "end_char": 2260, "source": "ner", "metadata": {"in_sentence": "A. N. Mulla, S. K. Mehta and M. Qamaruddin, for the appellant."}}, {"text": "Subhag Mal Jain", "label": "LAWYER", "start_char": 2282, "end_char": 2297, "source": "ner", "metadata": {"in_sentence": "Subhag Mal Jain, for the respondent."}}, {"text": "G\n\nSARKARIA", "label": "JUDGE", "start_char": 2363, "end_char": 2374, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G\n\nSARKARIA, J.\n\nThis appeal by special leave is directed against a judgment of the High Court of Rajasthan."}}, {"text": "High Court of Rajasthan", "label": "COURT", "start_char": 2447, "end_char": 2470, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by G\n\nSARKARIA, J.\n\nThis appeal by special leave is directed against a judgment of the High Court of Rajasthan."}}, {"text": "Sita Ram", "label": "PETITIONER", "start_char": 2721, "end_char": 2729, "source": "ner", "metadata": {"in_sentence": "Sita Ram and Ganesh Ram were at the relevant time April 11, 1963 working as Pass Clerks in the office of the\n\nWorks Manager.", "canonical_name": "Sita Ram"}}, {"text": "Ganesh Ram", "label": "OTHER_PERSON", "start_char": 2734, "end_char": 2744, "source": "ner", "metadata": {"in_sentence": "Sita Ram and Ganesh Ram were at the relevant time April 11, 1963 working as Pass Clerks in the office of the\n\nWorks Manager."}}, {"text": "April 11, 1963", "label": "DATE", "start_char": 2771, "end_char": 2785, "source": "ner", "metadata": {"in_sentence": "Sita Ram and Ganesh Ram were at the relevant time April 11, 1963 working as Pass Clerks in the office of the\n\nWorks Manager."}}, {"text": "Bairancr T al", "label": "OTHER_PERSON", "start_char": 2847, "end_char": 2860, "source": "ner", "metadata": {"in_sentence": "Bairancr T al and Ram Kishan, though posted as Khalasis in the Railway Carriage Shop, were associated with the work of issuing passes in the ottice ul the Works Manager."}}, {"text": "Ram Kishan", "label": "PETITIONER", "start_char": 2865, "end_char": 2875, "source": "ner", "metadata": {"in_sentence": "Bairancr T al and Ram Kishan, though posted as Khalasis in the Railway Carriage Shop, were associated with the work of issuing passes in the ottice ul the Works Manager.", "canonical_name": "R, am Kishan"}}, {"text": "December 23, 1961", "label": "DATE", "start_char": 3924, "end_char": 3941, "source": "ner", "metadata": {"in_sentence": "According to the prosecution case, during this period from December 23, 1961 and April 11, 1963, Bajrang Lal, Ram Kishan, Sita Ram an.d Ganesh Ram, all hatched a conspiracy for securing passes on forged applications."}}, {"text": "Bajrang Lal", "label": "PETITIONER", "start_char": 3962, "end_char": 3973, "source": "ner", "metadata": {"in_sentence": "According to the prosecution case, during this period from December 23, 1961 and April 11, 1963, Bajrang Lal, Ram Kishan, Sita Ram an.d Ganesh Ram, all hatched a conspiracy for securing passes on forged applications.", "canonical_name": "BAJRANG LAL & ANR"}}, {"text": "Narain", "label": "WITNESS", "start_char": 4476, "end_char": 4482, "source": "ner", "metadata": {"in_sentence": "P-46 is one of such applications prepared in the name of one Narain (P.W. 6)."}}, {"text": "Kishan", "label": "WITNESS", "start_char": 4637, "end_char": 4643, "source": "ner", "metadata": {"in_sentence": "It bears the endorsement purporting to be under the signature of the forwarding officer, Kishan (P.W. 20)."}}, {"text": "Bajran", "label": "PETITIONER", "start_char": 5313, "end_char": 5319, "source": "ner", "metadata": {"in_sentence": "P-87 was written by Bajran!(", "canonical_name": "BAJRANG LAL & ANR"}}, {"text": "ss. 120B", "label": "PROVISION", "start_char": 5692, "end_char": 5700, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 5717, "end_char": 5727, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(1)(d)", "label": "PROVISION", "start_char": 5738, "end_char": 5748, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 5759, "end_char": 5766, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 5774, "end_char": 5802, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sita Ram", "label": "PETITIONER", "start_char": 5834, "end_char": 5842, "source": "ner", "metadata": {"in_sentence": "Sita Ram and Ganesh Ram were acquitted of all the charges.", "canonical_name": "Sita Ram"}}, {"text": "Lal", "label": "PETITIONER", "start_char": 5954, "end_char": 5957, "source": "ner", "metadata": {"in_sentence": "Bajrang\n\n' I I\n\nBAJRANG LAL v. RAJASTHAN (Sarkatia, J.) 499\n\nLal and Ram Kishan were convicted on charges under ss."}}, {"text": "ss. 420, 468 and 471", "label": "PROVISION", "start_char": 6005, "end_char": 6025, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6027, "end_char": 6037, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 120B", "label": "PROVISION", "start_char": 6177, "end_char": 6184, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6186, "end_char": 6196, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 6285, "end_char": 6292, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 6320, "end_char": 6348, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 465", "label": "PROVISION", "start_char": 6496, "end_char": 6502, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6504, "end_char": 6514, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "ss. 420, 468 and 471", "label": "PROVISION", "start_char": 6660, "end_char": 6680, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6682, "end_char": 6692, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6792, "end_char": 6802, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(1)(d)", "label": "PROVISION", "start_char": 6807, "end_char": 6817, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 6828, "end_char": 6835, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 6843, "end_char": 6871, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 468", "label": "PROVISION", "start_char": 6931, "end_char": 6937, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6943, "end_char": 6953, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 465", "label": "PROVISION", "start_char": 6967, "end_char": 6973, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 6975, "end_char": 6985, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "A. N. Mulla", "label": "LAWYER", "start_char": 7265, "end_char": 7276, "source": "ner", "metadata": {"in_sentence": "The first contention of Shri A. N. Mulla appearing for the appellants is, that Ram Kishan and Bajrang Lal were not 'public servants' within the definition of the term in s. 21, Penal Code.", "canonical_name": "A. N. Mulla"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 7406, "end_char": 7411, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 7413, "end_char": 7423, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 21", "label": "PROVISION", "start_char": 7618, "end_char": 7623, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 7625, "end_char": 7635, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 21", "label": "PROVISION", "start_char": 7671, "end_char": 7676, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 7871, "end_char": 7876, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Kishan", "label": "PETITIONER", "start_char": 7960, "end_char": 7970, "source": "ner", "metadata": {"in_sentence": "the appellants, Ram Kishan and Bajrang Lal, because they were mere khalasis or menial servants and not \"officers in the service or pay of the Government\", within the contemplation of that clause.", "canonical_name": "R, am Kishan"}}, {"text": "Bajrang Lal", "label": "PETITIONER", "start_char": 7975, "end_char": 7986, "source": "ner", "metadata": {"in_sentence": "the appellants, Ram Kishan and Bajrang Lal, because they were mere khalasis or menial servants and not \"officers in the service or pay of the Government\", within the contemplation of that clause.", "canonical_name": "BAJRANG LAL & ANR"}}, {"text": "s. 21", "label": "PROVISION", "start_char": 8341, "end_char": 8346, "source": "regex", "metadata": {"statute": null}}, {"text": "Mulla", "label": "OTHER_PERSON", "start_char": 9295, "end_char": 9300, "source": "ner", "metadata": {"in_sentence": "Mr. Mulla contends that the appellants were not \"officers\" withiO the contemplation of this clause, because-( a) they were mere Khalasis and, as such, were not exercising any delegated function of the Government, and (b) they were never appointed to P\"form\n\nany public duty in the office of the Works Manager."}}, {"text": "Ramajivrao", "label": "OTHER_PERSON", "start_char": 9703, "end_char": 9713, "source": "ner", "metadata": {"in_sentence": "In Ramajivrao's case (supra), the Bombay High Court held that the word 'officer' in this clause means \"some person empkyed to exercise, to some extent and in certain circumstances, a delegated function of Government."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 9734, "end_char": 9751, "source": "ner", "metadata": {"in_sentence": "In Ramajivrao's case (supra), the Bombay High Court held that the word 'officer' in this clause means \"some person empkyed to exercise, to some extent and in certain circumstances, a delegated function of Government."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 10117, "end_char": 10136, "source": "ner", "metadata": {"in_sentence": "Ramajivrao's case was noticed by a Bench of the Calcutta High Court in Nizamuddin v. Queen Empress (supra) and it was ruled that an 'officer' within the terms of s. 21, clause Ninth of the Penal Code is one who is appointed to some office for the performance of some public duty."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 10231, "end_char": 10236, "source": "regex", "metadata": {"statute": null}}, {"text": "Ninth of the Penal Code", "label": "STATUTE", "start_char": 10245, "end_char": 10268, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 10602, "end_char": 10619, "source": "ner", "metadata": {"in_sentence": "The meaning of the term 'officer' was considered by the Lahore High Court also in Abad Shah v. Emperor (3)."}}, {"text": "Calcutta High Conrt", "label": "COURT", "start_char": 10984, "end_char": 11003, "source": "ner", "metadata": {"in_sentence": "Approving the law enunciated by the Calcutta High Conrt in Nizamuddin's case (supra), the Court speaking through Bhagwati J .. explained the position, thus :\n\n\"The true test. ..."}}, {"text": "Nizamuddin", "label": "OTHER_PERSON", "start_char": 11007, "end_char": 11017, "source": "ner", "metadata": {"in_sentence": "Approving the law enunciated by the Calcutta High Conrt in Nizamuddin's case (supra), the Court speaking through Bhagwati J .. explained the position, thus :\n\n\"The true test. ..."}}, {"text": "Bhagwati", "label": "JUDGE", "start_char": 11061, "end_char": 11069, "source": "ner", "metadata": {"in_sentence": "Approving the law enunciated by the Calcutta High Conrt in Nizamuddin's case (supra), the Court speaking through Bhagwati J .. explained the position, thus :\n\n\"The true test. ..."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 11867, "end_char": 11872, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 11888, "end_char": 11898, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sadhu Ram", "label": "WITNESS", "start_char": 12767, "end_char": 12776, "source": "ner", "metadata": {"in_sentence": "This finding which is borne by the evidence of Sadhu Ram (P.W. 32), the Head-Clerk of the Works Manaer, Mohd."}}, {"text": "Mohd.\n\nSajjad", "label": "WITNESS", "start_char": 12824, "end_char": 12837, "source": "ner", "metadata": {"in_sentence": "This finding which is borne by the evidence of Sadhu Ram (P.W. 32), the Head-Clerk of the Works Manaer, Mohd."}}, {"text": "Mohd. Ibrahim", "label": "WITNESS", "start_char": 12853, "end_char": 12866, "source": "ner", "metadata": {"in_sentence": "Sajjad (P.W. 19) a.ld Mohd."}}, {"text": "E Ram K1shan", "label": "OTHER_PERSON", "start_char": 13050, "end_char": 13062, "source": "ner", "metadata": {"in_sentence": "Thu.s, the position that emerges is that although Bajrang Lal and E Ram K1shan were not formally appointed -to work in the Pass Section, the posts held by them being of Khalasis drawing pay from the Railway Carriage Secti0n."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 13427, "end_char": 13432, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 13434, "end_char": 13444, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 21", "label": "PROVISION", "start_char": 13679, "end_char": 13684, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 13686, "end_char": 13696, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5", "label": "PROVISION", "start_char": 13795, "end_char": 13799, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 13819, "end_char": 13826, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 13834, "end_char": 13862, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Narain", "label": "OTHER_PERSON", "start_char": 14092, "end_char": 14098, "source": "ner", "metadata": {"in_sentence": "P-46, and not the signature thereon purporting to be that of Narain."}}, {"text": "s. 29", "label": "PROVISION", "start_char": 14237, "end_char": 14242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 463", "label": "PROVISION", "start_char": 14317, "end_char": 14323, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 464", "label": "PROVISION", "start_char": 14378, "end_char": 14384, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 14386, "end_char": 14396, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Narayan", "label": "WITNESS", "start_char": 14917, "end_char": 14924, "source": "ner", "metadata": {"in_sentence": "Narayan (P.W. 6) testified that he had made no such application, nor had he ever asked the appellant to scribe it."}}, {"text": "s. 465", "label": "PROVISION", "start_char": 15413, "end_char": 15419, "source": "regex", "metadata": {"statute": null}}, {"text": "R, am Kishan", "label": "PETITIONER", "start_char": 15620, "end_char": 15632, "source": "ner", "metadata": {"in_sentence": "The charge of criminal conspiracy to prepare and obtain false Railway Passes with a view to cause wrongful loss to the Railway had been fully established against R, am Kishan and Bajrang Lal.", "canonical_name": "R, am Kishan"}}, {"text": "Bajrng Lal", "label": "PETITIONER", "start_char": 15876, "end_char": 15886, "source": "ner", "metadata": {"in_sentence": "P-46 pursuant to which these [orged Passes were prepared, was proved to be in the hand of Bajrng Lal.", "canonical_name": "BAJRANG LAL & ANR"}}, {"text": "ss. 120B, 465", "label": "PROVISION", "start_char": 17139, "end_char": 17152, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 17154, "end_char": 17164, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 17170, "end_char": 17177, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 17185, "end_char": 17213, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(2)", "label": "PROVISION", "start_char": 17610, "end_char": 17617, "source": "regex", "metadata": {"statute": null}}, {"text": "Prevention of Corruption Act", "label": "STATUTE", "start_char": 17625, "end_char": 17653, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_504_517_EN", "year": 1976, "text": "UNION dF INDIA\n\nSTEEL STOCK HOLDERS' SYNDICATE, POONA\n\nMarch 1. 1976 [P. K. GoswAMI AND s. MuRTAZA FAZAL Au, JJ.J\n\nI Railways Act, 1890 (as amended in 1961)-Ss. 72, 73, 76, 78(d)-Scope of-Delay in deliverv of Roods-Loss of inter:.est on capital-If, could be measure of damaRes-If Railways Act overrides Contract Act.\n\nA consignment of iron 12; oods was booked by the respondent by rail on December 15. 1961. The due date of delivery under the contract or usage of the railways was December 25. 1961. As the goods were diverted, they were actually delivered on July 21, 1962. The respondent filed a suit for damages alleging negligence on the pait of the railway in that, by reason of diverting the consignment. there was inordinate delay in its delivery which resulted in loss to it by way of interest on capital. The trial court decreed the suit but in the matter of damages by way of loss of interest it gave 6% per annum instead of 12 % claimed by the respondent. The District Court dismissed the appellant's appeal, and the High Court dismissed the second appeal in limine.\n\nOn appeal to this Court it was coq.tended for the appellant that (i) since the cause of action was based on delyed delivery, the case was covered bv the Railway Act, as amended in 196l, that the applicable section is s. 76 and that. since the conditions mentiorj.ed therein had not been fulfilled. th~ respondent was not entitled to a decree: {ii) that the respondent could claim for loss of profit or loss of mrket as the same was expressly barred by s. 78(<l) oi the new Act; and {iii) that the respondent's claim for damages was not actionable in the absence of any agreement providing interest on capital as a measure of damages. It was contended for the respondent that even if s. 76 barred the remedy, IO$S of profit or market resulting from delayed delivery \\\\.'ould amount to \"deterioration\" contemplated by s. 76.\n\nDlc; missing the appeal to this Court,' HEW : In view of the finding of fact arrived at by the courts below, the respondent is entitled to damages. f515 Bl\n\n1. (a) The case is covered by the new Act and not by the old Act as contended by the respondent. There could be no question of liability arising when the goods were booked and the contract was entered into between the resp<'ndent and the railways. because, there was no presumption that the contract would result in breach.\n\n[512B-C] In the instant case, the cause of action arose when the consignment was delivered to the respondent on July 21. 1962, that is, after the neW Act came into force.\n\nThe reasonable transit period having expired on January 1. 1962 the breach occurred after the new Act came into force.\n\n(b) Section 76 of the Act has a very limited scope : it contemplates clearly those cases which fall within the contingencies contemplated bv it.\n\nThese contingencies refer to certain physical factors. viz : actual and ohysical loss. destruction, damage or deterioration of goods. Where due to dt>lav on the part of the railway there is physical d¢terioration or diminishing of the value of the goods. the plaintiff cannot claim damages by way of loss of profits or loc; s of market plus damages sustaint>d by the actual loc; s or de\"tPrioration of the goods.\n\nIn such a case the plaintiff can claim only the actual loss in the value of the good<I c::iuc; ed by destruction, damage or deterioration and not loss of profit. f512F-H] ( c) The word .. deterioration\" is ui:.ed in its ordinarv parlance, so as to include within its ambit the actual phrsicaT act of deterioration. namely, the change for the worse in the thing itself., [514E-F]\n\ni \\\n\nUNION V. STEEL STOCK SYNDICATE 505\n\nB./. Railway Co. Ltd. v. Piana Mal Guiab Singh A.I.R. 1925 Lah. 255, A approved.\n\n1 G./.P. Railway Co. & Others v. luRal Kishore Mukat Loi A.l.R. 1930\n\nAll. 132 and Union of India and others v.\n\nMessrs. Sheobux Satya11arayan, A.J.R. 1963 Orissa 68, not approved.\n\n(d) The words \"loss, destruction, damage or deterioration\" occurring in s. 76 must be read ejusdem generis to indicate the actual and physical loss or change in the JZ:Oods contemplated by that section. In the instant case, since there was no physical deterioration of the goods at all which were delivered in the same condition in which they were booked. the case of the respondent tloes not fall within the four corners of the section. Nor can the respondent take advantage of s. 76 relying on the word \"deterioration\" because of the finding of negligence entered by the courts below.\n\n[514G]\n\nH s. 76 does not apply then s. 78 would have no application because that\n\nsection starts with a non-obstante clause. [513E-F] C\n\n(2) Section 78(d). which flows out of s. 76, provides that the railway administration shall nOt be responsible for any indirect or consequential damages or for loss of particular market. 1t merely incorporatesthe measure of damages ao contemplated by s. 73. [513B]\n\nIn the instant case as the respondent had not claimed loss of n1arket or remote damages the question of application of s. 78(d) did not aric:e.\n\n3(a) The case of the respondent is clearly taken out_of the ambit of ss. 76 D and 78.\n\nHence its suit for damages could not be defeated on the ground that it was barred by s. 76 or s. 78 of the Act. [515A-B]\n\n(b) It is difficult to accept the contention of the appellant th:it, by virtue of ss. 72 and 73. any contract entered into between the parties and the liability of the railway was governed purely by the provisions of the Railway Act and not by the terms of the contract between the parties. [5JOG]\n\nThe Indian Contract Act provides certain elementary conditions for a binding i; ontract but does not provide any particular form of contract. The fact that where the Government is a party to a contract, the particular form in which the contract is to be executed has been provided for by the Constitution, did not mean that the provisions of the Contract Act stand superseded by the Constitution or in this case by the Railway Act. Section 72 does nothing more than provide for a particular form in which the contract is to be executed and it enioins that such a form will be prescribed by the railway administration and approved by the Central Government. [510H-511-A]\n\n(c) Section 73 lays down that the Railway administration shall be respoJ; I~ sible for the loss, destruction, damage, deterioration or non-delivery except in certain cases Which amount to vis ma; or in which case also the Act places responsibility on the railways if it did not prove that it had used reasonable foresight Rnd care in the carriage of goods. The section, while converting the liability of the railway administration from that of a carrier to that of an insurer, has imposed heavier responsibility on the railway administration.\n\n[511F-G] 4(a) There is no auestion of s. 73 of the Contract Act over-riding the provisions of the Interest Act because in the instant case the Interest Act has no application at all inasmuch as no interest is , clai_med by the plaintiff; but interest has been used as a measure to determine the compensation which the respondent could seek against the appellant for its negligence in causing inordinate delay in the deliverv of the oods. The respandent had only claimed nominal\n\ndamaes for the loss because of the amount of money locked up for more than six months due to late delivery. [5 l 7B]\n\n(b) The courts below rightly found that the railway, was guilty of gross H\n\n:aehtence. As a common carrier the railway is resPonsible for breach of contract. There was absolutely no reason for the railway t\" \";\"ert the consign. men! to a place which did not fall on the route at all. [5170]\n\nA ( c) The trial court was fully entitlecl to scale down the amount of jnte\\est\n\nfrom 12% to 6%. [517Fl\n\nUnion of India v.\n\nWatkins Mayore & Company A.LR. 1966 S.C. 275 distinguished. \\\n\nDigbijai Nath v. Tirbeni Nath Tewari A.I.R. 1946 All. 12 and The Official Receiver, Calcutta High Court & Anr. v. Baneshwar Prasad Singh & Anr. A.LR. 1962 Pat. 155 approved.\n\n5. The present appeal was concluded by findings <>f fact.\n\nBut onJhe proved facts some clear questions of law arose! for decision and, therefore, this was not a case in which the High Court should have dismissed the appeal in /imine.\n\n[507Fl\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. !237 of 1968.\n\nFrom the Judgment and Order dated the 24th August, 1967 of the High Court of Judicature at Bombay in Second Appeal No. 798 of 1967.\n\nLal Narain Sinha, Solicitor Gen¢ral for India, S. N. Prasad, and Girish Chander, (Not present), for the appellant.\n\nM. N. Phadke, P. C. Bhartari, J. B. Dadachanji, 0. C. :Wathur and Ravinder Narain, (Not Present), for the respondent.\n\nThe Judgment of the Court was delivered by\n\nFAZAL ALI, J .-This is a defendant's appeal by special leave against the judgment and decree of the High Court of Bombay dismissing its second appeal in limine by its order I dated August 24, 1967.\n\nTue appeal raises important and lnteresting questions of law relating to the interpretation of some of the provisions of the Indian Railways Act pertaining to the liability of the Railways for breach of contract.\n\nThe plaintiff/respondent brought a suit for recovery of an amount of Rs. 2,378.65 nP being the damages for breach of contract resulting from delayed delivery of the goods consigned by the plaintiff through the defendant Railways to be delivered at Poona.\n\nThe plaintiff which is a furn carrying on its business dealing in iron goods booked a consignment with the defendant on December 15,, 1961 at Bhillai to be carried to Poona and to be delivered therein to the consignee safely and in good condition.\n\nThe defendenf Railways accepted the offer under a Railway Receipt dated December 15, 1961. It appears that there was some delay in the delivery of the goods at Poona and on enquiries made by the plaintiff it appeared that till May 9, 1962 the goods had not been delivered at all.\n\nThereafter the plaintiff served a notice of claim and of suit dated May 9, 1962 oh the Railway Administration. Soon after the service of the notice the consignment was delivered on July 21, 1962.\n\nAccording to the plaintiif under the contract or the usage of the Railways the normal period of delivery was ten days and as defendant had committed an inordinate delay in delivering the goods it was liable to pay damages to the plaintiff.\n\nTue plaintiff, however, calculated the damages by way of interest at the rate of 12% per annum on the Jocked up capital of Rs. 27.332-44 which due to rise in prices has swelled to Rs. 35,476-27 nP.\n\nThe plaintiff further alleged that the delay in the delivery was due to gross negligence of the defendant Railways which instead of sending the g?ocls direct from Bhillai to Poona\n\ndiverted them to Aurangabad where the consignment had to be loaded A in a meter-gauge tram and then t0 a broad-gauge lmo and it was _only after tile acrendant received the nonce from the plamtitl that it expedi.ed the delivery of the goods. The derendant Ra1hvuys contested the suit on the ground that there was no inordinate delay, nor there was any contract that the goods were to be delivered within ten \"\n\n<lays. lt is also averred that the plaintiff had led no evidence to show\n\n/ that there was any loss of profits or rise in the market price.\n\nThe de- B ' fondant further alleged that the plaintiff was not en.titled to claim interest • as damages. The Trial Court accepted the plaintiff's case in toto and found-\n\n(1) that there was an inordinate delay in the delivery of the goods belonging to the plaintiff at Poona;\n\n(2) that the goods were first diverted to Aurangabad, alc though the route from Bhillai to Poona lay via Nagpur and Aurangabad does not fall on the route at all; and\n\n(3) that the defendant was guilty of gross negligence and was, therefore, responsible for loss for delay or devialion in carrying the goods.\n\nThe Trial Court, however, found that the figure of Rs. 27,332-44 the D original amount which was deposited by the plaintiff in the Bank against the goods should be taken as the basis for calculation of damages and after caiculating interest at the rate of 6% per annum the plaintiff was awarded a sum of Rs. 1250/- including the notice charges and passed a decree for this amount in favour of the plaintiff.\n\nThe defendant then filed an appeal before the District Judge,, Poona E who upheld the finding of the learned Munsiff and dismissed the appeal.\n\nA second appeal taken by the defendant to the High Court of Bombay was also dismissed in limine and hence this appeal by special leave.\n\nNormally it would appear that the appeal was concluded by findings of fact but we find that on the proved facts some clear questions of law arise for decision and therefore this was not a case in which the High Court should have dismissed the appeal in limine.\n\nIn support of the appeal the learned Solicitor-General submitted\n\nthre~ points before us :\n\n( 1) that as the cause of action of the plaintiff is based on the delayed delivery which arose at the most on January 1, 1962, the cse of the plaintiff is covered by the provisions of\n\n.G the new Railways Act as amended by Act 39 of 1961, which is an exhaustive Code in itself providing a self-contained machinery in order to detemine .the Jiability of the Railways ;. and as the cond1t10ns menl!oned m s. 76 of the Railways Act have not been fulfilled the plaintiff is not entitled to any decree; • ( 2) that at any rate since the plaintiff has claimed interest H as damages, in the absence of any agreement providing for such an interest, the plaintiff's claim is not actionable at law; and\n\n(3) that the plaintiff cou!d\n\n1 not claim for loss of profit or loss of market as the same is expressly barred by s. 78( d) of the new Railways Act.\n\nAs an alternative argument it was ! also pleaded that the plaintiff has; not averred in his plainu that t!tee was any rise in the prices ecause the goods belonging to the plamtiff were a controlled commodity an~ could not be sold without a permit. Before claiming loss of profits 1t was the bounden duty of the plaintift to allege that he had been granted the permit to sell the goods.\n\nMr. Phadke appearing for the respondent has repelled the contentions e>f the appellant on the ground that the new Railways Act does not reduce or diminish the liability !of the railway administration for breach of contract but in fact the Act seeks to increase the liability.\n\nSecondly it was submitted that even if the case of the plaintiff does not fall within the four corners of s. 76 of the new Railways Act, the common law right of the plaintiff to claim damages against the appellant has not been barred by the Act. Lastly it was submitted that the plaintiff ha; not claimed interest on any specified amount of money but has merely calculated the same as a measure of damages which it suffered due to the breach of contract and gross negligence on the part of the Railways which has been found by the Courts below. Finally it was contended that as the contract was entered into between the parties on Decembe1' 15, 1961, when the goods were booked at Bhillai, the liability for damages arose on that day and the case of the plaintiff would be covered by the provisions of the Railways Act before it was amended by Act 39 of 1961.\n\nIn order to answer the contentions raised by the parties it may be necessary for us to trace briefly the history of the circumstances in which the Railways Act of 1890 was amended by Act 39 of 1961. We would, for short, refer to the Railways Act of 1890 as the \"old Act\" and the Act as amended by Act 39 of 1961 as the \"new Act\". It would appear that under s. 72 of the old Act the responsibjlity of railway administration as a carrier of animals and goods was clearly that of a bailee under ss. 151, 152 and 161 of the Indian Contract Act. Jn other words, the railway administration was impressed with the duty to carry the goods with the same care and caution which a prudent owner would apply in the case of his own goods. If there was any viola•ion or breach of the said care and caution expected of the Railway it would have been liable to damages. Section 72 (1) of the old Act ran thus :\n\n\" ( 1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, suhiect to the other provisions of this Act, be that of a bailee unner sections 151, 152 and 161 of the Indian Contract Act, 1872\n\n(9 of 1872).\"\n\nIt may be pertinent to note that su!Hection (3) of s. 72 of the old Act expressly excluded the principles of the common law of Enland or in the Carriers Act of 1865 regarding the responsibility of common carriers. After onr country became free and the Railways entered the commercial field as one of the important wings of the Government, there\n\n• l\n\nappears to be a public dernan~ for making the Railway diistration A as a public body to take upon itself more onerous responst?!hues where the nghts of the free citizens were mvolved. Under the Bnttsh Govern- I rncnt most of the Railways were owned by private companies whoso ownership was to be extinguished after lapse of a particular period. Soon after the freedom all the Railways were taken over by the Central Gov- 1 ernrnent and run by it. In view of the new problems facing the Govern- B rnent and the public demand for a change in the Jaw, the Government appears to have decided to convert the responsibility of the railway • from that of a carrier to that of an insurer. But before doing this, the Government appointed a Committee called the Railway Freight Struclure Enquiry Committee (1956-57) which recommended that the responsibility of the Railways in India should be changed to that of a cornman earner instead of a bailee. The Committee which had been asked to cx[1 mine the statutory provisions dealing with the responsibility of railways as common carriers was of the opinion that the public would c\n\nderive much satisfaction from a radical change from bailee's responsi- 'f\n\nbility to that of a common carrier, and that this change was bound to tone up the administrative machinery of the railways in respect of effec-\n\n•• tive prevention of transit losses. In view of the recommendations of the ili said Committee the Government introduced a bill in the Lok Sabha for amending some of the provisions of the Railway Act in order to irnplc- D ment those recommendations.\n\nFrom a perusal of the debates of the Lok Sabha when this Bill was introduced it would appear that the Deputy\n\nMinister of Railways explaining the objectives of the Bill observed as follows :\n\n\"Taking into account all aspe<:ts of the problem, it is proposed that railways should assume the responsibility of a corn- E rnon carrier instead of that of a bailee. As bailees, the railtways are required to take as much care of the goods entrusted to them for carriage as a man of ordinary prudence would under similar circumstances, take of his own goods of the sarn~ bulk, quality and value.\n\nHowever, closely following the legal position in the F United Kingdom, it is proposed that the basic responsibility of our railways for loss, destruction or deterioration etc. of anirnals or goods be as set out in the proposed section 73.\n\nW.hen the railways assume this responsibility, broadly speakmg, they will be liable for loss of or injury to aoods while in transit by rail, arising from any cause whatso.;'ver, unless G such loss or injury is proved by the railways to have been caused by an act of God, or by an act of war, or by an act of l'\n\np_ubli~ enemies or is proved to be consequence of inherent ; vice m the thing carried or is attributable to the consignor's own fault.\n\nEven where the loss is proved by the railways to have been • caused by the excepted perils, just referred to by me, the rail- H ways will not be absolved of their responsibility unless they further prove that they had nsed reasonable forethought and I\n\ncare in the carriage of animals or goods. - 18-L522SCl/76\n\nThe result of the changes proposed will be that the railways will be paying claims for compensation in many cases where they are not paid at present, for example, in cases of losses due to running train thefts, damage by wet in transit in spite of bailee's care having been taken etc.\"\n\nThis was the clear background against which the new Act was passed.\n\nEven the statement of objects and reasons, the relevant parts of which may be extracted as under,, shows the main object of the new Act :\n\n\"The Railway Freight Structure Enquiry Committee ( 1956-57) has recommended that the responsibility of the railways in India as carriers of animals and goods, which is at present that of a bailee, should be changed to that of a common carrier. There is also a public demand for such a change. After a careful and detailed examination of the question, the Government have decided to accept the Committee's recommendation.\n\nx x x x\n\n(a) The Bill seeks to make it clear that in the case of through booking of consignments over an Indian Railway and a Foreign Railway, the responsibility of the Indian Railway as a common carrier would extend only over that portion of the carriage which is over the Indian Railway;\n\nx x x x\n\n( c) Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act which were revealed by experience in its working.·•\n\nIt appears that the old s. 72 was completely deleted including sub-s. ( 3) which expressly prohibited the principks of the common law of England for determining the liability of the Railways as common carriers. In\n\nstead the new s. 72 laid down the form in which a contract was to be executed between a consignor and the Railway and a risk note was pro\n\nvided for by clause (b). It may be necessary to note an argument put forward by the learned Solicitor-General on this point. It was submitted that by virtue of the provisions of ss. 72 and 73 of the new Act the statuto superseded any contract entered into between the parties and the liability of the Railways was governed purely under the provisions of the Railways Act and not under the tcrn1s of contract which may have been entered into between the consignor and the Railway. \\V~ are, however, unable to accept this argument. It is well settled that while the Jndian Contract Act merely provides certain elementary conditions under which the contract becomes binding on the parties, it does not _ provide any particular form or condition of a contract. It is, therefore, clear that the parties to the contract may agree to a particular form or condition or of mode in which the contract is to be executed. In case where the Governn1ent enters into a contract with a person or vice versa a particular form in which the contract is to be executed has been provi- H\n\nded for even by the Constitution and the contract has to be in that form.\n\nf'\n\nThis does not mean that the provisions of the Contract Act stand superseded either by the Constitution or by the Railways Act which provide for a particular mode or a fotm in which the contract has to be entered into. Section 72 therefore does nothing more or nothing less than provide for a particular form in which the contract is to be executed and it enjoins that such a form will be prescribed by the railway administraction and approved by the Central Government. The provisions of s. 72 of the new Act run thus :\n\n\"72. Any person delivering to a railway administration any animals or goods to be carried by railway shall-\n\n( a) if the animals or goods are to be carried by a train intended solely for the carriage of goods, or\n\n(b) if the goods are to be carried by any other train and consist of articles of any of the following categories, namely:-\n\n( i) articles carried at owner's risk rates. (iil articles ol a perishable nature.\n\n(iii) articles mentioned in the Second Schedule.\n\n(iv) articles in a defective condition or defectively packed.\n\n(v) explosives and other dangerous goods.\n\nexecute a note (in this Act referred to as the forwarding note) in such form as may be prescribed by the railway administration and approved by the Central Government, in which the sender or his agent shall give such particulars in respect of the animals or goods so delivered as may be required\".\n\nIt is not possible from the provisions of s. 72 to spell out th~ principle that the new Act completely supersedes the provisions of the Contract Act both in respect of the conditions and the liability.\n\nSection 73 of the new Act lays down that the railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery except in certain cases which amount to vis major.\n\nBut there also the proviso confers responsibility on the Railways for loss etc., if the railway administration does not prove that it has used reasonable foresight and care in the carriage of the goods.\n\nThe Solicitor-General contended that s. 76 of the new Act is the provision which deals with delay in the delivery and the plaintiff can succeed only if his case falls within the four corners of the section.\n\nBeore answering this question, it may be necessary to dispose of a pomt on which the counsel for the parties have joined issue.\n\nAccording to the Solicitor-Gene.ral the liability of the Railway would be governed by the new Act masmuch as the cause of action has arisen after coming into force of the new Act.\n\nCounsel for the respondent, however, submits that the matter will be governed by\n\nthe old Act because the liability of the Railway. a_rose when he. gaod~ were booked in December 1961.\n\nIn our opm1on, there 1s a very short answer to this question. The plaintiff has clearly and categorically pleaded in paragraph-2 of the plaint that the cause of act10n arose at Poona when the complete consignment was delivered to the plaintiff on July 21, 1962 i.e. after the new Act had already come into force.\n\nFurther more, it is also allegea that the reasonable and normal transit period expired on January 1, 1962. In these circumstances, therefore, according to the plaintiff itself, the breach occurred only after the new Act had come into force-whether it was January\n\nI, 1962 or thereafter.\n\nThere can be no question of the liabilify arising when the goods were booked and the contract was entered into between the plaintiff and the Railway, because ther~ is no presumption that the contract would result in breach. The plaintiff would be entitled to damages only when there was a breach of contract and if the said breach,, even according to the plaintiff itself. occurred on January 1, 1962 or thereafter, then it is manifest that the case -would be covered by the new Act and not by the old Act.\n\nThe first contention put forward by the Solicitor-General was that the case of the plaintiff does not fall under any of the contingencies contemplated by s. 76 of the new Act. Section 76 runs thus :\n\n\"76. A railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants.\"\n\nIt is submitted that although there was delay in the delivery of the goods on the part of the railway administration, but the railway administration would be responsible only if !he plaintiff further proves that there has beeu loss, destruction, damage or deterioration of the goods by virtue of the delay.\n\nIt is true that the plaintiff has. not alleged that there was any physical loss, destruction, damage or dete.rioration of the goods, but that, in our opinion, does not put the plaintiff out of court.\n\nSection 76 appears to have a wry limited scope : it contemplates clearly those cases which fall within the contingencies contemplated by s. 76. These contingencies refer to certain physical factors, viz., actual and physical loss, destruction, damage or deterioration of goods. For instance, where the goods worth Rs. 10,000/- due to delayed delivery have sustained deterioration as a result of which their value has gone down to Rs. 5,000/- then once this fact is proved the railway administration shall be liable for such a loss or the value of such deterioration. We are of the opinion that s. 73 of the new Act, while converting the liability of the railway administration from that of a carrier to that of an insurer, has imposed heavier responsibility on the railway administration.\n\nThe history and the object with which the radical provisions of the new Act were introduced bear testimony to change of the nature\n\n<lf the liability of the railway administration. But in order to avoid the payment of double damages, ss. 76 and 78 have been inserted. ' In other words, where due to delay on the part of the Railway there is physical deterioration or diminishing of the value of tiie goods, the plaintiff cannot claim damages by way of loss of profits or loss of market pfos damages sustained by the actual loss or deterioration of the goods.\n\nIn such a case the plaintiff can claim only the actual Joss in the value of the goods .caused by destruction, damage or deterioration and not)oss of profit. Section 78(d) which flows out of s. 76 clearly provides that the railway administration shall not be. respon- • sible for any indirect or consequential damages or for loss of particular market.\n\nThe Solicitor-General, therefore, rightly contended that in cases falling squarely within the four corners of s. 7 6 of the new Act, s. 78(d) will apply.\n\nIn facts. 78(d) merely incorporates the measure of damages as contemplated by s. 73 itself. It is well settled that the liability of an ordinary carrier even in the English 'f common law does not extend to a damage which is indirect or remote.\n\nLoss of profit or loss of a particular market has been held by a number of decisions to be a remote damage and can be awarded only if it is proved that the party which is guilty o! committing the breach was aware or had knowledge that such a loss would be caused.\n\nSection 78 ( d), however, seeks to bar the remedy of this kind of damage.\n\nIn the instant case, however, as the plaintiff itself has not claimed .Joss of market or remote damages, the question of application of s. 78(d) does not arise. Moreover, in the instant case, it is conceded that there was no physical deterioration of the goods at all which were delivered to the consignee at Poona in the same condition as they were booked from Bhillai by the plaintiff.\n\nIn these circumstances, the case of the plaintiff does not fall within the four corners of s. 76, nor does it fulfil any of the categories mentioned therein.\n\nIf s. 76 does not apply to the facts of the present case, then s. 78\n\nV.'ill also have no application,, because s. 78 starts with a non obstru1te olause \"Notwithstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible\".\n\nWe, therefore, agree with the learned counsel for the respondent that under the new Act th_e liability of the Railway has been increased so as to take upon itself the responsibility of a common carrier.\n\nCounsel for the respondent submitted that even if s. 76 barred the remedy of the plaintiff, the fact that due to delay in delivery there was loss of profil or loss of market would amount to \"deterioration\n\nas ontemplated by s. 76 of the new Act. In support of this content10n, the learned counsel relied on a decision of the Allahabad High Court in G.l.P. Railway Co. & others v. Jugul Kishore Mukai Lal(l) where Sulaiman, Ag. CJ., as he then was, observed as follows: • \"Tt is clear to us that the meaning of the word \"deterioration\" in s. 161 which imposes the liability on the rililway company must be the same as in risk-note form B which lays\n\n(11 \\ !. 'l. IJJ l A'l. 112.\n\ndown the special conditions under hich. the . rai!;-vay co.mpany is protected.\n\nIn both these detenorallon resultmg from a delay in tendering the good is contemplated: x x. x We therefore accept the view expressed by Mukeri1, J., in the unreported case and hold that the word \"deterioration\"\n\nis wide enough to include depreciation in value on account of a fall in the price of the goods.\"\n\nThe same view appears to have been taken by the Orisa High Court in Unioh of India and orthers v. Messrs. Sheobux Satyanarayan (') where Misra, J., as he then was, observed as follows :\n\n\"Though there was some difference of opinion as to the import of the word \"deterioration\" used in section 72 of the Indian Railways Act and in section 161 of the Indian Contract Act, the position is now well settled that it is wid0 enough to include depreciation in value on account of a fall in the price of the goods.\"\n\nAs against this a Division Bench of the Lahore High Court in R. I. Railway Co. Ltd. v. Diana Ma! Guiab Singh(2) observed as follows :\n\n\"The 'deterioration' of a thing, whether it be in quality or in value, implies in ordinary parlance a change for the worse in the thing itself.\n\nIf a thing is worth less than it was before only because the market rate has gone down it would be correct to say that it has depreciated in value, but not that it has deteriorated.\"\n\nHaving regard to the background and the setting in which the word\n\n\"deterioration\" occurs in s. 76 of the new Act it seems to us that the parliament intended that the word should be used in the ordinary parlance and in a restricted sense so as to inculde--within its ambit the actual physic&) act of deterioration, i.e. the physical P.art of it, namely, the change for the worse in the thing itself as very aptly F put by Martineau, J., in the Lahore High Court judgment referred to above.\n\nWe must seek to draw a clear distinction between a physical deterioration of a thing and depreciation in its value according to market price.\n\nThese are two separate concepts having separate ingredients. The words used in s. 76 of the new Act, namely, \"loss, destruction, damage or deterioration\" must be read as ejusdem generis so as to indicate the actual and physical loss or change in the goods G contemplated by s. 76. In these circumstances, therefore, with due respect, we are unable to agree with the somewhat broad view taken by the Allahabad High Court and followed by the Orissa High Court in the cases referred to above.\n\nWe, on the other hand, prefer to adopt the view taken by the Labore High Court in the case referred to above. In this view of the matter, it is clear that the word \"deterioration\" used in s. 76 refererd to the physical and actual deteriora- H tion of the goods which has admittedly not taken place in the present case.\n\nThe plaintiff cannot take advantage of s. 76 relying on the\n\n(I) A.LR. 1963 Orissa 60.\n\n(2) A.LR. '1925 Lah. 255.\n\nword \"deterioration\" because of the finding of neglience entered by the Courts below.\n\nThe case of the plaintiff is clearly taken out of the ambit of ss. 76 and 78 and his suit for damage also cannot be defeated on the ground that it is barred by s. 76 or s. 78 of the new Act.\n\nWe are, therefore, of the opinion that in view of the finding of fact arrived by the Courts below the plaintiff is undoubtedly entitled to damages. . '..\n\nThis brings us to the second contention raised by the Solicitor- General, namely, that the plaintiff is not entitled to interest as .daages for breach of the contract. It was submitted that what the plamttff has done is to calculate interest at the rate of 12 % which has been reduced to 6% per annum on the amount deposited by him in the Bak which remained locked up for more than six months and to claim the same as damages.\n\nIt was contended that the plaintiff plainly could not do so in view of the Interest Act under which interest can only be charged bdore suit if so stipulated by the parties to the contract.\n\nIt is common ground that in the present case the contract between the parties does not provide for charging any interest for breach of contract.\n\nThe Solicitor-General relied on a decision of this Court in Union of India v. Watkins Mayore & Company (') where this Court observed as follows :\n\n\"Under the Interest Act, 1839, the Court may allow interest of the plaintiff if the amount claimed is a sum certain\n\nwhich is payable at a certain time by virtue of a written instrument. But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount. On hehalf of the respondent it was submitted by Mr. Aggarwala that interest may be awarded under the foterest Act which contains a provision that \"interest shall be payable in all cases in which it is now payable by law''.\n\nBut this provision only applies to cases in which the Court of Equity exercises jurisdiction to allow interest.\n\nIn the above case the plaintiff had brought a suit for damages claiming a particular quantified amount of Rs. 1,07,700/- as compensation for storage of over 600 tons of iron sheets for a particular period.\n\nThis quantified amount included a sum of Rs. 2,974/2/- as interest on the various sums claimed by the plaintiff as compensation, namely, godown rent, chowkidar's salary, cartage from Railway station to godown etc.\n\nThe High Court, however, granted a decree only for R,. 27 \"o?.5./\"o /- including the amount of ir\"erest daimed by the plaintiff.\n\nThus this Court in that case was dealing with interest claimed by the plaintiff not as a yardstick for assessing damages but as pure and simple interest on the quant; fied amount of comoensation or damages claimed bv the plaintiff.\n\nThis Court held that the interest to the extent of Rs. 2,974/2/- as claimed by the plaintiff could not be allowed in the ahsence of there be; ng anv contract iustifving the charging of such interest. This Court was not at all concerned with a case like the present one where the plaintiff has merely claimed damages pure and simple and in order to assess the same had applied the\n\n(I) A.LR. 1966 S.C. 275.\n\nyardstick of charging interest at a particular rate on the locked up capital. for a period of more than six months. In these circumstances, therefore the ratio of the aforesaid decision in Watkins Mayore & Company (suprn) is not applicable to the facts of the present case,\n\nSimilarly in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji( 1 ) which was relied upon by this Court in Watkins Mayore & Company\n\n(supra) the amount claimed by the plaintiff was a specified amount on the basis of which interest was charged which had the effect of increasing the damages sought for.\n\nThat was a case of a contractor who had brought a suit for recovery of the amount due from the Government Department and had added interest to the total claim made by the plaintiff.. The Privy Council pointed out that as there was no stipulation which authorized the plaintiff to charge interest on the quantified amount of damages, the plaintiff was not entitled to any interest.\n\nThus, in other words, the ratio of the decision in Ruttanji Ramji's case as also in Watkins Mayore & Company (supra) would apply only to such cases where interest by way of damages is claimed for wrongful detention of a debt or where the interest is claimed on a specified amount due or claimed against any debtor.\n\nThe principle adumbrated in the two cases mentioned above will not apply to cases where the plaintiff does not claim interest on a quantified amount or on damages but where the plaintiff merely calculates interest as a yardstick or measure to assess the damages which he would be entitled to.\n\nIn the instant case the Courts below have clearly found that the plaintiff had deposited a sum of Rs. 27,332-44 in the Bank scion after booking the consignment with the railway administration.\n\nThe plaintiff was a stockist and as the money in the Bank remained idle for a period of more than six months due to the delayed delivery made by the Railway on account of its negligence, the plaintiff merely claimed compensation for this delayed delivery on the basis that if the amount was not locked up it would have earned some interest which would yield some profit to the plaintiff.\n\nThus it is clear, therefore, that in the instant case the plaintiff neither claimed interest on any quantified amount, nor did he claim profit due to loss of lnarket.\n\nIn Digbijai Nath v. Tirheni Nath Tewari(') a Division Bench of the Allahabad High Court, while interpreting the decision of the Privy Council referred to above, observed as follows :\n\n\"We do not consider that this case is authority for the G proposition that interest cannot be claimed by way of damages for breach of a contract under s. 73, Contract Act.\n\nAll that was held in it was that interest cannot be allowed by way of damages for wrongful detention of debt. • • * The position is different where interest is claimed as part of the damages for breach of a contract.\n\nH A similar view was taken by a Division Bench decision of the Patna High Court in The Official Receiver, Calcutta High Court and another\n\n(1) A.LR. 1938 P.C. 67.\n\n(2) A.1.R. 1~46 All. 12.\n\nt •\n\nv. Baneshwar Prasad Singh and another ('). We find ourselve in A complete agreement with the principles laid down in those cases.\n\nFor these reasons, therefore, we are of the opinion that the decision of this Court in Watkins Mayore & Company (supra) does not appear to be of any assistance to the pJ1ellant, so far as the facts of the present case are concerned.\n\nThus 1t 1s clear tiJat there 1s no q uestion of s. 73 of the Contract Act overriding the provisions of the Interest Act, because in the instant case the Interest Act has no application at all inasmuch as no interest is claimed by the plaintiff at all but interest has been used as a measure to determine the compensation which the plaintiff could seek against the appellant for its negligence in causing inordinate delay in the delivery of the goods.\n\nThe contention raised by tlie learned Solicitor-General on this point is, therefore, overruled.\n\nThe plaintiif is not claiming the sum decreed by way of interest but he is claiming the damages calculated on a particular basis.\n\nAs a common carrier the Railway is undoubtedly responsible for breach of contract. ln the instant case the Railway Receipt shows that the goods were booked to be carried from Bhillai to Poona which is on the\n\nNagpur route.\n\nThere was absolutely no reason nor any. occasion for the Railway to divert the goods to a different route and for taking the same to a different route and for taking the same to Aurangabad which did not fall on the route to Poona at all.\n\nThe Courts below, therefore, rightly found that the Railway was guilty of gross negligence.\n\nThe last question submitted by the learned Solicitor General was that the plaintiff was not entitled to loss of profit or loss of market. because the plaintiff has not pleaded anywhere that he had obtained any permit for the go9ds which were a controlled commodity and sustained loss of market. It is true that the plaintiff has not pleaded this fact, but the plaintiff has not at all prayed for any damages on the ground of loss of market or loss of profit.\n\nThe plaintiff has only claimed nominal damages for the loss which occurred to him because of the amount of money which he had deposited in the Bank and was locked for more than six months due to the delayed delivery.\n\nThe Trial Court has already scalerl dnll'n the amount from Rs. 2,378-65 to Rs. 1,250/- and we think the Trial Court was fully entitled to do so.\n\nIn these circumstances, therefore. all the contentions raised bv the Solicitor General fail and we find no merit in this appeal which is accordingly dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n(I) A.LR. 1962 Pat. 155.", "total_entities": 145, "entities": [{"text": "UNION dF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "STEEL STOCK HOLDERS' SYNDICATE, POONA", "label": "RESPONDENT", "start_char": 16, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "STEEL STOCK HOLDERS SYNDICATE, POONA", "offset_not_found": false}}, {"text": "March 1. 1976", "label": "DATE", "start_char": 55, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "UNION dF INDIA\n\nSTEEL STOCK HOLDERS' SYNDICATE, POONA\n\nMarch 1."}}, {"text": "P. 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["}}, {"text": "Section 73", "label": "PROVISION", "start_char": 6241, "end_char": 6251, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 6819, "end_char": 6824, "source": "regex", "metadata": {"statute": null}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 6879, "end_char": 6891, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 6924, "end_char": 6936, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 8400, "end_char": 8434, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated the 24th August, 1967 of the High Court of Judicature at Bombay in Second Appeal No."}}, {"text": "Lal Narain Sinha", "label": "PETITIONER", "start_char": 8470, "end_char": 8486, "source": "ner", "metadata": {"in_sentence": "Lal Narain Sinha, Solicitor Gen¢ral for India, S. N. Prasad, and Girish Chander, (Not present), for the appellant."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 8517, "end_char": 8529, "source": "ner", "metadata": {"in_sentence": "Lal Narain Sinha, Solicitor Gen¢ral for India, S. N. Prasad, and Girish Chander, (Not present), for the appellant."}}, {"text": "Girish Chander", "label": "LAWYER", "start_char": 8535, "end_char": 8549, "source": "ner", "metadata": {"in_sentence": "Lal Narain Sinha, Solicitor Gen¢ral for India, S. N. Prasad, and Girish Chander, (Not present), for the appellant."}}, {"text": "M. N. Phadke", "label": "JUDGE", "start_char": 8586, "end_char": 8598, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, P. C. Bhartari, J. B. Dadachanji, 0."}}, {"text": "P. C. Bhartari", "label": "JUDGE", "start_char": 8600, "end_char": 8614, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, P. C. Bhartari, J. B. Dadachanji, 0."}}, {"text": "B. Dadachanji", "label": "LAWYER", "start_char": 8619, "end_char": 8632, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, P. C. Bhartari, J. B. Dadachanji, 0."}}, {"text": "Ravinder Narain", "label": "LAWYER", "start_char": 8652, "end_char": 8667, "source": "ner", "metadata": {"in_sentence": "C. :Wathur and Ravinder Narain, (Not Present), for the respondent."}}, {"text": "FAZAL ALI", "label": "JUDGE", "start_char": 8749, "end_char": 8758, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL ALI, J .-This is a defendant's appeal by special leave against the judgment and decree of the High Court of Bombay dismissing its second appeal in limine by its order I dated August 24, 1967."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 8849, "end_char": 8869, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL ALI, J .-This is a defendant's appeal by special leave against the judgment and decree of the High Court of Bombay dismissing its second appeal in limine by its order I dated August 24, 1967."}}, {"text": "August 24, 1967", "label": "DATE", "start_char": 8930, "end_char": 8945, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAZAL ALI, J .-This is a defendant's appeal by special leave against the judgment and decree of the High Court of Bombay dismissing its second appeal in limine by its order I dated August 24, 1967."}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 9080, "end_char": 9092, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Poona", "label": "GPE", "start_char": 9410, "end_char": 9415, "source": "ner", "metadata": {"in_sentence": "2,378.65 nP being the damages for breach of contract resulting from delayed delivery of the goods consigned by the plaintiff through the defendant Railways to be delivered at Poona."}}, {"text": "December 15,, 1961", "label": "DATE", "start_char": 9538, "end_char": 9556, "source": "ner", "metadata": {"in_sentence": "The plaintiff which is a furn carrying on its business dealing in iron goods booked a consignment with the defendant on December 15,, 1961 at Bhillai to be carried to Poona and to be delivered therein to the consignee safely and in good condition."}}, {"text": "Bhillai", "label": "GPE", "start_char": 9560, "end_char": 9567, "source": "ner", "metadata": {"in_sentence": "The plaintiff which is a furn carrying on its business dealing in iron goods booked a consignment with the defendant on December 15,, 1961 at Bhillai to be carried to Poona and to be delivered therein to the consignee safely and in good condition."}}, {"text": "December 15, 1961", "label": "DATE", "start_char": 9739, "end_char": 9756, "source": "ner", "metadata": {"in_sentence": "The defendenf Railways accepted the offer under a Railway Receipt dated December 15, 1961."}}, {"text": "May 9, 1962", "label": "DATE", "start_char": 9894, "end_char": 9905, "source": "ner", "metadata": {"in_sentence": "It appears that there was some delay in the delivery of the goods at Poona and on enquiries made by the plaintiff it appeared that till May 9, 1962 the goods had not been delivered at all."}}, {"text": "July 21, 1962", "label": "DATE", "start_char": 10129, "end_char": 10142, "source": "ner", "metadata": {"in_sentence": "Soon after the service of the notice the consignment was delivered on July 21, 1962."}}, {"text": "Aurangabad", "label": "GPE", "start_char": 10783, "end_char": 10793, "source": "ner", "metadata": {"in_sentence": "35,476-27 nP.\n\nThe plaintiff further alleged that the delay in the delivery was due to gross negligence of the defendant Railways which instead of sending the g?ocls direct from Bhillai to Poona\n\ndiverted them to Aurangabad where the consignment had to be loaded A in a meter-gauge tram and then t0 a broad-gauge lmo and it was _only after tile acrendant received the nonce from the plamtitl that it expedi.ed the delivery of the goods."}}, {"text": "Nagpur", "label": "GPE", "start_char": 11699, "end_char": 11705, "source": "ner", "metadata": {"in_sentence": "The Trial Court accepted the plaintiff's case in toto and found-\n\n(1) that there was an inordinate delay in the delivery of the goods belonging to the plaintiff at Poona;\n\n(2) that the goods were first diverted to Aurangabad, alc though the route from Bhillai to Poona lay via Nagpur and Aurangabad does not fall on the route at all; and\n\n(3) that the defendant was guilty of gross negligence and was, therefore, responsible for loss for delay or devialion in carrying the goods."}}, {"text": "District Judge,, Poona E", "label": "COURT", "start_char": 12358, "end_char": 12382, "source": "ner", "metadata": {"in_sentence": "The defendant then filed an appeal before the District Judge,, Poona E who upheld the finding of the learned Munsiff and dismissed the appeal."}}, {"text": "Railways Act as amended by Act", "label": "STATUTE", "start_char": 13143, "end_char": 13173, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 76", "label": "PROVISION", "start_char": 13350, "end_char": 13355, "source": "regex", "metadata": {"linked_statute_text": "Railways Act as amended by Act", "statute": "Railways Act as amended by Act"}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 13363, "end_char": 13375, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 78( d)", "label": "PROVISION", "start_char": 13755, "end_char": 13764, "source": "regex", "metadata": {"linked_statute_text": "Railways Act as amended by Act", "statute": "Railways Act as amended by Act"}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 13776, "end_char": 13788, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Phadke", "label": "OTHER_PERSON", "start_char": 14182, "end_char": 14188, "source": "ner", "metadata": {"in_sentence": "Mr. Phadke appearing for the respondent has repelled the contentions e>f the appellant on the ground that the new Railways Act does not reduce or diminish the liability !"}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 14292, "end_char": 14304, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 76", "label": "PROVISION", "start_char": 14561, "end_char": 14566, "source": "regex", "metadata": {"statute": null}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 14578, "end_char": 14590, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Decembe1' 15, 1961", "label": "DATE", "start_char": 15086, "end_char": 15104, "source": "ner", "metadata": {"in_sentence": "Finally it was contended that as the contract was entered into between the parties on Decembe1' 15, 1961, when the goods were booked at Bhillai, the liability for damages arose on that day and the case of the plaintiff would be covered by the provisions of the Railways Act before it was amended by Act 39 of 1961."}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 15261, "end_char": 15273, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 15463, "end_char": 15475, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 15549, "end_char": 15561, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 72", "label": "PROVISION", "start_char": 15673, "end_char": 15678, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 151, 152 and 161", "label": "PROVISION", "start_char": 15808, "end_char": 15828, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 15836, "end_char": 15855, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 72", "label": "PROVISION", "start_char": 16170, "end_char": 16180, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 151, 152 and 161", "label": "PROVISION", "start_char": 16464, "end_char": 16489, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act, 1872", "label": "STATUTE", "start_char": 16497, "end_char": 16522, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 72", "label": "PROVISION", "start_char": 16590, "end_char": 16595, "source": "regex", "metadata": {"linked_statute_text": "the Indian Contract Act, 1872", "statute": "the Indian Contract Act, 1872"}}, {"text": "Act expressly excluded the principles of the common law of Enland or in the Carriers Act", "label": "STATUTE", "start_char": 16607, "end_char": 16695, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 17757, "end_char": 17762, "source": "ner", "metadata": {"in_sentence": "But before doing this, the Government appointed a Committee called the Railway Freight Struclure Enquiry Committee (1956-57) which recommended that the responsibility of the Railways in India should be changed to that of a cornman earner instead of a bailee."}}, {"text": "United Kingdom", "label": "GPE", "start_char": 19125, "end_char": 19139, "source": "ner", "metadata": {"in_sentence": "However, closely following the legal position in the F United Kingdom, it is proposed that the basic responsibility of our railways for loss, destruction or deterioration etc."}}, {"text": "section 73", "label": "PROVISION", "start_char": 19297, "end_char": 19307, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 21500, "end_char": 21505, "source": "regex", "metadata": {"linked_statute_text": "Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act", "statute": "Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act"}}, {"text": "England", "label": "GPE", "start_char": 21613, "end_char": 21620, "source": "ner", "metadata": {"in_sentence": "x x x x\n\n(a) The Bill seeks to make it clear that in the case of through booking of consignments over an Indian Railway and a Foreign Railway, the responsibility of the Indian Railway as a common carrier would extend only over that portion of the carriage which is over the Indian Railway;\n\nx x x x\n\n( c) Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act which were revealed by experience in its working.·•\n\nIt appears that the old s. 72 was completely deleted including sub-s. ( 3) which expressly prohibited the principks of the common law of England for determining the liability of the Railways as common carriers."}}, {"text": "s. 72", "label": "PROVISION", "start_char": 21705, "end_char": 21710, "source": "regex", "metadata": {"linked_statute_text": "Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act", "statute": "Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act"}}, {"text": "ss. 72 and 73", "label": "PROVISION", "start_char": 22008, "end_char": 22021, "source": "regex", "metadata": {"linked_statute_text": "Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act", "statute": "Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing prcwisions of the Act"}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 22188, "end_char": 22200, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 23090, "end_char": 23102, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 72", "label": "PROVISION", "start_char": 23195, "end_char": 23205, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 23465, "end_char": 23470, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 23952, "end_char": 23967, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 72", "label": "PROVISION", "start_char": 24417, "end_char": 24422, "source": "regex", "metadata": {"statute": null}}, {"text": "Act completely supersedes the provisions of the Contract Act", "label": "STATUTE", "start_char": 24463, "end_char": 24523, "source": "regex", "metadata": {}}, {"text": "Section 73", "label": "PROVISION", "start_char": 24578, "end_char": 24588, "source": "regex", "metadata": {"linked_statute_text": "Act completely supersedes the provisions of the Contract Act", "statute": "Act completely supersedes the provisions of the Contract Act"}}, {"text": "s. 76", "label": "PROVISION", "start_char": 25025, "end_char": 25030, "source": "regex", "metadata": {"linked_statute_text": "Act completely supersedes the provisions of the Contract Act", "statute": "Act completely supersedes the provisions of the Contract Act"}}, {"text": "January\n\nI, 1962", "label": "DATE", "start_char": 26260, "end_char": 26276, "source": "ner", "metadata": {"in_sentence": "In these circumstances, therefore, according to the plaintiff itself, the breach occurred only after the new Act had come into force-whether it was January\n\nI, 1962 or thereafter."}}, {"text": "January 1, 1962", "label": "DATE", "start_char": 26678, "end_char": 26693, "source": "ner", "metadata": {"in_sentence": "occurred on January 1, 1962 or thereafter, then it is manifest that the case -would be covered by the new Act and not by the old Act."}}, {"text": "s. 76", "label": "PROVISION", "start_char": 26955, "end_char": 26960, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 76", "label": "PROVISION", "start_char": 26977, "end_char": 26987, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 76", "label": "PROVISION", "start_char": 27887, "end_char": 27897, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 28024, "end_char": 28029, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 28481, "end_char": 28486, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 76 and 78", "label": "PROVISION", "start_char": 28911, "end_char": 28924, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78(d)", "label": "PROVISION", "start_char": 29394, "end_char": 29407, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 29427, "end_char": 29432, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 7", "label": "PROVISION", "start_char": 29699, "end_char": 29703, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(d)", "label": "PROVISION", "start_char": 29722, "end_char": 29730, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 73", "label": "PROVISION", "start_char": 29822, "end_char": 29827, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 78", "label": "PROVISION", "start_char": 30254, "end_char": 30264, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78(d)", "label": "PROVISION", "start_char": 30465, "end_char": 30473, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 30809, "end_char": 30814, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 30880, "end_char": 30885, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 30940, "end_char": 30945, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 30989, "end_char": 30994, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 31418, "end_char": 31423, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 31592, "end_char": 31597, "source": "regex", "metadata": {"statute": null}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 31693, "end_char": 31713, "source": "ner", "metadata": {"in_sentence": "In support of this content10n, the learned counsel relied on a decision of the Allahabad High Court in G.l."}}, {"text": "Sulaiman", "label": "JUDGE", "start_char": 31781, "end_char": 31789, "source": "ner", "metadata": {"in_sentence": "P. Railway Co. & others v. Jugul Kishore Mukai Lal(l) where Sulaiman, Ag."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 31906, "end_char": 31912, "source": "regex", "metadata": {"statute": null}}, {"text": "Mukeri1", "label": "JUDGE", "start_char": 32264, "end_char": 32271, "source": "ner", "metadata": {"in_sentence": "In both these detenorallon resultmg from a delay in tendering the good is contemplated: x x. x We therefore accept the view expressed by Mukeri1, J., in the unreported case and hold that the word \"deterioration\"\n\nis wide enough to include depreciation in value on account of a fall in the price of the goods.\""}}, {"text": "Orisa High Court", "label": "COURT", "start_char": 32486, "end_char": 32502, "source": "ner", "metadata": {"in_sentence": "The same view appears to have been taken by the Orisa High Court in Unioh of India and orthers v. Messrs. Sheobux Satyanarayan (') where Misra, J., as he then was, observed as follows :\n\n\"Though there was some difference of opinion as to the import of the word \"deterioration\" used in section 72 of the Indian Railways Act and in section 161 of the Indian Contract Act, the position is now well settled that it is wid0 enough to include depreciation in value on account of a fall in the price of the goods.\""}}, {"text": "Misra", "label": "JUDGE", "start_char": 32575, "end_char": 32580, "source": "ner", "metadata": {"in_sentence": "The same view appears to have been taken by the Orisa High Court in Unioh of India and orthers v. Messrs. Sheobux Satyanarayan (') where Misra, J., as he then was, observed as follows :\n\n\"Though there was some difference of opinion as to the import of the word \"deterioration\" used in section 72 of the Indian Railways Act and in section 161 of the Indian Contract Act, the position is now well settled that it is wid0 enough to include depreciation in value on account of a fall in the price of the goods.\""}}, {"text": "section 72", "label": "PROVISION", "start_char": 32723, "end_char": 32733, "source": "regex", "metadata": {"statute": null}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 32748, "end_char": 32760, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 161", "label": "PROVISION", "start_char": 32768, "end_char": 32779, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Contract Act", "label": "STATUTE", "start_char": 32787, "end_char": 32806, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Lahore High Court", "label": "COURT", "start_char": 32987, "end_char": 33004, "source": "ner", "metadata": {"in_sentence": "As against this a Division Bench of the Lahore High Court in R. I. Railway Co. Ltd. v. Diana Ma!"}}, {"text": "s. 76", "label": "PROVISION", "start_char": 33504, "end_char": 33509, "source": "regex", "metadata": {"statute": null}}, {"text": "Martineau", "label": "JUDGE", "start_char": 33833, "end_char": 33842, "source": "ner", "metadata": {"in_sentence": "Having regard to the background and the setting in which the word\n\n\"deterioration\" occurs in s. 76 of the new Act it seems to us that the parliament intended that the word should be used in the ordinary parlance and in a restricted sense so as to inculde--within its ambit the actual physic&) act of deterioration, i.e. the physical P.art of it, namely, the change for the worse in the thing itself as very aptly F put by Martineau, J., in the Lahore High Court judgment referred to above."}}, {"text": "s. 76", "label": "PROVISION", "start_char": 34124, "end_char": 34129, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 34319, "end_char": 34324, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa High Court", "label": "COURT", "start_char": 34485, "end_char": 34502, "source": "ner", "metadata": {"in_sentence": "In these circumstances, therefore, with due respect, we are unable to agree with the somewhat broad view taken by the Allahabad High Court and followed by the Orissa High Court in the cases referred to above."}}, {"text": "Labore High Court", "label": "COURT", "start_char": 34597, "end_char": 34614, "source": "ner", "metadata": {"in_sentence": "We, on the other hand, prefer to adopt the view taken by the Labore High Court in the case referred to above."}}, {"text": "s. 76", "label": "PROVISION", "start_char": 34724, "end_char": 34729, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 34895, "end_char": 34900, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 76 and 78", "label": "PROVISION", "start_char": 35121, "end_char": 35134, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 76", "label": "PROVISION", "start_char": 35218, "end_char": 35223, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 78", "label": "PROVISION", "start_char": 35227, "end_char": 35232, "source": "regex", "metadata": {"statute": null}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 35908, "end_char": 35920, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Interest Act, 1839", "label": "STATUTE", "start_char": 36327, "end_char": 36345, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Aggarwala", "label": "OTHER_PERSON", "start_char": 36674, "end_char": 36683, "source": "ner", "metadata": {"in_sentence": "On hehalf of the respondent it was submitted by Mr. Aggarwala that interest may be awarded under the foterest Act which contains a provision that \"interest shall be payable in all cases in which it is now payable by law''."}}, {"text": "Watkins Mayore & Company", "label": "ORG", "start_char": 38340, "end_char": 38364, "source": "ner", "metadata": {"in_sentence": "In these circumstances, therefore the ratio of the aforesaid decision in Watkins Mayore & Company (suprn) is not applicable to the facts of the present case,\n\nSimilarly in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji( 1 ) which was relied upon by this Court in Watkins Mayore & Company\n\n(supra) the amount claimed by the plaintiff was a specified amount on the basis of which interest was charged which had the effect of increasing the damages sought for."}}, {"text": "Ruttanji Ramji", "label": "OTHER_PERSON", "start_char": 39161, "end_char": 39175, "source": "ner", "metadata": {"in_sentence": "Thus, in other words, the ratio of the decision in Ruttanji Ramji's case as also in Watkins Mayore & Company (supra) would apply only to such cases where interest by way of damages is claimed for wrongful detention of a debt or where the interest is claimed on a specified amount due or claimed against any debtor."}}, {"text": "s. 73", "label": "PROVISION", "start_char": 40806, "end_char": 40811, "source": "regex", "metadata": {"statute": null}}, {"text": "Patna High Court", "label": "COURT", "start_char": 41109, "end_char": 41125, "source": "ner", "metadata": {"in_sentence": "H A similar view was taken by a Division Bench decision of the Patna High Court in The Official Receiver, Calcutta High Court and another\n\n(1) A.LR."}}, {"text": "Baneshwar Prasad Singh", "label": "RESPONDENT", "start_char": 41244, "end_char": 41266, "source": "ner", "metadata": {"in_sentence": "t •\n\nv. Baneshwar Prasad Singh and another (')."}}, {"text": "s. 73", "label": "PROVISION", "start_char": 41654, "end_char": 41659, "source": "regex", "metadata": {"statute": null}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 41713, "end_char": 41725, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Interest Act", "label": "STATUTE", "start_char": 41759, "end_char": 41771, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_518_531_EN", "year": 1976, "text": "DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER\n\nOF SHRI VITHAL RUKHAMAI SANSTHAN\n\nTHE CHARITY COMMISSIONER, STATE OF BOMBAY March l, 1976\n\n[P. K. GOSWAMI ANDS: MURTAZA FAZAL ALI, JJ.J\n\nBo111ba) P:1blic Trust Act, 1950 (20 of 1950)-s. 2(13) Public or Private Trust-Tests for detern1i11ation of.\n\nThe principles of law for determination of the question whether an endow-- ment is public or private are : ( 1) In a private trust, the beneficiaries arc specific individuals who are as...:ertainec1 or ;::apable of being ascertained; in a private trust, they are the C general public or a class thereof which is incapable of being ascertained.\n\n[526CJ\n\n(2) The intention of the founder as to whether specified individuals or the ge;;, ernl public or any specified portion thereof could have the right of worship.\n\n[526E]\n\n(3) When property is dedicated for the V.'orship of a family idol. it is a private :;.nd not a public endowment. Where the beneficiaries are not specified individuals, the endowment can only be regarded as public.\n\n[526F1 Devfd l\\1andan v. Murlidhar, rt9561 S.C.R. 756 and State of Bihar & Ors.\n\nv. Smt. CilanHila Dasi, [1959] Suppl. S.C.R. 601/613, referred to.\n\n( 4) Proof of user by the public without interference would be cogent evidence that the dedication is in favour of the public.\n\n[527A}\n\nl\\'aravan BhaRwaritrao Gosavi Balajiwala v. Gopal Viriayak Gosavi and vi hers, r19601 1 S.C.R. 773. referred to.\n\n(5) It is unusual for rulers to make grants to a fan1ily idol. [52781\n\n(6) Participation of the members of the public in the darshan in the\n\ntrnple and in the daily acts of v, rorship or in the celebrations on festival occasions m:iy be a very important factor to consider in determining the character of the temple.\n\n[527E]\n\nTi!kayat Shri Govifldlalii ft., faharaj v. The Stnte of Rajasthan and other.l. fl9641 l S.C.R. 561. referred to.\n\n(7) The origin of the temple. the manner in \\vhich its affairs are managed. the n::iture ::ind extent of the gifts received by it, rights exercised by the devotees F in regard to \\vorship, the consciousness of the manager and the con<; ciousness of the devotee\" as to the public character of the temple establish whether a temple is a public or a private temple.\n\n[527F]\n\nGoswami Shri Malialax1ni Vahu; i V. Ra1111('/ihoddas Kalidas and ors. rJ97012 S.C.R. 275. referred to.\n\n(8) It is not always possible to have all the features of a public trust in n given c.1.c; e; even some of the tests may be sufficient to condude about the character of the trust.\n\n[528E] Dismissing the appeal\n\nHELD:\n\nIn the instant case from the documentary and oral evidence the fo1lowing -I features are present : •\n\n( i) The deity insta1Jed in the temple was intended by the founder to be continually worshipped by an indeterminate multitude of the Hindu public.\n\n(ii) Jn orJer to facilitate worship by the public. the founder also intended that regular hhajan, kirtan and worship shall be maintained and annual ceremo~ nies and processions for pilgrimage shall be conducted by the saints in succession no1ninated by the reigning saint.\n\n(iii) There has been no evidence of any hindrance or restriction in the matter of continuous \\\\.'Orship by the public extending over a long period.\n\n(iv) More than a century ago the tem:_ile, in its own name, was the rcipie.nt of land by Royal grant and the same has been managed by the saints in succession as manager, not as personal or private property.\n\n(v) Gifts of land by members of the public from the Taluka and outside_ it in favour of the temple or of the Sansthan were made for the purpose of worship.\n\n(vi) Colle..:tion of subscriptions were made from house to house by taking Maharaj and also for 'Gui al' ceremony.\n\n(vii) lloldinu. out of the Sansthan to all intents and purposes as a public temple.\n\n(viii) Treating of the Sansthan by those who are connected with the manage~ ment as intended for user by the public without restrictions. (ix' Absence of any evidence in the lon~ history of the Sansthan to warant that it had any appearance of, or that it was ever treated as, a private property. [530E-H; 53 IA-Bl\n\nThe above features lead to the inescapable conclusion that Shri Vithal Rukhamai Sansthan is a public trust within the meaning of s. 2(13) of the Bombay Public Trust Act. 1950.\n\nCIVIL APPELLATE JuRISD!CT!ON: Civil Appeal No. 1231 of 1968.\n\nAppeal by special leave from the judgment and order dated the 20th December 1962 of the High Court of Judicature at Bombay in Civil Appeal No. 151 of 1960.\n\nB. D. Bal with A. G. Ratnaparkhi, for the appellant.\n\nV. S. Desai with M. N. Shroff for S. P. Nayar, for respondent.\n\nThe Judgment of the Court was delivered by GoswAMl, J.-The question that arises in this appeal by special leave is whether Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust.\n\nThere was a saint endowed with spiritual powers by the name of Sakharam Maharaj at Amalner.\n\nThe deity of his worship was Shri Vithal Rukhamai.\n\nAlthough the origin of the Sansthan is\n\ndipped somewhat in antiquity and direct testimony was lacking, it F has never been disputed that Sakharam Maharaj constructed a temple in the year 1817 at Amalner and installed the aforesaid deity according to religious rites.\n\nHe also acquired certain properties and the said temple with the properties constituted Shri Vithal Rukhamai Sansthan of Amalner.\n\nThe sansthan had movable property of the value of Rs. 19,164/- and immovable properties of the value of Rs. 1,06,000/- and the average gross annual income as well as the G average annual expenditure was Rs. 11,000/-.\n\nAfter the pasing of the Bombay Public Trusts Act. 1950 !No. 29 of 1950) (bnefly the Act) an application under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh Ramrao .sahebrao Deshmukh and Ramkrishna Tryambak Deshpande'. as ons.tttuted attorneys of Vasudeobuwa who was described in the application as the \"?wner\" of the property. The word 'Buwa' means H samt: The aphatlon was made on May 29, 1952, to the Assistant Chanty Comm1ss1oner, Poona, under protest and without prejudice\n\nto the claim made therein that the Sansthan was not a public trust.\n\nIn view of the penal provision under section 66 of the Act in the case of non-compliance with section 18 ( 1) of the Act the said application was made ex abundanti cautela.\n\nThe Assistant Charity Commissioner after requisite notice made an enquiry into the matter in accordance with the provisions of the Act.\n\nOn behalf of the applicants representing the Sansthan evidence of the attorney Rarnkrishna Deshpande was recorded and he was cross-examined by the assessors as w\"ll as by the Assistant Charity Commissioner.\n\nSome documents were also produced on behalf of the Sansthan.\n\nThree witnesses were examined on behalf of the Assistant Charity Commissioner and were afforded an opportunity to the applicants' pleader for cross-examination.\n\nAt the close of the enquiry the Assistant Charity Commissioner by his order of August 25, 1956, held the Sansthan to be a public trust and ordered its registration as a public trust under the Act.\n\nThe applicants thereupon filed an appeal under section 70 of the Act before the Charity Commissioner, Bombay, who by his order of August 31, 1957, affirmed the decision of the Assistant Charity Commissioner.\n\nThat led to an application under section 72 of the Act to the District Judge of West Khandesh at Dhulia which was duly filed on behalf of Purshottarnbuwa who meanwhile succeeded Guru Vasudeobuwa as \"owner\" of the Sansthan.\n\nThe earned District Judge reversed the decision of the Charity Commissioner by his order of October 16, 1959, and declared the Sansthan to be a private property and not a public trust.\n\nThe Charity Commissioner then appealed under section 72 ( 4) of the Act to the High Court of Bombay.\n\nThe High Court by its order of 19/20th December, 1962, set aside the order of the District Judge and held the Sansthan to be a public trust under the Act and restored the order of the Charity Commissioner.\n\nHence this appeal by special leave which was obtained on March 29, 1968, after condonation of delay in the peculiar circumstances of the case arising out of revocation by the High Court of its earlier certificate in favour of the appellant on account of default of deposit of security.\n\nAs noted earlier there was both oral and documentary evidence. adduced in this case.\n\nThe learned District Judge relied mostly on the documentary evidence for his conclusion in favour of the appellant.\n\nThe High Court took note of both oral as well as docurnentarv evidence.\n\nThe High Court particularly relied upon an admission oi the appellant's witness, Rarnkrishna Deshpande, when he stated that \"we cannot prevent people from going to the temple as the temple is meant for the Darshan by the public'\".\n\nIt is not disputed by Mr. Bal appearing on behalf of the appellant that the Sansthan in question is an endowment. His only contention is that it is a private religious endowment and not a public one.\n\nHe su bruits that there is no evidence of long user of this temple by\n\nthe public as a matter of right.\n\nMr. Bal further contends that the High Court failed to consider all the material documents filed on behalf of the appellant except only Ex. 35 and that the conclusion was highly erroneous being contrary to the one that had been reached by the District Judge on appraisal of the entire documentary evidence.\n\nBefore we proceed further, it may be appropriate to note the definitions of 'public trust' and 'temple' in section 2(13) and section 2(17) respectively of the Act which read as follows :-\n\ns. 2 (13) : \" 'Public trust' means an express or constructive trust for either a public religious or charitable purpose, or both and includes a temple, a math, a wakf, church synagogue, agiary or other place of public religious worship, C a dharmada or any other religious or charitable endowment . ..... \"\n\ns. 2 ( 17) : \" 'Tmple' means a place by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship\".\n\nRelying upon the above definitions Mr. Bal submits that there is absolutely no evidence in this case about dedication to the public or public user of the temple as a matter of right.\n\nSince the grievance of the appellant is directed against the High E Court's absolute failure to consider all the documentary evidence, we may deal with that aspect first.\n\nThe earliest document produced in this case is a 'Sanad' (Ex. 42) of November 1, 1863.\n\nThis Sanad was granted by the then British Government during the reign of Queen Victoria in favour of \"Devasthan Shri Vithal Rukhamai\".\n\nThe Sanad refers to the entry in the village accounts.\n\nThe entry mentioned therein is in the village accounts in the Khandesh Collectorate. for the year 1860-61, field Nos. 623 and 624 measuring 14.S acres of land in the name of the holder as Devasthan Shri Vithal Rukhamai, Manager Balkrishnabuwa, Guru Govindbuwa, Amalnairker.\n\nThere are significant recitals in the Sanad to the following effect :\n\n\"It is hereby deolared that the said land shall be continued for ever by the British Government as the endowment property of Shri Vithal Rukhamai of Kasabe Amalnair Talooka Amalnir on the following conditions, that is to say, that the managers thereof shall continue faithful subjects of the British Government, and ...... the said land shall be continued for ever as endowment loam without increase of land tax over the said fixed amount\".\n\nThe amount fixed was Rs. 17 /4/0 per annum.\n\nA It is true that the High Court has not referred to this Sanad but\n\nthe District Judge did.\n\nThe District Judge held that- \" ...... the expression in the Sanad cannot be in any way determinative of the nature of the temple or religious endowment as a public trust\".\n\nIt is, however, difficult to accept the conclusion of the District Judge.\n\nThe Sanad being an ancient Royal grant is a very important piece of evidence to show that although Sakharam Maharaj, the founder of the temple, had already been succeeded by Guru Govindbuwa and the latter by Balkrishnabuwa, the land had been held in the year 1860-61 in the name of the Devasthan. It is in the name of the Devasthan alone that the grant was continued by the Government.\n\nThis would go to show that the Government recognised the Sansthan with the temple as a public religious endowment and only on that basis the grant was continued.\n\nApart from that the temple was shown to have a Manager and not an owner as such.\n\nIn the absence of anything to the contrary of a convincing nature, a grant by the Government in favour of the temple describing the property to be in charge of a manager leads to an unerring inference that the property is a public religious endowment.\n\nFrom the evidence of Ramkrishna Deshpande, one of the constituted attornies, we find the origin and the devolution as follows :-\n\n\"The originator of this Sansthan is Sakharambuwa.\n\nAfter Sakharam there came Gobindbuwa. He was followed by Balkrishnabuwa.\n\nThen came Prahladbuwa. Thereafter Tukarambuwa came to Gadi. After him there was Krishnabuwa and after him there was Balkrishna.\n\nThen came Vasudeo.\n\nAfter him the present Buwa Purshottam came to Gadi. This Gadi goes to Shishya from the Guru\".\n\nThis evidence of Ramkrishna Deshpande stands corroborated by the Sanad which shows in the year 1860-61 the Manager of the Sansthan as Balkrishnabuwa Guru Govindbuwa.\n\nGuru Govindbuwa F was the second in the line of succession after Sakharam, the founder, and Balkrishnabuwa being the third in the line.\n\nIt is clear from the Sanad that the Government treated the temple as a public religious endowment.\n\nThe next document in sequence is a Varaspatra of February 28, 1869 (Ex. 35) executed by Guru Govind Balkrishnabuwa in favour of Prahladbuwa.\n\nThis is a document which was relied upon both by the District Judge as well as by the High Court. Varaspatra is a deed of nomination by which an Adhikari for the Sansthan was nominated in order to take charge of the property, maintain and continue the religious worship of the deity as per tradition as well as of the celebration of the festivals in accordance with the customary practice of the Sansthan. The appellant draws our attention to the following recitals in the above deed :-\n\n\"I have been carrying on the Malaki of Shri Sansthan Amalner ...... \"\n\nl •\n\nDHANBSHWARBUWA v. CHARITY COMMR. (Goswami, J.) 523\n\nAccording to the appellant this would go to show that the executant of the document Balkrishnabuwa described himself as 'Malak' (owner) of the Sans than.\n\nIt is further pointed out that while nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as follows :-\n\n\"You are entitled to the ownership of all the incomes that will come before the Deity, Shri Samarth and during the Swari (procession) as well as the income of Inam Najrana and the income of movable and immovable property\".\n\nx x x x x \"The entire ownership of the Sansthan and all the movable and immovable property e.tc. pertaining to the Sansthan is of yours.\n\nThat ownership is of your own.\n\nYour Bhauband and others have no right whatsoever over the same.\n\nYou are free to give and take as per the Shishya-sampradaya as has been done previously\".\n\nFrom the above, the appellant contnds that the Sansthan was a private property and it was also transferred to the Shishya Adhikari\n\nto maintain it as his own property.\n\nWe are unable to accept this submission as we find some other significant receitals in the douments\n\nitself warranting a contrary conclusion.\n\nAlthough it is stated in the document that Balkrishnabuwa was \"carrying on the Malaki\", ihe at the same time states with regard to the Sansthan thus :\n\n\" ..... the same was entrusted to me by Shri Guru Maharaj\" .... . x x x x x \"I, therefore, thought that I should entrust the work of the Sansthan to you and have appointed you to the said Sans than\".\n\nThe nature of devolution is explicit in the above extract.\n\nAlthough there is use of the words owner and 'Malaki' in the above recitals, the entire tenor of the document read as a whole goes to show that the property has always been treated as trust property even by the Adhikari saints and the Adhikaris or the disciples who succeeded one after the other were not owners but trustees of the property.\n\nThis ancient document read as a whole does not admit of any olher interpretation consistent with the nature of the property and t.he av?wed object and prpo.se of the founder clearly revealed therem w_hih has been came? mto . effect by successive loyal and devoted d1sc1ples.\n\nThe words MalakI' and 'owner' in the context are not used in the broad sense to indicate an absolute character of personal ownership.\n\nThe next document is Vavasthapatra (Ex. 41) of April 25, .1897. . We find from the e_v1dence of Ramkrishna that the Shishya 1s appomted by .the Mahra1 wo happens to be holding the Gadi ; at the relevant time.\n\nThis fact 1sborne out by the recitals in Ex. 41.\n\nThis document may be described as a deed of nomin.ation or will whereby it appears Krishnabuwa whose Guru was Tukaram Maharaj nominated Balkrishna Gangadhar Dhamurkar as the Devadhikari of the Gadi to succeed him.\n\nThe appellant submits that Balkrishna was bestowed a 'Malaki' as the term appears in this document.-\n\nAlthough the High Court has not dealt with this document, there is a reference in its judgment to the contents of the same as being similar to Ex. 35.\n\nThe principal emphasis on both these documents Ex. 35 and Ex. 41 is that the words 'owner' and 'Malaki' were used in the recitals.\n\nAs stated above we are unable to hold that recitals in these documents taken as a whole can reasonably lead to the conclusion that the Sansthan is a private property.\n\nAfter the turn of the century, coming now to comparativdy recent times, there are four documents Ex. 40, 37, 39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 attd January 28, 1949, respectively.\n\nIn Ex. 40 th~ party taking the gift is described as Vahiwatdar Panch of Shri Sakharam Maharaj. Sansthan, Vithalwadi, Amalner.\n\nThe donor, an old agriculturist of a different Ta!uka viz.\n\nErandole, writes :\n\n\"I give the gift deed in writing as follows :-\n\nWith the object of giving possible help through me to the above sansthan, I have given in gift my ancestral immovable property ..... . x x x x x I have given in gift the above mentioned property &s aforesaid of my free will for the purpose of religious work in order that my life may be of bliss as I have no male issue and wife.\n\nx x\n\nThe said field should generation to generation. full owner thereof'.\n\nx x x\n\nbe used for the sansthan from The above sansthan qas become\n\nIn the gift deed Ex. 37 executed by three businessmen of Amalner there arc recitals to the similar effect :\n\n\"When we were joint, the said fie, Jd was given as a gift to you for the service of the •ansthan, viz., Shri Vithal Rukhmai Sansthan, Amalner and was given in your possession.\n\nNow all our movable and immovable estate is partitioned orally.\n\nHence the gift deed of the said field, which had remained unexecuted, has been executed today ...... \"\n\nThe said gift deed was in favour of Archak (worshipper) Vasudeobuwa Guru Balkrishnabuwa.\n\nAgain, in the gift deed Ex. 39 the doncc is described as \"Shri Rukhmini Pandurang Sansthan, Sansthan Amalner Sakharam Maharaj at present Vasudev Buwa Guru Bal-\n\nI ,\n\n~~ ,,\n\nl I •\n\n'l>HM'!ESl!WARBUWA v. CHARITY COMMR. (Goswami, J.) 525\n\nkrishna Maharaj\".\n\nThe following recitals in the said document are eloquent:\n\n\"This land is given to you in charity as per the order of (my) mother with a religious view and with an intention ot bcnefitting others with the object of achieving happiness in this world and in the next world according to the shastras and the above land is given in your possession this day. Hence you are the full owner of the land and you are free as full owner thereof to manage and carry on the V ahiwat of the said land by right of ownership perpetually from generation to generation on the strength of this writing.\n\nx x x x x The Dindi of the said Sansthan from Amalner remains at Sh:tvgaon on the 30th of Jeshta vadya or on the 1st of Ashad Shudha according to practice every year.\n\nYou shoud spend the income of the said property for the purpose of Naivadya for the Deity Pandurang at night that day.\"\n\nThe beneficiaries of this gift are clearly the unasccrtained Hindu D public and not ascertained individuals and the donee is a trustee accepting the gift on behalf of the Sansthan.\n\nThe last deed of gift is Ex. 38 and the donee is \"Shri Vasudev Buwa Guru Balkrishna Buwa\" described as the worshipper carrying on the \"Vahiwat of Shri Vithal Rekhmai Sansthan\". The deed goes on to say:\n\n\"I have full faith in Shri Sakharam Maharaj.\n\nHence with the intention (object) that some service may be rendered by me for his Devasth~, I have given in gift out of love the below mentioned 1 property valued at Rs. 600\n\n(Six hundred) without taking any consideration from you for the purpose of expenses of performing worship and offering Naivadya food\". '\n\nAll the above gifts were donated to the Devasthan and for the maintenance of worship therein.\n\nThese gifts were not made in favour of individuals as such in order that the beneficiaries of the gifts will be only those individuals. It is clear that the beneficiaries of the deeds are the deity and the Sansthan and the gifts were made with the object of maintenance of the worship of the deity for the benefit of the Hindu public as a whole.\n\nThe expression in the recital that \"you are free as the full owner thereof' does not convert the gift which is expressly in favour of the deity or Sansthan into that in favour of an individual as private property. The appellant relies on all these documents for the purpose of showing that the endowment is private only because ownership of the donor is ':ransferred to the donee.\n\nWe are, however, unable to accede to this submission. It is very significant that in the last gift deed Ex. 38 of January 28, 1949, there is a most reverential reference to Shri\n\n526 SUPIUiMll COURT REPORTS\n\n[1976] 3 S.C.R.\n\nA Sakharam Maharaj and his Devasthan when Sakharam Maharaj had departed in the past century.\n\nNot much can be made therefore from the expression \"His Devasthan\" to convert the property into a private endowment.\n\nThe reference to Sakharam Maharaj Sansthan, wherever it appears, is only for the purpose of identification and commemoration of the hallowed saint who had admittedly founded the same.\n\nThe principles of law for determination of the question whether an endowment is public or private are fairly well-settled.\n\nThis Court observed in Deoki Nandan v. Murlidhar(') as follows :-\n\n\"The distinction between a private and a public trust is that whereas in the former the beneficiaries arc specific individuals, in the latter, they are the general public or a class thereof.\n\nWhile in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment''.\n\nThis Court further held :\n\n\"When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty.\n\nThe cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.\n\nIn accordance. with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals.\n\nB11t where the beneficiaries\n\nar~ not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers''.\n\n(See also the State of Bihar & Ors. v.\n\nSm.\n\nCharusila Dasi(').\n\nDistinguishing the decision of the Privy Council in Balm Bhagwan Din v. G.r Har Saroon(') on the ground that the properties in that case were granted not in favour of an idol or temple but in favour of one Daryao Gir who was main1aining a temple and to his l!Cin in perpetuity, this Court further held in the above decision :\n\n\"But, in the present case, the endowment was in favour of t.he idol itself, and the point for decision is whether it\n\n(ll [19561S.C.R. 756.\n\n(2) [1%91 Supp, 2 S.C.R. COJ, 6J3.\n\n(J) (1939) LR. 67 LA. I.\n\n• •\n\n~ I\n\nwas private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public\".\n\nThis Court also distinguished the'aforesaid Privy Council decision <1/ Babu Bhagwan Din's case (Supra) in Narayan Bhagwantrao Gosavi Batajiwale v. Gopal Vinayak Gosavi and Others(') .\n\nThis Court also observed in Narayan Bhagwantrao Gosavi Balujiwale's case (supra) that it is also unusual for rulers to make grant to a family idol\n\nIn Tilkayat Shri Govindlalji Maharaj v. The State of Raituthan\n\nand others('), this Court had to consider about a Hindu temple being c private or public and observed as follows :-\n\n\"Where evidence in regard to the foundation of the temple is not clearly available sometimes, judicial decisions rely on certain other facts which are treated as relevant. * * • •\n\nAre the members of the public entitled to an entry in the temple ?\n\nAre they entitled to take part in offering service and taking Darshan in the temple? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple? Are their offerings accepted as a matter of right. The participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations of festivals occasions may be a very important factor to consider , in determining the character of the temple\".\n\nIn Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas and and Ors.( 8 ) this Court observed as follows :-\n\n\"In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple\".\n\nThe learned counsel for the appellant relied upon the decision in ni/wr State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das(') and drew our attention to the following observations thereir. :\n\n\"Tims, the mere fact of the public having been freely admitted to that temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on\n\n(I) [1960) 1 S.C.R. 773.\n\n(3) [1970] 2 S.C.R .. '1,75.\n\n\n(4) \\1971] 3 S.C.R. 680.\n\nthe circumstances which give strength to the inference that the user was as of right\" .\n\n• • * * \"Examples do occur where the founder may grant property to his spiritual preceptor and his disciples in succession with a view to maintain one particular spiritual family and for perpetuation of certain rights and ceremonies which are deemed to be conducive to the spiritual welfare of the founder and his family, In such. cases it would be the grantor and his descendants who are the only persons interested in seeing that the institution is kept up for their benefit. Even if a few ascetics are fed and given shelter, such a purpose is not to be deemed an independent charity in which the public or a section of it has an interest. Such charities, as already stated earlier, appertain to a private debutter also\" .\n\n• • * •\n\nWe do not find that there is any difference in the ratio of the principles followed in the above decision.\n\nThe. case went against the D Board in the above decision in the absence of \"evidence of a reliable kind\" of public user as \"evidence of dedication\".\n\nIt is not always possible to have all the features of a public trust in a given case. Even some of the tests laid down by this Court may, in a given case, be sufficient to enable the court to come to a conclusion about the character of the trust.\n\nWe cannot agree that the High Court was not right in giving due importance to the admission of the constituted attorney Ramkrishna Deshpande that they \"cannot prevent people from going to the temple as the temple is meant for the Darshan by the public\".\n\nThe consciousness of the constituted attorney about the nature of the property, which has been held out for more than a century as a public religious endowment, adds to the effect of the documentary evidence produced by the appellant i.n this case in favour of the same conclusion. It has to be remembered that the founder Sakharam Maharaj was a celibate and the successive disciples who succeeded as Adhikaris of the Gadi were also celibates.\n\nFrom Ex. 35, the first Varaspatra \"f February 28, 1869, one gets a full picture of the working of the Sans than :\n\n\"The service and Bhajan etc. of the Deity have to be made as per the order of the Guru according to the Sampradaya\".\n\n• • * •\n\n\" .... you should perform the Bhajan as was being done as per the Shishya Sampradaya and perform the Bhaian in Chaturmas at Shrikshetra Pandharpur regularly and thereafter you should come to Amalner and keep up the practice of celebrating the festivals e!c. of Shri Sakharam Maharaj regularly. as was being done.\n\nYou should maintain tlw\n\nMandali (Committee) of the sans than and continue the whole Mandali (Committee) with unanimous opinion.\n\nYou know the V ahiwet of the Sansthan as is going on. You should continue the same accordingly in future\". , .... .. • * * \"That owernship is of your own. Your bhauband and others have no right whatsoever over the same. Yon are free to give and _take as per the Shishya-sampradaya as has been done previously.\n\nThe Deshmukhs and Deshpandes at Kashev-Amalner have been rendering service to the said Sansthan faithfully. You should make arrangement to accept service from them as being done accordingly and go on rendering service and performing Bhajan etc. faithfully as mentioned herein as per the Vaishnava sampradaya as being done from before\".\n\nx x x x x\n\nWe have also seen from the evidence of Ramkrishna Deshpande:\n\n\"All the Buwas are saints.\n\nPeople go for darshan be- D cause these people were saints.\n\nThis Sansthan is based on the principles of Shishya parampara. This property goes from Guru to his Shishya\".\n\n* * * \"The residents of the place where the Bhajans are performed attend these Bhajans. In the days of Pandharpur fair E the Maharaj remains present.\n\nHe stays there for about 4 months.\n\nDuring his stay at Pandharplir Bhajans are performed daily.\n\nDuring the fair his Shishyas perform the Bhajans. While returning from the pilgrimage also he performs Bhaians.\n\nMaharaj also attends other fairs at Nasik etc.\n\nAt that time also his Shishyas accompany him.\n\nBy Shishyas I mean the disciples as well as followers. Shishyas F are few but the followers are in large numbers.\n\nIn the utsava at Amalner many saints of other places, Shishyas and followers take part. The persons who attend this year besides Sh; shyas and followers are about ten thousand. The followers and saints arc paid their cost of journey. All their expenses of boarding and lodgin~ are met by this Sansthan.\n\nThe Bha.i2ns at Pandharpur performed by Maharaj are G attended by the public\".\n\nRamkrishna Deshpande concludes his evidence by stating :\n\n\"I con.tend that . this is a private temple because others cannot perform puja without permission of Maharaj\".\n\nThe oral and documentary evidence leave no room for doubt what- H soever that the Sansthan and the temple are public religious endowments. Even in acknowledged public temples any and everybody cannot perform puja in the sense in which the head pujari daily performs\n\nat var\\ous stages.\n\nPublic is not and may not be allowed to the innermost sanctum where the deity is installed except under special circumstances with special permission.\n\nThat would, however, not lead to the conclusion that the temple is a private temple.\n\nWorshippers are not merely the accredited daily pujaris but also the multitude of the public who go to the temple for Darshan of the deity and for offerings.\n\nThe contention of Ramkrishna Deshpande in his evidence, therefore, is without any force.\n\nWhen the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purposes, as a rnatter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship the accretion to the trust property by way of grants from the state of gifts from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property, are all important elements in determination of the question whether a property is a private or a public religious endowment.\n\nWe are satisfied that in this case all the above tests are fulfilled.\n\nTo sum uo from the documentary and oral evidence produced, the folJowing features are present in the present case :\n\n( 1) The deity installed in the temple was intended by the Founder to be continually worshipped by an indeterminate multitude of the Hindu public.\n\n(2)\n\n(3)\n\n(4)\n\n(5)\n\nIn order to facilitate worship by the public, the founder also intended that regular Bhajan, Kirtan and worship shall be maintained and annual ceremonies and processions for pilgrimage shall be conducted by the saints in succession nominated by the reigning saint.\n\nThere has been no evidence of any hindrance or restriction in the matter of continuous worship by the public extending over a long period.\n\nMore than a century ago the temple in its own name was reccpient of land by Royal grant and the same has been managed by the saints in succession as Manager not as personal or private property.\n\nGifts of land by members of the public from the Taluka and outside it in favour of the temple or of the Sansthan for the purpose of maintenance of the worship.\n\n( 6) Collection of subscriptions were made from house to house by taking Maharaj and also for 'Gula!' ceremony.\n\n(7) Holding out of the Sansthan to all intents and purpose as a public temple,\n\n• ' (\n\n(8) Treating of the Sansthan by those who are connected with the management as intended for user by the public without restriction.\n\n(9) Absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as a private property.\n\n.,.\n\nWhile each case of endowment as to its character depends on the l: particular history, tradition and facts, the presence of the above features in the instant case lead to the inescapable conclusion that Shri\n\nVithal Rukhamai Sansthan at Amalner is a public trust within the meaning of section 2 ( 13) of the Act.\n\nIn the result the appeal fails and is dismissed.\n\nW c will, however, make no order as to costs.\n\nP.B.R.\n\nAppeal dismissed .", "total_entities": 104, "entities": [{"text": "DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER\n\nOF SHRI VITHAL RUKHAMAI SANSTHAN", "label": "PETITIONER", "start_char": 0, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER OF SHRI VITHAL RUKHAMAI SANSTHAN", "offset_not_found": false}}, {"text": "THE CHARITY COMMISSIONER, STATE OF BOMBAY", "label": "RESPONDENT", "start_char": 76, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "THE CHARITY COMMISSIONER, STATE OF BOMBAY", "offset_not_found": false}}, {"text": "March l, 1976", "label": "DATE", "start_char": 118, "end_char": 131, "source": "ner", "metadata": {"in_sentence": "DHANESHWARBUWA GURU PURSHOTTAMBUWA OWNER\n\nOF SHRI VITHAL RUKHAMAI SANSTHAN\n\nTHE CHARITY COMMISSIONER, STATE OF BOMBAY March l, 1976\n\n[P. K. GOSWAMI ANDS: MURTAZA FAZAL ALI, JJ.J\n\nBo111ba) P:1blic Trust Act, 1950 (20 of 1950)-s."}}, {"text": "P. K. GOSWAMI ANDS: MURTAZA FAZAL ALI, JJ", "label": "JUDGE", "start_char": 134, "end_char": 175, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Trust Act, 1950", "label": "STATUTE", "start_char": 196, "end_char": 211, "source": "regex", "metadata": {}}, {"text": "s. 2(13)", "label": "PROVISION", "start_char": 225, "end_char": 233, "source": "regex", "metadata": {"linked_statute_text": "Trust Act, 1950", "statute": "Trust Act, 1950"}}, {"text": "Goswami", "label": "PETITIONER", "start_char": 2237, "end_char": 2244, "source": "ner", "metadata": {"in_sentence": "[527F]\n\nGoswami Shri Malialax1ni Vahu; i V. Ra1111('/ihoddas Kalidas and ors.", "canonical_name": "Goswami"}}, {"text": "Malialax1ni Vahu", "label": "OTHER_PERSON", "start_char": 2250, "end_char": 2266, "source": "ner", "metadata": {"in_sentence": "[527F]\n\nGoswami Shri Malialax1ni Vahu; i V. Ra1111('/ihoddas Kalidas and ors."}}, {"text": "Vithal Rukhamai Sansthan", "label": "LAWYER", "start_char": 4178, "end_char": 4202, "source": "ner", "metadata": {"in_sentence": "530E-H; 53 IA-Bl\n\nThe above features lead to the inescapable conclusion that Shri Vithal Rukhamai Sansthan is a public trust within the meaning of s. 2(13) of the Bombay Public Trust Act.", "canonical_name": "VITHAL RUKHAMAI SANSTHAN"}}, {"text": "s. 2(13)", "label": "PROVISION", "start_char": 4243, "end_char": 4251, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JuRISD!CT!ON", "label": "PETITIONER", "start_char": 4291, "end_char": 4319, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JuRISD!CT!ON: Civil Appeal No."}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 4441, "end_char": 4475, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 20th December 1962 of the High Court of Judicature at Bombay in Civil Appeal No."}}, {"text": "B. D. Bal", "label": "LAWYER", "start_char": 4510, "end_char": 4519, "source": "ner", "metadata": {"in_sentence": "B. D. Bal with A. G. Ratnaparkhi, for the appellant."}}, {"text": "A. G. Ratnaparkhi", "label": "LAWYER", "start_char": 4525, "end_char": 4542, "source": "ner", "metadata": {"in_sentence": "B. D. Bal with A. G. Ratnaparkhi, for the appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 4564, "end_char": 4575, "source": "ner", "metadata": {"in_sentence": "V. S. Desai with M. N. Shroff for S. P. Nayar, for respondent."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 4581, "end_char": 4593, "source": "ner", "metadata": {"in_sentence": "V. S. Desai with M. N. Shroff for S. P. Nayar, for respondent."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4598, "end_char": 4609, "source": "ner", "metadata": {"in_sentence": "V. S. Desai with M. N. Shroff for S. P. Nayar, for respondent."}}, {"text": "GoswAMl", "label": "JUDGE", "start_char": 4671, "end_char": 4678, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GoswAMl, J.-The question that arises in this appeal by special leave is whether Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust.", "canonical_name": "Goswami"}}, {"text": "Vithal Sukhamai Sansthan", "label": "PETITIONER", "start_char": 4756, "end_char": 4780, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GoswAMl, J.-The question that arises in this appeal by special leave is whether Shri Vithal Sukhamai Sansthan at Amalner, (East Khandesh) was a private Devasthan or a public religious trust.", "canonical_name": "VITHAL RUKHAMAI SANSTHAN"}}, {"text": "Sakharam Maharaj", "label": "RESPONDENT", "start_char": 4926, "end_char": 4942, "source": "ner", "metadata": {"in_sentence": "There was a saint endowed with spiritual powers by the name of Sakharam Maharaj at Amalner.", "canonical_name": "Sakharam Maharaj Sansthan"}}, {"text": "Amalner", "label": "GPE", "start_char": 4946, "end_char": 4953, "source": "ner", "metadata": {"in_sentence": "There was a saint endowed with spiritual powers by the name of Sakharam Maharaj at Amalner."}}, {"text": "Vithal Rukhamai", "label": "LAWYER", "start_char": 4990, "end_char": 5005, "source": "ner", "metadata": {"in_sentence": "The deity of his worship was Shri Vithal Rukhamai.", "canonical_name": "VITHAL RUKHAMAI SANSTHAN"}}, {"text": "After the pasing of the Bombay Public Trusts Act", "label": "STATUTE", "start_char": 5625, "end_char": 5673, "source": "regex", "metadata": {}}, {"text": "section 18", "label": "PROVISION", "start_char": 5735, "end_char": 5745, "source": "regex", "metadata": {"linked_statute_text": "After the pasing of the Bombay Public Trusts Act", "statute": "After the pasing of the Bombay Public Trusts Act"}}, {"text": "Bhaskarrao Chimanrao Deshmukh Ramrao", "label": "OTHER_PERSON", "start_char": 5785, "end_char": 5821, "source": "ner", "metadata": {"in_sentence": "29 of 1950) (bnefly the Act) an application under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh Ramrao .sahebrao Deshmukh and Ramkrishna Tryambak Deshpande'."}}, {"text": ".sahebrao Deshmukh", "label": "OTHER_PERSON", "start_char": 5822, "end_char": 5840, "source": "ner", "metadata": {"in_sentence": "29 of 1950) (bnefly the Act) an application under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh Ramrao .sahebrao Deshmukh and Ramkrishna Tryambak Deshpande'."}}, {"text": "Ramkrishna Tryambak Deshpande", "label": "OTHER_PERSON", "start_char": 5845, "end_char": 5874, "source": "ner", "metadata": {"in_sentence": "29 of 1950) (bnefly the Act) an application under section 18 of that Act was filed by three persons Bhaskarrao Chimanrao Deshmukh Ramrao .sahebrao Deshmukh and Ramkrishna Tryambak Deshpande'.", "canonical_name": "Ramkrishna Tryambak Deshpande"}}, {"text": "section 66", "label": "PROVISION", "start_char": 6243, "end_char": 6253, "source": "regex", "metadata": {"linked_statute_text": "After the pasing of the Bombay Public Trusts Act", "statute": "After the pasing of the Bombay Public Trusts Act"}}, {"text": "section 18", "label": "PROVISION", "start_char": 6300, "end_char": 6310, "source": "regex", "metadata": {"linked_statute_text": "After the pasing of the Bombay Public Trusts Act", "statute": "After the pasing of the Bombay Public Trusts Act"}}, {"text": "Rarnkrishna Deshpande", "label": "LAWYER", "start_char": 6596, "end_char": 6617, "source": "ner", "metadata": {"in_sentence": "On behalf of the applicants representing the Sansthan evidence of the attorney Rarnkrishna Deshpande was recorded and he was cross-examined by the assessors as w\"ll as by the Assistant Charity Commissioner."}}, {"text": "August 25, 1956", "label": "DATE", "start_char": 7028, "end_char": 7043, "source": "ner", "metadata": {"in_sentence": "At the close of the enquiry the Assistant Charity Commissioner by his order of August 25, 1956, held the Sansthan to be a public trust and ordered its registration as a public trust under the Act."}}, {"text": "section 70", "label": "PROVISION", "start_char": 7194, "end_char": 7204, "source": "regex", "metadata": {"statute": null}}, {"text": "Charity Commissioner, Bombay", "label": "RESPONDENT", "start_char": 7227, "end_char": 7255, "source": "ner", "metadata": {"in_sentence": "The applicants thereupon filed an appeal under section 70 of the Act before the Charity Commissioner, Bombay, who by his order of August 31, 1957, affirmed the decision of the Assistant Charity Commissioner."}}, {"text": "August 31, 1957", "label": "DATE", "start_char": 7277, "end_char": 7292, "source": "ner", "metadata": {"in_sentence": "The applicants thereupon filed an appeal under section 70 of the Act before the Charity Commissioner, Bombay, who by his order of August 31, 1957, affirmed the decision of the Assistant Charity Commissioner."}}, {"text": "section 72", "label": "PROVISION", "start_char": 7389, "end_char": 7399, "source": "regex", "metadata": {"statute": null}}, {"text": "District Judge of West Khandesh at Dhulia", "label": "COURT", "start_char": 7418, "end_char": 7459, "source": "ner", "metadata": {"in_sentence": "That led to an application under section 72 of the Act to the District Judge of West Khandesh at Dhulia which was duly filed on behalf of Purshottarnbuwa who meanwhile succeeded Guru Vasudeobuwa as \"owner\" of the Sansthan."}}, {"text": "Purshottarnbuwa", "label": "OTHER_PERSON", "start_char": 7494, "end_char": 7509, "source": "ner", "metadata": {"in_sentence": "That led to an application under section 72 of the Act to the District Judge of West Khandesh at Dhulia which was duly filed on behalf of Purshottarnbuwa who meanwhile succeeded Guru Vasudeobuwa as \"owner\" of the Sansthan."}}, {"text": "Guru Vasudeobuwa", "label": "OTHER_PERSON", "start_char": 7534, "end_char": 7550, "source": "ner", "metadata": {"in_sentence": "That led to an application under section 72 of the Act to the District Judge of West Khandesh at Dhulia which was duly filed on behalf of Purshottarnbuwa who meanwhile succeeded Guru Vasudeobuwa as \"owner\" of the Sansthan."}}, {"text": "October 16, 1959", "label": "DATE", "start_char": 7672, "end_char": 7688, "source": "ner", "metadata": {"in_sentence": "The earned District Judge reversed the decision of the Charity Commissioner by his order of October 16, 1959, and declared the Sansthan to be a private property and not a public trust."}}, {"text": "section 72", "label": "PROVISION", "start_char": 7811, "end_char": 7821, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 7845, "end_char": 7865, "source": "ner", "metadata": {"in_sentence": "The Charity Commissioner then appealed under section 72 ( 4) of the Act to the High Court of Bombay."}}, {"text": "19/20th December, 1962", "label": "DATE", "start_char": 7899, "end_char": 7921, "source": "ner", "metadata": {"in_sentence": "The High Court by its order of 19/20th December, 1962, set aside the order of the District Judge and held the Sansthan to be a public trust under the Act and restored the order of the Charity Commissioner."}}, {"text": "March 29, 1968", "label": "DATE", "start_char": 8132, "end_char": 8146, "source": "ner", "metadata": {"in_sentence": "Hence this appeal by special leave which was obtained on March 29, 1968, after condonation of delay in the peculiar circumstances of the case arising out of revocation by the High Court of its earlier certificate in favour of the appellant on account of default of deposit of security."}}, {"text": "Rarnkrishna Deshpande", "label": "WITNESS", "start_char": 8719, "end_char": 8740, "source": "ner", "metadata": {"in_sentence": "The High Court particularly relied upon an admission oi the appellant's witness, Rarnkrishna Deshpande, when he stated that \"we cannot prevent people from going to the temple as the temple is meant for the Darshan by the public'\"."}}, {"text": "Bal", "label": "OTHER_PERSON", "start_char": 8896, "end_char": 8899, "source": "ner", "metadata": {"in_sentence": "It is not disputed by Mr. Bal appearing on behalf of the appellant that the Sansthan in question is an endowment."}}, {"text": "section 2(13)", "label": "PROVISION", "start_char": 9591, "end_char": 9604, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(17)", "label": "PROVISION", "start_char": 9609, "end_char": 9622, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9673, "end_char": 9677, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 9981, "end_char": 9985, "source": "regex", "metadata": {"statute": null}}, {"text": "November 1, 1863", "label": "DATE", "start_char": 10668, "end_char": 10684, "source": "ner", "metadata": {"in_sentence": "42) of November 1, 1863."}}, {"text": "Amalnairker", "label": "GPE", "start_char": 11141, "end_char": 11152, "source": "ner", "metadata": {"in_sentence": "623 and 624 measuring 14.S acres of land in the name of the holder as Devasthan Shri Vithal Rukhamai, Manager Balkrishnabuwa, Guru Govindbuwa, Amalnairker."}}, {"text": "British Government", "label": "ORG", "start_char": 11518, "end_char": 11536, "source": "ner", "metadata": {"in_sentence": "There are significant recitals in the Sanad to the following effect :\n\n\"It is hereby deolared that the said land shall be continued for ever by the British Government as the endowment property of Shri Vithal Rukhamai of Kasabe Amalnair Talooka Amalnir on the following conditions, that is to say, that the managers thereof shall continue faithful subjects of the British Government, and ...... the said land shall be continued for ever as endowment loam without increase of land tax over the said fixed amount\"."}}, {"text": "Guru Govindbuwa", "label": "PETITIONER", "start_char": 12230, "end_char": 12245, "source": "ner", "metadata": {"in_sentence": "The Sanad being an ancient Royal grant is a very important piece of evidence to show that although Sakharam Maharaj, the founder of the temple, had already been succeeded by Guru Govindbuwa and the latter by Balkrishnabuwa, the land had been held in the year 1860-61 in the name of the Devasthan.", "canonical_name": "Guru Govindbuwa F"}}, {"text": "Balkrishnabuwa", "label": "OTHER_PERSON", "start_char": 12264, "end_char": 12278, "source": "ner", "metadata": {"in_sentence": "The Sanad being an ancient Royal grant is a very important piece of evidence to show that although Sakharam Maharaj, the founder of the temple, had already been succeeded by Guru Govindbuwa and the latter by Balkrishnabuwa, the land had been held in the year 1860-61 in the name of the Devasthan.", "canonical_name": "Balkrishnabuwa"}}, {"text": "Ramkrishna Deshpande", "label": "OTHER_PERSON", "start_char": 12962, "end_char": 12982, "source": "ner", "metadata": {"in_sentence": "From the evidence of Ramkrishna Deshpande, one of the constituted attornies, we find the origin and the devolution as follows :-\n\n\"The originator of this Sansthan is Sakharambuwa.", "canonical_name": "Ramkrishna Tryambak Deshpande"}}, {"text": "Sakharambuwa", "label": "RESPONDENT", "start_char": 13107, "end_char": 13119, "source": "ner", "metadata": {"in_sentence": "From the evidence of Ramkrishna Deshpande, one of the constituted attornies, we find the origin and the devolution as follows :-\n\n\"The originator of this Sansthan is Sakharambuwa.", "canonical_name": "Sakharam Maharaj Sansthan"}}, {"text": "Sakharam", "label": "RESPONDENT", "start_char": 13128, "end_char": 13136, "source": "ner", "metadata": {"in_sentence": "After Sakharam there came Gobindbuwa.", "canonical_name": "Sakharam Maharaj Sansthan"}}, {"text": "Gobindbuwa", "label": "OTHER_PERSON", "start_char": 13148, "end_char": 13158, "source": "ner", "metadata": {"in_sentence": "After Sakharam there came Gobindbuwa."}}, {"text": "Prahladbuwa", "label": "OTHER_PERSON", "start_char": 13206, "end_char": 13217, "source": "ner", "metadata": {"in_sentence": "Then came Prahladbuwa.", "canonical_name": "Prahladbuwa"}}, {"text": "Tukarambuwa", "label": "OTHER_PERSON", "start_char": 13230, "end_char": 13241, "source": "ner", "metadata": {"in_sentence": "Thereafter Tukarambuwa came to Gadi."}}, {"text": "Krishnabuwa", "label": "OTHER_PERSON", "start_char": 13276, "end_char": 13287, "source": "ner", "metadata": {"in_sentence": "After him there was Krishnabuwa and after him there was Balkrishna."}}, {"text": "Balkrishna", "label": "OTHER_PERSON", "start_char": 13312, "end_char": 13322, "source": "ner", "metadata": {"in_sentence": "After him there was Krishnabuwa and after him there was Balkrishna.", "canonical_name": "Balkrishnabuwa"}}, {"text": "Vasudeo", "label": "OTHER_PERSON", "start_char": 13335, "end_char": 13342, "source": "ner", "metadata": {"in_sentence": "Then came Vasudeo."}}, {"text": "Buwa Purshottam", "label": "OTHER_PERSON", "start_char": 13367, "end_char": 13382, "source": "ner", "metadata": {"in_sentence": "After him the present Buwa Purshottam came to Gadi."}}, {"text": "Guru Govindbuwa F", "label": "PETITIONER", "start_char": 13607, "end_char": 13624, "source": "ner", "metadata": {"in_sentence": "Guru Govindbuwa F was the second in the line of succession after Sakharam, the founder, and Balkrishnabuwa being the third in the line.", "canonical_name": "Guru Govindbuwa F"}}, {"text": "February 28, 1869", "label": "DATE", "start_char": 13893, "end_char": 13910, "source": "ner", "metadata": {"in_sentence": "The next document in sequence is a Varaspatra of February 28, 1869 (Ex."}}, {"text": "Guru Govind Balkrishnabuwa", "label": "OTHER_PERSON", "start_char": 13932, "end_char": 13958, "source": "ner", "metadata": {"in_sentence": "35) executed by Guru Govind Balkrishnabuwa in favour of Prahladbuwa."}}, {"text": "Prahlad", "label": "OTHER_PERSON", "start_char": 14805, "end_char": 14812, "source": "ner", "metadata": {"in_sentence": "It is further pointed out that while nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as follows :-\n\n\"You are entitled to the ownership of all the incomes that will come before the Deity, Shri Samarth and during the Swari (procession) as well as the income of Inam Najrana and the income of movable and immovable property\".", "canonical_name": "Prahladbuwa"}}, {"text": "Samarth", "label": "OTHER_PERSON", "start_char": 14976, "end_char": 14983, "source": "ner", "metadata": {"in_sentence": "It is further pointed out that while nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as follows :-\n\n\"You are entitled to the ownership of all the incomes that will come before the Deity, Shri Samarth and during the Swari (procession) as well as the income of Inam Najrana and the income of movable and immovable property\"."}}, {"text": "Inam Najrana", "label": "OTHER_PERSON", "start_char": 15043, "end_char": 15055, "source": "ner", "metadata": {"in_sentence": "It is further pointed out that while nominating Prahlad as Adhikari, Balkrishnabuwa stated in the said document as follows :-\n\n\"You are entitled to the ownership of all the incomes that will come before the Deity, Shri Samarth and during the Swari (procession) as well as the income of Inam Najrana and the income of movable and immovable property\"."}}, {"text": "Guru Maharaj", "label": "OTHER_PERSON", "start_char": 15944, "end_char": 15956, "source": "ner", "metadata": {"in_sentence": "Although it is stated in the document that Balkrishnabuwa was \"carrying on the Malaki\", ihe at the same time states with regard to the Sansthan thus :\n\n\" ..... the same was entrusted to me by Shri Guru Maharaj\" .... ."}}, {"text": "Ramkrishna", "label": "OTHER_PERSON", "start_char": 17010, "end_char": 17020, "source": "ner", "metadata": {"in_sentence": "We find from the e_v1dence of Ramkrishna that the Shishya 1s appomted by .the Mahra1 wo happens to be holding the Gadi ; at the relevant time.", "canonical_name": "Ramkrishna Tryambak Deshpande"}}, {"text": "Tukaram Maharaj", "label": "OTHER_PERSON", "start_char": 17284, "end_char": 17299, "source": "ner", "metadata": {"in_sentence": "This document may be described as a deed of nomin.ation or will whereby it appears Krishnabuwa whose Guru was Tukaram Maharaj nominated Balkrishna Gangadhar Dhamurkar as the Devadhikari of the Gadi to succeed him."}}, {"text": "Balkrishna Gangadhar Dhamurkar", "label": "OTHER_PERSON", "start_char": 17310, "end_char": 17340, "source": "ner", "metadata": {"in_sentence": "This document may be described as a deed of nomin.ation or will whereby it appears Krishnabuwa whose Guru was Tukaram Maharaj nominated Balkrishna Gangadhar Dhamurkar as the Devadhikari of the Gadi to succeed him."}}, {"text": "September 10, 1929", "label": "DATE", "start_char": 18068, "end_char": 18086, "source": "ner", "metadata": {"in_sentence": "40, 37, 39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 attd January 28, 1949, respectively."}}, {"text": "July 15, 1936", "label": "DATE", "start_char": 18088, "end_char": 18101, "source": "ner", "metadata": {"in_sentence": "40, 37, 39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 attd January 28, 1949, respectively."}}, {"text": "July 2, 1946", "label": "DATE", "start_char": 18103, "end_char": 18115, "source": "ner", "metadata": {"in_sentence": "40, 37, 39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 attd January 28, 1949, respectively."}}, {"text": "January 28, 1949", "label": "DATE", "start_char": 18121, "end_char": 18137, "source": "ner", "metadata": {"in_sentence": "40, 37, 39 and 38 dated September 10, 1929, July 15, 1936, July 2, 1946 attd January 28, 1949, respectively."}}, {"text": "Vithalwadi", "label": "GPE", "start_char": 18259, "end_char": 18269, "source": "ner", "metadata": {"in_sentence": "Sansthan, Vithalwadi, Amalner."}}, {"text": "Vithal Rukhmai Sansthan", "label": "LAWYER", "start_char": 19101, "end_char": 19124, "source": "ner", "metadata": {"in_sentence": "Shri Vithal Rukhmai Sansthan, Amalner and was given in your possession.", "canonical_name": "VITHAL RUKHAMAI SANSTHAN"}}, {"text": "Vasudeobuwa Guru Balkrishnabuwa", "label": "OTHER_PERSON", "start_char": 19394, "end_char": 19425, "source": "ner", "metadata": {"in_sentence": "Hence the gift deed of the said field, which had remained unexecuted, has been executed today ...... \"\n\nThe said gift deed was in favour of Archak (worshipper) Vasudeobuwa Guru Balkrishnabuwa.", "canonical_name": "Vasudev Buwa Guru Balkrishna Buwa"}}, {"text": "Rukhmini Pandurang Sansthan", "label": "OTHER_PERSON", "start_char": 19491, "end_char": 19518, "source": "ner", "metadata": {"in_sentence": "39 the doncc is described as \"Shri Rukhmini Pandurang Sansthan, Sansthan Amalner Sakharam Maharaj at present Vasudev Buwa Guru Bal-\n\nI ,\n\n~~ ,,\n\nl I •\n\n'l>HM'!ESl!WARBUWA v. CHARITY COMMR. ("}}, {"text": "Sansthan Amalner Sakharam Maharaj", "label": "OTHER_PERSON", "start_char": 19520, "end_char": 19553, "source": "ner", "metadata": {"in_sentence": "39 the doncc is described as \"Shri Rukhmini Pandurang Sansthan, Sansthan Amalner Sakharam Maharaj at present Vasudev Buwa Guru Bal-\n\nI ,\n\n~~ ,,\n\nl I •\n\n'l>HM'!ESl!WARBUWA v. CHARITY COMMR. ("}}, {"text": "Goswami", "label": "JUDGE", "start_char": 19646, "end_char": 19653, "source": "ner", "metadata": {"in_sentence": "Goswami, J.) 525\n\nkrishna Maharaj\".", "canonical_name": "Goswami"}}, {"text": "krishna Maharaj", "label": "RESPONDENT", "start_char": 19664, "end_char": 19679, "source": "ner", "metadata": {"in_sentence": "Goswami, J.) 525\n\nkrishna Maharaj\"."}}, {"text": "Amalner", "label": "OTHER_PERSON", "start_char": 20313, "end_char": 20320, "source": "ner", "metadata": {"in_sentence": "x x x x x The Dindi of the said Sansthan from Amalner remains at Sh:tvgaon on the 30th of Jeshta vadya or on the 1st of Ashad Shudha according to practice every year."}}, {"text": "30th of Jeshta vadya", "label": "DATE", "start_char": 20349, "end_char": 20369, "source": "ner", "metadata": {"in_sentence": "x x x x x The Dindi of the said Sansthan from Amalner remains at Sh:tvgaon on the 30th of Jeshta vadya or on the 1st of Ashad Shudha according to practice every year."}}, {"text": "1st of Ashad Shudha", "label": "DATE", "start_char": 20380, "end_char": 20399, "source": "ner", "metadata": {"in_sentence": "x x x x x The Dindi of the said Sansthan from Amalner remains at Sh:tvgaon on the 30th of Jeshta vadya or on the 1st of Ashad Shudha according to practice every year."}}, {"text": "Pandurang", "label": "OTHER_PERSON", "start_char": 20525, "end_char": 20534, "source": "ner", "metadata": {"in_sentence": "You shoud spend the income of the said property for the purpose of Naivadya for the Deity Pandurang at night that day.\""}}, {"text": "Vasudev Buwa Guru Balkrishna Buwa", "label": "OTHER_PERSON", "start_char": 20793, "end_char": 20826, "source": "ner", "metadata": {"in_sentence": "38 and the donee is \"Shri Vasudev Buwa Guru Balkrishna Buwa\" described as the worshipper carrying on the \"Vahiwat of Shri Vithal Rekhmai Sansthan\".", "canonical_name": "Vasudev Buwa Guru Balkrishna Buwa"}}, {"text": "Vithal Rekhmai Sansthan", "label": "LAWYER", "start_char": 20889, "end_char": 20912, "source": "ner", "metadata": {"in_sentence": "38 and the donee is \"Shri Vasudev Buwa Guru Balkrishna Buwa\" described as the worshipper carrying on the \"Vahiwat of Shri Vithal Rekhmai Sansthan\".", "canonical_name": "VITHAL RUKHAMAI SANSTHAN"}}, {"text": "Sakharam Maharaj Sansthan", "label": "RESPONDENT", "start_char": 22578, "end_char": 22603, "source": "ner", "metadata": {"in_sentence": "The reference to Sakharam Maharaj Sansthan, wherever it appears, is only for the purpose of identification and commemoration of the hallowed saint who had admittedly founded the same.", "canonical_name": "Sakharam Maharaj Sansthan"}}, {"text": "Daryao Gir", "label": "OTHER_PERSON", "start_char": 24634, "end_char": 24644, "source": "ner", "metadata": {"in_sentence": "Distinguishing the decision of the Privy Council in Balm Bhagwan Din v. G.r Har Saroon(') on the ground that the properties in that case were granted not in favour of an idol or temple but in favour of one Daryao Gir who was main1aining a temple and to his l!Cin in perpetuity, this Court further held in the above decision :\n\n\"But, in the present case, the endowment was in favour of t.he idol itself, and the point for decision is whether it\n\n(ll [19561S.C.R. 756."}}, {"text": "Babu Bhagwan Din", "label": "OTHER_PERSON", "start_char": 25224, "end_char": 25240, "source": "ner", "metadata": {"in_sentence": "This Court also distinguished the'aforesaid Privy Council decision <1/ Babu Bhagwan Din's case (Supra) in Narayan Bhagwantrao Gosavi Batajiwale v. Gopal Vinayak Gosavi and Others(') ."}}, {"text": "Narayan Bhagwantrao Gosavi Balujiwale's", "label": "OTHER_PERSON", "start_char": 25366, "end_char": 25405, "source": "ner", "metadata": {"in_sentence": "This Court also observed in Narayan Bhagwantrao Gosavi Balujiwale's case (supra) that it is also unusual for rulers to make grant to a family idol\n\nIn Tilkayat Shri Govindlalji Maharaj v. The State of Raituthan\n\nand others('), this Court had to consider about a Hindu temple being c private or public and observed as follows :-\n\n\"Where evidence in regard to the foundation of the temple is not clearly available sometimes, judicial decisions rely on certain other facts which are treated as relevant."}}, {"text": "Darshan", "label": "OTHER_PERSON", "start_char": 25978, "end_char": 25985, "source": "ner", "metadata": {"in_sentence": "Are they entitled to take part in offering service and taking Darshan in the temple?"}}, {"text": "[1960) 1 S.C.R. 773", "label": "CASE_CITATION", "start_char": 27356, "end_char": 27375, "source": "regex", "metadata": {}}, {"text": "1971] 3 S.C.R. 680", "label": "CASE_CITATION", "start_char": 27414, "end_char": 27432, "source": "regex", "metadata": {}}, {"text": "Kashev-Amalner", "label": "GPE", "start_char": 30494, "end_char": 30508, "source": "ner", "metadata": {"in_sentence": "The Deshmukhs and Deshpandes at Kashev-Amalner have been rendering service to the said Sansthan faithfully."}}, {"text": "Guru", "label": "OTHER_PERSON", "start_char": 31048, "end_char": 31052, "source": "ner", "metadata": {"in_sentence": "This property goes from Guru to his Shishya\"."}}, {"text": "Maharaj", "label": "OTHER_PERSON", "start_char": 31196, "end_char": 31203, "source": "ner", "metadata": {"in_sentence": "In the days of Pandharpur fair E the Maharaj remains present."}}, {"text": "Nasik", "label": "GPE", "start_char": 31468, "end_char": 31473, "source": "ner", "metadata": {"in_sentence": "Maharaj also attends other fairs at Nasik etc."}}, {"text": "Pandharpur", "label": "GPE", "start_char": 31962, "end_char": 31972, "source": "ner", "metadata": {"in_sentence": "The Bha.i2ns at Pandharpur performed by Maharaj are G attended by the public\"."}}, {"text": "section 2", "label": "PROVISION", "start_char": 35791, "end_char": 35800, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_532_535_EN", "year": 1976, "text": "P. PHILIP\n\nTHE DIRECTOR OF ENFORCEMENT. NEW DELHI & \\\n\nANOTHER .,.\n\nMarch 3, 1976\n\n[R. S. SARKAR!A AND N. L. UNTWAL!A, JJ.]\n\nInterpretation of statutes-Saving provision-Words and Plzrases-Mea11i11f.: of Petition-Criminal Procedure Code 1973 Sec. 484(2)-(a) Revision application pending before Sessions Court under Cr. P. Code 1898, whether petition.\n\nIn February, 1971, the Director of Enforcen1ent n1ade a complaint against 4 accused for violation of certain provisions of the Foreign Exchange Regula 4 tions Act, read with section 120-B of the Indian Penal Code.\n\nThe appellant herein who was accused No. 2 made an application before the T'rial Court raising two preliminary objections to the maintainability of the con1plaint and prayed for its dismissa1.\n\nThe Trial Court by its judgment dated 5-9-1973 disn1issed the application holding that the points raised should be considered after recording the evidence. The appeliant filed a Revision Application to the Sessions Court under section 435 of the Code of Cr. Procedure 1898, which \\Vas dismissed in August, 1974. The ttppellant filed a Revision Application to the High Court which was dismissed by the High Court on the ground that it was not maintainable in view of section 399(3) of the ne'v Code.\n\nJn an appeal by Special Leave, the appe11ant contended :\n\nAt the time when the Revision petition was filed before the Sessions Judge the old Code was in force and in view of section 484 of the new Code the application had to be disposed of in accordance with the old Code. l\"he respondents on the other hand, contended that the word 'application' in section 484(2) of the new Code is a word of limited import and that it would include only those applications which could be finally disposed of by the Sessions Judge.\n\nHELD : The word 'application' in the saving provision immediately follows the term 'appeal'.\n\nIt, therefore, takes some colour from the coUection of words in which it occurs. It is synonymous with the term 'petition' which 1neans a written statement of material facts, requesting the Court to grant the relief or remedy based on those facts. It is a pecu1iar mode of seeking redress recogned by law. There is no doubt that the word 'application' as used in clau5e (a) of section 484 of the new Code will take in a revision application n1ade under section 43.5 of the Old Code. The Revision Application made by the appellant was pending before the Sessions Judge when the new Code came into force.\n\nTherefore, it was required to be disposed of in accordance with the provisions of the Old Code. .[5340-F, G-H]\n\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 76 of 1976.\n\nT. C. Raghavan and N. Sudhakaran for the appellant.\n\nDebabrata Mookerjee and R. N. Sachthey for respondent No. I.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J. This appeal by special leave is directed against an order. dated July 1, 1975, of the High Court of Kerala, dismissing\n\nI _ ...\n\n• •\n\nthe Criminal Revision Petition filed by the appellant. It raises ques- A. tions with regard to the scope and interpretauon, inter alia, of ss. 399\n\n(3) and 484(2) (a) of the Code of Cnmmal Procedure, 1973 (hereinafter referred to as the New Code) . The facts are these :\n\nOn February 2, 1971 the Director of Enforcement, New Delhi made a complaint against four accused persons. alleging the commission of offences under s. 120-B, Penal Code and s. 5(1) (aa) and B- 5(1) (c) of the Foreign Exchange Regulation Act, 1947 (for short, called the Acl) in the Court of the District Magistrate, Ernakulam.\n\nThe appellant herein was accused No. 2 in that complaint.\n\nBy an application he raised two objections to the maintainability of the complaint and prayed for its dismissal. First, the opportunity as required under the proviso to s. 23 (3) of the Act was not given to the accused c for showing that he had permission from the Reserve Bank of India for doing the alleged acts.\n\nSecond, that the complainant did not comply with the conditions in the proviso to s. 23D ( 1) of the Act, in as much as there was on additional material before him to come to the conclusion that the penalty which he is empowered to impose under s. 23, would not be adequate and that consequently, it was necessary to file a complaint in Court.\n\nBy an order dated September 5, 1973, the trial court dismissed the application holding inter alia \"that the points raised here will be considered after recording the evidence\".\n\nOn the same day, against this order dated September 5, 1973, accused No. 2 (P. Philip) filed Cr. Revision Petition No. 27 of 1973 under s. 435 of the Code of Criminal Procedure, 1898 (hereinafter called the Old Code) before E the Sessions Judge, Ernakulam, who dismissed the same by an order dated August 6, 1974.\n\nAggrieved by the order of the Sessions Judge, P. Philip preferred Cr. Revision Petition No. 393 of 1974 to the High Court.\n\nThis Revision was heard by a Division Bench along with two other Revisions (Cr. Rev. Petns. Nos. 409 and 411 of 1974) and dismissed, without going ino the merits, on the ground that it was not maintainable in view of s. 399(3) of the New Code.\n\nMr.\n\nRaghavan, learned Counsel for the appellant contends that the order under appeal is mainfestly erroneous because at the time when the revision petition was filed before the Sessions Judge, the old Code was in force, and in view of s. 484 of the New Code, it had to be disposed of in accordance with the old Code.\n\nAs against this, Mr. D. Mukherji submits that the word \"application\" in s. 484(2) (a) of the Code of 1973 is a word of limited import.\n\nAccording to the Counsel only those applications which could be finally disposed of by the Sessions Judge would be covered by this word.\n\nSinee the revision application, in the instant case-proceeds the argument-was one for reference to the High Court under s. 438 of the Code of 1878, and could not be finally disposed of by the Sessions Judge at his level, it would not be an \"application\" within the contemflation of s. 484(2) (a) of the Code of 1973. It is pointed out that procedural rights are not vested rights, that whereas a right of\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nA a_Ppeal is a s\".bstantive right, the procedural facility to move in revision does nt mvolve s.uch a right. On these premises it is maintained that the savmg clause m s. 484 should be very strictly construed with the. esult tht the Code of. Criminal Procedure, 1973 will goven all rev1S1ons which were pendmg on Apnl 1, 1974 when it came into force.\n\nWe are unable to accept the interpretation of s. 484(2) (a) of the new Code suggested by the learned Counsel for the respondents. The language of this provision is clear. Hs material part runs as under.\n\n\"(1) The Code of Cr. Procedure 1898 (V of 1898) is hereby repealed.\n\n(2) Notwithstanding such repeal :-\n\n(a) If, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of contained, held or made, as the case may be, in accor~ dance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898) as in force immediately before such commencement. ....... as if this Code has not come into fore . ....... \"\n\nIt will be seen that the word \"application\" in the saving provision contained in clause (a) of sub-section (2) of s. 484 immediately follows the term \"appeal\". It therefore takes some colour from the collocation of words in which it occurs. It is synonymous with the term \"petition\" which means a written statement of material facts, r.:questlng the court to grant the relief or remedy based on those facts.\n\nIt is a peculiar mode of seeking redress recognised by law. Thus considered there can be no doubt that the word \"application\" as used in clause\n\n(a) of s. 484 of the Code of 1973 will take in a revision application made under s. 435 of the old Code.\n\nSuch a revision application does not cease to be an \"application\" within the purview of the afore.- said clause (a) merely because in the event of the application being allowed, the Sessions Judge was required to make a reference to the High Court under s. 438. . Whether such an application is granted or dismissed by the Sessions Judge, he finally disposes of the matter so far as his court is concerned. May be that a purely interlocutory application in a pending action, which by itself is not an independent mode of seeking redress recognised by law is not covered by the word 'application' as used in the aforesaid clause (a). But it is not necessary to express any final opinion on that point because a revision application of the kind before us is not by any recokning, such an interlocutory application.\n\nIn the present case, the revision application made by P. Philip was pending before the Sessions Judge when the New Code came into force.\n\nIn view of s. 484(2) (a) of the New Code, this revision was required to be disposed of in accordance with the provisions of the old Code.\n\n....\n\nThe above being the position, the learned Judges of the High Court were clearly in error in holding that in view of s. 399(3) of the New Code, the appellant was not competent to maintain a revision in the / High Court against the order dated August 6, 1974 of the Sessions Judge . •\n\nFor these reasons we allow this appeal, set aside the order of the High Court and send the appellant's revision petition (No. 393 of B\n\n1974) back of it for disposal with utmost expedition in accordance with Jaw.\n\nAppeal allowed and R. P. 393/74 remitted.", "total_entities": 55, "entities": [{"text": "P. PHILIP", "label": "PETITIONER", "start_char": 0, "end_char": 9, "source": "metadata", "metadata": {"canonical_name": "P. PHILIP", "offset_not_found": false}}, {"text": "THE DIRECTOR OF ENFORCEMENT. NEW DELHI & \\\n\nANOTHER", "label": "RESPONDENT", "start_char": 11, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "THE DIRECTOR OF ENFORCEMENT, NEW DELHI & ANOTHER", "offset_not_found": false}}, {"text": "Petition-Criminal Procedure Code 1973", "label": "STATUTE", "start_char": 203, "end_char": 240, "source": "regex", "metadata": {}}, {"text": "Sec. 484(2)", "label": "PROVISION", "start_char": 241, "end_char": 252, "source": "regex", "metadata": {"linked_statute_text": "Petition-Criminal Procedure Code 1973", "statute": "Petition-Criminal Procedure Code 1973"}}, {"text": "section 120", "label": "PROVISION", "start_char": 525, "end_char": 536, "source": "regex", "metadata": {"linked_statute_text": "Petition-Criminal Procedure Code 1973", "statute": "Petition-Criminal Procedure Code 1973"}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 546, "end_char": 563, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "5-9-1973", "label": "DATE", "start_char": 798, "end_char": 806, "source": "ner", "metadata": {"in_sentence": "The Trial Court by its judgment dated 5-9-1973 disn1issed the application holding that the points raised should be considered after recording the evidence."}}, {"text": "section 435", "label": "PROVISION", "start_char": 987, "end_char": 998, "source": "regex", "metadata": {"linked_statute_text": "Petition-Criminal Procedure Code 1973", "statute": "Petition-Criminal Procedure Code 1973"}}, {"text": "section 399(3)", "label": "PROVISION", "start_char": 1226, "end_char": 1240, "source": "regex", "metadata": {"linked_statute_text": "Petition-Criminal Procedure Code 1973", "statute": "Petition-Criminal Procedure Code 1973"}}, {"text": "At the time when the Revision petition was filed before the Sessions Judge the old Code", "label": "STATUTE", "start_char": 1318, "end_char": 1405, "source": "regex", "metadata": {}}, {"text": "section 484", "label": "PROVISION", "start_char": 1434, "end_char": 1445, "source": "regex", "metadata": {"linked_statute_text": "At the time when the Revision petition was filed before the Sessions Judge the old Code", "statute": "At the time when the Revision petition was filed before the Sessions Judge the old Code"}}, {"text": "section 484(2)", "label": "PROVISION", "start_char": 1610, "end_char": 1624, "source": "regex", "metadata": {"linked_statute_text": "At the time when the Revision petition was filed before the Sessions Judge the old Code", "statute": "At the time when the Revision petition was filed before the Sessions Judge the old Code"}}, {"text": "section 484", "label": "PROVISION", "start_char": 2249, "end_char": 2260, "source": "regex", "metadata": {"linked_statute_text": "At the time when the Revision petition was filed before the Sessions Judge the old Code", "statute": "At the time when the Revision petition was filed before the Sessions Judge the old Code"}}, {"text": "section 43", "label": "PROVISION", "start_char": 2325, "end_char": 2335, "source": "regex", "metadata": {"linked_statute_text": "At the time when the Revision petition was filed before the Sessions Judge the old Code", "statute": "At the time when the Revision petition was filed before the Sessions Judge the old Code"}}, {"text": "T. C. Raghavan", "label": "LAWYER", "start_char": 2654, "end_char": 2668, "source": "ner", "metadata": {"in_sentence": "T. C. Raghavan and N. Sudhakaran for the appellant."}}, {"text": "N. Sudhakaran", "label": "LAWYER", "start_char": 2673, "end_char": 2686, "source": "ner", "metadata": {"in_sentence": "T. C. Raghavan and N. Sudhakaran for the appellant."}}, {"text": "Debabrata Mookerjee", "label": "LAWYER", "start_char": 2707, "end_char": 2726, "source": "ner", "metadata": {"in_sentence": "Debabrata Mookerjee and R. N. Sachthey for respondent No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 2731, "end_char": 2745, "source": "ner", "metadata": {"in_sentence": "Debabrata Mookerjee and R. N. Sachthey for respondent No."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 2813, "end_char": 2821, "source": "ner", "metadata": {"in_sentence": "I.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J. This appeal by special leave is directed against an order."}}, {"text": "ss. 399", "label": "PROVISION", "start_char": 3099, "end_char": 3106, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Cnmmal Procedure, 1973", "label": "STATUTE", "start_char": 3134, "end_char": 3164, "source": "regex", "metadata": {}}, {"text": "New Delhi", "label": "GPE", "start_char": 3281, "end_char": 3290, "source": "ner", "metadata": {"in_sentence": "The facts are these :\n\nOn February 2, 1971 the Director of Enforcement, New Delhi made a complaint against four accused persons."}}, {"text": "s. 120", "label": "PROVISION", "start_char": 3380, "end_char": 3386, "source": "regex", "metadata": {"linked_statute_text": "the Code of Cnmmal Procedure, 1973", "statute": "the Code of Cnmmal Procedure, 1973"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 3390, "end_char": 3400, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 5(1)", "label": "PROVISION", "start_char": 3405, "end_char": 3412, "source": "regex", "metadata": {"linked_statute_text": "the Code of Cnmmal Procedure, 1973", "statute": "the Code of Cnmmal Procedure, 1973"}}, {"text": "Foreign Exchange Regulation Act, 1947", "label": "STATUTE", "start_char": 3441, "end_char": 3478, "source": "regex", "metadata": {}}, {"text": "Court of the District Magistrate, Ernakulam", "label": "COURT", "start_char": 3514, "end_char": 3557, "source": "ner", "metadata": {"in_sentence": "alleging the commission of offences under s. 120-B, Penal Code and s. 5(1) (aa) and B- 5(1) (c) of the Foreign Exchange Regulation Act, 1947 (for short, called the Acl) in the Court of the District Magistrate, Ernakulam."}}, {"text": "s. 23", "label": "PROVISION", "start_char": 3788, "end_char": 3793, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 3884, "end_char": 3905, "source": "ner", "metadata": {"in_sentence": "First, the opportunity as required under the proviso to s. 23 (3) of the Act was not given to the accused c for showing that he had permission from the Reserve Bank of India for doing the alleged acts."}}, {"text": "s. 23D", "label": "PROVISION", "start_char": 4017, "end_char": 4023, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 4180, "end_char": 4185, "source": "regex", "metadata": {"linked_statute_text": "the Foreign Exchange Regulation Act, 1947", "statute": "the Foreign Exchange Regulation Act, 1947"}}, {"text": "September 5, 1973", "label": "DATE", "start_char": 4298, "end_char": 4315, "source": "ner", "metadata": {"in_sentence": "By an order dated September 5, 1973, the trial court dismissed the application holding inter alia \"that the points raised here will be considered after recording the evidence\"."}}, {"text": "P. Philip", "label": "PETITIONER", "start_char": 4534, "end_char": 4543, "source": "ner", "metadata": {"in_sentence": "2 (P. Philip) filed Cr.", "canonical_name": "P. PHILIP"}}, {"text": "s. 435", "label": "PROVISION", "start_char": 4594, "end_char": 4600, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 4608, "end_char": 4640, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sessions Judge, Ernakulam", "label": "COURT", "start_char": 4688, "end_char": 4713, "source": "ner", "metadata": {"in_sentence": "27 of 1973 under s. 435 of the Code of Criminal Procedure, 1898 (hereinafter called the Old Code) before E the Sessions Judge, Ernakulam, who dismissed the same by an order dated August 6, 1974."}}, {"text": "August 6, 1974", "label": "DATE", "start_char": 4756, "end_char": 4770, "source": "ner", "metadata": {"in_sentence": "27 of 1973 under s. 435 of the Code of Criminal Procedure, 1898 (hereinafter called the Old Code) before E the Sessions Judge, Ernakulam, who dismissed the same by an order dated August 6, 1974."}}, {"text": "Sessions Judge, P. Philip", "label": "COURT", "start_char": 4803, "end_char": 4828, "source": "ner", "metadata": {"in_sentence": "Aggrieved by the order of the Sessions Judge, P. Philip preferred Cr."}}, {"text": "s. 399(3)", "label": "PROVISION", "start_char": 5114, "end_char": 5123, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "Raghavan", "label": "LAWYER", "start_char": 5147, "end_char": 5155, "source": "ner", "metadata": {"in_sentence": "Mr.\n\nRaghavan, learned Counsel for the appellant contends that the order under appeal is mainfestly erroneous because at the time when the revision petition was filed before the Sessions Judge, the old Code was in force, and in view of s. 484 of the New Code, it had to be disposed of in accordance with the old Code."}}, {"text": "s. 484", "label": "PROVISION", "start_char": 5378, "end_char": 5384, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "D. Mukherji", "label": "OTHER_PERSON", "start_char": 5482, "end_char": 5493, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. D. Mukherji submits that the word \"application\" in s. 484(2) (a) of the Code of 1973 is a word of limited import."}}, {"text": "s. 484(2)", "label": "PROVISION", "start_char": 5533, "end_char": 5542, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 438", "label": "PROVISION", "start_char": 5855, "end_char": 5861, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 484(2)", "label": "PROVISION", "start_char": 6017, "end_char": 6026, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 484", "label": "PROVISION", "start_char": 6349, "end_char": 6355, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 484(2)", "label": "PROVISION", "start_char": 6579, "end_char": 6588, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure, 1898", "label": "STATUTE", "start_char": 7163, "end_char": 7195, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 484", "label": "PROVISION", "start_char": 7432, "end_char": 7438, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 484", "label": "PROVISION", "start_char": 7879, "end_char": 7885, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 435", "label": "PROVISION", "start_char": 7953, "end_char": 7959, "source": "regex", "metadata": {"linked_statute_text": "the Code of Criminal Procedure, 1898", "statute": "the Code of Criminal Procedure, 1898"}}, {"text": "s. 438", "label": "PROVISION", "start_char": 8232, "end_char": 8238, "source": "regex", "metadata": {"statute": null}}, {"text": "Philip was pending before the Sessions Judge when the New Code", "label": "STATUTE", "start_char": 8849, "end_char": 8911, "source": "regex", "metadata": {}}, {"text": "s. 484(2)", "label": "PROVISION", "start_char": 8941, "end_char": 8950, "source": "regex", "metadata": {"linked_statute_text": "Philip was pending before the Sessions Judge when the New Code", "statute": "Philip was pending before the Sessions Judge when the New Code"}}, {"text": "s. 399(3)", "label": "PROVISION", "start_char": 9191, "end_char": 9200, "source": "regex", "metadata": {"linked_statute_text": "Philip was pending before the Sessions Judge when the New Code", "statute": "Philip was pending before the Sessions Judge when the New Code"}}]}
{"document_id": "1976_3_536_539_EN", "year": 1976, "text": "STATE OF MADRAS v.\n\nK. N. SHANMUGHA MUDALIAR & ORS. \\ March 4, 1976 •\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\n1.And Acquisition Act, 1894--Sections 23 and 24--Quantum of compensation -Madras Estates Abolition Act, 1948-Whether compensation under .Land k Acquisition Act can be claimed if the estate is aboli.shed-/Lnterest on compen- j sation to be allowed, from what date.\n\nThe State of Madras acquired land belonging to the respondent landlords.\n\nThe Land Acquisition Officer gave his award determining the compensation payable.\n\nOn a reference made to the Subordinate Judge certain cvmp..!nsation C was determined. Interest was awarded to the respondents on the compensation amount from 1st December, 1949 because in the opinion of the Subordinate Judge, possession of the land had been taken on that date.\n\nOn an appeal, the High Court affirmed the decision of the Subordinate Judge regarding the rate of compensation. The High Court also rejected the r.onten tion of the appellant that the land had vested in the Government ui1der the Madras Estates Abolition Act, 1948, and, therefore, the respondents were not entitled to compensation under the Land Acquisition Act. The High Court found that there was no material on record to sho_w that the possession of the land had been taken prior to the date of the award by the Land Acquisition Officer. Interest was accordingly directed to run from the date of the award, i.e. Noven1ber~ 1951. ln an appeal by certificate, the appellant contended :\n\n( 1) The land in question vested under the Abolition Act in the State\n\nand the respondents were, therefore, not entitled to compensation ...,• under the Land Acquisition Act. {2) The quantum of compensation awarded by the High Court was excessive.\n\n(3) Interest should have been allowed from 1st December, 1949.\n\nHELD : ( 1) There were two alternative courses open to the State either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act. Although the estate was notified under the Abolition Act, the procedings under that Act were stayed and the matter proceeded under the Land Acquisition Act.\n\nIt was not open to the appellant in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to the interest of the respondents.\n\nThe High Court rightly rejected the contention of the appellant in this behalf. [538D-E, G-H]\n\n(2) Both the High Court as well as the Subordinate Judge awarded the con1pensation in accordance with the previous decisions which laid down a formula.\n\nNo cogent grounds have been shown to us to interfere with the concurrent findings in this respect.\n\n[539B-C]\n\n(3) There is no reason to disagree with the High Court judgment regarding the date on which the interest should run on the amount of compensation.\n\n[539-G]\n\nC!vIL APPELLATE JURISDICTION: Civil Appeal No. 1425 of 1968.\n\nFrom the Judgment and Decree dated the 5-8-74 of the Madras High Court in Appeal No. 448 of 1960\n\nA. V. Rangam and Miss A. Subhashini for the Appellant.\n\nK. Jayaram and R. Chandresekhar for Respondent No. 1\n\nE:i:-parte for Respondents 2-8.\n\nMADJl, AS STATE v. SHANMUGHA MUDALIAR (Khanna, J.) 53 7\n\nThe Judgment of the Court was delivered by A\n\nKHANNA, J. This appeal on certificate is by the State of Madras, now Tamil N adu, against the judgment of Madras High Court affirming on appeal the award of learned Subordinate judge Salem in respect of the amou'nt of compensation payable to the respondents for acquisition of land under the Land Acquisition Act (Act 1 of 1894) (hereinafter referred to as the Act). The High Court, however, B directed that the interest on the amount awarded shall run from November 19, 1951, the date of the award by the Land Acquisition Officer and not from December 1, 1949 as ordered by the Subordinate Judge.\n\nOn July 12, 1949 notification under section 4 of the Act was issued for the acquisition of 19 acres 45 cents of dry land situated in c Alegapuram Mitta for the Salem Fair Lands Co-operative Society Ltd. on December 19, 1950. Alegapuram Mitta was notified under the Madras Estates Abolition Act (Act 26 of 1948) (hereinafter referred to as the Abolition Act). A writ petition was filed in the High Court to challenge that notification.\n\nFurther proceedings in pursuance of the notification were stayed by the High Court by order dated January\n\n1. 1951.\n\nThe Society for which acquisition was being made deposit- D cd in the meantime the probable cost of the land on September 13,\n\n1950.\n\nOn November 19, 1951 the Land Acquisition Officer announced his award.\n\nThe respondents, it may be stated, were the Mclevaramdars (landholders) of the land in question.\n\nKudiwaramdars (cultivators) were also, besides the respondents, parties to the proceedings before the E Land Acquisition Officer.\n\nThe Land Acquisition Officer by his award dated November 19, 1951 awarded compensation to the cultivators at the rate of Rs. 1 ,500 per acre for part of the land near the road and at the rate of Rs. 1,300 per acre for the rest of the land.\n\nRs. 520, 11 As, 1 P the capitalised value of the net rental income was held to be the amount payable to the respondents.\n\nThe Kudiwaramdars were content with the compensation awarded to them, but the respondents F who were, as already mentioned above, Melavaramdars asked for a reference to conrt under section 18 of the Act for claiming enhanced compensation. According to the respondents, they were entitled to one-third of the value of the totality of the interest in the land.\n\nAccording further to the respondents, compensation for the total land should be awarded at the rate of Rs. 3,000 per acre -Learned Subordinate Judge held that the respondents were entitled to G 50 percent of the compensation awarded in respect of the Melawaram interest in the land.\n\nThe Subordinate Judge in this context relied upon an earlier decision of the Madras High Court wherein it had been held that the rights of Melavaramdars were not confined only to rent from land a>,1d that they had other recognised rights and were entitled to compensation for those rights. The respondents were thus held entitled to compensation for their Melavaramdar interest at the rate H of Rs. 750 per acre in respect of land near the road and Rs. 650 per acre in respect of the remaining land.\n\nInterest was awarded to the respondents on the compensation amount from Decemlxr 1, 1949 2-608SCl/76\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nA because, in the opinion of the Subordinate Judge, possession of the land had been taken from that date.\n\nOn appeal the High Court affirmed the decision of the Subordinate J uuge regarding the rate of compensation.\n\nThe contention advanced on behalf of the appellant that as the land had vested in the Government under the Abolition Act, the respondents were not entitled to compensation under the Land Acquisition Act, was rejected. It was observed that in the land acquisition proceedings the Government was estopped from denying the absence of any interest in t!he claimants whom the Government had made parties to the proceedings. Regarding the date from which interest on the amount or compensation should accrue, the High Court found that there was no material on the record to show that possession of the land had been taken prior to the date of the award by the Land Acquisition Officer.\n\nInterest was accordingly directed to rnn from the date of the award.\n\nIn appeal before us Mr. Rangam on behalf of the appellant-state has urged that as the land in question has vested under the Abolition Act in the State, the respondents are not entitled to compensation under the Land Acquisition Act. We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act.\n\nThere were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act.\n\nAlthough the estate was notified under the Abolition Act, the proceedings under that Act'were stayed and the matter proceeded under the Land Acquisition Act.\n\nAs the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act. The reference which was made by the Land Acquisition Officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer.\n\nThe underlying assumption of those proceedings was that the respondents had an interest in the land. If it was the case of the appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant- State, the appellant should have taken appropriate steps to make such a claim in accordance with law.\n\nNo such claim seems to have been made.\n\nThe High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time.\n\nWe agree with the High Court that it was not open to the appellant-State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to the interest of the respondents.\n\nThere is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the\n\n, ..\n\nMADR, AS STATE V, SHANMUGHA MUDALIAR (Khanna, J.) 53 9\n\nfespondents in accordance with the provisions of the Land Acquisition Act.\n\nThis question appears to have been agitated for the first time / only in the appeal before the High Court.\n\nThe High Court rejected the contention in this behalf.\n\nWe find no cogent ground to take a different view.\n\nAs regards the quantum of compensation, the. High Court has referred to the previous decisions which show that the formula generally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars.\n\nIn accordance with that formula, the respondents would be entitled to one-half of the compensation payable to Kudiwaramdars.\n\nBoth the Subordinate Judge and the High Court awarded compensation in accordance with this formula.\n\nNo cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect.\n\nWe also find no reason to disagree with the High Court regarding the date from which interest should run on the amount or\n\n~ compensation.\n\nThe appeal fails and is dismissed with costs.\n\n~ ;!:'.H.P .\n\nAppeal dismined.", "total_entities": 36, "entities": [{"text": "STATE OF MADRAS", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADRAS", "offset_not_found": false}}, {"text": "K. N. SHANMUGHA MUDALIAR & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "K. N. SHANMUGHA MUDALIAR & ORS", "offset_not_found": false}}, {"text": "March 4, 1976", "label": "DATE", "start_char": 54, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "March 4, 1976 •\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 72, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 89, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "And Acquisition Act, 1894", "label": "STATUTE", "start_char": 112, "end_char": 137, "source": "regex", "metadata": {}}, {"text": "Sections 23 and 24", "label": "PROVISION", "start_char": 139, "end_char": 157, "source": "regex", "metadata": {"linked_statute_text": "And Acquisition Act, 1894", "statute": "And Acquisition Act, 1894"}}, {"text": "Quantum of compensation -Madras Estates Abolition Act, 1948", "label": "STATUTE", "start_char": 159, "end_char": 218, "source": "regex", "metadata": {}}, {"text": "Land k Acquisition Act", "label": "STATUTE", "start_char": 247, "end_char": 269, "source": "regex", "metadata": {}}, {"text": "1st December, 1949", "label": "DATE", "start_char": 690, "end_char": 708, "source": "ner", "metadata": {"in_sentence": "Interest was awarded to the respondents on the compensation amount from 1st December, 1949 because in the opinion of the Subordinate Judge, possession of the land had been taken on that date."}}, {"text": "Madras Estates Abolition Act, 1948", "label": "STATUTE", "start_char": 1040, "end_char": 1074, "source": "regex", "metadata": {}}, {"text": "Although the estate was notified under the Abolition Act", "label": "STATUTE", "start_char": 1976, "end_char": 2032, "source": "regex", "metadata": {}}, {"text": "Act were stayed and the matter proceeded under the Land Acquisition Act", "label": "STATUTE", "start_char": 2060, "end_char": 2131, "source": "regex", "metadata": {}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 2998, "end_char": 3010, "source": "ner", "metadata": {"in_sentence": "448 of 1960\n\nA. V. Rangam and Miss A. Subhashini for the Appellant."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 3020, "end_char": 3033, "source": "ner", "metadata": {"in_sentence": "448 of 1960\n\nA. V. Rangam and Miss A. Subhashini for the Appellant."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 3054, "end_char": 3064, "source": "ner", "metadata": {"in_sentence": "K. Jayaram and R. Chandresekhar for Respondent No."}}, {"text": "R. Chandresekhar", "label": "LAWYER", "start_char": 3069, "end_char": 3085, "source": "ner", "metadata": {"in_sentence": "K. Jayaram and R. Chandresekhar for Respondent No."}}, {"text": "MADJl, AS STATE", "label": "PETITIONER", "start_char": 3141, "end_char": 3156, "source": "ner", "metadata": {"in_sentence": "MADJl, AS STATE v. SHANMUGHA MUDALIAR (Khanna, J.) 53 7\n\nThe Judgment of the Court was delivered by A\n\nKHANNA, J. This appeal on certificate is by the State of Madras, now Tamil N adu, against the judgment of Madras High Court affirming on appeal the award of learned Subordinate judge Salem in respect of the amou'nt of compensation payable to the respondents for acquisition of land under the Land Acquisition Act (Act 1 of 1894) (hereinafter referred to as the Act)."}}, {"text": "SHANMUGHA MUDALIAR", "label": "RESPONDENT", "start_char": 3160, "end_char": 3178, "source": "ner", "metadata": {"in_sentence": "MADJl, AS STATE v. SHANMUGHA MUDALIAR (Khanna, J.) 53 7\n\nThe Judgment of the Court was delivered by A\n\nKHANNA, J. This appeal on certificate is by the State of Madras, now Tamil N adu, against the judgment of Madras High Court affirming on appeal the award of learned Subordinate judge Salem in respect of the amou'nt of compensation payable to the respondents for acquisition of land under the Land Acquisition Act (Act 1 of 1894) (hereinafter referred to as the Act).", "canonical_name": "SHANMUGHA MUDALIAR (Khanna, J.) 53 9"}}, {"text": "A\n\nKHANNA", "label": "JUDGE", "start_char": 3241, "end_char": 3250, "source": "ner", "metadata": {"in_sentence": "MADJl, AS STATE v. SHANMUGHA MUDALIAR (Khanna, J.) 53 7\n\nThe Judgment of the Court was delivered by A\n\nKHANNA, J. This appeal on certificate is by the State of Madras, now Tamil N adu, against the judgment of Madras High Court affirming on appeal the award of learned Subordinate judge Salem in respect of the amou'nt of compensation payable to the respondents for acquisition of land under the Land Acquisition Act (Act 1 of 1894) (hereinafter referred to as the Act)."}}, {"text": "December 1, 1949", "label": "DATE", "start_char": 3788, "end_char": 3804, "source": "ner", "metadata": {"in_sentence": "The High Court, however, B directed that the interest on the amount awarded shall run from November 19, 1951, the date of the award by the Land Acquisition Officer and not from December 1, 1949 as ordered by the Subordinate Judge."}}, {"text": "July 12, 1949", "label": "DATE", "start_char": 3846, "end_char": 3859, "source": "ner", "metadata": {"in_sentence": "On July 12, 1949 notification under section 4 of the Act was issued for the acquisition of 19 acres 45 cents of dry land situated in c Alegapuram Mitta for the Salem Fair Lands Co-operative Society Ltd. on December 19, 1950."}}, {"text": "section 4", "label": "PROVISION", "start_char": 3879, "end_char": 3888, "source": "regex", "metadata": {"statute": null}}, {"text": "Alegapuram Mitta was notified under the Madras Estates Abolition Act", "label": "STATUTE", "start_char": 4068, "end_char": 4136, "source": "regex", "metadata": {}}, {"text": "January\n\n1. 1951", "label": "DATE", "start_char": 4377, "end_char": 4393, "source": "ner", "metadata": {"in_sentence": "Further proceedings in pursuance of the notification were stayed by the High Court by order dated January\n\n1."}}, {"text": "September 13,\n\n1950", "label": "DATE", "start_char": 4508, "end_char": 4527, "source": "ner", "metadata": {"in_sentence": "The Society for which acquisition was being made deposit- D cd in the meantime the probable cost of the land on September 13,\n\n1950."}}, {"text": "Kudiwaramdars", "label": "RESPONDENT", "start_char": 5198, "end_char": 5211, "source": "ner", "metadata": {"in_sentence": "The Kudiwaramdars were content with the compensation awarded to them, but the respondents F who were, as already mentioned above, Melavaramdars asked for a reference to conrt under section 18 of the Act for claiming enhanced compensation.", "canonical_name": "Kudiwaramdars"}}, {"text": "section 18", "label": "PROVISION", "start_char": 5375, "end_char": 5385, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 5915, "end_char": 5932, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge in this context relied upon an earlier decision of the Madras High Court wherein it had been held that the rights of Melavaramdars were not confined only to rent from land a>,1d that they had other recognised rights and were entitled to compensation for those rights."}}, {"text": "Although the estate was notified under the Abolition Act", "label": "STATUTE", "start_char": 8117, "end_char": 8173, "source": "regex", "metadata": {}}, {"text": "section 18", "label": "PROVISION", "start_char": 8536, "end_char": 8546, "source": "regex", "metadata": {"linked_statute_text": "Although the estate was notified under the Abolition Act", "statute": "Although the estate was notified under the Abolition Act"}}, {"text": "Melwaramdar", "label": "OTHER_PERSON", "start_char": 9300, "end_char": 9311, "source": "ner", "metadata": {"in_sentence": "The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time."}}, {"text": "STATE", "label": "PETITIONER", "start_char": 9860, "end_char": 9865, "source": "ner", "metadata": {"in_sentence": "There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the\n\n, ..\n\nMADR, AS STATE V, SHANMUGHA MUDALIAR (Khanna, J.) 53 9\n\nfespondents in accordance with the provisions of the Land Acquisition Act."}}, {"text": "SHANMUGHA MUDALIAR (Khanna, J.) 53 9", "label": "RESPONDENT", "start_char": 9869, "end_char": 9905, "source": "ner", "metadata": {"in_sentence": "There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the\n\n, ..\n\nMADR, AS STATE V, SHANMUGHA MUDALIAR (Khanna, J.) 53 9\n\nfespondents in accordance with the provisions of the Land Acquisition Act.", "canonical_name": "SHANMUGHA MUDALIAR (Khanna, J.) 53 9"}}, {"text": "Melavaramdars", "label": "OTHER_PERSON", "start_char": 10389, "end_char": 10402, "source": "ner", "metadata": {"in_sentence": "High Court has referred to the previous decisions which show that the formula generally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars."}}, {"text": "Kudiwaramdars", "label": "RESPONDENT", "start_char": 10441, "end_char": 10454, "source": "ner", "metadata": {"in_sentence": "High Court has referred to the previous decisions which show that the formula generally adopted is to pay one-third of the total compensation to Melavaramdars and two-thirds of the compensation to Kudiwaramdars.", "canonical_name": "Kudiwaramdars"}}]}
{"document_id": "1976_3_540_550_EN", "year": 1976, "text": "54 0\n\nREGIONAL MANAGER & ANR.\n\nPAWAN KUMAR DUBEY\n\nMarch 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J\n\nc..:onstituri0n of India, 1950, Art. 16 and 311(2), when applicable.\n\nCivil cri, ant-Reversion of-Order apparently innocuous when realty p1111iti: c attracting Art. 16 and 311(2).\n\nThe respondent was reverted fro1n the higher post in which he was officiating, to his substantive post, by an order which stated that he was 'not fit yet' tor tfc higher post.\n\nHis juniors continued to officiate in the higher post.\n\nTill some time before the order of reversion, the respondent ¢.'as praised by his superior officers, but, during a period of about six months before the reversion, there was a spurt of warnings, complaints, and adverse remarks, alleging disrespect, disobedience to orders, and that he cast aspersions on h\\s superior -I officer.\n\nThe respondent asked for particulars to meet the allegation\"I, but they \\ v•cre not given to him.\n\nHis representation against the last adverse entry \\Vas\n\np-nding when the reversion order was passed.\n\nHe challenged the order and the High Court, following State of U.P. v. Sugliar Singh [1974] 2 S.C.R. 335, quashed the order, holding that the reversion ¥/as a punishment in the light of the circumstances preceding the order, from the terms of the order, and it5 e:ffect on the respondent's future--'\"-and that there \\\\las a \\'iolation of 1-ules of \" natural justice.\n\nJn appeal to this Court by special leave, the appellant contended that the I-[igh C'ourt misunderstood Sughar Sinr:ll's case. ••\n\nDismissing the appeal, HELD : ( 1) As the reversion order v, ras punitive and passed contrary to the rules of natural justice embodied in Art. 311(2), it must be quashed. The authorities are, however, free to take action, either in accordance with applicable \"\"\"\" ruies for a comparative assessment of the merits of the respondent and others ( \\vho n1ay be eligible, or to take disciplinary proceedings. [550A-B]\n\n(a) In Stighar Singh's case, th.is Court was only following the law on Art. 311 (2) as laid down repeatedly.\n\nIn that case also the reversion of Sughar Singh was apparently not punitive, but, since it could not be explained except as a result of an adverse entry made two years earlier, it Wa5 held to be by v.'ay of punishment. On this view it was not necessary to con5ider \\Vhether there was a violation of Art. 16, but this Court held that thrc was.\n\nWhat \\.\\.'eighed with this Court was not only that there was a sufficient element of punishment in reverting him so that Art. 311 (2) had to be complied \\vith, but that there was also enough of imprOpriety and unreasonableness in the action taken solely for a very stale reason which had beco1ne logically disconnected aEd extraneous, to make out a case of 'malice in law' if J1ot 'n1alice in fact'~\n\n[545H-546F]\n\n(h) Whether an apparently innocuous order is punitive or aniount• to unjustifiable discriminatory action, violating either Art. 311 or Art. 16 depends - on the facts of the case.\n\n[549E]\n\n(c) This Court has. in Sltan1sher Singh v. State of Punjab [19751 1 S.C.R. 814 laid down authoritatively the conditions necessary in such cases for the- <ippiicability of Art. 311 (2) after considering all the previous cases and there\n\nis no scope for any misapprehensim1 of the law. [544C1\n\n(d) As regards Art. 16, before it is held to have been violacd,, there must he discrimination between one Government servant and another, sun1larly placed. \\Vhich cannot be reasonably explained except on the basis of 'malice in law~ or 'malice in fact'.\n\nBut, the person wlicr alleges such rrialice in law must\n\n5<tisfactl?rily _establish it on proved or admitted facts as in State of My.\\orc v.\n\nR.ulkarn1 (A.IR 1972 SC 2170).\n\nWhen the alle 0ations are of '1nalice in facf 'vhich are disputed and require a detailed adductin of evidence or exarni•ation of witesses, the our.t \\Vil leaye the party aggrieved to an ordinary civil uit J and \\Vill not exercise its d1scret1onary power under Art. 226.\n\nReversion of an ?fficer as a _result of. administrative exigencies, without any suggestion of malice t. in la\"\". or 1n fact, is unaffected by Sughar Singh's case, and is not vitiated even if some Government servants, junior to hin1 have not been reverted.\n\n\"' I\n\n[547B-D, F-G] '\n\n( e) The facts of the present case are similar to those of Suf:har Sjngh's case and the High Court was right in holding that there was a violation of the principles of natural justice embodied in Art. 311 (2). [548F-Gl There were no administrative reasons for the respondeilt's reversion. lf there had beer. anything really serious against him, proceedings under Art. 311 (2) <>hould have been instituted. The sudden reversion for the reason given in the order amounts to unjustified stigma which could not be said to be devoid .o[ the element of punishment. [5480-H, 549D--El\n\n(f) Jf he was really unfit as compared with his Juniors there could have been a fair comparison with them at a time when such assessment is called for under the rules (rules should be made if there are none) and on such a con1paratrve assessment of merits, the juniors could have been preferred ensuring that there \\Vas no violation of Art. 16. Dealings of superior ot1icers with their subordinates in Government must be shown to be based on fair play and reason.\n\nBut it is not necessary to invoke the aid of Art. 16 to quash the order. [549\n\nC-D, E-F, 550B]\n\n(2) Even if the High Court should not have interfered, it is not a fit case for interference by this Court under Art. 136, as it is still open to .the authorities to proceed in a just and legal way against fhe respondent if necessary.\n\n[549F-HJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1844/1975. (Appeal by special leave from the judgment and order dated the 17-7-1974 of the Allahabad High Court in special appeal No. I 21 of E 1974).\n\nR. N. Trivedi and 0. P. Rana, for the appellants.\n\nS. C. Aggarwal and V. J. Francis, for the respondent.\n\nThe Judgment of the Court was delivered by\n\nBEG, J.\n\nThis appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973.\n\nHis juniors, it was found, were still officiating in posts of Senior Station Incharge.\n\nThe respondent's chances of promotion were said to be adversely affected by the reason given for the reversion in the impugned order : that the respondent was \"not fit yet\" for the higher post.\n\nThe learned single Judge and the Division Bench in the Allahabad High Court were referred to several decisions of this Court mentioned ; by the Division Bench. These were : State of Bombay v, F. A.\n\nA Abraham( 1); Champaklal Chimanlal Shah v.\n\nUnion of India('); Divisional Personnel Officer v. Raghavendrachar(\"); and State of U.P. & Ors. v. Sughar Singh(').\n\nThe Allahabad High Court had followed what it considered to be \\ the ratio decidendi of Sughar Singh's case (supra), the last case of this , Court available at the time.\n\nSpecial leave to appeal was sought in the B case before us on the ground that Sughar Singh's case (supra) had been misunderstood by the High Court and required some elucidation by this Court.\n\nSpecial leave was granted on condition that, in any\n\nI<\\ event, the costs of the respondent will be borne by the appellants. The question to be determined was assumed to be one of law only.\n\nThe appeal was, therefore, to be heard on the special leave paper book with such additional documents from the record of the case as the C parties may choose to file.\n\nWe find that, although a number of documents were filed, neither side has chosen to file a copy of the order impugned which has been interpreted by the single Judge as well as by the Division Bench of the -1.\n\nAllahabad High Court as one amounting to award of a punishment not merely in the light of the circumstances preceding the order but also D from the terms of the order itself and its effect upon the respondent's future.\n\nThe question, therefore, arises whether we really have before\n\nus any point of law of such a nature as to justify interference in ex- • ercise of the exceptional powers of this Court under article 136 of the Con.stitution,\n\nEven though we have come to the conclnsion that the question before us is substantially one of fact, we would like to explain a little the law applicable to such cases in view of the submissiola that Sughar Singh's case (supra) had led to some misunderstanding of it. Not much clarification seems necessary so far as conditions for the application of Article 311 (2) are concerned as this question has been considered . and decided by this Court in a number of cases including the recent decision by a bench of seven Judges of this Court in Shamsher Singh & Anr. v. State of Punjab C).\n\nIt was pointed out in that case (at p. 937) :\n\n\"No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amonnt to a punishment on G the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or, inefficiency, or, for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to removal from service within the meaning of Article 311 (2) of the Constitution.'' H\n\n(1) !19621 (2) Suppl. S.C.R. 92.\n\n(2) [1964](5) S.C.R. 190.\n\n(3) [19661 (3) S.C.R. 106.\n\n(41 [197412 S.C.R. 335.\n\n(5) [1975] (I) S.C.R. 314.\n\nI \\\n\n;\"I I\n\nShamsher Singh's case (supra) related to an order of termination A of services of a probationer which, on the face of it, appeared to be innocuous.\n\nNevertheless, this Court, alter examining the facts and circumstances constituting the background of the order and its consequences, held it to be substantially one of punishment and set it aside for a violation of Article 311 (2) of the Constitution.\n\nIt was explained there (at p. 837) :\n\n\"Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.\n\nIn the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other reason not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged.\n\nNo punishment is involved in this.\n\nThe authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry.\n\nBut, in these cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a dhance to make good in other walks of life without a stigma at the time of termination of probation.\n\nIf, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and, if his services are terminated without following the provivisions of Article 311 (2), he can claim protection. In Gopi Kishore Prasad v. Union of India A.LR. 1960 S.C., 689, it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment.\n\nInstead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer\".\n\nIt was also observed in Shamsher Singh's case (supra) (at p. 838)\n\n\"The fact of holding an inquiry is not always conclusive.\n\nWhat is decisive is whether the order is really by way o[ punishment. (Sec : State of Orissa v.\n\nRamnarain Das\n\n(1961) 1 S.C.R. 606. If there is an enquiry, the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (see : Madan Gopal v. State of Punjab (1963) 3 S.C.R. 716).\n\nIn R. C. Lacy v. State of Bihar & Ors., (Civil Appeal No.\n\n590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the condnct of the probationer in the circumstances of the case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken.\n\nA probationer whose terms of service provided that it could be terminated without any notice and without any .\n\nA cause being assigned could not claim the protection of Article 311(2). [See: R. C. Banerjee v. Union of India (1964)\n\n2 S.C.R. 135].\n\nA preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 [see : Champaklal C. Shah v. Union of India (1964 (5) S.C.R.\n\n190].\n\nOn the other hand, a statement in the order of tenni- B nation that the temporary servant is undesirable has been held to import an element of punishment [See : J agdish Mitter v. Union of India, A.LR. 1964 S.C. 449]'\".\n\nWe think that the principles in valved in applying Article 311 t 2) having been sufficiently explained in Shamsher Singh's case (supra) it should no longer be possible to urge that Sughar Singh's case (supra) c could give rise to some misapprehension of the law.\n\nIndeed, we do not think that the principles of law declared and applied so often have really changed.\n\nBut, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometirues that there is some conflict between different decisions of this Court.\n\nEven where there appears to be some conflict, it would, we think, vanish when the mtio D decidendi of each case is correctly understood.\n\nIt is the rule deducible from the application of law to the. facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be siruilar.\n\nOne additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.\n\nWe have examined the record of the case of Sughar Singh (supra).\n\nOur judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based.\n\nIn that case, the Government servant concerned had been suspected of making an alteration in his own service record.\n\nIt was not shown how he coulo possibly have had access to his service record as he was not in charge of the record.\n\nOne of the alterations made meant an increase in his age so that he would, according to the altered state of the record, have had to retire earlier.\n\nSughar Singh complained, when asked to show canse against the alleged tampering, that it must have been manipulated by his enemies interested in injuring him.\n\nIt could not be detennined who was responsible for the alterations.\n\nNevertheless, the following adverse entry was made on Sughar Singh's record :\n\n\"1966-Is suspected to have got entries of date of birth and educational qualifications altered on the authority of a fictitious certificate which had to be corrected later on.\n\nSeverely warned\".\n\n. Two years later, as a result of this entry, based expressly on bare suspicion, without further inquiry into the question whether Sughar Singh could be responsible for tampering with the record, a reversion order, innocuous on the face of it, had been made on 12th August 1968.\n\nThe effect of the reversion order was that Sughar Singh who,\n\n\\ . ,;.\n\napart from this entry, had an excellent record, was reverted from a A post in which he had been officiating from 16th March, 1961, until the reversion order dated 12th August, 1968. It was shown that / about 200 officers, junior to him, were still officiating in the cadre . from which Sughar Singh had been reverted to his substantive post of • Head Co,1stable. No administrative need or exigency could be shown to justify the reversion order. All officers, including Sughar Singh, who had been officiating, had been selected after special training for B the higher cadre.\n\nThe question, naturally arose : Why was S!ighar\n\n;\"I Singh selected for this discriminatory treatment?\n\nA single Judge of the Allahabad High Court held, acting on the principl\\' that a mere reversion, from a post to which the incumbent had no right, did not amount to punishment within the meaning of Article 311(2) so that Sughar Singh had no remedy.\n\nHe only took C the form of the action into account.\n\nNo further probe was considered necessary by the learned Judge.\n\nWhen the case came before a Division Bench, in special appeal, one of the learned Judges agreed with ) the learned single Judge who had dismissed Sughar Singh's petition merely on the ground that Sughar Singh had no right to the post without considering the impact of the surrounding facts or the background of the order. The other learned Judge, however, carefully examined D the background of Sughar Singh and the reversion order as revealed • by facts on record.\n\nHe pointed out that the averments of Sughar Singh, that he had a splendid record, apart from the adverse entry in question, and that there was no inefficiency on his part, were not con-\n\n'11 troverted in the counter-affidavit filed.\n\nThis learned Judge found the reversion order against Sughar Singh to be punitive.\n\nHe, however, added that, even if the order could not be held to be punitive, it was E certainly violative of the guarantee contained in Article 16 (I) of the y- Constitution.\n\nWhen the matter was heard by Verma, C.J., on a reference occasioned by the difference of opinion between the two learned Judges on the Div isiou Bench, it was again argued that both Articles 16 ( 1) and 311 (2) had been infringed.\n\nThe learned Chief Justice did not find sufficient material to uphold a violation of Article 16.\n\nBut, after taking into account the admission of the Counsel appearing for the State that the sndden reversion of Sughar Singh could not at all be explained or accounted for unless it couJd be linked with the adverse entry, the learned Chief Justice held the action against Sughar Singh to be punitive and violative of Article 311 (2) of the Constitution.\n\nSughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so that it could not have been justly or reasonably connected with the delayed action based upon it.\n\nThis Court could have dismissed the appeal by special leave solely on the ground that no question of law arose on the finding of fact, also upheld by this Court that Sugh•ar Singh was punished, in substance, so that Article 311 (2) was attracted.\n\nThis Court's judgment in Sughar Singh's case (supra) shows that it was only following the law on Article 311 (2) of the Constitution as laid down repeatedly earlier by this Court. It specifically referred to\n\nthe following cases : Purshotam. Lal Dhingra v.\n\nThe Unioll of India('); State of Punjab & Anr. v. Sukh Raj Bahadur('); State of Onssa v. Ram Narayan Das( 3); B. C. Lacy v.\n\nState of Bihar('); Jagdish Mitter v. Union of India('); A. G. Benjamin v.\n\nUnion of \\ India(\"); Ram Gopal Chaturvedi v. State of Madhya Pradesh('); Union of India v. Gajendra Singh('); Divisional Personnel Officer v. .~· Raghavendrachar (supra); Union of India v.\n\nJaswan Ram (\"); Madhav v. State of Mysore('\"'); State of Bombay v. Abraham (supra),.\n\nIn Sughar Singh' s case, this Court summarised the propositions of Jaw deducible from the cases mentioned above; and, while considering the\n\nI\"\\ applicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive.\n\nNevertheless, on a total consideration of all the facts, including 'the admission in the High Court before Verma, C.J., by the Standing Counsel appearing on behalf of the State, that the reversion order could not be explained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar & Ors. v.\n\nShiva Shukshuk J Mishra(''), where this Court had affirmed the opinion of the High \\ Court, on facts, that the \"reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the plaintiff and by way of punishment to him\".\n\nOn this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary • to the provisions of Article 16 also.\n\nNevertheless, this Court held there, alternatively, after referring to State of Mysore v. P. P.\n\nKulkarni ( \"), that the action taken against Sughar singh also resulted in a '1' violation of the provisions of Articles 14 and 16 of the Constitution.\n\nIt seems to us to be clear, after examining the record of Sughar Singh'.>\n\ncase (supra), that what weighed with this Court was not only that there was a sufficient \"element of punishment\" in reverting Sughar Singh \"oi for a suppo.sed wrong done, from which the order of reversion could I not be divorced, so that Article 311(2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh, solely for a very stale reason, which had become logically quite disconnected, to make out a case of \"malice in law\" even if it was not a case of \"malice in fact\". If an authority acts on what are justly and logically viewed, extraneous grounds, it would be such a ase. All these aspects of the case were kept in view by this Court when it recorded the conclusion :\n\n\"In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion. Even if it were not so, we have no doubt that the order would be\n\n(l) [19581 S.C.R. 828.\n\n(2) [1968] (3) S.C.R. 23.\n\n(3) [1961](1) S.C.R. 606.\n\n(4) C.A. No. 590of1962decided on 23-10-C>3.\n\n(5) A.LR. 1964 S.C. 449.\n\n(6) C.A. No. 1341 of 1966 decided 0n 13-12-66.\n\n(7) [19701(1) S.C.R. 472.\n\n(8) [1972j(3) S.C.R. 660.\n\n(9) A.LR. !958 S.C. 905. (10) A.l.R. 1962 S.C. 811. (JI) (1971](2) S.C.R.191. (12} A.l.R.1972 S. C. 2170.\n\nI •\n\n! ...\n\nliable to be quashed on the ground of contravention of\n\nA'> Articles 14 and 16 of the Constitution\".\n\nWe do not think that Sughar Singh's case, in any way, conflicts with what has been laid down by this Court previously on Article 311 (2) of the Constitution or Article 16 of the Constitution.\n\nWe would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstra- B: ti on of discrimination between one Government servant and another. similarly placed, which cannot be reasonably explained except on an assumption or demonstration of '\"malice in law\" or \"malice in fact\".\n\nAs we have explained, acting on a legally extraneous or obviously' misconceived ground of action would be a case of \"malice in law\".\n\nOrders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, arc unaffected by C Sughar Singh's case (supra).\n\nThey arc not vitiated merely bccaJsc son1e other Government servants juniors in the substaO.tivc rank; have not been reverted.\n\nThis Court has held in S. C. Anand v. Union of India('}, that no question of applying Articles 14 or 16 could arise where a termination of service takes place in terms of a contract of service.\n\nAgain, in n' Champaklal Chiman Lal Shah (supra), this Court held that the motive behind an order of termination of service, in accordance with the terms of a contract, would not be really relevant even if an enquiry had been held to decide whether proceedings under Article 311 (2) shouldi be instituted or the services of a Govenunent servant terminated in terms of his contract.\n\nChampaklal Chimanlal Shah's case (supra I w'1S noi one in which any question of mala tides arose.\n\nProtection of E Article 16 was claimed there on the ground that Rule 5, prov[ding for termination of services of temporary servants, was itself hit by Article 16.\n\nSuch a contention was repelled.\n\nOn the other hand, Kulkami's case (supra), relied upon in Sughar Singh's case (supra), was one in which \"n1isuse of power\" or detourne111ent de puvoir'' (as it i:-; called in French Administrative law), had been proved.\n\nAnother term for >Uch use of power for an improper object is \"malice in law\".\n\nWe repeat that, before any such case of ''.malice _in law\". can be accepted, the person who alleges it must sat1sfactonly establish 1t 011 proved or admitted facts as it was in Ku/karni's case (supr~). Whe_re the allegations are of malice in fact, which arc generally senously disputed, and the case cannot be satisfactorily decide~ without a detaild G adduction of evidence or cross-examination of witnesses, Courts will leave the party aggrieved to an ordinary civil suit. This rule, relating to exercise of discretionary powers under Article 226, is also well settled.\n\nWe have tried to gather, from such materials on the record of the case before us as have been made available to us by the parties, the \"spirit and substance\", to use the expressions employed by this Court ll in Champaklal' s case (supra) , of the action taken against the contest,\n\n~----- - -~--~\n\n(1) A.J.R. 1953 S.C. 250.\n\ning re?pondent.\n\nWe have examined the background of the order of\n\nrevrsm~. W. c find that, on the one hand, there is fulsome praise, in tes!Imomals given to the respondent by his superior officers for meritorious work done by im. On the other hand, we find tht, precedmg the order of reversmn, passed on 20th February, 1973, against the respondent, there 1s a spurt of warnings and very vague complaints and adverse remarks of 30th September, 1972, and 4th October, l 972, 21st October, 1_972, and 25th Janua'.y, 1973, presumaly all by a particular supenor officer, allegrng disrespect shown, disobedience to •Orders given, and aspersions said to have heen cast by the respondent against the conduct of the superior officer.\n\nThe respondent was warned by this superior officer, an Assistant General Manager, by a letter dated the 4th October, 1972. T'here is also a copy of an order on a complaint against the respondent that the respondent had inisused the services of a Chowkidar.\n\nThe detailed order of 2nd June, 1970, shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be \"sweet tempered\".\n\nThere were some old adverse entries also against the respondent.\n\nBut, they must be deemed to have been washed off by orders of his promotion, on an \"ad hoc\" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules. It appears that the respondent had asked for particulars to meet the vague allegations of insubordinatiou and disobedience which had found their way into his service record for 1972 to 1973. It bas not been shown that the respondent was supplied with these particulars.\n\nHe professed ignorance of occasions on which be bad been disrespectful or of existence of any orders which had been disobeyed by him.\n\nThese particulars could have been easily supplied to him if the allegations against him were justified The respondent's representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed.\n\nHis allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted. In these respects, the facts of the\n\nase are similar to those of Sughar Singh's case (supra).\n\nJn addition. as the High Court points out, the express condemnation of the respondent as \"not fit\" for the higher post, in which bis juniors were allowed to officiate, categorises him as inferior to his juniors even if it \\Vas qualifie.d by the addition of the word \"yet\".\n\nThe only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972-73 against the respondent which were quite vague.\n\nIf there bad been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have been instituted.\n\nIndeed, they can still be taken if there are substantial grounds against the respondent. qn the ther hand, if te ction against him is due merely to a feclmg of pique or anger with him on ihe part of his superior officers, to which the respondent's tactlessness\n\nmay have contributed, it did not deserve anything more than the warnings and the adverse entry.\n\nIndeed, even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based.\n\nTo allege such misconduct against him and then to stigmatise the respondent as \"not fit\" for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair.\n\nIt may mar or delay his chances of promotion in future.\n\nWe, however, refrain from commenting further on what may or may not have been the real cause of the respondent's reversion. If the respondent is really unfit or inefficient, as compared with his juniors, there is no reason why, on a comparative assessment of merits, at a time when such assessment may be called for under the rules (there should be rules on the subject if there are none so far) , his juniors in service should not be preferred over him.\n\nA decision given after fair comparisons with records of others officiating in the fame cadre would have ensured that no violation of Article 16 took place.\n\nThe sudden reversion of the petitioner, for the reason given in the reversion order, could be held to amount to an unjustified stigma which could not be said to be \"devoid of an element of punishment''.\n\nAs we have indicated, there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action.\n\nIt is, however, well established that even an apparently inoffensive order may fail to pass tests imposed by Articles 16 and 311 of the Constitution.\n\nDealings of superior officers with their subordinates in Government service in a Welfare State must be shown to be based on fair-play and reason when facts arc actually proved which indicate F that these requirements may be Jacking.\n\nEven if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution.\n\nThe High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice. It did not give the respondent any other or consequential relief.\n\nAnd, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitive action .\n\nAs we are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of\n\nthe respondent and others who may be eligible to officiate in the post of a Senior Station lncharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary lo ruics of natural justice embodied in Article 311 (2). It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a tinding.\n\nThis, we think, was also the position in Sughar Si11gh's casr (supra).\n\nThis appeal is dismissed with costs.\n\nV.P.S.\n\nA ppeai disn1issed.", "total_entities": 93, "entities": [{"text": "0\n\nREGIONAL MANAGER & ANR", "label": "PETITIONER", "start_char": 3, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "REGIONAL MANAGER & ANR", "offset_not_found": false}}, {"text": "PAWAN KUMAR DUBEY", "label": "RESPONDENT", "start_char": 31, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "PAWAN KUMAR DUBEY", "offset_not_found": false}}, {"text": "March 8, 1976", "label": "DATE", "start_char": 50, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "PAWAN KUMAR DUBEY\n\nMarch 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J\n\nc..:onstituri0n of India, 1950, Art."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 66, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 83, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 97, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Art. 16 and 311(2)", "label": "PROVISION", "start_char": 150, "end_char": 168, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16 and 311(2)", "label": "PROVISION", "start_char": 278, "end_char": 296, "source": "regex", "metadata": {"statute": null}}, {"text": "[1974] 2 S.C.R. 335", "label": "CASE_CITATION", "start_char": 1148, "end_char": 1167, "source": "regex", "metadata": {}}, {"text": "Sughar Sinr:ll", "label": "OTHER_PERSON", "start_char": 1534, "end_char": 1548, "source": "ner", "metadata": {"in_sentence": "Jn appeal to this Court by special leave, the appellant contended that the I-[igh C'ourt misunderstood Sughar Sinr:ll's case. ••", "canonical_name": "Sughar Sinr:ll"}}, {"text": "Art. 311(2)", "label": "PROVISION", "start_char": 1699, "end_char": 1710, "source": "regex", "metadata": {"statute": null}}, {"text": "Stighar Singh's", "label": "OTHER_PERSON", "start_char": 1982, "end_char": 1997, "source": "ner", "metadata": {"in_sentence": "550A-B]\n\n(a) In Stighar Singh's case, th.is Court was only following the law on Art."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2046, "end_char": 2054, "source": "regex", "metadata": {"statute": null}}, {"text": "Sughar Singh", "label": "OTHER_PERSON", "start_char": 2120, "end_char": 2132, "source": "ner", "metadata": {"in_sentence": "In that case also the reversion of Sughar Singh was apparently not punitive, but, since it could not be explained except as a result of an adverse entry made two years earlier, it Wa5 held to be by v.'ay of punishment.", "canonical_name": "Sughar Sinr:ll"}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 2384, "end_char": 2391, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2550, "end_char": 2558, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 2966, "end_char": 2974, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 2978, "end_char": 2985, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 3202, "end_char": 3210, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 3338, "end_char": 3345, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4012, "end_char": 4020, "source": "regex", "metadata": {"statute": null}}, {"text": "Suf:har Sjngh", "label": "OTHER_PERSON", "start_char": 4362, "end_char": 4375, "source": "ner", "metadata": {"in_sentence": "\"' I\n\n[547B-D, F-G] '\n\n( e) The facts of the present case are similar to those of Suf:har Sjngh's case and the High Court was right in holding that there was a violation of the principles of natural justice embodied in Art."}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4499, "end_char": 4507, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 311", "label": "PROVISION", "start_char": 4666, "end_char": 4674, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 5217, "end_char": 5224, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 16", "label": "PROVISION", "start_char": 5391, "end_char": 5398, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 5555, "end_char": 5563, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 5688, "end_char": 5716, "source": "ner", "metadata": {"in_sentence": "549F-HJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 5826, "end_char": 5846, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the judgment and order dated the 17-7-1974 of the Allahabad High Court in special appeal No."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 5905, "end_char": 5915, "source": "ner", "metadata": {"in_sentence": "R. N. Trivedi and 0."}}, {"text": "S. C. Aggarwal", "label": "OTHER_PERSON", "start_char": 5938, "end_char": 5952, "source": "ner", "metadata": {"in_sentence": "S. C. Aggarwal and V. J. Francis, for the respondent."}}, {"text": "V. J. Francis", "label": "OTHER_PERSON", "start_char": 5957, "end_char": 5970, "source": "ner", "metadata": {"in_sentence": "S. C. Aggarwal and V. J. Francis, for the respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 6037, "end_char": 6040, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.\n\nThis appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973."}}, {"text": "Pawan Kumar Dubey", "label": "RESPONDENT", "start_char": 6297, "end_char": 6314, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.\n\nThis appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973.", "canonical_name": "PAWAN KUMAR DUBEY"}}, {"text": "20-2-1973", "label": "DATE", "start_char": 6482, "end_char": 6491, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.\n\nThis appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973."}}, {"text": "25th January, 1973", "label": "DATE", "start_char": 6636, "end_char": 6654, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.\n\nThis appeal by special leave granted t~ the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Jncharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an Order dated 20-2-1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973."}}, {"text": "article 136", "label": "PROVISION", "start_char": 8643, "end_char": 8654, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 9029, "end_char": 9040, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 9881, "end_char": 9892, "source": "regex", "metadata": {"statute": null}}, {"text": "Shamsher Singh's", "label": "OTHER_PERSON", "start_char": 10077, "end_char": 10093, "source": "ner", "metadata": {"in_sentence": "I \\\n\n;\"I I\n\nShamsher Singh's case (supra) related to an order of termination A of services of a probationer which, on the face of it, appeared to be innocuous.", "canonical_name": "Shamsher Singh's"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 10441, "end_char": 10452, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 11594, "end_char": 11605, "source": "regex", "metadata": {"statute": null}}, {"text": "Shamsher Singh", "label": "OTHER_PERSON", "start_char": 12118, "end_char": 12132, "source": "ner", "metadata": {"in_sentence": "It was also observed in Shamsher Singh's case (supra) (at p. 838)\n\n\"The fact of holding an inquiry is not always conclusive.", "canonical_name": "Shamsher Singh's"}}, {"text": "(1961) 1 S.C.R. 606", "label": "CASE_CITATION", "start_char": 12332, "end_char": 12351, "source": "regex", "metadata": {}}, {"text": "(1963) 3 S.C.R. 716", "label": "CASE_CITATION", "start_char": 12547, "end_char": 12566, "source": "regex", "metadata": {}}, {"text": "Article 311(2)", "label": "PROVISION", "start_char": 13097, "end_char": 13111, "source": "regex", "metadata": {"statute": null}}, {"text": "(1964)\n\n2 S.C.R. 135", "label": "CASE_CITATION", "start_char": 13152, "end_char": 13172, "source": "regex", "metadata": {}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13314, "end_char": 13325, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13667, "end_char": 13678, "source": "regex", "metadata": {"statute": null}}, {"text": "12th August 1968", "label": "DATE", "start_char": 16083, "end_char": 16099, "source": "ner", "metadata": {"in_sentence": "Two years later, as a result of this entry, based expressly on bare suspicion, without further inquiry into the question whether Sughar Singh could be responsible for tampering with the record, a reversion order, innocuous on the face of it, had been made on 12th August 1968."}}, {"text": "12th August, 1968", "label": "DATE", "start_char": 16336, "end_char": 16353, "source": "ner", "metadata": {"in_sentence": "apart from this entry, had an excellent record, was reverted from a A post in which he had been officiating from 16th March, 1961, until the reversion order dated 12th August, 1968."}}, {"text": "S!ighar\n\n;\"I Singh", "label": "JUDGE", "start_char": 16788, "end_char": 16806, "source": "ner", "metadata": {"in_sentence": "The question, naturally arose : Why was S!ighar\n\n;\"I Singh selected for this discriminatory treatment?"}}, {"text": "Article 311(2)", "label": "PROVISION", "start_char": 17049, "end_char": 17063, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 18139, "end_char": 18149, "source": "regex", "metadata": {"statute": null}}, {"text": "Verma", "label": "JUDGE", "start_char": 18208, "end_char": 18213, "source": "ner", "metadata": {"in_sentence": "When the matter was heard by Verma, C.J., on a reference occasioned by the difference of opinion between the two learned Judges on the Div isiou Bench, it was again argued that both Articles 16 ( 1) and 311 (2) had been infringed."}}, {"text": "Articles 16", "label": "PROVISION", "start_char": 18361, "end_char": 18372, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 18495, "end_char": 18505, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 18826, "end_char": 18837, "source": "regex", "metadata": {"statute": null}}, {"text": "Sugh•ar Singh", "label": "OTHER_PERSON", "start_char": 19258, "end_char": 19271, "source": "ner", "metadata": {"in_sentence": "This Court could have dismissed the appeal by special leave solely on the ground that no question of law arose on the finding of fact, also upheld by this Court that Sugh•ar Singh was punished, in substance, so that Article 311 (2) was attracted.", "canonical_name": "Sughar Sinr:ll"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 19308, "end_char": 19319, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 19437, "end_char": 19448, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 21220, "end_char": 21230, "source": "regex", "metadata": {"statute": null}}, {"text": "Sughar singh", "label": "OTHER_PERSON", "start_char": 21380, "end_char": 21392, "source": "ner", "metadata": {"in_sentence": "Nevertheless, this Court held there, alternatively, after referring to State of Mysore v. P. P.\n\nKulkarni ( \"), that the action taken against Sughar singh also resulted in a '1' violation of the provisions of Articles 14 and 16 of the Constitution.", "canonical_name": "Sughar Sinr:ll"}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 21447, "end_char": 21465, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311(2)", "label": "PROVISION", "start_char": 21801, "end_char": 21815, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 14 and 16", "label": "PROVISION", "start_char": 22981, "end_char": 22999, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 23144, "end_char": 23155, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 23183, "end_char": 23193, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 23266, "end_char": 23276, "source": "regex", "metadata": {"statute": null}}, {"text": "C Sughar Singh", "label": "OTHER_PERSON", "start_char": 23837, "end_char": 23851, "source": "ner", "metadata": {"in_sentence": "Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, arc unaffected by C Sughar Singh's case (supra)."}}, {"text": "Articles 14", "label": "PROVISION", "start_char": 24083, "end_char": 24094, "source": "regex", "metadata": {"statute": null}}, {"text": "Champaklal Chiman Lal Shah", "label": "OTHER_PERSON", "start_char": 24205, "end_char": 24231, "source": "ner", "metadata": {"in_sentence": "Again, in n' Champaklal Chiman Lal Shah (supra), this Court held that the motive behind an order of termination of service, in accordance with the terms of a contract, would not be really relevant even if an enquiry had been held to decide whether proceedings under Article 311 (2) shouldi be instituted or the services of a Govenunent servant terminated in terms of his contract.", "canonical_name": "Champaklal Chiman Lal Shah"}}, {"text": "Article 311", "label": "PROVISION", "start_char": 24458, "end_char": 24469, "source": "regex", "metadata": {"statute": null}}, {"text": "Champaklal Chimanlal Shah", "label": "OTHER_PERSON", "start_char": 24574, "end_char": 24599, "source": "ner", "metadata": {"in_sentence": "Champaklal Chimanlal Shah's case (supra I w'1S noi one in which any question of mala tides arose.", "canonical_name": "Champaklal Chiman Lal Shah"}}, {"text": "Article 16", "label": "PROVISION", "start_char": 24689, "end_char": 24699, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 24824, "end_char": 24834, "source": "regex", "metadata": {"statute": null}}, {"text": "Kulkami", "label": "OTHER_PERSON", "start_char": 24889, "end_char": 24896, "source": "ner", "metadata": {"in_sentence": "On the other hand, Kulkami's case (supra), relied upon in Sughar Singh's case (supra), was one in which \"n1isuse of power\" or detourne111ent de puvoir'' (as it i:-; called in French Administrative law), had been proved."}}, {"text": "karni", "label": "OTHER_PERSON", "start_char": 25350, "end_char": 25355, "source": "ner", "metadata": {"in_sentence": "can be accepted, the person who alleges it must sat1sfactonly establish 1t 011 proved or admitted facts as it was in Ku/karni's case (supr~)."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 25707, "end_char": 25718, "source": "regex", "metadata": {"statute": null}}, {"text": "Champaklal", "label": "OTHER_PERSON", "start_char": 25954, "end_char": 25964, "source": "ner", "metadata": {"in_sentence": "We have tried to gather, from such materials on the record of the case before us as have been made available to us by the parties, the \"spirit and substance\", to use the expressions employed by this Court ll in Champaklal' s case (supra) , of the action taken against the contest,\n\n~----- - -~--~\n\n(1) A.J.R. 1953 S.C. 250."}}, {"text": "4th October, 1972", "label": "DATE", "start_char": 26898, "end_char": 26915, "source": "ner", "metadata": {"in_sentence": "The respondent was warned by this superior officer, an Assistant General Manager, by a letter dated the 4th October, 1972."}}, {"text": "2nd June, 1970", "label": "DATE", "start_char": 27074, "end_char": 27088, "source": "ner", "metadata": {"in_sentence": "The detailed order of 2nd June, 1970, shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be \"sweet tempered\"."}}, {"text": "7th March, 1972", "label": "DATE", "start_char": 27509, "end_char": 27524, "source": "ner", "metadata": {"in_sentence": "But, they must be deemed to have been washed off by orders of his promotion, on an \"ad hoc\" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 27590, "end_char": 27603, "source": "ner", "metadata": {"in_sentence": "But, they must be deemed to have been washed off by orders of his promotion, on an \"ad hoc\" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules."}}, {"text": "18th March, 1972", "label": "DATE", "start_char": 27607, "end_char": 27623, "source": "ner", "metadata": {"in_sentence": "But, they must be deemed to have been washed off by orders of his promotion, on an \"ad hoc\" or officiating basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules."}}, {"text": "20th February, 1973", "label": "DATE", "start_char": 28321, "end_char": 28340, "source": "ner", "metadata": {"in_sentence": "These particulars could have been easily supplied to him if the allegations against him were justified The respondent's representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 29175, "end_char": 29186, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 30723, "end_char": 30733, "source": "regex", "metadata": {"statute": null}}, {"text": "Articles 16 and 311", "label": "PROVISION", "start_char": 31256, "end_char": 31275, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 136", "label": "PROVISION", "start_char": 31710, "end_char": 31721, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 32693, "end_char": 32704, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 16", "label": "PROVISION", "start_char": 32751, "end_char": 32761, "source": "regex", "metadata": {"statute": null}}, {"text": "Sughar Si11gh", "label": "OTHER_PERSON", "start_char": 32850, "end_char": 32863, "source": "ner", "metadata": {"in_sentence": "This, we think, was also the position in Sughar Si11gh's casr (supra).", "canonical_name": "Sughar Sinr:ll"}}]}
{"document_id": "1976_3_551_554_EN", "year": 1976, "text": "I i\n\nPUWADA VENKATESWARA RAO\n\nCHIDAMANA VENKATA RAMANA\n\nMarch 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J B\n\nAndhra Pradesh Buildinr: (Lea1e. Rent and Eviction) Control Act, 1960 __, --Ei, iction of tenant-\"Alotice under s. 10 i.1sued-Whether notice under s. 106,\n\nTransfer of Property Act necessary.\n\nEvidence-Pmty denies receipt of notice-Production of post11u1n-lf .necessary. ,\n\nThe n:spon<lent-landlord filed a petition under s. 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, for the eviction of the appellanttenant. There was a compromise.\n\nSince the tenant defaulted in payment of the rent thereafter, a registered notice terminating the tenancy, issued by the landlord, came back with an endorsement that the appellant had\n\nrefused to accept it.\n\nLater. the tenant was ordered to be evicted.\n\nThe tenant's t appeal to the appeilate court and then• his revision application to the 1-f.ir.h\n\n, Court were rejected.\n\nRelying upon an earlier Division Bench decision of that Court, the High Court held that the Act provided a self-contained procedure for eviction of tenants, and therefore, compliance with the provisions of s. 106, Transfer of Property Act was unnecessary.\n\nDisniissing the tenant's appeal,\n\n\"HELD : The High Court has correctly applied the principle laid down by a Division Bench of that court in Ul/if!nnuna & Ors. v. S. Mohan Rao & Ors.\n\n[1969] An. P.R. Law Journal 351.\n\n[553-E]\n\nRaval & Co. v. K. C. Ramachandran & Ors. [19741 2 SCH. 629 @) 634 and\n\n Shri Renz Chand v. Shrimati Shain Devi. ILR 1955 Punj. 36, referred to.\n\nln Manf:ilal v. Su£?an Chand Rathi rAIR 1955 SC 1011 this Court was considering an entirely different kind of provision of another Act in another State, f' and this case is distinguishable.\n\nIn the context of the remedy of cjectment by\n\nan ordinary civil suit it was held in that case that the usual notice of termination of tenancy under s. 106. Transfer of Property Act was necesary.\n\n[553F & D]\n\nObiter :\n\n[In cases where a party denies receipt of registered notice it is not always necessary to produce the postman who tried to effect service.\n\nDenial of service by a party n1ay be found to be incorrect from its own admissions or conduct.\n\nThe decision of the Bombay High Court in NJ.\n\nK. Patel v. Kundan Mal Chamanlal and that of the Calcutta High Court in l\\'irn1al Bala Devi. v. Provar Kumar Basu are reconcilable.\n\nThe Calcutta High Court applied a rebuttable presumption under s. 114, Evidence Act. that the letter was received by the addressee in the ordinary course of business was refused by him beca1u; e the presumption from the endorsement made upon it had not been repelled by any evidence.\n\nIn the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence.]\n\n[554C-E] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2534 of 1969. (Appeal by special leave from the judgment and order dated the 19-8-1969 of the Andhra Pradesh High Court at Hyderabad in C.R.P.\n\nNo. 2190 of 1968.)\n\nP. P. Juneja, for the appellant.\n\nG. N. Rao, for the respondent.\n\nSUPREME COURT REPORTS\n\n(1976) 3 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nBEG J.-The defendant-appellant had taken a house on rent under a registered lease dated 10th February, 1958, on a monthly rent of\\ Rs. 25.0 /- for a pen?<l of five years for running a lodging house.\n\nIt J 1s admitted by both sides that m February, 1963, the lease had expired.\n\nAccording to the landlord respondent, the defendant-appellant had contmued to hold over as a tenant \"on the same terms\" by which he, presumably, meant that it was a month to month tenancy. t' I The Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, (hereinater referred to as 'the Act') came into operaton before the lease expired.\n\nThe appellant seemed to be constantly making defaults in payments of rent.\n\nThe landlord respondcn had, therefore, to file a suit for arrears of rent in the Court of District Munsif, Visakhapatnam, which was decreed on 4th April, 1962.\n\nThe landlord respondent had to file a petition on 21st April, 1962, under Section 10 of the Act before tile 1 Rent Controller, Visakhapatnam for the eviction of the appellant as no rent was paid from 1st December, 1961 to 31st March, 1962.\n\nThere was a compromise on 12th. October, 1962.\n\nThe appellant agreed to clear arrears and to pay rents regularly.\n\nThe appellant, however, wilfully defaulted again in payments of rent from September, .,\n\n1963 to April, 1964.\n\nA notice dated 8th April, 1964, was sent by registered post by the landlord respondent to the appellant terminating his tenancy and calling upon him to pay up the arrears of rent and vacate the house by the end of April, 1964. This came back with \"' the endorsement that the appellant was refusing to accept it.\n\nOn 9th April, 1964, the respondent filed another petition under Section 10 of the Act before the Rent Controller of Visakhapatnam who ordered the cYiction of the appellant after holding all the flimsy defences of the '4 appellant to be unsubstantiated.\n\nThe Subordinate Judge of Visakha-· I patnam dismissed the tenant's appeal on 23rd October, 1968. The appellant's revision application to the High Court was also rejected on 19th August, 1969.\n\nThe only question raised by the appellant before us, in this appeal by special leave, is that no notice under Section 106 of the Transfer of Property Act had been served upon the appellant according to the finding of the Andhra Pradesh High Court itself. It was, therefore, urged that the petition under Section 10 of the Act could not succeed.\n\nThe Andhra Pradesh High Court had, however, relied upon Ulligamma &\n\nOrs. v. S. Mohan Rao & Ors. (1), where a Division Bench of that High Court had held that the Act, with which we are now concerned, provided a procedure for eviction of tenants which was self-contained so that no recourse to the provisions of Section 106 of the Transfer of ..\n\nProperty Act was necessary.\n\nWe may also refer here to the observations of this Court in Raval & Co. v. K. C. Ramachandran & Ors. (2). There, this Court noticed •\n\n(1) (1969) 1 An. P.R. Law Journal 351.\n\n(2) [1974] 2 S.C.R. 629 @ 634\n\nP. V. RAO v. C. V. RAMANA (Beg, /.) 553\n\nShri Hem Chand v. Shrimati Sham Devi(1), and pointed out \"that it was held there that the Act uuder consideration in that case provided the whole procedure for obtaining the relief of ejectment, aud, that being so, provisions of Section 106 of the Transfer of Property Act had no relevance\".\n\nNo do.ubt the decision mentioned with approval by this Court related to another enactment. But, the principle indicated by this Court was the same as that applied by the Andhra Pradesh High Court .\n\n.; It is true that, in Mangilal v. Sugan. Chand Rathi (Deceased) etc.('), this Court has held that the provisions of Section 4 of the Madhya Pradesh Accommodation Control Act of 1955 do not dispense with the requirement to comply with the provisions of Section\n\n106 of the Transfer of Property Act.\n\nIn that case, however, Section 4 of the Madhya Pradesh Act merely operated as a bar to an ordinary c civil snit so that service of a notice under Section 106 of the Transfer of Property Act became relevant in considering whether an ordinary civil suit filed on a ground which constituted an exception to the bar\n\n~ contained in Section 4 had to be preceded by a notice under Section\n\n106 of the Transfer of Property Act.\n\nIn the context of the remedy of ejectment by an ordinary civil suit, it was held that the usual notice of termination of tenancy under Section I 06 of the Transfer of Pro- D pcrty Act was necessary to terminate a tenancy as a condition prece- 'I dent to the maintainability of such a suit.\n\nIn the case before us, the respondent landlord relied upon a provision for special summary proceedings for eviction of tenants under an Act which contains all the requirements for those proceedings. We, therefore think that the learned Judge of the Andhra Pradesh High Court had correctly applied the principle laid down by a Division Bench decision of that Court.\n\nHe rightly distinguished such a case from Mangila/'s case (supra) where an entirely different kind of provision of another Act in another State was being considered by this Court.\n\nThe Division Bench decision of the High Court, applied by the learned Judge, had, we think, enunciated the correct principle.\n\nA question raised before us by learned Counsel for the respondent F is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced.\n\nThe Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal ('), to hold that the notice was not served.\n\nThere, a writof summons, sought to be served by registered post, had been returned with the endorsement \"refused\". The Bombay High Court held G that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him.\n\nIn this state of evidence, it was held that, unless the postman \\HS produced, the statement of the defendant on oath must prevail. An\n\n(I) I.L.R. [1955] Punj. 36.\n\n(3) A.LR. 1968 Bombay 387.\n\n3-608SCI/76\n\n(2) A.LR. 1965 SC 101.\n\n554 SUPREME COURT REPOJl.TS\n\n(1976] 3 S.C.R.\n\nex-parte decree, passed on the basis of such an alleged service was, therefore, set aside.\n\nOn facts found, the view expressed could not be held to be incorrect.\n\nIn Nirmalabala Debi v. Prov at Kumar Basa ('), it was held by the Calcutta High Court, that a letter sent by registered post, with the endorsement \"refused\" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service.\n\nWhat was held there was that the mere fact that the latter had come back with the endorsement \"refused\" could not raise a presumption of failure to serve.\n\nOn the other hand, the presumption under section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him.\n\nThis is also a correct statement of the law.\n\nThe two decisions are reconcilable.\n\nThe Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence.\n\nThe Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service.\n\nThe denial of service by a party may be found to be incorrect from its ow~1\n\nadmissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.\n\nConsequently, this appeal is dismissed with costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n(I) 52 C.W.N. 659.", "total_entities": 55, "entities": [{"text": "RAO\n\nCHIDAMANA VENKATA RAMANA", "label": "RESPONDENT", "start_char": 25, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "CHIDAMANA VENKATA RAMANA", "offset_not_found": false}}, {"text": "March 8, 1976", "label": "DATE", "start_char": 56, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "I i\n\nPUWADA VENKATESWARA RAO\n\nCHIDAMANA VENKATA RAMANA\n\nMarch 8, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J B\n\nAndhra Pradesh Buildinr: (Lea1e."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 89, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 103, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Control Act, 1960", "label": "STATUTE", "start_char": 178, "end_char": 195, "source": "regex", "metadata": {}}, {"text": "s. 10", "label": "PROVISION", "start_char": 238, "end_char": 243, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1960", "statute": "Control Act, 1960"}}, {"text": "s. 106", "label": "PROVISION", "start_char": 273, "end_char": 279, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1960", "statute": "Control Act, 1960"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 282, "end_char": 306, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 10", "label": "PROVISION", "start_char": 448, "end_char": 453, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "Control Act, 1960", "label": "STATUTE", "start_char": 512, "end_char": 529, "source": "regex", "metadata": {}}, {"text": "s. 106", "label": "PROVISION", "start_char": 1178, "end_char": 1184, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1960", "statute": "Control Act, 1960"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 1186, "end_char": 1210, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "AIR 1955 SC 1011", "label": "CASE_CITATION", "start_char": 1636, "end_char": 1652, "source": "regex", "metadata": {}}, {"text": "s. 106", "label": "PROVISION", "start_char": 1939, "end_char": 1945, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 1947, "end_char": 1971, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 2265, "end_char": 2282, "source": "ner", "metadata": {"in_sentence": "The decision of the Bombay High Court in NJ."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 2428, "end_char": 2447, "source": "ner", "metadata": {"in_sentence": "The Calcutta High Court applied a rebuttable presumption under s. 114, Evidence Act."}}, {"text": "s. 114", "label": "PROVISION", "start_char": 2487, "end_char": 2493, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Property Act", "statute": "Transfer of Property Act"}}, {"text": "P. P. Juneja", "label": "LAWYER", "start_char": 3124, "end_char": 3136, "source": "ner", "metadata": {"in_sentence": "P. P. Juneja, for the appellant."}}, {"text": "G. N. Rao", "label": "LAWYER", "start_char": 3158, "end_char": 3167, "source": "ner", "metadata": {"in_sentence": "G. N. Rao, for the respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 3274, "end_char": 3277, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT REPORTS\n\n(1976) 3 S.C.R.\n\nThe Judgment of the Court was delivered by\n\nBEG J.-The defendant-appellant had taken a house on rent under a registered lease dated 10th February, 1958, on a monthly rent of\\ Rs."}}, {"text": "Control Act, 1960", "label": "STATUTE", "start_char": 3801, "end_char": 3818, "source": "regex", "metadata": {}}, {"text": "Court of District Munsif, Visakhapatnam", "label": "COURT", "start_char": 4061, "end_char": 4100, "source": "ner", "metadata": {"in_sentence": "The landlord respondcn had, therefore, to file a suit for arrears of rent in the Court of District Munsif, Visakhapatnam, which was decreed on 4th April, 1962."}}, {"text": "4th April, 1962", "label": "DATE", "start_char": 4123, "end_char": 4138, "source": "ner", "metadata": {"in_sentence": "The landlord respondcn had, therefore, to file a suit for arrears of rent in the Court of District Munsif, Visakhapatnam, which was decreed on 4th April, 1962."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 4215, "end_char": 4225, "source": "regex", "metadata": {"linked_statute_text": "Control Act, 1960", "statute": "Control Act, 1960"}}, {"text": "12th. October, 1962", "label": "DATE", "start_char": 4408, "end_char": 4427, "source": "ner", "metadata": {"in_sentence": "There was a compromise on 12th."}}, {"text": "8th April, 1964", "label": "DATE", "start_char": 4623, "end_char": 4638, "source": "ner", "metadata": {"in_sentence": "A notice dated 8th April, 1964, was sent by registered post by the landlord respondent to the appellant terminating his tenancy and calling upon him to pay up the arrears of rent and vacate the house by the end of April, 1964."}}, {"text": "9th April, 1964", "label": "DATE", "start_char": 4924, "end_char": 4939, "source": "ner", "metadata": {"in_sentence": "On 9th April, 1964, the respondent filed another petition under Section 10 of the Act before the Rent Controller of Visakhapatnam who ordered the cYiction of the appellant after holding all the flimsy defences of the '4 appellant to be unsubstantiated."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 4985, "end_char": 4995, "source": "regex", "metadata": {"statute": null}}, {"text": "Visakhapatnam", "label": "GPE", "start_char": 5037, "end_char": 5050, "source": "ner", "metadata": {"in_sentence": "On 9th April, 1964, the respondent filed another petition under Section 10 of the Act before the Rent Controller of Visakhapatnam who ordered the cYiction of the appellant after holding all the flimsy defences of the '4 appellant to be unsubstantiated."}}, {"text": "Subordinate Judge of Visakha-· I patnam", "label": "COURT", "start_char": 5179, "end_char": 5218, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge of Visakha-· I patnam dismissed the tenant's appeal on 23rd October, 1968."}}, {"text": "23rd October, 1968", "label": "DATE", "start_char": 5252, "end_char": 5270, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge of Visakha-· I patnam dismissed the tenant's appeal on 23rd October, 1968."}}, {"text": "19th August, 1969", "label": "DATE", "start_char": 5348, "end_char": 5365, "source": "ner", "metadata": {"in_sentence": "The appellant's revision application to the High Court was also rejected on 19th August, 1969."}}, {"text": "Section 106", "label": "PROVISION", "start_char": 5478, "end_char": 5489, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 5497, "end_char": 5521, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 5589, "end_char": 5614, "source": "ner", "metadata": {"in_sentence": "The only question raised by the appellant before us, in this appeal by special leave, is that no notice under Section 106 of the Transfer of Property Act had been served upon the appellant according to the finding of the Andhra Pradesh High Court itself."}}, {"text": "Section 10", "label": "PROVISION", "start_char": 5672, "end_char": 5682, "source": "regex", "metadata": {"statute": null}}, {"text": "Division Bench of that High Court had held that the Act", "label": "STATUTE", "start_char": 5824, "end_char": 5879, "source": "regex", "metadata": {}}, {"text": "Section 106", "label": "PROVISION", "start_char": 6025, "end_char": 6036, "source": "regex", "metadata": {"linked_statute_text": "Division Bench of that High Court had held that the Act", "statute": "Division Bench of that High Court had held that the Act"}}, {"text": "[1974] 2 S.C.R. 629", "label": "CASE_CITATION", "start_char": 6268, "end_char": 6287, "source": "regex", "metadata": {}}, {"text": "Section 106", "label": "PROVISION", "start_char": 6565, "end_char": 6576, "source": "regex", "metadata": {"linked_statute_text": "Division Bench of that High Court had held that the Act", "statute": "Division Bench of that High Court had held that the Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 6584, "end_char": 6608, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 4", "label": "PROVISION", "start_char": 6945, "end_char": 6954, "source": "regex", "metadata": {"statute": null}}, {"text": "Section\n\n106", "label": "PROVISION", "start_char": 7081, "end_char": 7093, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 7101, "end_char": 7125, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7151, "end_char": 7160, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 106", "label": "PROVISION", "start_char": 7274, "end_char": 7285, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 7293, "end_char": 7317, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 4", "label": "PROVISION", "start_char": 7456, "end_char": 7465, "source": "regex", "metadata": {"statute": null}}, {"text": "Section\n\n106", "label": "PROVISION", "start_char": 7503, "end_char": 7515, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 7523, "end_char": 7547, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mangila/", "label": "OTHER_PERSON", "start_char": 8249, "end_char": 8257, "source": "ner", "metadata": {"in_sentence": "He rightly distinguished such a case from Mangila/'s case (supra) where an entirely different kind of provision of another Act in another State was being considered by this Court."}}, {"text": "section 114", "label": "PROVISION", "start_char": 10132, "end_char": 10143, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 10470, "end_char": 10476, "source": "ner", "metadata": {"in_sentence": "In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence."}}]}
{"document_id": "1976_3_555_560_EN", "year": 1976, "text": "BECHAN PANDEY & ORS.\n\nDULHIN JANKI DEVI & OTHERS\n\nMarch 9, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nPractice and procedure-Old Litigation-Must con1e to an end-No re1nand.\n\nThe plaintiffMappellants filed a suit against defendants for a declaration of their title to the land in question admeasuring 142 bighas. 'Ihe trial Court dismissed the suit in respect of land admeasuring 28 acres and decreed the suit in respect of the remaining land. The plaintiffs' suit was held to be barred in respect of that land on acount of the doctrine of waiver and acquiescence.\n\nThe plaintiffs were also held entitled to recover mesne profits.\n\nOn an appeal filed by some of the respondents, the High Court accepted the appeal and dismissed the suit in its entirety. The High Court held that it was not shown that the disputed land was the same as had been purchased by Mina Kucr in auction sale. The High Court also held that the plaintiffs' suit for possession was barred by limitation.\n\nThe appellants contended,\n\n( 1) The respondent did not dispute that the suit land was the same which was purchased by Mina Kuer as per sale certificate dated 26-2-1935,\n\n(2) In any case the matter may be remanded for determining the above issue.\n\nDismissing the appeal,\n\nl-IELD: (1) The appellants have tailed to establish that the land in dispute is the same as has been purchased in auction by Mina Kuer as per sale E certificate dated 26-2-1935. The contention of the appellant that the respondents did not dispute that the suit land is the same as the one purchased by Mina Kuer is not correct. The respondents did deny this fact in their written statement. The land which is the subject matter of the present litigation is situate in the State of Bihar on the right bank of the Ganges.\n\nAlthough the land is subject to river action, the onus to prove that the land in dispute in Bihar State represents the land in U.P. which got sub- IT'.erged as t.i result of river action was upon the appellants. 'fhe appellants F have failed to discharge this onus. [557F, H, 558A, El\n\n(2) The prayer of the appellants for remand of the case is rejected because there was no valid basis for the assumption of the appellants that the appellants did not dispute the identity of the land. The suit was filed as long ago as in January, 1950. During the pendency of this litigation many of the o.riginal plaintiffs ancl defendants have died and are now represented by their legal representatives. It is time that we draw the final curtain and put an end to this Jong course of litigation between the parties.\n\nIf the passage of time and G laws of nature bring to an end the lives of men and women it \\vould perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict startea by the dead. To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time. If human life has short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. ihe Courts should be loth to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families • to spend major part of their lives in protracted litigation. [558G-H, 559A-DJ H\n\nSant Narain Mathur v. Rama Krishna Mission A.I.R. 1974 S.C. 2241 reiterated.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1432 of 1968.\n\n(From the judgment and decree dated the 26-10-1959 of the Patna High Court in appeal from Original decree No. 280 of 1953.)\n\nSarjoo Prasad with D. Goburdhun, for the appellants.\n\nV. S. Desai with D. P. Mukherjee for respondents 3 4 5 6(a) 14 and 15. ' ' '\n\nEx parte, for respondents 1, 2, 6, 7 to 13 & 16-17.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.-The plaintiff-appellants field a suit in the Court of Subordinate Judge Arrah against 41 defendants for a declaration of their title to land measuring 142 bighas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad.\n\nPrayer was also made for delivery of possession of the land and for mesne profits amounting to Rs. 4,100.\n\nThe trial court dismissed the suit in respect of land measuring 28.36 acres out of plot No. 3863/ 41.\n\nSuit in respect of the remaining land was decreed.\n\nThe plaintiffs were also held entitled to recover mesne profits from defendants who might be found in possession of the land decreed.\n\nOn appeal by defendants 3, 7, 12 and 14 the Patna High Court acceped the appeal and dismissed the suit in its entirety. The plaintiffs have come up in appeal to this Court against the judgment and decree of the High Court on certificate granted under article 133 (1) (a) of the Constitution.\n\nVillage Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shumali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar.\n\nEach of the two Mahals, Shivpur Diar Gangbarar Shumali and Shivpur Diar N ambari has 18 pattis.\n\nProprietorship rights in each pat ti were calculated as 16 annas.\n\nOne Brahmdeo Singh had a share of 5 annas 4 pies in patti Bhrighunath Singh in the above Mahals.\n\nHe also held different shares in the other pattis of the two Mahals.\n\nBrahmdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds.\n\nAs the mortgagees were dispossessed from some of the lands mortgaged in their favour, they filed a suit for recovery of the mortgage amounts.\n\nFinal decree was awarded in that suit on Jiune 13 1925. In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.\n\nShe got delivery of possession of the land sold in her favour on March 19 and 20 1935. On November 9, 1936 Sheo Prasad Singh who held genral power of attorney from Maina Kuer, executed a ptta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mha~\n\ncteo Rai and others.\n\nOn September 27, 1940 Sheo Prasad Smgh\n\nI )\n\nexecuted on behalf of Maina Kuer a deed for perpetual lease of land A measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 9, 14, 16 to 18 and father of plaintiffs 10 to 13.\n\nThree days later on September 30, 1940 Sheo Prasad Singh executed another deed for perpetual lease in respect of the remaining land measuring 8 bighas in favour of plaintiff No. 15.\n\nOn May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the B lease in favour of the plaintiffs. On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale to Rajendra Prasad Singh and others.\n\nThe plaintiffs in whose favour deed for perpetual lease of the land purchased by Maina Kuer had been executed filed the present suit in January 1950 against the defendants, on the allegation that defendants 1 to 18 had taken wrongful possession of the land. Prayer was also made, as mentioned above, for recovery of Rs. 4,] 00 as mesne profit.\n\nIt was also mentioned by the plaintiffs that proceedings under section 145 of the Code of Criminal Procedure in respect of the land in dispute had been initiated but as those proceedings were dropped the plaintiffs had to seek redress by means of the present suit.\n\nThe suit was resisted by the defendants who denied the title of the plaintiffs or Maina Kuer to the land in dispute.\n\nIt was also stated that the said land had not been partitioned.\n\nPlea was also taken that the defendants had all along remained in possession of the land and the plaintiffs suit was barred by limitation.\n\nThe trial court dismissed the suit in respect of 28.36 acres of land -0n the ground that the defendants had built their houses on that land.\n\nThe plaintiffs suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence.\n\nThe suit in respect of tho remaining land, as already mentioned, was decreed.\n\nOn appeal the High Court held that the plaintiffs had faikd to prove their title to the land in dispute.\n\nThe land in dispute, it was held, was not shown to be the same as had been purchased by Maina Kuer in auction sale.\n\nThe plaintiffs suit for possession of the land was also held to be barred by limitation.\n\nIn appeal before us Mr. Sarjoo Prasad on behalf of the appellants had made a number of contentions, but in our opinion, it is not necessary to go into all of them for the appeal is liable to be dismissed on the short ground that the plaintiff-appellants have failed to establish G that the land in dispute is the same as had been purchased in auction by Maina Kuer as per sale certificate dated February 26, 1935 and was thereafter leased on her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940. It is not disputed that if on the above view of the matter the appellants are found to have not proved their title to the land in dispute, the question of going into other contentions would not arise.\n\nMr. Sarjoo Prasad, however, sub- H mils that the defendant-respondents did not dispute in the trial court that the land in dispute was the same which had been purchased by Maina Kuer in auction sale and had been leased in favour of the\n\n558 SUPREME COURT REPO!l-TS\n\n[1976] 3 S.C.R.\n\nA plaintiffs.\n\nWe find it difficult to accede to this submission.\n\nIn para 15 of their written statement defendants 2, 3, 12 and 14 stated as under:\n\n\"That Maina Kuer was not at all auction purchaser of the property in dispute nor was she a proprietor nor Zamindar nor was she at any time in possession and occupation of the lands in dispute.\n\nThe allegation of the plaintiff in respect of these facts are altogether wrong.\"\n\nIn the same language is couched para 15 of the written statement of defendant No. 7 who filed a separate written statement. It was incumbent in view of the averments in para 15 of the written statements for the plaintiff-appellants to establish by clear evidence that the land in dispute was the same which had been purchased in auction sale by Maina Kuer and had been subsequently leased by her in favour of the appellants.\n\nThe learned Judges of the High Court discussed the oral and documentary evidence which had been adduced in the case and came to the conclusion that there was no cogent material to show that the land in dispute was the same which had been purchased by_ Maina Kuer and had been leased by her in favour of the appellants.\n\nAfter hearing Mr. Sarjoo Prasad we find no sufficient ground to take a different view.\n\nThe land which had been purchased by Maina Kuer in the auction sale as per sale certificate dated February 26, 1935 was situated in Balia district in the State of Uttar Pradesh on the left bank of the Ganges.\n\nThe land which is the subject matter of the present litigation is situated in Shahbad district in the State of Bihar on the right bank of the Ganges.\n\nAlthough the land is subject to river action, the onus to prove that the land in dispute in Shahbad district represents the laud which got submerged as a result of the river action in Belia district was upon the plaintiff-appellants.\n\nThe appellants have failed, as held by the High Court, to discharge this onus.\n\nMr. Sarjoo Prasad took us through the evidence of Ram Pachise Lall (DW 3) and Nanku Lall Singh (DW 5), but the evidence of these witnesses is far from proving that the land in dispute is the same as was purchased by Maina Kuer.\n\nThe evidence of Raghunath Prasad (PW 6), to which also passing reference was made, is not sufficient to connect the land in dispute with sale certificate dated February 26, 1935.\n\nPrayer has also been made by Mr. Sarjoo Prasad for the remand of the case to the trial court as the plaintiff-appellants were labouring under the impression that the defendant-respondents had not disputed that the land in dispute was the same as had been purchased by Maina Kuer. It is urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by Maina Kuer could not be brought on the record.\n\nWe find it difficult to accede to this prayer.\n\nAs already pointed out above, the contesting defendants clearly stated in their written statements that Maina Kner was not the auction purchaser of the land in dispute. In view of that unequivocal averment, there was no valid\n\nbasis for the assumption or the impression under which plaintiff-appel- A !ants are stated to have laboured. Apart from that we find that the suit out of which the present appeal has arisen wa~ filed as long ago as January 1950. From the title of the appeal we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed and are no more in the land of the living, having bowed as it were to the inexorable law of nature.\n\nThey are now represented by their legal representatives.\n\nTo remand the B suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal.\n\nIt is time, in our opinion, that we draw the final curtain and put an end to this long meandering course of litigation between the parties. If the passage of time and the laws of nature bring to an end the lives of men and women, it would perhaps be the demand of c reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead.\n\nTo do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time. If human life has a short span, it would be irrational to entertain a taller claim for dispntes and conflicts which are a manifestation of human frailty.\n\nThe courts should be loth to entertain a plea in a case like the present which would have the effect of con- D demning succeeding generation of families to spend major part of their lives in protracted litigation. It may be appropriate in the above context to reproduce what was said in the case of Sant Narain Mathur &\n\nOrs. v. Rama Krishna Mission & Ors.(1) :\n\nIt is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its embers to E smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature.\n\nOne is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the dealth without issue of the Earl of Oxford.\n\nSaid the learned Chief Justice :\n\n'Time hath its revolutions; there must be a period and an end to all temporal things-an end of names, and dignities and whatsoever is terrne, and why not of De Vere? For where is Bohun ? Where is Mowbray ?\n\nWhere is Mortimer ? Why, which is more and most of all, where is Plantagenet ? They are all entombed in the\n\nurns and sepulchers of mortality.\" G\n\nWhat was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they \\Lil have a stamp of mortality on them.\"\n\n(1) A.LR. 1974 S.C. 2241.\n\nOne feels tempeted to add that if life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down.\n\nThe appeal fails and is dismissed but in the circumstances without costs.\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 58, "entities": [{"text": "BECHAN PANDEY & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 19, "source": "metadata", "metadata": {"canonical_name": "BECHAN PANDEY & ORS", "offset_not_found": false}}, {"text": "DULHIN JANKI DEVI & OTHERS", "label": "RESPONDENT", "start_char": 22, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "DULHIN JANKI DEVI & OTHERS", "offset_not_found": false}}, {"text": "March 9, 1976", "label": "DATE", "start_char": 50, "end_char": 63, "source": "ner", "metadata": {"in_sentence": "DULHIN JANKI DEVI & OTHERS\n\nMarch 9, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 66, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 83, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Mina Kucr", "label": "OTHER_PERSON", "start_char": 858, "end_char": 867, "source": "ner", "metadata": {"in_sentence": "The High Court held that it was not shown that the disputed land was the same as had been purchased by Mina Kucr in auction sale.", "canonical_name": "Maina Kuer"}}, {"text": "Mina Kuer", "label": "OTHER_PERSON", "start_char": 1096, "end_char": 1105, "source": "ner", "metadata": {"in_sentence": "The appellants contended,\n\n( 1) The respondent did not dispute that the suit land was the same which was purchased by Mina Kuer as per sale certificate dated 26-2-1935,\n\n(2) In any case the matter may be remanded for determining the above issue.", "canonical_name": "Maina Kuer"}}, {"text": "Bihar", "label": "GPE", "start_char": 1730, "end_char": 1735, "source": "ner", "metadata": {"in_sentence": "The land which is the subject matter of the present litigation is situate in the State of Bihar on the right bank of the Ganges."}}, {"text": "U.P.", "label": "GPE", "start_char": 1897, "end_char": 1901, "source": "ner", "metadata": {"in_sentence": "Although the land is subject to river action, the onus to prove that the land in dispute in Bihar State represents the land in U.P. which got sub- IT'.erged as t.i result of river action was upon the appellants. '"}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 3572, "end_char": 3585, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad with D. Goburdhun, for the appellants.", "canonical_name": "Sarjoo Prasad"}}, {"text": "D. Goburdhun", "label": "LAWYER", "start_char": 3591, "end_char": 3603, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad with D. Goburdhun, for the appellants."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 3626, "end_char": 3637, "source": "ner", "metadata": {"in_sentence": "V. S. Desai with D. P. Mukherjee for respondents 3 4 5 6(a) 14 and 15. ' ' '"}}, {"text": "D. P. Mukherjee", "label": "LAWYER", "start_char": 3643, "end_char": 3658, "source": "ner", "metadata": {"in_sentence": "V. S. Desai with D. P. Mukherjee for respondents 3 4 5 6(a) 14 and 15. ' ' '"}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 3801, "end_char": 3807, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-The plaintiff-appellants field a suit in the Court of Subordinate Judge Arrah against 41 defendants for a declaration of their title to land measuring 142 bighas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad."}}, {"text": "Shahbad", "label": "GPE", "start_char": 4070, "end_char": 4077, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-The plaintiff-appellants field a suit in the Court of Subordinate Judge Arrah against 41 defendants for a declaration of their title to land measuring 142 bighas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 4521, "end_char": 4537, "source": "ner", "metadata": {"in_sentence": "On appeal by defendants 3, 7, 12 and 14 the Patna High Court acceped the appeal and dismissed the suit in its entirety."}}, {"text": "article 133", "label": "PROVISION", "start_char": 4728, "end_char": 4739, "source": "regex", "metadata": {"statute": null}}, {"text": "Shivpur Diar Gangbarar Janubi", "label": "RESPONDENT", "start_char": 4871, "end_char": 4900, "source": "ner", "metadata": {"in_sentence": "Village Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shumali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar.", "canonical_name": "Shivpur Diar Gangbarar Janubi"}}, {"text": "Shivpur Diar Sarju Barar", "label": "RESPONDENT", "start_char": 4902, "end_char": 4926, "source": "ner", "metadata": {"in_sentence": "Village Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shumali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar.", "canonical_name": "Shivpur Diar Gangbarar Janubi"}}, {"text": "Shivpur Diar Naubarar", "label": "RESPONDENT", "start_char": 4931, "end_char": 4952, "source": "ner", "metadata": {"in_sentence": "Village Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shumali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar.", "canonical_name": "Shivpur Diar Gangbarar Janubi"}}, {"text": "Brahmdeo Singh", "label": "OTHER_PERSON", "start_char": 5123, "end_char": 5137, "source": "ner", "metadata": {"in_sentence": "One Brahmdeo Singh had a share of 5 annas 4 pies in patti Bhrighunath Singh in the above Mahals.", "canonical_name": "Brahmdeo Singh"}}, {"text": "Bhrighunath Singh", "label": "OTHER_PERSON", "start_char": 5177, "end_char": 5194, "source": "ner", "metadata": {"in_sentence": "One Brahmdeo Singh had a share of 5 annas 4 pies in patti Bhrighunath Singh in the above Mahals."}}, {"text": "Sitaram Sahu", "label": "OTHER_PERSON", "start_char": 5369, "end_char": 5381, "source": "ner", "metadata": {"in_sentence": "Brahmdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds.", "canonical_name": "Sitaram Sahu"}}, {"text": "Sheogulam Sahu", "label": "OTHER_PERSON", "start_char": 5386, "end_char": 5400, "source": "ner", "metadata": {"in_sentence": "Brahmdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds."}}, {"text": "Jiune 13 1925", "label": "DATE", "start_char": 5622, "end_char": 5635, "source": "ner", "metadata": {"in_sentence": "Final decree was awarded in that suit on Jiune 13 1925."}}, {"text": "Brahmdo Singh", "label": "OTHER_PERSON", "start_char": 5689, "end_char": 5702, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.", "canonical_name": "Brahmdeo Singh"}}, {"text": "Mahal Shivpur Diar N ambari", "label": "OTHER_PERSON", "start_char": 5706, "end_char": 5733, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.", "canonical_name": "Mahal Shivpur Diar Gangbarar Shumali"}}, {"text": "Mahal Shivpur Diar Gangbarar Shumali", "label": "OTHER_PERSON", "start_char": 5738, "end_char": 5774, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.", "canonical_name": "Mahal Shivpur Diar Gangbarar Shumali"}}, {"text": "Maina Kuer", "label": "OTHER_PERSON", "start_char": 5828, "end_char": 5838, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.", "canonical_name": "Maina Kuer"}}, {"text": "Sitarm Sahu", "label": "OTHER_PERSON", "start_char": 5849, "end_char": 5860, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.", "canonical_name": "Sitaram Sahu"}}, {"text": "Mama Kuer", "label": "OTHER_PERSON", "start_char": 5904, "end_char": 5913, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935.", "canonical_name": "Maina Kuer"}}, {"text": "February 26, 1935", "label": "DATE", "start_char": 5935, "end_char": 5952, "source": "ner", "metadata": {"in_sentence": "In execution of that decree proprietary interest of Brahmdo Singh in Mahal Shivpur Diar N ambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maina Kuer, \"1dow of Sitarm Sahu mortgage~. Sale certificate was granted to Mama Kuer auctlon purchaser on February 26, 1935."}}, {"text": "March 19 and 20 1935", "label": "DATE", "start_char": 6020, "end_char": 6040, "source": "ner", "metadata": {"in_sentence": "She got delivery of possession of the land sold in her favour on March 19 and 20 1935."}}, {"text": "November 9, 1936", "label": "DATE", "start_char": 6045, "end_char": 6061, "source": "ner", "metadata": {"in_sentence": "On November 9, 1936 Sheo Prasad Singh who held genral power of attorney from Maina Kuer, executed a ptta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mha~\n\ncteo Rai and others."}}, {"text": "Sheo Prasad Singh", "label": "JUDGE", "start_char": 6062, "end_char": 6079, "source": "ner", "metadata": {"in_sentence": "On November 9, 1936 Sheo Prasad Singh who held genral power of attorney from Maina Kuer, executed a ptta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mha~\n\ncteo Rai and others.", "canonical_name": "Sheo Prasad Singh"}}, {"text": "Mha~\n\ncteo Rai", "label": "LAWYER", "start_char": 6260, "end_char": 6274, "source": "ner", "metadata": {"in_sentence": "On November 9, 1936 Sheo Prasad Singh who held genral power of attorney from Maina Kuer, executed a ptta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mha~\n\ncteo Rai and others."}}, {"text": "September 27, 1940", "label": "DATE", "start_char": 6291, "end_char": 6309, "source": "ner", "metadata": {"in_sentence": "On September 27, 1940 Sheo Prasad Smgh\n\nI )\n\nexecuted on behalf of Maina Kuer a deed for perpetual lease of land A measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 9, 14, 16 to 18 and father of plaintiffs 10 to 13."}}, {"text": "Sheo Prasad Smgh", "label": "JUDGE", "start_char": 6310, "end_char": 6326, "source": "ner", "metadata": {"in_sentence": "On September 27, 1940 Sheo Prasad Smgh\n\nI )\n\nexecuted on behalf of Maina Kuer a deed for perpetual lease of land A measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 9, 14, 16 to 18 and father of plaintiffs 10 to 13.", "canonical_name": "Sheo Prasad Singh"}}, {"text": "September 30, 1940", "label": "DATE", "start_char": 6569, "end_char": 6587, "source": "ner", "metadata": {"in_sentence": "Three days later on September 30, 1940 Sheo Prasad Singh executed another deed for perpetual lease in respect of the remaining land measuring 8 bighas in favour of plaintiff No."}}, {"text": "May 16, 1941", "label": "DATE", "start_char": 6735, "end_char": 6747, "source": "ner", "metadata": {"in_sentence": "On May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the B lease in favour of the plaintiffs."}}, {"text": "Mahadeo Rai", "label": "PETITIONER", "start_char": 6748, "end_char": 6759, "source": "ner", "metadata": {"in_sentence": "On May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the B lease in favour of the plaintiffs."}}, {"text": "July 13, 1942", "label": "DATE", "start_char": 6922, "end_char": 6935, "source": "ner", "metadata": {"in_sentence": "On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale to Rajendra Prasad Singh and others."}}, {"text": "Rajendra Prasad Singh", "label": "OTHER_PERSON", "start_char": 7026, "end_char": 7047, "source": "ner", "metadata": {"in_sentence": "On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale to Rajendra Prasad Singh and others."}}, {"text": "section 145", "label": "PROVISION", "start_char": 7469, "end_char": 7480, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 7488, "end_char": 7514, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 8675, "end_char": 8688, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Sarjoo Prasad on behalf of the appellants had made a number of contentions, but in our opinion, it is not necessary to go into all of them for the appeal is liable to be dismissed on the short ground that the plaintiff-appellants have failed to establish G that the land in dispute is the same as had been purchased in auction by Maina Kuer as per sale certificate dated February 26, 1935 and was thereafter leased on her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940.", "canonical_name": "Sarjoo Prasad"}}, {"text": "September 27 and 30, 1940", "label": "DATE", "start_char": 9161, "end_char": 9186, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Sarjoo Prasad on behalf of the appellants had made a number of contentions, but in our opinion, it is not necessary to go into all of them for the appeal is liable to be dismissed on the short ground that the plaintiff-appellants have failed to establish G that the land in dispute is the same as had been purchased in auction by Maina Kuer as per sale certificate dated February 26, 1935 and was thereafter leased on her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940."}}, {"text": "SUPREME COURT REPO!l-TS\n\n[1976] 3 S.C.R.", "label": "COURT", "start_char": 9631, "end_char": 9671, "source": "ner", "metadata": {"in_sentence": "Mr. Sarjoo Prasad, however, sub- H mils that the defendant-respondents did not dispute in the trial court that the land in dispute was the same which had been purchased by Maina Kuer in auction sale and had been leased in favour of the\n\n558 SUPREME COURT REPO!l-TS\n\n[1976] 3 S.C.R.\n\nA plaintiffs."}}, {"text": "Balia district", "label": "GPE", "start_char": 11065, "end_char": 11079, "source": "ner", "metadata": {"in_sentence": "The land which had been purchased by Maina Kuer in the auction sale as per sale certificate dated February 26, 1935 was situated in Balia district in the State of Uttar Pradesh on the left bank of the Ganges."}}, {"text": "Uttar Pradesh", "label": "GPE", "start_char": 11096, "end_char": 11109, "source": "ner", "metadata": {"in_sentence": "The land which had been purchased by Maina Kuer in the auction sale as per sale certificate dated February 26, 1935 was situated in Balia district in the State of Uttar Pradesh on the left bank of the Ganges."}}, {"text": "Shahbad district", "label": "GPE", "start_char": 11221, "end_char": 11237, "source": "ner", "metadata": {"in_sentence": "The land which is the subject matter of the present litigation is situated in Shahbad district in the State of Bihar on the right bank of the Ganges."}}, {"text": "Belia district", "label": "GPE", "start_char": 11478, "end_char": 11492, "source": "ner", "metadata": {"in_sentence": "Although the land is subject to river action, the onus to prove that the land in dispute in Shahbad district represents the laud which got submerged as a result of the river action in Belia district was upon the plaintiff-appellants."}}, {"text": "Ram Pachise Lall", "label": "WITNESS", "start_char": 11659, "end_char": 11675, "source": "ner", "metadata": {"in_sentence": "Mr. Sarjoo Prasad took us through the evidence of Ram Pachise Lall (DW 3) and Nanku Lall Singh (DW 5), but the evidence of these witnesses is far from proving that the land in dispute is the same as was purchased by Maina Kuer."}}, {"text": "Nanku Lall Singh", "label": "WITNESS", "start_char": 11687, "end_char": 11703, "source": "ner", "metadata": {"in_sentence": "Mr. Sarjoo Prasad took us through the evidence of Ram Pachise Lall (DW 3) and Nanku Lall Singh (DW 5), but the evidence of these witnesses is far from proving that the land in dispute is the same as was purchased by Maina Kuer."}}, {"text": "Raghunath Prasad", "label": "WITNESS", "start_char": 11854, "end_char": 11870, "source": "ner", "metadata": {"in_sentence": "The evidence of Raghunath Prasad (PW 6), to which also passing reference was made, is not sufficient to connect the land in dispute with sale certificate dated February 26, 1935."}}, {"text": "Maina Kner", "label": "OTHER_PERSON", "start_char": 12647, "end_char": 12657, "source": "ner", "metadata": {"in_sentence": "As already pointed out above, the contesting defendants clearly stated in their written statements that Maina Kner was not the auction purchaser of the land in dispute.", "canonical_name": "Maina Kuer"}}, {"text": "Crewe", "label": "JUDGE", "start_char": 14911, "end_char": 14916, "source": "ner", "metadata": {"in_sentence": "One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the dealth without issue of the Earl of Oxford."}}, {"text": "De Vere", "label": "GPE", "start_char": 15203, "end_char": 15210, "source": "ner", "metadata": {"in_sentence": "Said the learned Chief Justice :\n\n'Time hath its revolutions; there must be a period and an end to all temporal things-an end of names, and dignities and whatsoever is terrne, and why not of De Vere?"}}]}
{"document_id": "1976_3_561_564_EN", "year": 1976, "text": "ANNAPURNA CARBON INDUSTRIES CO.\n\nSTATE OF ANDHRA PRADESH March 9, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nAndlira Pradesh General Sales Tax Act, 1967. Schedule I, Entry 4-Arc Carbons. if fall under entry. Entry 4 of the I Schedule of the Andhra Pradesh General Sales Tax Act, 1957, reads: Cinematographic equipment including ... parts and accessories required for use therewith.\n\nOn the question whether Arc Carbons, known as 'Cinama Arc Carbons' manufactured by the appellant fall under the entry and their sales were, there~ fore, rightly subjected to sales tax.\n\nfIELD : The meaning of an entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in ¥/hich it occurs, and cases relating to totally different entries \\vill hav~ only a very remote bearing.\n\nEntry 4 occurs in a Schedule of taxable goods. \\Vhen it was inteiided to confine an entry to particular gadgets and 'parts thereof' the entry said so.\n\nEntry 4, however, includes 'parts' as well as 'accessories'. The term 'accessories' is used to describe goods which may have_ been manufactured for use as an aid or addition to particular machines, though, they may serve as aids to other kinds of instruments also.\n\nBut, this entry and other entries use the cxpre:-<sion 'required for use therewith'. The description of the goods in these entries indicates that the expression has been en1ployed for cquip1ncnt or accessories connected with the main purpose. Therefore, it is its general or predominant use that determines the category in which an article will fall.\n\n[563D--F, G; 564B-CJ In the present case, the main use of Arc Carbons \\\\'as proved to be that of\n\nproduction of po\\verful light used in projectors in Cinemas. The fact that they E can also be used for other purposes such as for search lights etc., will not detract from their classification under Entry 4.\n\nThe classification is determined by their ordinary or common known purpose or user, which is evident from the fact they are known as 'Cinema Arc Carbons' in the 1narket. [564 F-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 630-631 of 1971.\n\nAppeals by Special Leave from the Judgment and Order dated the F 19-1-1970 of the Andhra Pradesh High Court in Tax Revision Cases Nos 46 and 47 of 1969.\n\nV. S. Desai, Mrs. Vimla Markandeyulu and G. N. Rao for the Appellant.\n\nP. Ram Reddy and P. P. Rao for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nBEG, J.\n\nThe short question before us in these appeals by special leave, is whether sales of Arc carbons, known as \"Cinema Arc Carbons\", manufactured by the appellant company, were rightly subjected to sales tax for two assessment years 1965-66 and 1966-77 on the ground that they fall under entry No. 4 of the 1st Schedule of the Andhra Pradesh General Sales Tax Act, 1957, (hereinafter referred to as 'the Act'). This entry reads as follows :\n\n\"Cinematographic equipment, including cameras, projectors, and sound recording and reproducing equipment\n\nA lenses, films and parts and accesories required for use therewith\".\n\nAs indicated above, the very name of the Arc Carbons as commercial commodities, seems to attach the word \"Cinema\" ' to them because of the use to which they are generally put.\n\nThe High Court referred to the fact that the appellants had not produced their account books to show that they had been purchased by persons other than those who ran cinemas or for any other use.\n\nOf course it is very difficult to identify a taxable commodity merely by the use' to which it may be put. Nevertheless, it appears that the entry under consideration links the taxable object with its general or ordinary use.\n\nThe taxing authorities were, therefore, compelled to consider the use which is generally made of the arc carbons.\n\nThey had concluded that the common or ordinary use of the arc carbons was that they exuded the powerful light cast, through the projectors, on cinema screens.\n\nIt was pointed out that the Sales Tax Appellate Tribunal, the final departmental authority under the Act, had allowed an application for adducing expert evidence to determine the question whether arc carbons manufactured by the appellant company could be covered by the entry under consideration.\n\nIt, however, appears that, before further evidence could be taken, at the appellate stage, on the subject, a decision of the Andhra Pradesh High Court, in the State of Andhra Pradesh v. Srimathi Nidmarthi Saraswathi Devi('), was brought to the notice of the Tribunal.\n\nThere, the High Court had held that such arc carbons are covered by the 4th entry in the 1st Schedule of the Act.\n\nHence, the Tribunal dismissed the appeal without taking further evidence.\n\nIn the High Court, two decisions cited on behalf of the appellants were : Deputy Commissioner of Commercial Taxes, Madhurai Division, Madhurai v. Ravi Auto Stores(2 ), ancl State of Madras v. llldian Oxygen Ltd. (3).\n\nThe High Court pointed out that in both these cases what was decided was whether \"welding electrodes\", considered by themselves, were \"electrical goods\" falling within entry 41 of Schedule 1 of the Madras General Sales Tax Act.\n\nIt was held, in these cases, that they were only copper rods which were melted by electrical power in the process of welding.\n\nNeither the use of the term \"electrode\" to describe them, suggesting a connection with electricity, nor their utilisation in a process involving application of electrical power could convert them into \"electrical goods\" as contemplated by the entry in the Madras Act.\n\nThe High Court rightly observed that these decisions had no bearing whatsoever upon the very different entry in a schedule of an entirely different Act of a different State.\n\nThe same question has been argued before us with the help of some more cases to which the same criticism applies.\n\nThe additional cases cited before us were: Pashabhai Patel & Co.(P) Ltd. v. Collector of Sales Tax, Maharashtra State('), where it was held a \"tractor\"\n\n(!) T.R.C. No. 26 of 2962 (decided on 9th August, 1963)\n\n(2) (1968) 22 S.T.C. 172 (Madras)\n\n(3) (1968) 22 S.T.C. 476 (Madras)\n\n(4) (1964) 15 S.T.C.32.\n\nANNAPURNA CARBON co. v. STATE OF A.P (Untwalia, J.) 563\n\nis not \"agricultural machinery\", within the meaning of entry 9 in Schedule B of the Bombay Sales Tax Act, 1953; Agrawal Brothers v. Commissioner of Sales Tax, Madhya Pradesh('); where it was also held that a \"tractor\", which is \"nothing but a self-propelled vehicle capa- / ble of pulling a load\", or \"traction\" does not acquire the character of )- \"agricultural machinery or implement\" merely because when used on agricultural land it is used also to draw certain agricultural implemnts like a plough; The State of Mysore v. Mores (India) Ltd.( 2 ), where it was held that a typewriter ribbon is not an essential part of a type- ; writer so as to attract the tax under entry 18 of the second schedule to the Mysore Sales Tax, Act, 1957, Commissioner, Sales Tax, U. P. v.\n\nFree India Cycle lndustries( 3 ), where it was held that rexine saddle covers used also for bicycle scats are not covered by entry No. 34 introduced by Section 3A of the U.P. Sales Tax Act, 1948, as modified subsequently, which read : \"bicycles, tricycles, cycle rickshaws and perambulators and parts and accessaries thereof other than tyres and tubes\"; The Madhya Pradesh State Co-operative Marketing Society, Jabalpur v. The Commissioner of Sales Tax, M.P. Indore('), where\n\n>- il was held that oil-engines and pumps\", which are not known in lhe commercial world as \"agricultural machinery\" could not be covered by an entry meant for goods sold for agricultural purposes simply because some of them are also sold to agriculturists for agricultural purposes.\n\nWe do not think that any useful purpose is served by multiplying cases relating to entries which are so very different and could have only a very remote hearing, if any, upon any reasoning which could + be adopted to support the submission that the arc carbons, under consideration here, fall within the relevant entry 4 of Schedule 1 of the Act.\n\nThe meaning of this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context ,, in which it occurs.\n\nThe entry No. 4 occurs in a schedule in which descriptions of goods to be taxed indicate that the expression \"required for use therewith\" has been employed for equipment or accessories connected with the main purpose.\n\nFor instance, in entry No. 5 the expression occurs at the end as follows :\n\n\"Photographic and other cameras and .. enlargers, films and plates, paper and cloth and other parts and accessories required for nse therewith''.\n\nApparently, the deciding factor is the predominant or ordinary purpose or use.\n\nIt is not enough to show that the article can be put to G other uses also.\n\nIt is its general or predominant user which seems to determine the category in which an article will fall.\n\nThe first entry in the schedule relates to \"motor vehicles\" and includes \"c6mponent parts of motor vehicles\" and \"articles (includin.g batteries) adapted for use as parts and accessories of motor vehicles.\"\n\nbut excludes certain other articles by putting in the words \"not beino- H such articles as are ordinarily also used for other pnrposes than a~ ----------\n\n(!) (1965) 16S.T.C. 860.\n\n(2) (1970) 26 S.T.C. 87.\n\n(3 :(1970) 26 S.T.C. 428.\n\n(4) (1971) 27 S.T.C. 45 ..\n\nparts and accessories of motor vehicles''.\n\nEntry No. 2, relating to refrigerators, air conditioning plants covers also \"component parts thereof\".\n\nAgain, entry No. 3, for \"wireless reception instruments and apparatus\" includes \"electrical valves, accumulators, amplifiers and \\ loud speakers and spare parts and accessories thereoi''.\n\nThe words \"parts thereof\" are used in several entries, such as entry No. 6 for .clocks, time-pieces and watches, entry No. 10 for dictaphones and other similar apparatus for recording sound, and entry No. 11 for sound transmitting equipment such as telephones and loud-speakers.\n\nOur object in indicating the nature of entries, amdist which entry No. 4 occurs, is to show that some precision has been attempted in making the entries.\n\nWhen it was intended to confine the entry to particular gadgets and \"parts thereof\" the entry said so.\n\nOf course, even where an entry relates to parts manufactured for use for a particular kind of instrument of gadget only, the article, manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it.\n\nWe have to find the intention of the framers of the i. schedule in making the entry in each case.\n\nThe best guide to their intentions is the language actually employed by them.\n\nWe find that the term \"accessories\" is used in the schedule to describe goods which may have been manufactured for use as an aid or addition.\n\nA sense in which the word accessory is used is given in • Webster's Third New International Dictionary as follows : \"an object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else''.\n\nOther meanings given there are : \"supplementary or secondary to something of greater or primary importance\"; \"additional\"; \"any of several n1echanica1 devices that assist in operating or controlling the tone resources of an organ.\" \"Accessories\" are not necessarily confined to particular '-./ machines for which they may serve as aids.\n\nThe same item may be l an accessory of more than one kind of instrument.\n\nIt will be noticed that the entry we have to interpret includes ''parts\" as well as \"accessories\" which are required for use in pro.iectors or other cinematographic equipment.\n\nWe think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas.\n\nThe fact that they can also be used for search lights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong.\n\nThat is determined by their ordinary or commonly known purpose or user.\n\nThis, as already observed by us, is evident from the fact that they are known as \"cinema arc carbons\" in the market.\n\nThis finding \\..... was enongh, in our opinion, to justify the view taken by the Andhra ' Pradesh High Court tl)at the goods under consideration are covered by the relevant entry No. 4.\n\nConsequently, we dismiss these appeals with costs. •\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 27, "entities": [{"text": "ANNAPURNA CARBON INDUSTRIES CO", "label": "PETITIONER", "start_char": 0, "end_char": 30, "source": "metadata", "metadata": {"canonical_name": "ANNAPURNA CARBON INDUSTRIES CO", "offset_not_found": false}}, {"text": "STATE OF ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 33, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "March 9, 1976", "label": "DATE", "start_char": 57, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "STATE OF ANDHRA PRADESH March 9, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 73, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 90, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Andlira Pradesh General Sales Tax Act, 1967", "label": "STATUTE", "start_char": 125, "end_char": 168, "source": "regex", "metadata": {}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 170, "end_char": 180, "source": "regex", "metadata": {"linked_statute_text": "Andlira Pradesh General Sales Tax Act, 1967", "statute": "Andlira Pradesh General Sales Tax Act, 1967"}}, {"text": "Schedule of the Andhra Pradesh General Sales Tax Act, 1957", "label": "STATUTE", "start_char": 241, "end_char": 299, "source": "regex", "metadata": {}}, {"text": "Arc Carbons \\\\'as proved to be that of\n\nproduction of po\\verful light used in projectors in Cinemas.", "label": "PETITIONER", "start_char": 1667, "end_char": 1767, "source": "ner", "metadata": {"in_sentence": "[563D--F, G; 564B-CJ In the present case, the main use of Arc Carbons \\\\'as proved to be that of\n\nproduction of po\\verful light used in projectors in Cinemas."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 2097, "end_char": 2125, "source": "ner", "metadata": {"in_sentence": "564 F-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 2246, "end_char": 2271, "source": "ner", "metadata": {"in_sentence": "Appeals by Special Leave from the Judgment and Order dated the F 19-1-1970 of the Andhra Pradesh High Court in Tax Revision Cases Nos 46 and 47 of 1969."}}, {"text": "V. S. Desai", "label": "OTHER_PERSON", "start_char": 2318, "end_char": 2329, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, Mrs. Vimla Markandeyulu and G. N. Rao for the Appellant."}}, {"text": "Vimla Markandeyulu", "label": "LAWYER", "start_char": 2336, "end_char": 2354, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, Mrs. Vimla Markandeyulu and G. N. Rao for the Appellant."}}, {"text": "G. N. Rao", "label": "LAWYER", "start_char": 2359, "end_char": 2368, "source": "ner", "metadata": {"in_sentence": "V. S. Desai, Mrs. Vimla Markandeyulu and G. N. Rao for the Appellant."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 2389, "end_char": 2401, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and P. P. Rao for the Respondents."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 2406, "end_char": 2415, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and P. P. Rao for the Respondents."}}, {"text": "BEG", "label": "JUDGE", "start_char": 2482, "end_char": 2485, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.\n\nThe short question before us in these appeals by special leave, is whether sales of Arc carbons, known as \"Cinema Arc Carbons\", manufactured by the appellant company, were rightly subjected to sales tax for two assessment years 1965-66 and 1966-77 on the ground that they fall under entry No."}}, {"text": "Schedule of the Andhra Pradesh General Sales Tax Act, 1957", "label": "STATUTE", "start_char": 2797, "end_char": 2855, "source": "regex", "metadata": {}}, {"text": "Arc Carbons", "label": "ORG", "start_char": 3146, "end_char": 3157, "source": "ner", "metadata": {"in_sentence": "As indicated above, the very name of the Arc Carbons as commercial commodities, seems to attach the word \"Cinema\" ' to them because of the use to which they are generally put."}}, {"text": "Sales Tax Appellate Tribunal", "label": "COURT", "start_char": 4008, "end_char": 4036, "source": "ner", "metadata": {"in_sentence": "It was pointed out that the Sales Tax Appellate Tribunal, the final departmental authority under the Act, had allowed an application for adducing expert evidence to determine the question whether arc carbons manufactured by the appellant company could be covered by the entry under consideration."}}, {"text": "Schedule 1", "label": "PROVISION", "start_char": 5135, "end_char": 5145, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule B of the Bombay Sales Tax Act, 1953", "label": "STATUTE", "start_char": 6298, "end_char": 6342, "source": "regex", "metadata": {}}, {"text": "Section 3A", "label": "PROVISION", "start_char": 7157, "end_char": 7167, "source": "regex", "metadata": {"linked_statute_text": "Schedule B of the Bombay Sales Tax Act, 1953", "statute": "Schedule B of the Bombay Sales Tax Act, 1953"}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 7180, "end_char": 7199, "source": "regex", "metadata": {}}, {"text": "Schedule 1", "label": "PROVISION", "start_char": 8090, "end_char": 8100, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1948", "statute": "Sales Tax Act, 1948"}}, {"text": "Andhra ' Pradesh High Court", "label": "COURT", "start_char": 12514, "end_char": 12541, "source": "ner", "metadata": {"in_sentence": "This finding \\..... was enongh, in our opinion, to justify the view taken by the Andhra ' Pradesh High Court tl)at the goods under consideration are covered by the relevant entry No."}}]}
{"document_id": "1976_3_565_578_EN", "year": 1976, "text": "STATE OF GUJARAT & ORS.\n\nGUJARAT REVENUE TRIBUNAL & ORS.\n\nMarch 9. 1976\n\n(V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]\n\n.f Bo1nbay Merged Territories and Areas (Jagirs Abolition) Act (Bombay 39 of 1954), ss. 8, 11, 13, 14, 15 and 22-Principles of compensatioti-Solatitun and interest, when payable-'Three multiples', meanin[? of.\n\nLand Acl!uisition Act (1 of 1894), ss. 23 and 26-Solatium, if conipensation.\n\nCode of Civil Procedure (Act 5 of 1908), O. 41, r. 22-Applicability to tribunals.\n\nConstitution of India, 1950, Art. 136-Exercise of discretion under.\n\nOn the coming into force of the Bombay Merged Territories And Areas )- (Jagirs Abolition) Act 1953, on and from August 1, 1954, the jagirs were abolished and certain properties comprised therein vested in the State. Some compensation was awarded by the Jagir Abolition Officer to the jagirdars on their application, in respect of certain items. Oq appeal by the jagirdars, the Revenue Tribunal modified the award. Aggrieved by the decision, both the State and the jagirdars filed petitions and the High Court decided some points against the ._ State and some against the jagirdars and remanded the matter to the Tribunal.\n\nBoth sides appealed to this Court under Art. 136.\n\nOn behalf of the State it was contended that : (I) compenation for the unbuilt village site lands; (2) solatium of 15% on the amount of compensation; and (3) interest on the amount of instalments of compensation, which V.'erc delayed, houl<l not have been awarded. The jagirdars contended that (1) the expression 'three multiples' in s. 11 (2) means six times and so the compensation should be six times the assessment and not three times as held by the High C'ourt; (2) the Bagyat Kas should have been included in the assessment for the purpose of assessing the compensation; and (3) the Tribunal had no po\\Ver and \\Vas not justified in reducing the rates of the value of the villagt: site lands.\n\nHELD : The appeals of the State are partly allowed on its 2nd and 3rd contentions and the appeals of the jagirdars are dismissed.\n\n( 1) The jagirdars are entitled to compensation for all unbuilt village. site F lands.\n\n[572F]\n\nSection 11(3) provides that any jagirdar having any right or interest in any property referred to in s. 8 shall, if he proved to the satisfaction of the Collector that he had any such right or interest, be entitled to compensation in the manner provided in clauses (i) to (iii). In these clauses there is reference only to 3 kinds of property, but there are numerous other properties mentioned in s. 8.\n\nThe unbuilt village site land is one such. The jagirdar Vi'Ould be entitled to compensation for rights or interests in them under s. 11(3), but no manner ot' avo'arding compensation is indicated therein. Literally the language of sub-s. (3) does not n1ake sense, and so, it should be understood as proviJing that the person whose rights had been extinguished is entitled to cOmpensation, in respect of the properties in which he had an interest. in accordance with the Land Acquisition Act, 1894, but subject to the exceptions provided in clauses (i) to (iii). [572C-F]\n\n(2) The Legislature did not intend nor did it provide for the payment of any solatiun1 on the amount of compensation awardable to the jagirdars. [574C]\n\nThe concept of compensation means just equivalent or market value of the property acquired.\n\nSection 23(1), Land Acquisition Act provides that in detrn\n\nA mining compensation various factors over nnd nbove the market value are to lie taken into account.\n\nSection 23(2) provides for the payment of 15% of the market value as solatium in addition to the market value. That the leglslature did r.ot intend to give any solatium to the jagirdars as compensation is clear'\\_ from (a) the Explanation to s. 11 of the Jagirs Abolition Act, which defines rr1arket value, refers only to s. 23(1) and nots. 23(2), Land Acquisition Act; .J\n\n(b) Section 15, Jagirs Abolition Act, provides that every award under s. 13 or\n\nor s. 14 shall be in the form prescribed in s. 26(1), Land Acquisition Act but solatium is not mentioned in the prescribed form of the award unde.r s. 26(1); and (c) solatium is awarded as a special compensation in consideration of the compulsory nature of the acquisition.\n\nBut when Jagirs are abolished and • acquired as a measure of agrarian reform even without payment of market value as con1pensation, the Legislature could not have intended to award any solatium in addition.\n\n[573H-574C]\n\nState of Gujarat etc. v. Vaktsinghji Sursinghji Baghela & Ors. fl9681 3 S.C.R. 692. referred to.\n\nR. D. Suryanarayana Rao v. The Re11enue Divisional Officer. Land ,4cqnisition Officer, Guntur, A.l.R. 1969, A.P. 55 and Kesireddi Appala Swamy and Ors. v. Special Tehsildar, Land Acquisition Officer, Central Railway, Vijayau•ada, A.LR. 1970 A.P. 139 (approved) 1\n\n(3) Section 22, Jagirs Abolition Act, provides that the amount of compensa:' tion shall be payable in transferable bonds carrying interest at 3% per annum from the date of the issue of such bonds and shall be repayable during a period of 20 years from the date of the issue by equated annual instalments of principal and interest as provided in the Tables to the Act. Rule 4 of the Rules. framed under the Act, provides that the date of the coming into force of the Act • shall be the date of issue of the bond. The ascertainment of the a1nount of con1pensation is bound to take time and so, the proviso to r. 5 made the instal~ 1nents which had fallen due before the delivery of the bond payable in1n1ediately after its delivery. [574E-575A] .;\n\nIn the present case the Jagirdar was deprived of his property on August 1, 1954, but the bonds \\Vere delivered ten years later. The High Court following Satinder Singh v. A1nrao Singh and others [1961] 3 S.C.R. 676, rightly nllowcd interest hut erred on two aspects: (a) It awarded interest on the entire amount of instalments, principal and interest, paid after the lapse of ten years. Interest '{' is payable only on the principal amount of instalments but not on the amount of instalments of interest. (b) The jagirdar would not be entitled to inten .. --st on the total in!'.italments of the principal for 10 years. On the first instalment he will get interest for 9 years only, on the second for 8 years only and on the last instalment for one year only. [575D-F; 576B-D] ( 4) The High Court rightly held that there was no difference between '3 times' and '3 multiples'.\n\n[576G]\n\nAlthough the Legislature has used the two expressions, one in some places and the other in other places, it was done without any significance or variation.\n\nThe expression 'equivalent to 3 multiples' is used in the sense of comn1on par~\n\nlance and not in a technical, mathematical or scientific sense. rs76F-G]\n\n(5) (a) Bagyat Kas is not a part of the assessment fixed for the land within the meaning of s. 11 (2).\n\n'Kas' n1eans tax. Bagyat lands are those which have irrigational facilities of water fron1 wells etc.\n\nOn such land, apart from the assessment fixed, Bagyat kas was also levied. It could not be contended by the jagirdar that Bagyat kiis was a part of the land assessment, because, in the records of the jagirdars, Bagyat kas was shown separately from the amount of assessment on land. If it \\vas only a different kind of assessment fixed for a different type of land, then H there was no necessity of showing it as a separate item. [577B-El ..:\n\n(b) No separate compensation has been provided for the toss of the Bagyat\n\nka~ which the jagirdars were realising, but it is for the Legislature to provide and Courts cannot help.\n\n[577F]\n\nI )\n\nt ,\n\nGUJARAT v. REVENUE TRIBUNAL (Untwa/ia, J.) 567\n\n(6) raking the totality of the circumstances the jagirdar's appeal on the A last point, is not a fit case for interference by this Court under Art. 136.\n\nUnder s. 16 read with s. 17, Jagirs Abolition .Act, the State has no right of appeal to the Tribunal.\n\nThe State could not, also have challenged under\n\n0. 41. r. 22. C.P.C. the rates of compensation given by the Jagir Abolition Officer.\n\nBut in appeal filed by the jagirdar the State persuaded the Tribunal to reduce the rates of compensation in some cases.\n\nSince, howevr, the area of the village site lands was increased by the Tribunal, as it was of the opinion B that certnin lands were wrongly excluded by the Jagir Abolition Officer, the net result wa~ that in spite of the reduction of rates, more compensation was payable to the jagirdars for the village site lands. [577G-578C]\n\nThe Management of Itakhoolie Tea Estate v. Its Worknzen, A.I.R. 1960 S.C. 1349, referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1804 and 1805 of 1970 and 1968 of 1970.\n\n(Appeals by special leave from the judgment and order dated the 27tl1/28th August, 1969 of the Gujarat High Court in Special Civil Application Nos. 868 and 891 of 1965).\n\nS. T. Desai, G. A. Shah and M. N. Shroff, for the appellants in CAs 1804-1805/70 & for respondents 1 & 2 in CA 1968/70.\n\nV. M. Tarkunde, I. N. Shroff and H. S. Parihar, for respondents 2 & 3 in CAs 1804-1805/70 and for appellants in CAs 1968/70.\n\nD. V. Patel, S. N. Parikh and M. Qamaruddin, for the interveners in CA 1804/70.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J.-These three appeals by special leave arise out of E a common judgment of the Gujarat High Court and in them are involved some common questions of law as to the interpretation of certain provisions of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953-Bombay Act No. XXXIX of 1954-hereinafter referred to as the Act or the Jagirs Abolition Act.\n\nThe three appeals have been heard together and are being disposed of by this judgment.\n\nOn coming into force of the Act on and from !st August, 1954 the Jagirs of the Jagirdars were abolished and certain properties comprised in the jagirs vested in the State. The J agirdars filed before the Collector applications for award of compensation under the Act in respect of certain properties. The J agir Abolition Officer authorised to act as the Collector under the Act awarded some compensation to G the Jagirdars in respect of some items of the properties, refused in respect of some and made his award on the 30th July, 1963.\n\nThe Jagirdars (which expression would include their heirs also) filed an appeal under section 16 of the Act before the Gujarat Revenue Tribunal. Ahmedabad.\n\nThe Tribunal modified the award of the Jagir Abolition Officer in some respects and disposed of the appeal on the 2/3rd December, 1964. Two Special Civil Applications under Article H 227 of the Constitution of India were filed in the High Court from\n\nthe decision of the Revenue Tribunal-one by the Jagirdars and the other by the State of Gujarat. The High Court bas disposed of the\n\ntwo applications by a common judgment dated the 27 /28th August, 1969, decided some points against the jagirdars and some against the State and remanded the case to the Revenue Tribunal for a fresh decision in the light of thejudgment. Feeling aggrieved by the decision of the High Court in the two Special Civil Applications, the State of Gujarat has preferred Civil Appeals 1804 and 1805 of 1970 on grant of special leave by this Court.\n\nThe Jagirdars also obtained special leave and filed Civil Appeal No. 1968 of 1970.\n\nUnder section 3 of the Act on and from the appointed date i.e. 1st August, 1954 all Jagirs were deemed to have been abolished. Section\n\n5 provided as to who were to be the occupants of certain types of\n\nlnds in a proprietary jagir village.\n\nSimilarly section 6 referred to the persons who were to be the occupants in life-time Jiwai Jagir. The rates of assessment were to be fixed under section 7. Section 8 provided for the vesting of the properties enumerated therein in the State Government and the extinguishment of the rights of the Jagirdars thereunder. Section 9 deals with right to trees and section 10 refers ., to mines or mineral products. Section 11 provides for compensation to jagirdar and section 12 makes provision for compensation to life-time Jiwai Jagirdars.\n\nThe method of awarding compensation to Jagirdar is indicated in section 13 and the method of awarding compensation for abolition etc. of rights of other persons in the property is provided t in section 14.\n\nSection 15 makes applicable provisions of the Land Acquisition Act, 1894 in the making of an award.\n\nIn the High Court the concerned Jagirdars challenged the order E of the Revenue Tribunal in respect of 8 matters enumerated in its judgment. The State challenged the decision of the Tribunal in regard to 3 matters only. In these appeals we were not called upon to decide the correctness of the High Court's judgment in regard to each and 1 every item.\n\nIn argument the points of controversy were confined only to a few on either side.\n\nOn behalf of the State Mr. S. T. Desai at the end of his argument endeavoured to challenge the decision of the F High Court directing the award of some compensation for the Bhatha lands in the river beds and the trees in certain other lands but eventual- ly could not press these points by advancing any argument of substance.\n\nIt is, therefore, not necessary for us to deal with these two items in any detail. We merely uphold the order of the High Court in this regard.\n\nOn behalf of the State the strenuous attack was on the question of G compensation for the unbuilt village site lands, award of solatium of 15 % on the amount of compensation and award of interest on the amounts of instalments the payment of which was delayed. Mr. V. M.\n\nTarkunde, appearing for the J agirdars, followed by Mr. D. V. Patel, appearing for some of the intervener jagirdars attacked the decision of the High Court on three counts :-\n\nH ( 1) that the expression three multiples occuring in subsection (2) of section 11 of the Act means at least six times of the assessment and not three times as held by the High . Court;\n\nGUJARAT v. REVENUE TRIBUNAL (Untwalia, /.) 569\n\n(2) that Bagayat kas forms part of the assessment fixed for the land within the meaning of sub-section ( 2) of section 11 and in awarding compensation under tlte said provision of law the amount of Bagayat kas was erroneously excluded from the assessment;\n\n(3) that the Revenue Tribunal had neither any power nor was it justified in reducing the rates of the value of the village site lands.\n\nWe shall deal with the six points aforesaid in order we have mentioned a hove.\n\nApart from the other Acts which were before the Legislature when the Jagirs Abolition Act was passed in the year 1954 The Bombay Taluqdari Tenure Abolition Act, 1949-hereinafter called the Taluqdari Act passed by the Bombay Legislature was very much there before the Same legislative body.\n\nYet we are grieved to find a confusion, meaningless and unpurposeful departure in the wordings of the Jagirs Abolition Act from those of the Taluqdari Act.\n\nIf the legislature intended to make any departure from the provisions of the earlier act, to avoid unnecessary controversy and arguments in courts, it ought to have done so in clear and unambiguous language. Section 7 ( 1) (b) of the Taluqdari Act provided for the Collector to make an award in the manner prescribed in section 11 of the Land Acquisition Act but subject to the conditions and exceptions provided in sub-clauses (i),\n\n(ii) and (iii). In the Explanation appended to the section the market value was meant to mean the value as estimated in accordance with the provisions of sections 23 and 24 of the Land Acquisition Act in so far as such provisions may be applicable.\n\nInterpreting the said provision of law in the case of State of Gujara.t etc. v. Vakhtsingh1i Sursinghji Vaghela & Ors.('). Bachawat, J delivering the judgment on behalf of a Constitution Bench of this Court has said at page 701\n\n\"Section 7 (I) gives compensation to taluqdars for extinguishment of rights in any property under section 6. The\n\nCollector is required by sec. 7 ( 1) (b) to make an award in the F manner prescribed in section 11 of the Land Acquisition Act,\n\n1894. The Collector has to make an award of compensation under sec. 11 and having regard to sec. 15 in determining the amount of compensation, he is guided by the provisions of secs. 23 and 24. Section 23 ( 1) requires an award of the market value of the land. Section 23(2) requires an additional award of a sum of fifteen per centum on such market G value, in consideration of the compulsory nature of acquisition. It follows that under sec. 7 (1) (b) of the Abolition Act read with section 11 of the Land Acquisition Act, the taluqdars are entitled to receive as compensation the market value of all rights in any property extinguished under sec. 6 and in addition a sum of 15 per centum on such market value.\n\nThis right is subject to the conditions and exceptions enume- H rated in sub-clauses (i), (ii) and (iii) of section 7(1){b).\n\n(I) !19681 3 S.C.R. 692. 4-608SCl/76\n\nIn cases falling under clause (i) and in some cases under clause (ii) the amount of compensation is limited. In cases falling under clause (iii) and in some cases under clause (ii) the amount of compensation is the \"market value\" which according to the explanation to sec. 7 (1) means the value estimated in tccordance with sections 23 and 24 of the Land Acquisition Act, 1894.\n\nThe value so determined includes the solatium of 15 per centum payable under sub-section (2) of s. 23. Where the legislature intended to exclude the application of sub-section (2) of sec. 23, it has said so, as in section 14(2) under which compensation is determined in accordance with the provisions of sub-section (I) of sections 23 and 24.\n\nIt follows that the taluqdar is entitled to the solatium of 15 per centum on the market value, (I) under the main part of sec. 7 (1 )(b) subject to the provisions of the several sub-clauses thereof : (2) in cases falling under clause (iii) of section 7(1) (b) and (3) in cases under clause\n\n(ii) of section 7(1) (b) where market value is awarded.\n\nThe direction of the High Court is modified accordingly.\"\n\nSub-section (2) of section 7 of the Taluqdari Act reads as follows :\n\n\"Every award made under sub-section (1) shall be in. the form prescribed in section 26 of the Land Acquisition Act, 1894, and the provisions of the said Act, sh<>ll, so far as may be, apply to the making of such award.\" It is to be noticed that because of the clear provision in clause (b) and the Explanation, no significance was attached to what has been provided in sub-section (2).\n\nSection 8 of the Jagir Abolition Act says :\n\n\"All public roads, etc., situate in jagir villages ta vest in Government-All public roads, lanes and paths, the bridges ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nalas, lakes, wells and tanks, and all canals and water courses, and all standing and flowing water, all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or other non-agricultural purposes) which are situate within the limits of any jagir village, shall, except in so far as any rights of any person other than the jagirdar may be established in or over the same and except as may otherwise be provided by anv law for the time being in force, vest in and shall be deeme; I\n\nto be. with all rights in or over the same or appertaining thereto, the property of the State Government and all rights held by a jagirdar in such property shall be deemed to have been extin!!Uished and it shall be lawful for the Collector, subject to the general or special orders of the State Government, to dispose them of as he deems fit subject always to\n\nthe rights of way and other rights of the public or of individuals legally subsisting.\"\n\nI )-\n\nGUJARAT v. REVENUE TRIBUNAL ( Untwalia, J.) 5 71\n\nSince in these appeals we are concerned with proprietary Jagirs we shall read sub-sections (2) and (3) of section 11. They provide:\n\n\"(2) In the case of a proprietary jagir, in respect of land held by a permanent holder the jagirdar shall be entitled to compensation equivalent to three multiples of the assessment for such land.\n\n(3) Any jagirdar having any right or interest in any property referred to in section 8 shall, if he proves to the satisfaction of the Collector that he had any such right or interest, be entitled to compensation in the following manner, namely :-\n\n(i) if the property in question is waste or uncultivated but is cultivable land, the amount of compensation shall not C exceed three times the assessment of the land : Provided that if the land has not been assessed the amount of compensation shall not exceed such amount of assessment as would be leviable, in the same village on the same extent of similar land used for the same purpose;\n\n(ii) If the property in question is land over which the public has been enjoying or has acquired a right of way or any individual has any right of easement, the amount of compensation shall not exceed the amount of the annual assessment leviable in the village for uncultivated land in accordance with the rules made under the Code or if such rules do not provide for the levy of such assessment, such amount as in the opinion of the Collector shall be the market value of the right or interest held by tJ; ie claimant;\n\n(iii) If there are any trees or structures on the land, the amount of compensation shall be the market value of such trees or structures, as the case may be.\n\nExp/anation.-For the purposes of this section, the \"market value\" shall mean the value as estimated in accordance F with the provisions of sub-section ( 1) of section 23 and section 24 of the Land Acquisition Act, 1 894 ( 1 of 1 894) in so far as the said provisions may be applicable.\"\n\nAs in section 7(1) (a) of the Taluqdari Act a provision was made in sub-section ( 1) of section 13 of the Jagirs Abolition Act for the making of an application to the Collector for determining the amount G of compensation payable to the Jagirdars under sections 11 or 12.\n\nSub-section (2) of section 13 says :\n\n\"On receipt of an application under sub-section (1), the Collector shall, after making formal enquiry in the manner provided by the Code make an award determining the amount of compensation. Where there is a rn-sharer of a jagirdar H claiming compensation, the Collector shall by his award apportion the compensation between the Jagirdar and the co-sharer.,, , ':~·. l~;\n\nThere is a clear departure in section 13(2) from the language of section 7 (1) (b) of the Talnqdari Act.\n\nIn the former it is merely provided that the Collector shall make a formal enquiry in the manner provided in the Bombay Land Revenue Code, 1879 and make a11 award determining the amount of compensation.\n\nHere there is uo reference to section 11 of the Land Acquisition Act. Section 15 of the Jagirs Abolition Act reads as follows and is at par with subsection (2) of section 7 of the Taluqdari Act.\n\n\"Every award made under section 13 or 14 shall be in the form prescribed in section 26 of the Land Acquisition Act, 1894 (I of 1894), and the provisions of the said Act shall, so far as may be, apply to the making of such award.\"\n\nIn section 11(3) of the Act the langnage used is very unsatisfactory.\n\nInstead of providing that the person whose rights had been extinguished would be entitled to compensation in respect of the properties in which he had an interest in accordance with the Land Acquision Act but only subject to the exceptions provided in clauses (i), (ii) and (iii), what is provided in sub-section (3) of section 11 is that the Jagirdar will be entitled to compensation in respect of any property in which he has any right or interest, but in the manner provided in clauses (i) to (iii). Literally the wordings of the two parts of subsection ( 3) are contradictory and carry not much sense.\n\nIn subclauses (i), (ii) and (iii) are more or less repeated sub-clauses (i) to (iii) of section 7(1)(b) of the Taluqdari Act. No manner of awarding compensation is indicated in the sub-clauses of section 11 (3) for awarding of compensation in respect of any other property in which the Jagirdar had any right or interest.\n\nApart from the three kinds of property included in sub'clauss(i) to (iii) there are numerous other properties mentioned in section 8 in some of which the Jagirdar may have a right or interest thus entitling him to have compensation under the first part of section 11 (3). The unbuilt village site land is one such property. Hence as a matter of construction of sub-section\n\n(3) of section 11 of the Act we hold that the Jagirdars are entitled to compensation for all unbuilt village site lands in which they could prove to have any right or interest.\n\nWe may add that the right of the Jagirdars to claim compensation for the village site lands was not challenged on behalf of the State before the COurts or authorities below. Nor was Mr. Desai able to press this point in this COurt with such or much convincingness or vehemence as he did in respect of the points of solatium and interest.\n\nApropos the point of solatium, it may be pointed out at the outset that the sheet anchor of the Jagirdars in the High Conrt, as here, has been the decision of this Court in Vakhtsinghji's case (supra). The High Court a warded solatinm of 15 % on the amonnt of compensation following the said decision. We are unable to uphold the view of the High Court in this regard.\n\nOrdinarily and generally as pointed out in several earlier decisions of this Court while dealing with the interpretation of Article 31 (2) of the Conslitution of India the concept of compensation means just •\n\nGUJARAT v. REVENUE TRJBU!-\\AL ( Untwa/ia, J.) 57 3\n\nequivalent or market va1ue of the property acquired. Under the various clauses of sub-section (1) of section 23 of the Land Acquisition Act for the purpose of determining the amount of compensation are taken into account some other factors over and above the market value of the land.\n\nSub-section (2) says\n\n\"In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition.\"\n\nThe Collector because of section 15 of the Land Acquisition Act is obliged to be guided by the provisions contained in sections 23 and 24 while determining the amount of compensation and thus to award solatium of 15% also.\n\nBut it is to be noticed that section 26(1) requires every award to specify the amount awarded under clause first of sub-section (!) of section 23, and also the amounts (if any) awarded under each of the other clauses of the same sub-section. The amount of solatium of 15 % which the Court is obliged to award under section (2) of section 23, strictly speaking, is not a part of the award of compensation as it is not to be mentioned in the prescribed form of the award under section 26(1). Jaganmohan Reddy, C.J. delivering the judgment of a Full Bench of the Andhra Pradesh High Court in R. D. Suryanarayana Rao v. The Revenue Divisional Officer, Land Acquisition Officer, Guntur(I) observed at page 57 column 2 :\n\n\"The compensation as computed under Section 23 (1) is the amount which has to be set out in the award passed under Section 26(1) and it is that award which is deemed to be a decree under sub-section (2) of section 26. It may be pertinent to notice that neither solatium under sub-section\n\n(2) of section 23, nor interest under Section 34 forms part of the award.\" '\n\nThe learned Chief Justice in another Full Bench decision in the case\n\nof Kesireddi Appa/a Swamy and others v. Special Tehsildar, Land Acquisition Officer, Central Rly., Vijayawada(') said at paragraph F 14 at page 145 :\n\n\"In our view, the result of the foregoing discussion is that 15 per cent of the market value to be added under Section 23(2) to the compensation awarded under Section 23(1) is not part of the award which has to be passed by the Court within the meaning of Section 26.\" G\n\nIt is to be remembered that the awarding of solatium of 15 per centum under sub-section (2) of section 23 of the Land Acquisition Act is a special compensation in consideration of the compulsory nature of the acquisition. In absence of an express provision such as was there in the Taluqdari Act when Jagirs were abolished and acquired as a measure of agrarian reform even without the payment of market value as compensation it is straining one's imagination to hold that H the intention of the legislature was to award 15 % solatium in view\n\n(I) A.1.R. 1969 A.P. 55.\n\n(2) A.LR. 1970 A.P. 139 .\n\nof the compulsory nature of the acquisition. It may be added here that because of Article 3 lA of the Constitution the vires of the Act was upheld by this Court in Maharaj Umeg Singh and others v. The State of Bombay and others('). As we have pointed out above there is no reference to section 11 of the Land Acquisition Act in section 13(2) of the Act. The intention of the legislature that it did not intend to give any solatium is clear from the fact that unlike the Explanation appended to section 7 (1) of the Taluqdari Act in the Explanation to section 11 of the Jagirs Abolition Act reference is made to sub-section ( 1) only of section 23 of the Land Acquisition Act.\n\nSimilar is the provision in sub-section (2) of section 14. To crown all, in section 15 where the provisions of the Land Acquisition Act have been applied to the making of an award, care has been taken to say that every award made under section 13 or 14 shall be in the form prescribed in section 26. In our opinion, therefore, the Legislature did not intend nor did it provide to give any solatium on the amount of compensation awardable to the erstwhile Jagirdar.\n\nComing to the question of interest we find the judgment of the High Court to be correct in substance but not clear or right in form.\n\nSection 22 of the Act says :\n\n\"The amount of compensation payable under the provisions of this Act shall be payable in transferable bonds carrying interest at the rate of three per cent per annum from the date of the issue of such bonds and shall be repayable during a period of twenty years from the date of the issue of such bonds by equated annual instalments of principal and interest.\n\nThe bonds shall be of such denomination and shall be in such forms as may as prescribed.\"\n\nThe Bombay Merged Territories And Areas (Jagirs Abolition Compensation Bonds) Rules, 1956 were framed by the State Government under section 25 of the Act. They will be called hereinafter the Rules.\n\nRule 4 provides : \"The .elate of the coming into force of the Act shall be the elate of issue of such bond.\" In other words irrespective of the actual date of the issuance of the bond the bond will be deemed to have been issued on !st August. 1954 on which date the Act came into force. Rule 5 of the Rules reads as under :\n\n\"Annual instalment and repayment-Every such bond shall be repayable in equated annua; l instalments in accordance with the repayment Schedule in Form 8 and Table I to VII in Form C :\n\nProvided that if one or more instalments have fallen due before the delivery of the bond and have not been paid already, such instalments or any balance thereof shall be payable immediately after the delivery of the bond.\"\n\nThe ascertainment of the amount of compensation payable to the erstwhile Jagirdars was bound to take time. The proviso to Rule 5, therefore, made the instalments which had fallen due before the delivery\n\n\n/ >\n\nGUJARAT v. REVENUE TRIBUNAL (Untwalia, J.) 575\n\nof the bond payable immediately after its delivery. Roughly speaking A in the case in hand the bonds were delivered about 10 years later.\n\nQuestion for consideration is whether the State was liable to pay isterest for the period of 1 O years, if so, what amount ?\n\nThe intention of the legislature in section 22 is clear that the bonds were to carry interest @ 3 % per annum from the date of issue of such bonds and were repayable during a period of 20 years. Suppose the B bond could be issued on the 1st of August, 1954, although it was not practicable to do so, the Jagirdar according to the tables appended to the Rules would have got the amount of principal with the requisite amount of interest every year starting from 1st of August, 1955. But because of the delay which was unavoidable in the delivery of the bonds the claimant could get the instalments-say 10 instalments only at the end of the I 0th year.\n\nBecause of the legal fiction introduced c by Rules 4 and 5 the Jagirdar got all the 10 instalments of principal and interest in one lump sum but after a delay of I 0 years.\n\nThe question for consideration is whether the Jagirdar was entitled to any interest on the sums of 10 instalments paid to him at one time after the lapse of 1 0 years.·\n\nThe High Court relying upon the decision of this Court in Satindcr Si\"gh and others v. Amrao Singh and others(!) has allowed the claim of interest, but seems to have allowed it on the entire amount of instalments including the principal and interest paid after the lapse of 10 years.\n\nIn our opinion the awarding of interest on the delayed payments is justified but not on the entire amount of instalments. Interest would be payable only on the principal amount of instalments.\n\nInterest will not be payable on the amount of instalments of interest.\n\nMessrs Tarkunde and Patel conceded that this was the correct position in law.\n\nWe do not feel persuaded to accede to the submission of Mr. Desai that on the delayed payments of instalments no interest was payable at all because under the proviso to Rule 5 of the Rules the back instalments became payable only on the delivery of the bonds.\n\nGanjendragadkar, J as he then was, has said in Satinder Singh's case\n\n(supra) at page 693 :\n\n\"What then is the contention raised by the claiments ?\n\nThey contend that their immovable property has been acquired by the State and the State has taken possession of it.\n\nThus they have been deprived of the right to receive the income from the property and there is a time lag between the taking of the possession by the State and the payment of compensation by it to the claimants.\n\nDuring this period they have been deprived of the income of the property and they have not been able to receive interest from the amount of compensation.\n\nStated broadlv the act of taking possession of immovable property generally implies an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State.\"\n\nEven without pressing into service section 34 of the Land Acquisi- '.ion Act on the principles enunciated by this Court in Satinder Singh's\n\n--~-- (!) [1961]\n\n3 S.C.R. 676.\n\ncase and in the background of the intention of the legislature to award 3 % interest it is legitimate to hold fuat interest was payable on the arrears of the principal amount of instalments.\n\nTo avoid any confusion, we shall illustrate our view point with reference to Table No. II appended to the Rules.\n\nSuppose the first 1 O instalments of interest and principal fell due when the bonds were delivered to the erstwhile Jagirdar, then all the 10 instalments of interest and principal became payable, and we are told, were paid after the delivery of the bonds.\n\nThe Jagirdar was deprived of his property on the coming into force of the Act i.e. the !st August, 1954.\n\nHe was, therefore, entitled to interest on the amount of delayed payment of compensation. But the delay will have to be taken into account only with reference to the total amount of the 10 instalments of the principal sums the first being Rs. 3. 73 and the last being Rs. 4.87 as mentioned in Table II. The Jagirdar is not entitled to any interest on the delayed payments of the amounts of interest.\n\nOne more precise statement and clarification in this regard is also necessary. The Jagirdar will not get interest at 3 % on the total I 0 instalments of principal for 10 years.\n\nOn the first amount of Rs. 3.73 he will get interest 3% for 9 years. On the second instalment of Rs. 3.84 he will get interest at the said rate for 8 years and so on and so forth.\n\nOn the last amount of Rs. 4.87 he will get interest for one year only @ 3 % .\n\nThis disposes of the three points urged on behalf of the States.\n\nNow we proceed to discuss the other three points urged on behalf of the Jagirdars-either the respondents or the interveners.\n\nAlthough it is true that the Legislatnre has in the Act used two kinds of expressions-somewhere 3 times and somewhere 3 multiples, it seems to have been so done without any significance or variation in the provision.\n\nIn sub-section (1) of section 11 the expression 3 times has been used because it is followed by the expression \"the average of the land revenue\". Similar is the position in section 12.\n\nBut because in snb-section (2) of section 11 the expression is \"the assessment fixed\" for indicating the amount of compensation the expression used is \"equivalent to 3 multiples\". The expression seems to have been used in a sense of common parlance and not in a technical, mathematic&! or scientifical sense. In the context we have no doubt in our mind that the expression \"3 multiples\" means 3 times and not 6 times. The High Court in the judgment under appeal has followed the decision of Dewan, J as he then was, in Special Civil Application No. 469 of 1971 decided on 12-2-1964. In our opinion the learned Judge rightly held that there was no difference between 3 times and 3 multiples.\n\nThe problem of Bagayat kasar or Bagayat kas presented s01:ne difficulty. , Mehta J in the judgment under appeal has agreed with and followed the 'decision of Dewan, J dated 12-2-1964 in Special Civil Application Nos. 629 and 630 of 1961 and held that the amount of Bagayat kas was rightly exclnded while fixing the amount of compensation under section 11 (2) of the Act.\n\nMessrs Tarkunde and Patel took great pains to persuade us to take a contrary view.\n\nTue\n\nGUJARAT v. REVENUE TRIBUNAL (Umwa/ia, J.) 577\n\nargument advanced by them on the first look appeared to be attractive and forceful but did not stand closer scrutiny.\n\nDewan, J has pointed out in his judgment referred to above on a consideration of the j various old records and reports as also the Bhagwadgomandal dictionary that 'kas' or 'kasar' means a tax. Bagayat lands are those which have got irrigational facilities by water from well, kundi etc.\n\nOn such land apart from the amount of assessment fixed was also levied Bagayat kas.\n\nIn the records of the Jagirdars invariably the amount of Bagayat kas was shown separately than the amount of assessment on land.\n\nThe Jagir Abolition Officer, the Revenue Tribunal and the Gujarat High Court from time to time have held that while determining the amount of compensation under section 11 (2) the amount of Bagayat kas is not to be taken into account.\n\nWe see no sufficient reason to enable us to take a view different from the one taken by the local authorities and the High Court of the State.\n\nIt was argued with some force on behalf of the Jagirdars that Bagayat kas was a part of the land assessment although separately shown.\n\nThere was nothing to show that the wells had to be constructed or maintained by the Jagir-\n\n,~ dars to enable them to realize Bagayat kas.\n\nThat being so, in substance and in effect, it was argued, that it was an extra assessment fixed on the land which had the facility of irrigation by water from wells or the like.\n\nWe could not accept the argument of the Jagirdars to be wholly correct. If it was merely a difference of assessment fixed for the different types of lands then there was no necessity of showing the realization of the Bagayat kas as a separate item. In that event only the amount of assessment of the land would have varied. It appears depending upon the situation of the well and its distancefrom a particular land Bagayat kas was imposed as a distinct and separate levy. It is, therefore, difficult to accept the arguments of the Jagirdars that it was a part of the assessment fixed for the land within the meaning of section 11 ( 2) of the Act. It was also submitted by the J agirdars that no separate compensation has been provided for the Bagayat kas which the Jagirdars were realizing and which they could not do on the abolition of the Jag' s.\n\nIt is so.\n\nBut then it was for the legislature to provide any separate compensation for such a realization by the Jagirdar.\n\nCourts cannot help them if the legislature did not provide for any compensation for the Jagirdars for losing their right of Bagayat kas.\n\nIt is not possible to do so by treating the Bagayat kas as a part of the assessment fixed for the land.\n\nWe do not feel inclined to examine in any detail the correctness of the third submission made on behalf of the Jagirdars, The Jagirdars filed appeal before the Revenue Tribunal.\n\nIn that appeal areas of the village site lands in respect of which compensation was payable to the J agirdars were increased as some areas in the opinion of the Tribunal had been wrongly excluded by the J agir Abolition Officer.\n\nBut in that situation the State as a respondent before the Tribunal pointed out that the rates of compensation fixed for the village site land in some cases were high.\n\nThe State succeeded in persuading the Tribunal to reduce the rates in some cases.\n\nBut the net result was the awarding of more compensation to the Jagirdars for the village site lands. In their appeal the Tribunal did not reduce the amount of compensation.\n\nOn the other hand, it enhanced it. The High Court did not feel persuaded to interfere with this aspect of the matter.\n\nUnder section 16 read with section 17 of the Act it seems that the State had no right of appeal before the Revenue Tribunal. In such a situation in view of '\\. the decision of this Court in The Management of ltakhoolie Tea Estate v. Its Workmen('') there may be substance in the argument put forward on behalf of the Jagirdars that the State could not challenge the rates of compensation fixed by the Jagir Abolition Officer on the principles engrafteJ in Order 41 Rule 22 of the Code of Civil Procedure.\n\nBut taking the totality of the circumstances we think this is not a fit item in respect of which we should interfere in an appeal filed by special leave of this Court under Article 136 of the Constitution.\n\nJustice on this point is not in favour of the Jagirdars as on facts the decision of the Revenue Tribunal was not found to be erroneous.\n\nIn the result CAs 1804 and 1805/1970 are allowed in part in the manner and to the extent indicated above.\n\nThe directions given by the High Court in its remand order to the Tribunal stand modilied accordingly.\n\nCivil Appeal No. 1968/1970 is dismissed.\n\nIn the cir- -1. cnmstances, we make no order as to costs.\n\nV.P.S.\n\nAppeals partly allowed.\n\n(1) A.LR. !960 S.C. 1349.", "total_entities": 197, "entities": [{"text": "STATE OF GUJARAT & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT & ORS", "offset_not_found": false}}, {"text": "GUJARAT REVENUE TRIBUNAL & ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "GUJARAT REVENUE TRIBUNAL & ORS", "offset_not_found": false}}, {"text": "March 9. 1976", "label": "DATE", "start_char": 58, "end_char": 71, "source": "ner", "metadata": {"in_sentence": "March 9."}}, {"text": "V. 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Revenue Code, 1879", "statute": "In the former it is merely provided that the Collector shall make a formal enquiry in the manner provided in the Bombay Land Revenue Code, 1879"}}, {"text": "section 26", "label": "PROVISION", "start_char": 23098, "end_char": 23108, "source": "regex", "metadata": {"linked_statute_text": "In the former it is merely provided that the Collector shall make a formal enquiry in the manner provided in the Bombay Land Revenue Code, 1879", "statute": "In the former it is merely provided that the Collector shall make a formal enquiry in the manner provided in the Bombay Land Revenue Code, 1879"}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 23116, "end_char": 23142, "source": "regex", "metadata": {}}, {"text": "section 11(3)", "label": "PROVISION", "start_char": 23256, "end_char": 23269, "source": "regex", "metadata": {"linked_statute_text": "the Land Acquisition Act, 1894", "statute": "the Land Acquisition Act, 1894"}}, {"text": 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"end_char": 24645, "source": "regex", "metadata": {"statute": null}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 24992, "end_char": 24997, "source": "ner", "metadata": {"in_sentence": "Nor was Mr. Desai able to press this point in this COurt with such or much convincingness or vehemence as he did in respect of the points of solatium and interest."}}, {"text": "Vakhtsinghji", "label": "OTHER_PERSON", "start_char": 25318, "end_char": 25330, "source": "ner", "metadata": {"in_sentence": "Apropos the point of solatium, it may be pointed out at the outset that the sheet anchor of the Jagirdars in the High Conrt, as here, has been the decision of this Court in Vakhtsinghji's case (supra)."}}, {"text": "Article 31", "label": "PROVISION", "start_char": 25639, "end_char": 25649, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 23", "label": "PROVISION", "start_char": 25878, "end_char": 25888, 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D. Suryanarayana Rao v. The Revenue Divisional Officer, Land Acquisition Officer, Guntur(I) observed at page 57 column 2 :\n\n\"The compensation as computed under Section 23 (1) is the amount which has to be set out in the award passed under Section 26(1) and it is that award which is deemed to be a decree under sub-section (2) of section 26."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 27084, "end_char": 27109, "source": "ner", "metadata": {"in_sentence": "Jaganmohan Reddy, C.J. delivering the judgment of a Full Bench of the Andhra Pradesh High Court in R. D. Suryanarayana Rao v. The Revenue Divisional Officer, Land Acquisition Officer, Guntur(I) observed at page 57 column 2 :\n\n\"The compensation as computed under Section 23 (1) is the amount which has to be set out in the award passed under Section 26(1) and it is that award which is deemed to be a decree under sub-section (2) of section 26."}}, {"text": "Section 23", "label": "PROVISION", "start_char": 27276, "end_char": 27286, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 26(1)", "label": "PROVISION", "start_char": 27355, "end_char": 27368, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 27446, "end_char": 27456, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 27536, "end_char": 27546, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 27567, "end_char": 27577, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(2)", "label": "PROVISION", "start_char": 27939, "end_char": 27952, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23(1)", "label": "PROVISION", "start_char": 27987, "end_char": 28000, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 26", "label": "PROVISION", "start_char": 28084, "end_char": 28094, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 28195, "end_char": 28205, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 3", "label": "PROVISION", "start_char": 28778, "end_char": 28787, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 11", "label": "PROVISION", "start_char": 28982, "end_char": 28992, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13(2)", "label": "PROVISION", "start_char": 29024, "end_char": 29037, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 29190, "end_char": 29199, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 29247, "end_char": 29257, "source": "regex", "metadata": {"statute": null}}, {"text": "section 23", "label": "PROVISION", "start_char": 29332, "end_char": 29342, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 29420, "end_char": 29430, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 29449, "end_char": 29459, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 29609, "end_char": 29619, "source": "regex", "metadata": {"statute": null}}, {"text": "section 26", "label": "PROVISION", "start_char": 29661, "end_char": 29671, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 22", "label": "PROVISION", "start_char": 29973, "end_char": 29983, "source": "regex", "metadata": {"statute": null}}, {"text": "section 25", "label": "PROVISION", "start_char": 30587, "end_char": 30597, "source": "regex", "metadata": {"statute": null}}, {"text": "section 22", "label": "PROVISION", "start_char": 31946, "end_char": 31956, "source": "regex", "metadata": {"statute": null}}, {"text": "1st of August, 1954", "label": "DATE", "start_char": 32147, "end_char": 32166, "source": "ner", "metadata": {"in_sentence": "Suppose the B bond could be issued on the 1st of August, 1954, although it was not practicable to do so, the Jagirdar according to the tables appended to the Rules would have got the amount of principal with the requisite amount of interest every year starting from 1st of August, 1955."}}, {"text": "1st of August, 1955", "label": "DATE", "start_char": 32371, "end_char": 32390, "source": "ner", "metadata": {"in_sentence": "Suppose the B bond could be issued on the 1st of August, 1954, although it was not practicable to do so, the Jagirdar according to the tables appended to the Rules would have got the amount of principal with the requisite amount of interest every year starting from 1st of August, 1955."}}, {"text": "Tarkunde", "label": "WITNESS", "start_char": 33464, "end_char": 33472, "source": "ner", "metadata": {"in_sentence": "Messrs Tarkunde and Patel conceded that this was the correct position in law."}}, {"text": "Patel", "label": "OTHER_PERSON", "start_char": 33477, "end_char": 33482, "source": "ner", "metadata": {"in_sentence": "Messrs Tarkunde and Patel conceded that this was the correct position in law."}}, {"text": "Ganjendragadkar", "label": "JUDGE", "start_char": 33798, "end_char": 33813, "source": "ner", "metadata": {"in_sentence": "Ganjendragadkar, J as he then was, has said in Satinder Singh's case\n\n(supra) at page 693 :\n\n\"What then is the contention raised by the claiments ?"}}, {"text": "Satinder Singh's", "label": "OTHER_PERSON", "start_char": 33845, "end_char": 33861, "source": "ner", "metadata": {"in_sentence": "Ganjendragadkar, J as he then was, has said in Satinder Singh's case\n\n(supra) at page 693 :\n\n\"What then is the contention raised by the claiments ?", "canonical_name": "Satinder Singh's"}}, {"text": "section 34", "label": "PROVISION", "start_char": 34692, "end_char": 34702, "source": "regex", "metadata": {"statute": null}}, {"text": "Satinder Singh", "label": "OTHER_PERSON", "start_char": 34780, "end_char": 34794, "source": "ner", "metadata": {"in_sentence": "Even without pressing into service section 34 of the Land Acquisi- '.ion Act on the principles enunciated by this Court in Satinder Singh's\n~-- (!) [", "canonical_name": "Satinder Singh's"}}, {"text": "[1961]\n\n3 S.C.R. 676", "label": "CASE_CITATION", "start_char": 34808, "end_char": 34828, "source": "regex", "metadata": {}}, {"text": "Although it is true that the Legislatnre has in the Act", "label": "STATUTE", "start_char": 36531, "end_char": 36586, "source": "regex", "metadata": {}}, {"text": "section 11", "label": "PROVISION", "start_char": 36771, "end_char": 36781, "source": "regex", "metadata": {"linked_statute_text": "Although it is true that the Legislatnre has in the Act", "statute": "Although it is true that the Legislatnre has in the Act"}}, {"text": "section 12", "label": "PROVISION", "start_char": 36922, "end_char": 36932, "source": "regex", "metadata": {"linked_statute_text": "Although it is true that the Legislatnre has in the Act", "statute": "Although it is true that the Legislatnre has in the Act"}}, {"text": "section 11", "label": "PROVISION", "start_char": 36969, "end_char": 36979, "source": "regex", "metadata": {"linked_statute_text": "Although it is true that the Legislatnre has in the Act", "statute": "Although it is true that the Legislatnre has in the Act"}}, {"text": "Dewan", "label": "JUDGE", "start_char": 37426, "end_char": 37431, "source": "ner", "metadata": {"in_sentence": "The High Court in the judgment under appeal has followed the decision of Dewan, J as he then was, in Special Civil Application No."}}, {"text": "12-2-1964", "label": "DATE", "start_char": 37507, "end_char": 37516, "source": "ner", "metadata": {"in_sentence": "469 of 1971 decided on 12-2-1964."}}, {"text": "s01", "label": "PROVISION", "start_char": 37681, "end_char": 37684, "source": "regex", "metadata": {"statute": null}}, {"text": "Mehta", "label": "JUDGE", "start_char": 37702, "end_char": 37707, "source": "ner", "metadata": {"in_sentence": "Mehta J in the judgment under appeal has agreed with and followed the 'decision of Dewan, J dated 12-2-1964 in Special Civil Application Nos."}}, {"text": "section 11", "label": "PROVISION", "start_char": 37971, "end_char": 37981, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarkunde", "label": "JUDGE", "start_char": 38006, "end_char": 38014, "source": "ner", "metadata": {"in_sentence": "Messrs Tarkunde and Patel took great pains to persuade us to take a contrary view."}}, {"text": "section 11", "label": "PROVISION", "start_char": 38918, "end_char": 38928, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of the State", "label": "COURT", "start_char": 39111, "end_char": 39134, "source": "ner", "metadata": {"in_sentence": "We see no sufficient reason to enable us to take a view different from the one taken by the local authorities and the High Court of the State."}}, {"text": "section 11", "label": "PROVISION", "start_char": 40211, "end_char": 40221, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 41772, "end_char": 41782, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 41793, "end_char": 41803, "source": "regex", "metadata": {"statute": null}}, {"text": "Order 41 Rule 22", "label": "PROVISION", "start_char": 42222, "end_char": 42238, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 42242, "end_char": 42269, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 136", "label": "PROVISION", "start_char": 42445, "end_char": 42456, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1976_3_579_584_EN", "year": 1976, "text": "COMMISSIONER OF WEALTH TAX\n\nHINDUSTAN MOTORS LIMITED\n\nMarch 10, 1976\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nWca/tli 1ax Act, 1957 (Act XXV/l of 1957)-Sec. 7(1)(2)-Valuation of depreciable assets-Valuation of assets in balance Sheet, if not proper, whether depreciation 1111der the lncon1e Tax Act cnn be taken into account-Onus to proi'e raluativ11.\n\nThe respondent assessee maintains accounts regularly.\n\nIn the accounts maintained by him adequate depreciation could not be provided in the balance sheet in regard to the depreciable fixed assets on account of paucity of profits C and hence the depreciation as provided in the balance sheet was very much lower than the depreciation allowable under the Income Tax Act. The assessee claimed before the Wealth Tax Officer that in computing the wealth on the basis of the balance sheet he should reduce the book value of the assets by f the difference between the written down value that \\\\'Ould be determined for the purpo<; e of Income Tax Act and the actual book figures disclose-cl by the balance sheet.\n\nThe \\i\\l'ealth Tax Oflicer rejected the contention of the assessee and estimated the net value of the assets as shown in the balance sheets for the respective years.\n\nThe appellate Assistant Comn1issioner confirmed the orders D of the \\\\'calth Tax Officer. _ The Appellate Tribunal, however, took a contrary • vie\\\\' and held that \\\\'here proper depreciation has not been allowed in the balance sheet it is proper to accept the \\Vritten down value of the assets as worked out for the purpose of income tax assessments.\n\nOn a reference n1ade to the 1-li.c; h Court, the Hih Court answered the question in favour of the assessee.\n\nAllowing an appeal by certificate under section 29( 1) of the Wealth Tax Act.\n\n1-fELD: Under Section 7(1) of the Wealth Tax Act the value of .any asset is the Innrket value.\n\nSection 7(2) provides that notwithstanding anything in sc('tion 7( 1) where the assessee carries on business for which accounts are n1aint::1ined by him regularly the Wealth Tax Officer may instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balanc(' sheet of such business as on the valuation date and making such adjustn1en!s therein as the circumstances of the case might require. The object. of the \\\\.'e:ilth Tax officer under section 7 is to arrive at the true value of the assets of the business.\n\nIf what is shown in the balance sheet is not the true value of the assets disclosed it is open to the assessee to satisfy the Wealth Tnx Officer by producing relevant materials that the value given of the fixed assets in the balance sheets is not the true value, and, therefore a reduced v, alue of the assets should be taken into account. In case the assessee wants the written do\\1/TI value. to be accepted it is open to him to establish, by cceptable reason that the wntten down vlue represents the proper value of the assets at the relevant date.\n\nThe onus in that case \\\\'ould be entirely on the assessee. 1\\-ferely a statement. that on ccount of paucity of. profits adequate depreciation oould not b~ provided for in the balance seet 1s not sufficient to discharge the onus \\Vh1ch rests upon the assessee.\n\nThe 1udgment of the High Court is set aside and the question answered against the assessee. [581E-H 582A-B H\n\n58JA. 584CJ • • •\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 894-896 of\n\n1971.\n\nFrom the Judgment and order dated the 29th January 1965 of the Calcutta High Court in Wealth Tax Matter No. 21 /52.\n\nA R. N. Sachthey and S. P. Nayar, for the Appellant.\n\nLeila Seth, Neelima Thakur, Praveen Kumar and B. P. Maheshwari for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-These appeals are by certificate of the Calcutta High B Court under section 29 (1) of the Wealth-tax Act (briefly the Act).\n\nThe assessment years of the respondent company (hereinafter to be described as the assessee) involved in the composite reference to the High Court under section 27(1) of the Act are 1957-58, 1958-59 and 1959-60 for which the correspoRding valuation dates are 31st March, 1957, 31st March, 1958 and 31st March, 1959.\n\nThe only common question of law which was referred to the High Court appertaining to all the three assessment years is in the following terms:-\n\n\"Whether on the facts and in the circumstances of the case and in view of the provisions of section 7 (2) of the Wealth-tax Act, an adjustment could be made in ascertaining the net value of the depreciable assets of the assessee company by substituting the written down value of the assets computed under the Indian Income-tax Act for the value as shown in the balance\n\nsheet\".\n\nThe facts appearing from the statement of the case as well as the various orders annexed therewith are briefly as follows :-\n\nThe assessee claimed before the Wealth-tax Officer that in computing the wealth on the basis of balance sheet the -Income-tax Officer should reduce the book value of the assets by the difference between the written. down value that would be determined for the purpose of Income-tax Act and the actual book figures disclosed by the balance sheet. The difference between the book value and the written down value amounted to Rs. 95,69,070/-, Rs. 67,78,304/- and Rs. 36,15,678/- respectively for the three years under reference.\n\nThe only contention common to the three appeals related to the valuation of the fixed assets of the assessee. The Wealth-tax Officer proceeded under section 7 (2)\n\n(a) and computed the value of the assets at the figures shown in the balance sheets on the material valuaiion dates. The assessee, however, contended that regard being had to the depreciable assets the written down value determined for the purpose of Income-tax assessment should be taken to be the value of the assets for the purpose of inclusion in the net wealth and not the value shown in the respective balance c::: :·:. It was not disputed that adequate depreciation could not be provided for in the balance sheets in regard to the depreciable fixed assets on account of paucity of profits and hence the depreciation as provided for in the books was very much lower than the depreciation allowable under the provisions of the Indian Income-tax Act.\n\nThe Wealth-tax Officer rejected the contention of the assessee and estimated the net value of the assets as shown in the balance sheets for the respective years. The Appellate Assistant Commissioner confirmed the orders of the Wealth-tax Officer in the appeals filed by the assessee.\n\nCOMMR. WEALTH TAX v. HINDUSTAN MOTORS (Gowami, I.) 581\n\nThe Appellate Tribunal, however, took a contrary view and held A that-\n\n\"in all such cases where proper depreciation has not been allowed for in the balance sheet for any reason whatsoever, it is proper to accept the written down value of the assets as worked out for the purpose of the Income ta; c assessments.\"\n\nThe Tribunal, therefore, directed the Wealth-tax Officer to adopt the written.down value of the assets as the value thereof for inclusion in the net wealth for all the years under reference.\n\nAt the instance of the Commissioner of Wealth-tax the question set out earlier was referred to the High Court under section 27 (1) of the Act. The High Court by the impugned judgment of January 29, 1965, followng another decision delivered on the same day in Commissi, mer of Wealth-tax, Calcutta v. Tungabhwira Industries Limited(')\n\nanswered the question in the affirmative and in favour of the assessee.\n\nHence the present appeals by certificate.\n\nThe decision in the Tungabhadra Industries Limited (supra), which was followed by the High Court, was reversed by this Court in the Commissioner of Wealth-tax, West Bengal-II v.\n\nTungabhadra Industries Ltd.(2) on August 8, 1969. This Court following an earlier decision of this Court in Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealth.-tax (Central), Calcutta('), accepted the contention of the Revenue.\n\nSection 7 of the Act at the material time stood as follows :-\n\n\" ( 1) The value of any asset, other than cash, for the purposes of this Act, shall be estimated to be the price which in the opinion of the Wealth-tax Officer it would fech if sold in the open market on the valuation date.\n\n(2) Notwithstanding anything contained in sub-section (1)-\n\n(a) where the assessee is carrying on a business for which accounts are maintained by him regularly, F the Wealth-tax Officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance-sheet of such business as on the valuation date and making such adjustments therein as the circumstances of the case G may require . ....... \"\n\nIt is, therefore, clear that when the assessee is carrying on a business for which accounts are maintained by )lim regularly it is open to the Wealthtax Officer to determine the net value of the assets of the business as a whole with reference to the balance sheet of such business as on valuation date and to make such adjustments therein as the circumstances H\n\n(I) 60 l.T.R. 447.\n\n(2) 75 I.T.R. 196.\n\n(3) 59 l.T.R. 767.\n\nof the case may require. The object of the Wealth-tax Officer in determining the value of the assets under sect.ion 7 is to arrive at the true value of the assets of the business.\n\nIf what has been shown in the balance sheet is not the true value of the assets disclosed, it is open to the a; scssce to satisfy the Wealth-tax Officer by producing relevant materials that the value given of the fixed assets in the balance sheet is. not the true value and, therefore, a reduced value of the assets should be taken into account. The onus in that case would be i:ntirely upon the assessee to satisfy the Wealth-lax U:1icer that what is shown in the: balance sheet is not the actual and true vaiuc of thC assets on the vaJualion date.\n\nThe decision will depend upon the facts and cir- (::umstances disclosed in each case.\n\nThis Court in the Tungabhadra Industries case (supra) dealing with the same question observed as follows :-\n\n\"It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date. In the absence of any material produced by the assessee to demonstrate that the written down value is the real value, the Wealth-tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in its balance-sheet for the relevant year as the real value of the assets for the purposes of the Wealth-tax. It is a question of fact in each ease as to whether the depreciation has to be taken into account in ascertaining the true value of the assets. The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and-not the balance-sheet value is the true value.\n\nIf, therefore, the assessee merely claims that the written down value of the assets should be adopted but fails to produce any material to show that the written down value is the true value, the Wealth-tax Officer is justified in rejecting the claim and adopting the yalues shown by the assessee himself in his balance sheet as the true value of his assets\".\n\nWe should have thought that the question raised in these appeals is squarely covered by the above decision. Even so, Mrs. Leila Seth submits that in the instant case it is admitted that adequate depreciation could not be provided for in the balance sheet in regard to the depreciable fixed assets on account of paucity of profits and henc, I' the depreciation as provided in the balance sheet was much lower than the depreciation allowable. According to the learned counsel this fact is sufficient to displace the balance sheet as a prima facie eYidenc,, and substitute in its place the written down value and onus shifts on the Revenue to establish that paucity of profits is wrong.\n\nIt is true, as descrLl:>ed in the Statement of the case, that it was not disputed that adequate depreciation could not be provided for in the balance sheet on account of paucity of profits. But we are unable to hold that merely a statement to that effect is sufficient to discharge the onus which rests upon the assessee to establish that the value of the\n\nCOMMR. WEALTH TAX v. HINDUSTAN MOTORS (Goswami, I.) 5 83\n\nassets shown in the balance sheet is not the real value of the assets as on the valuation date. If the contention of the learned counsel is accepted, it will be tantamount to laying down a rule that in determination ot the ! value of assets the written down value allowable under the Income-tax , Act shall always be the value of the assets. In that event, there would be no necessity for any exercise by the Wealth-tax Officer. That is, however, not the intention of section 7 which clearly shows that the Wealth-tax Officer may make such adjustments in the value of the assets • shown in the balance sheet in accordance with the requirements of the circumstances disclosed by the assessee.\n\nThose circumstances which will be disclosed by the assessee must relate. to the determination of the real value of the assets irrespective of what is shown in the balance sheet if the assessee seeks a lower figure than appearing in the same. Thus onus is not discharged by merely stating that since profits in a given year are less or nil little or no provision was made for depreciation of the assets in the balance sheet. The assessee must also show further to what extent the depreciation has resulted in lowering the value of the r assets compared to that mentioned in the balance sheet and whether the written down value computed under the Indian Income-tax Act in fact represents the lower value. It is open, as observed by this Court in the case of Tungabhadra Industries (supra), to establish after producing relevant material that the value of the fixed assets in the balance sheet ' is artificially inflated. Further in case the assessee wants the written down value to be accepted, it is open to him to establish, as mentioned in that case, by acceptable reason, that the written down value represents ., the proper value of the assets at the relevant date.\n\nThe learned counsel also drew our attention to a decision of this Court in the Commissioner of Wealth-tax, West Bengal v. Alun1inium Corp,, ration of India Ltd., (') where at page 172 there is on observation that the value of the assets shown in the balance sheet is not conclusive. The value of the assets shown in the balance sheet is not conclusive in, the sense that it can be demonstrated to be more or less than what is shown therein. That is the core of determination nnder section 7(2) (a) of the Act. The observation of this Court in the above case has to be understood only in that context.\n\nWe may in this connection refer to clanse (b) of the proviso to clause (vi) of sub-section (2) of section 10 of the Income-tax Act. 1922 where a provision is made for carrying forward of depreciation allowance for the following year or years where full effect cannot be given to the allo\\vance in a particular year owing to \\ there being no profits or gains chargeable for that year or owing to the profits and gains chargeable being less than the allowance. If ari assessee chooses to carry forward the depreciation allowance, and shows the value of the assets at a particular figure in the balance sheet, he cannot by merely asserting that there was no profit or very little profit compel the tax authorities to discard the value mentioned in the balance sheet and to accept the written down value. The depreciation must have nexus with real value of the assets itself and the burden is upon the assessee to satisfy the Wealth-tax Officer by producing relevant reliable materials\n\n(l) 35 I.T.R. 167.\n\nfor determination of the actual and true value of the as§ets. It may be that in a given year the written down value may be the real value of the assets but that cannot be the inexorable rule in determining the value \\ of the assets under section 7 of the Act.\n\n\"' Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany('). This was a case of break up value of certain shares of • a company. There was material in that case to indicate that the balance sheet did not represent the correct value of the shares. The observation in that case must be taken to be confined to its own facts. To the extent observations are made in that contrary to the view we have taken in the matter, we cannot agree with them.\n\nIn the result the judgment of the High Conrt is set aside and the question is answered in the negative against the assessee and in favour r of the Revenue. The appeals are allowed with one set of costs. -i,\n\nP.H.P.\n\nAppeals allowed.\n\n(1) 78 I.T.R 435", "total_entities": 41, "entities": [{"text": "TAX\n\nHINDUSTAN MOTORS LIMITED", "label": "RESPONDENT", "start_char": 23, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "HINDUSTAN MOTORS LIMITED", "offset_not_found": false}}, {"text": "March 10, 1976", "label": "DATE", "start_char": 54, "end_char": 68, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF WEALTH TAX\n\nHINDUSTAN MOTORS LIMITED\n\nMarch 10, 1976\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 71, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Sec. 7(1)(2)", "label": "PROVISION", "start_char": 151, "end_char": 163, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act", "label": "STATUTE", "start_char": 980, "end_char": 994, "source": "regex", "metadata": {}}, {"text": "section 29( 1)", "label": "PROVISION", "start_char": 1727, "end_char": 1741, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "Section 7(1)", "label": "PROVISION", "start_char": 1780, "end_char": 1792, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "Section 7(2)", "label": "PROVISION", "start_char": 1862, "end_char": 1874, "source": "regex", "metadata": {"linked_statute_text": "Income Tax Act", "statute": "Income Tax Act"}}, {"text": "section 7", "label": "PROVISION", "start_char": 2425, "end_char": 2434, "source": "regex", "metadata": {"statute": null}}, {"text": "A R. N. Sachthey", "label": "LAWYER", "start_char": 3625, "end_char": 3641, "source": "ner", "metadata": {"in_sentence": "A R. N. Sachthey and S. P. Nayar, for the Appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3646, "end_char": 3657, "source": "ner", "metadata": {"in_sentence": "A R. N. Sachthey and S. P. Nayar, for the Appellant."}}, {"text": "Leila Seth", "label": "LAWYER", "start_char": 3679, "end_char": 3689, "source": "ner", "metadata": {"in_sentence": "Leila Seth, Neelima Thakur, Praveen Kumar and B. P. Maheshwari for the Respondent.", "canonical_name": "Leila Seth"}}, {"text": "Neelima Thakur", "label": "LAWYER", "start_char": 3691, "end_char": 3705, "source": "ner", "metadata": {"in_sentence": "Leila Seth, Neelima Thakur, Praveen Kumar and B. P. Maheshwari for the Respondent."}}, {"text": "Praveen Kumar", "label": "LAWYER", "start_char": 3707, "end_char": 3720, "source": "ner", "metadata": {"in_sentence": "Leila Seth, Neelima Thakur, Praveen Kumar and B. P. Maheshwari for the Respondent."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 3725, "end_char": 3741, "source": "ner", "metadata": {"in_sentence": "Leila Seth, Neelima Thakur, Praveen Kumar and B. P. Maheshwari for the Respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 3807, "end_char": 3814, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-These appeals are by certificate of the Calcutta High B Court under section 29 (1) of the Wealth-tax Act (briefly the Act)."}}, {"text": "section 29", "label": "PROVISION", "start_char": 3887, "end_char": 3897, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth-tax Act", "label": "STATUTE", "start_char": 3909, "end_char": 3923, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 27(1)", "label": "PROVISION", "start_char": 4097, "end_char": 4110, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 4498, "end_char": 4507, "source": "regex", "metadata": {"statute": null}}, {"text": "Wealth-tax Act", "label": "STATUTE", "start_char": 4519, "end_char": 4533, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 4722, "end_char": 4736, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 5182, "end_char": 5196, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 7", "label": "PROVISION", "start_char": 5587, "end_char": 5596, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 6341, "end_char": 6355, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 27", "label": "PROVISION", "start_char": 7322, "end_char": 7332, "source": "regex", "metadata": {"statute": null}}, {"text": "January 29, 1965", "label": "DATE", "start_char": 7392, "end_char": 7408, "source": "ner", "metadata": {"in_sentence": "The High Court by the impugned judgment of January 29, 1965, followng another decision delivered on the same day in Commissi, mer of Wealth-tax, Calcutta v. Tungabhwira Industries Limited(')\n\nanswered the question in the affirmative and in favour of the assessee."}}, {"text": "Tungabhadra Industries Limited", "label": "ORG", "start_char": 7677, "end_char": 7707, "source": "ner", "metadata": {"in_sentence": "The decision in the Tungabhadra Industries Limited (supra), which was followed by the High Court, was reversed by this Court in the Commissioner of Wealth-tax, West Bengal-II v.\n\nTungabhadra Industries Ltd.(2) on August 8, 1969."}}, {"text": "August 8, 1969", "label": "DATE", "start_char": 7870, "end_char": 7884, "source": "ner", "metadata": {"in_sentence": "The decision in the Tungabhadra Industries Limited (supra), which was followed by the High Court, was reversed by this Court in the Commissioner of Wealth-tax, West Bengal-II v.\n\nTungabhadra Industries Ltd.(2) on August 8, 1969."}}, {"text": "Section 7", "label": "PROVISION", "start_char": 8081, "end_char": 8090, "source": "regex", "metadata": {"statute": null}}, {"text": "Tungabhadra Industries", "label": "ORG", "start_char": 10156, "end_char": 10178, "source": "ner", "metadata": {"in_sentence": "This Court in the Tungabhadra Industries case (supra) dealing with the same question observed as follows :-\n\n\"It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date."}}, {"text": "Leila Seth", "label": "LAWYER", "start_char": 11597, "end_char": 11607, "source": "ner", "metadata": {"in_sentence": "Even so, Mrs. Leila Seth submits that in the instant case it is admitted that adequate depreciation could not be provided for in the balance sheet in regard to the depreciable fixed assets on account of paucity of profits and henc, I' the depreciation as provided in the balance sheet was much lower than the depreciation allowable.", "canonical_name": "Leila Seth"}}, {"text": "section 7", "label": "PROVISION", "start_char": 13043, "end_char": 13052, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 13920, "end_char": 13934, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 7(2)", "label": "PROVISION", "start_char": 14919, "end_char": 14931, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 15138, "end_char": 15148, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 15156, "end_char": 15170, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 7", "label": "PROVISION", "start_char": 16281, "end_char": 16290, "source": "regex", "metadata": {"statute": null}}, {"text": "Seth", "label": "OTHER_PERSON", "start_char": 16312, "end_char": 16316, "source": "ner", "metadata": {"in_sentence": "\"' Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany(')."}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 16357, "end_char": 16376, "source": "ner", "metadata": {"in_sentence": "\"' Mrs. Seth drew our attention to a decision of the Calcutta High Court in the Commissioner of Wealth-tax (Central) Calcutta v. Mohan Lal Nopany(')."}}]}
{"document_id": "1976_3_585_587_EN", "year": 1976, "text": "THAKUR KAMTA PRASAD SINGH (DEAD) BY L.Rs.\n\nTHE STATE OF BUIAR\n\nMarch 10, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nLand Acquisition Act, 1894-Sections 23 and 24-Market value-Compensation-Potential possibilities.\n\nThe respondents acquired appellant's land under the Land Acquisition Act.\n\nThe Land Acquisition Officer awarded compensation at the rate of Rs. 3000/- pcr acre. In a reference under s. 18, the Additional District Judge enhanced the compensation to Rs. 800/- per katha ( 1/32 of an acre). On appeal by the State, the High Court reduced the compensation to Rs. 475/- per katha.\n\nIn an appeal by certificate the appellant contended that the High Court was in error in reducin£ the rate of compensation. r Dismi&sing the appeal,\n\nHELD : ( 1) The Additional District Judge \\Vrongly excluded certain sale transactions on the ground that the plots in those transactions were at some distance from the acquired land.\n\nThe High Court rightly held that the said transactions could not be excluded altogether from consideration. The High Court also took into account 3 other sale transactions which were relied upon by the appellant. The High Court rightly excluded from consideration certain sale deeds executed by the appellant. These transactions related to small plots of land situated on road site and were entered into after the land in dispute had been notified for acquisition.\n\n[586E-H, 587C-D]\n\n(2) .f\\.Jarket value under s. 23 means the price that a willing purchaser would pay to a willing seller for property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the n1ost advantageous manner excluding any advantages due to the carrying out of the schen1e for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. [587E-F]\n\n(3) There is an element of guess work inherent in rnost ca.ses involving determination of the market value of the acquired land. But, this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act. The finding of the High Court is based upou consideration of the evidence adduced in the case and there are no grounds to interfere with that finding.\n\n[587F-G]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1436 of 1968.\n\nFrom the Judgment and Order dated 28-9-67 of the Patna High Court in Appeal from Original Decree No. 129/62\n\nV. S. Desai and B. P. Singh for the Appellant.\n\nR. C. Prasad for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.-This is an appeal on certificate under article 133(1)\n\n(a) of the Constitution against the judgment of the Patna High Court whereby the appeal of the respondent State against the award of the\n\n5-M608SCl/76\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nA learned Additional District Judge Arrah was allowed in part and the amount of compensation payable to the respondent in a land acquisition case was reduced.\n\nThe respondent-State acquired 23.70 acres of the appellant's land out of plots Nos. 529 and 1262 appertaining to Khata No. 1 in village Tenduni in Shahbad district for the purpose of constructing an Irrigation Research Station.\n\nNotification under section 4 of the Land Acquisition Act (hereinafter referred to as the Act) was first published on March 8, 1957, but this notification w; i, s cancelled on December 2, 1957. Another notification for the acquisition: of the said land was issued under section 4 -of the Act on January 1, 1959.\n\nThe Land Acquisition Officer awarded compensation to the appellant at the rate of Rs. 3,000 per acre, besides certain other amounts with which we are not concerned.\n\nThe total compensation awarded by the Land Acquisition Officer came to Rs. 86,070.92. The appellant got a reference made under section 18 of the Act. Learned Additional District Judge Arrah who disposed of the reference held the market value o~ the land to be Rs. 800 per katha. It is stated that there are 32 kathas in an acre. On appeal by the State the High Court assessed the market value of the land' at Rs. 475 per katba.\n\nIn appeal before us, learned counsel for the appellant has assailed the judgment of the High Conrt and bas contended that the High Court was in error in reducing the rate at which compensation had been awarded. As against that, learned counsel for the respondent-State has canvassed for the correctness of the view taken by the High Conrt. . l f .\n\nWe have given the matter our consideration, and are of the view that there is no merit in this appeal. A number of documents were filed on behalf of the State to show the market value of the land in question. Those documents showed that a plot measuring .66 acres in the same village, in which the land in dispute is situated, was sold for Rs. 2,000 on March 13, 1958 at the rate of Rs. 94 per katha.\n\nAnother sale transaction related to the sale of 22.5 decimals of land on November 22, 1958 at the rate of Rs. 58 per katha. A third transaction related to the sale of .06 acre of land for Rs. 100 on August 12, 1957 at the rate of Rs. 52 per katha. The Additional District Judge excluded these sale transactions out of consideration on the ground that the plots which were the snbject matter of those sales were at some distance from the acquired land The High Conrt took the view, in onr opinion rightly, that these sale transactions coulcl not be excluded altogether from consideration. The High Conrt also took into account three other sale transactions which had been relied upon by the appellant.\n\nThose sale transactions related to sale of five dhurs of land for Rs. 275 on October 19, 1957 at the rate of Rs. 1,100 per katha, 15 dhurs of land for Rs. 750 on November 5, 1956 at the rate of Rs. 1,000 per katha and 15 dhurs of land for Rs. 750/- on September 28, 1956 at the rate of Rs. 1,000 per katha. One katha is said to consist of 20 dhnrs. The land which was the subject of these sale transactions abntted the road and, from the small size of the plots, it appears that they were pnrchased for the pnrpose of constructing\n\nK. M. SINGH v. BIHAR (Khanna, l.) 587\n\nshops or similar buildings thereon. The land now sought to be acquir- A ed cl•>es not abut the road. It is in evidence that in making acquisilion the strip of the land of the appellant up 10 a depth of !00 ft. from ) the road was not acquired. The High Court on taking into consideration the above three sale transactions relied upon by the appellant and '< three sale transactions relied upon by the respondent found the mean price of the land covered by the six sale deeds to be a little more than Rs. 460 per katha. The High Court in the circumstances came to the B • conclusion that the just and fair market value of the land should be assessed at Rs. 475 per katha.\n\nThe above rate included, according to the High Court, the potential value of the land. In addition to that, the appellant was held entitled to 15 per cent solatium for compulsory acquisition. We find no infirmity in the above approach of the High Court.\n\nThe finding of the High Court is based upon consideration of the evidence adduced in the case, and no cogent ground has been C shown to us as to why we should interfere with that finding.\n\nWe may observe that the High Court excluded from consideration r certain sale deeds executed by the appellant. These transactions related to small plots of land situated on the roadside and were entered into after the land in dispute had been notified for acquisition. In the opinion of the High Court, the said sale deeds could not form a safe D criterion for assessing the market value of the acquired land because • they had been executed by the claimant himself after the notification.\n\nIt was also observed that the plots sold were quite suitable for shop or residential purposes.\n\nWe find no sufficient reason to take a con- _. trary view.\n\nSection 23 of the Act provides that in determining the amount of E compensation to be awarded for land acquisition under the Act the Court shall inter alia take into consideration the maret value of the r land at the date of the publication of the notification under section 4 of the Act. Market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantage~ and it~ potential possibilities when laid out in the most advantageous manner excluding any F advantages due to the carrying out of the. scheme for which the property is compulsorily acquired. In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. There is an element of guess work inherent in most cases involving detennination of the market value! of the acquired land, but this in the very' nature of things cannof be helped. The essential thing is to keep in G view the relevant factors prescribed by the Act. If the judgment of the High Court reveals that it has takeh into consideration the relevant ,....., factors, its assessment of the fair market value of the acquired land should not be disturbed. No such infirmity has been brought to our notice as might induce us to disturb the finding of the High Court.\n\nThe appeal consequently fails and is dismissed but in the circumstances ;. without costs.\n\nP.H.P.\n\nA ppal dismissed . •", "total_entities": 29, "entities": [{"text": "THAKUR KAMTA PRASAD SINGH (DEAD) BY L.Rs", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "THAKUR KAMTA PRASAD SINGH (DEAD) BY L.Rs", "offset_not_found": false}}, {"text": "THE STATE OF BUIAR", "label": "RESPONDENT", "start_char": 43, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF BIHAR", "offset_not_found": false}}, {"text": "March 10, 1976", "label": "DATE", "start_char": 63, "end_char": 77, "source": "ner", "metadata": {"in_sentence": "THE STATE OF BUIAR\n\nMarch 10, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Land Acquisition Act, 1894", "label": "STATUTE", "start_char": 118, "end_char": 144, "source": "regex", "metadata": {}}, {"text": "Sections 23 and 24", "label": "PROVISION", "start_char": 145, "end_char": 163, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "s. 18", "label": "PROVISION", "start_char": 398, "end_char": 403, "source": "regex", "metadata": {"linked_statute_text": "Land Acquisition Act, 1894", "statute": "Land Acquisition Act, 1894"}}, {"text": "s. 23", "label": "PROVISION", "start_char": 1437, "end_char": 1442, "source": "regex", "metadata": {"statute": null}}, {"text": "V. S. Desai", "label": "OTHER_PERSON", "start_char": 2563, "end_char": 2574, "source": "ner", "metadata": {"in_sentence": "129/62\n\nV. S. Desai and B. P. Singh for the Appellant."}}, {"text": "P. Singh", "label": "LAWYER", "start_char": 2582, "end_char": 2590, "source": "ner", "metadata": {"in_sentence": "129/62\n\nV. S. Desai and B. P. Singh for the Appellant."}}, {"text": "R. C. Prasad", "label": "LAWYER", "start_char": 2611, "end_char": 2623, "source": "ner", "metadata": {"in_sentence": "R. C. Prasad for the Respondent."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 2689, "end_char": 2695, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-This is an appeal on certificate under article 133(1)\n\n(a) of the Constitution against the judgment of the Patna High Court whereby the appeal of the respondent State against the award of the\n\n5-M608SCl/76\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nA learned Additional District Judge Arrah was allowed in part and the amount of compensation payable to the respondent in a land acquisition case was reduced."}}, {"text": "article 133(1)", "label": "PROVISION", "start_char": 2739, "end_char": 2753, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenduni", "label": "GPE", "start_char": 3243, "end_char": 3250, "source": "ner", "metadata": {"in_sentence": "1 in village Tenduni in Shahbad district for the purpose of constructing an Irrigation Research Station."}}, {"text": "Shahbad district", "label": "GPE", "start_char": 3254, "end_char": 3270, "source": "ner", "metadata": {"in_sentence": "1 in village Tenduni in Shahbad district for the purpose of constructing an Irrigation Research Station."}}, {"text": "section 4", "label": "PROVISION", "start_char": 3355, "end_char": 3364, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 3605, "end_char": 3614, "source": "regex", "metadata": {"statute": null}}, {"text": "January 1, 1959", "label": "DATE", "start_char": 3630, "end_char": 3645, "source": "ner", "metadata": {"in_sentence": "Another notification for the acquisition: of the said land was issued under section 4 -of the Act on January 1, 1959."}}, {"text": "section 18", "label": "PROVISION", "start_char": 3941, "end_char": 3951, "source": "regex", "metadata": {"statute": null}}, {"text": "Arrah", "label": "JUDGE", "start_char": 3998, "end_char": 4003, "source": "ner", "metadata": {"in_sentence": "Learned Additional District Judge Arrah who disposed of the reference held the market value o~ the land to be Rs."}}, {"text": "March 13, 1958", "label": "DATE", "start_char": 4945, "end_char": 4959, "source": "ner", "metadata": {"in_sentence": "2,000 on March 13, 1958 at the rate of Rs."}}, {"text": "November 22, 1958", "label": "DATE", "start_char": 5067, "end_char": 5084, "source": "ner", "metadata": {"in_sentence": "Another sale transaction related to the sale of 22.5 decimals of land on November 22, 1958 at the rate of Rs."}}, {"text": "August 12, 1957", "label": "DATE", "start_char": 5193, "end_char": 5208, "source": "ner", "metadata": {"in_sentence": "100 on August 12, 1957 at the rate of Rs."}}, {"text": "October 19, 1957", "label": "DATE", "start_char": 5773, "end_char": 5789, "source": "ner", "metadata": {"in_sentence": "275 on October 19, 1957 at the rate of Rs."}}, {"text": "November 5, 1956", "label": "DATE", "start_char": 5858, "end_char": 5874, "source": "ner", "metadata": {"in_sentence": "750 on November 5, 1956 at the rate of Rs."}}, {"text": "September 28, 1956", "label": "DATE", "start_char": 5948, "end_char": 5966, "source": "ner", "metadata": {"in_sentence": "750/- on September 28, 1956 at the rate of Rs."}}, {"text": "Section 23", "label": "PROVISION", "start_char": 8030, "end_char": 8040, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 8297, "end_char": 8306, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_588_590_EN", "year": 1976, "text": "5 88\n\nKISHORI LAL v.\n\nBIRDIIl LAL & ORS.\n\nMarch 10, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\n(,'onstitution of lndia. Art. 226-Concurrent decisions of Revenue authorlties -Apparent error of law-Whether High Court's interference justified.\n\nRajastT1an Tenancy Act, 1955, S. 5 (44), essential conditions, if satisfied- Rejection of alternative case under s. 180.\n\nThe appellant brought a suit for possession of land_ against re.spondent Birdhi Lal, under Ss. 180 and 183 of the Rajasthan Tenancy Act, 1955. The Assistant Collector, Baran, dismissed the suit, but the Revenue Appellate Authority allowed his appeal and held that Birdhl Lal was a trespasser. A further appeal by Birdhi Lal was dismissed by the Board of Revenue, Rajasthan.\n\nThereafter, his application made under Art. 226 was allowed by the High Court.\n\nThe High Court held Birdhi Lal to be a tenant within the meaning of s. 5 ( 43), __. and not a trespasser as conceived by s. 5 ( 44). On appeal by special leave, the ' appellants contended before this Court that the High Court was not justified in exercising appellate jurisdiction and interfering with the concurrent opinions of the Revenue authorities. It was further contended that even if Birdhi Lal was held to be a tenant. he was liable to be ejected, as the original suit had been fran1ed alternatively under s. 180 of the Act.\n\nDisn:1issing the appeal, the court HELD: (1) The material on record does not establish that Birdhi Lal took or retained possession of the land without authority. The essential conditions for holding Birdhi Lal to be a trespasser under s. 5(44) were manifr, stly not ,,( satisfied.\n\nThe High Court was right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.\n\n[589F-H & 590AJ\n\n(2) The alternative case under s. 180 required necessary averments and r proof of facts which were absent in the case. The plea therefore, cannot be entertained.\n\n[590 C-DJ CIVIL APPELLATE JuRISDICTION : Civil Appeal No. 1436 of 1975.\n\nApprnl by special leave from the Judgment and Order dated 10-3-1975 of the Rajasthan High Court in D. B. Civil Writ Petition No. 384 of 1968.\n\nAhmed Bux, Beni Madhav Sharma, M/s. V. J. Francis & R. A.\n\nGupta, Advocates for the appellants.\n\nS. M. Jain & Sushi/ Kumar Jain, Advocates for respondent No. 1.\n\nThe Judgment of the Court was delivered by- JAsWANT SINGH, J.-This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No. 384 of 1968. /-· The facts leading to this appeal are : On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector, Baran, against Birdhi Lal, respondent No. 1, for possession of land comprised in khasra Nos. 513, 669 and 678 situate in \"- village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). By his judgment dated December 24, 1962, the . .\n\nKISHORI LAL v. BIRDHI LAL (Jaswant Singh, J.) 5 89\n\nAssistant Collector dismissed the suit.\n\nThe appellant thereup-0n preferred an appeal to the Revenue Appellate Authority who allowed the , same by his judgment dated November 9, 1963, and reversing the ) juc; lgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser.\n\nAggrieved by the judgment and decree '< of the Revenue Appellate Authority, Birdhi Lal took the matter in further appeal to the Board of Revenue, Rajasthan, but remained unsuccessful as the members of the Board affirmed the view taken by the Revenue Appellate Authority.\n\nDissatisfied with the decisions of • the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Conrt of Raiasthan by means of a petition under Article 226 of t]le Constitution.\n\nThe High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 5 ( 43) of the Act and not a trespasser as conceived by section 5 ( 44) of the Act, was not liable to be e}, oeted from the land.\n\nDissatisfied with this judgment, Kislhori Lal has come up 'rthis Court.\n\nThe learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well estab-\n\n1 Iished principles of law, the impugned judgment cannot be sustained.\n\nElaborating his submission, the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Reve- \" nue had concurrently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record, the High Conrt was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue.\n\nThe conr tention advanced on behalf of the appellant is, in our opinion, wholly untenable.\n\nThe expression 'trespasser' is defined in section 5 ( 44) of the Act as follows:-\n\n\"5 ( 44). Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him\".\n\nThe above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him.\n\nIn the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him.\n\nThe only point that we are, therefore, left to determine is whether Birdhi Lal took poss, ssion or retained pos- ,--( session of the land without authority.\n\nThe material on the record does not at all establish any of these elements.\n\nOn the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit , A-3 and Pantinama, Exhibit A-4 clearly show that the land in qnes- ,. tion had been let out by the appellant to Birdhi Lal on payment of rent.\n\nAs the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High •\n\nSUPREME COURT REPORTS [1976] 3 S.C.ll.\n\nCourt was perfectly right in rectifying the error o[ law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board -of Revenue. \\ It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (Ex. A-4), he was liable to 'f\"' be ejected as the appellant Kishori Lal had framed his suit alternatively under section f80 of the Act. Reference to section 180 of the Act shows that it applies only to suits for \"ejectment of Khudkasht or Ghair-Khatedar tenants or sub-tenants\".\n\nKhudkasht is defined in • section 5, sub s. 23 as land \"cultivated personally by an estate holder\".\n\nIt also includes \"land recorded as Khudkasht, sir, havala, niji-jot, gharkhed in settlement records\" at the commencement of the Act as well as \"land allotted after such commencement as Khudkasht unde~ any Jaw\".\n\nSimilarly, the components of rights to sub-tenancy and gair khatedari tenancies are also determined by the provisions of the Act.\n\nThe High Court had recorded the finding, on this part of the case : \"It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the -1 'Act as aforesaid, his claim was not upheld under section 180 so that ' the suit was decreed as one under section 18~\". In other words, findings of the -Revenue Courts as well as the High Court repel the alternative case sought to be made out before us.\n\nIt required necessary averments and proof of facts which were absent in the case. It ' was, therefore, a completely hopeless plea which we cannot entertain at this stage.\n\nFor the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs.\n\nM.R.\n\nAppeal dismissed. ---(", "total_entities": 48, "entities": [{"text": "88\n\nKISHORI LAL", "label": "PETITIONER", "start_char": 2, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "88\n\nKISHORI LAL", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 59, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 76, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH, JJ.", "offset_not_found": false}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 136, "end_char": 144, "source": "regex", "metadata": {"statute": null}}, {"text": "Tenancy Act, 1955", "label": "STATUTE", "start_char": 269, "end_char": 286, "source": "regex", "metadata": {}}, {"text": "S. 5", "label": "PROVISION", "start_char": 288, "end_char": 292, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1955", "statute": "Tenancy Act, 1955"}}, {"text": "s. 180", "label": "PROVISION", "start_char": 371, "end_char": 377, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1955", "statute": "Tenancy Act, 1955"}}, {"text": "Ss. 180 and 183", "label": "PROVISION", "start_char": 471, "end_char": 486, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1955", "statute": "Tenancy Act, 1955"}}, {"text": "Rajasthan Tenancy Act, 1955", "label": "STATUTE", "start_char": 494, "end_char": 521, "source": "regex", "metadata": {}}, {"text": "Birdhl Lal", "label": "RESPONDENT", "start_char": 644, "end_char": 654, "source": "ner", "metadata": {"in_sentence": "The Assistant Collector, Baran, dismissed the suit, but the Revenue Appellate Authority allowed his appeal and held that Birdhl Lal was a trespasser.", "canonical_name": "Birdhi Lal took"}}, {"text": "Birdhi Lal", "label": "RESPONDENT", "start_char": 693, "end_char": 703, "source": "ner", "metadata": {"in_sentence": "A further appeal by Birdhi Lal was dismissed by the Board of Revenue, Rajasthan.", "canonical_name": "Birdhi Lal took"}}, {"text": "Board of Revenue, Rajasthan", "label": "ORG", "start_char": 725, "end_char": 752, "source": "ner", "metadata": {"in_sentence": "A further appeal by Birdhi Lal was dismissed by the Board of Revenue, Rajasthan."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 794, "end_char": 802, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 903, "end_char": 907, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "s. 5", "label": "PROVISION", "start_char": 956, "end_char": 960, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "s. 180", "label": "PROVISION", "start_char": 1350, "end_char": 1356, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "Birdhi Lal took", "label": "RESPONDENT", "start_char": 1462, "end_char": 1477, "source": "metadata", "metadata": {"canonical_name": "Birdhi Lal took", "offset_not_found": false}}, {"text": "s. 5(44)", "label": "PROVISION", "start_char": 1605, "end_char": 1613, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 180", "label": "PROVISION", "start_char": 1880, "end_char": 1886, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan High Court", "label": "COURT", "start_char": 2160, "end_char": 2180, "source": "ner", "metadata": {"in_sentence": "Apprnl by special leave from the Judgment and Order dated 10-3-1975 of the Rajasthan High Court in D. B. Civil Writ Petition No."}}, {"text": "Ahmed Bux", "label": "PETITIONER", "start_char": 2228, "end_char": 2237, "source": "ner", "metadata": {"in_sentence": "Ahmed Bux, Beni Madhav Sharma, M/s. V. J. Francis & R. A.\n\nGupta, Advocates for the appellants."}}, {"text": "Beni Madhav Sharma", "label": "LAWYER", "start_char": 2239, "end_char": 2257, "source": "ner", "metadata": {"in_sentence": "Ahmed Bux, Beni Madhav Sharma, M/s. V. J. Francis & R. A.\n\nGupta, Advocates for the appellants."}}, {"text": "V. J. Francis", "label": "LAWYER", "start_char": 2264, "end_char": 2277, "source": "ner", "metadata": {"in_sentence": "Ahmed Bux, Beni Madhav Sharma, M/s. V. J. Francis & R. A.\n\nGupta, Advocates for the appellants."}}, {"text": "R. A.\n\nGupta", "label": "LAWYER", "start_char": 2280, "end_char": 2292, "source": "ner", "metadata": {"in_sentence": "Ahmed Bux, Beni Madhav Sharma, M/s. V. J. Francis & R. A.\n\nGupta, Advocates for the appellants."}}, {"text": "S. M. Jain", "label": "LAWYER", "start_char": 2325, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "S. M. Jain & Sushi/ Kumar Jain, Advocates for respondent No."}}, {"text": "Sushi/ Kumar Jain", "label": "LAWYER", "start_char": 2338, "end_char": 2355, "source": "ner", "metadata": {"in_sentence": "S. M. Jain & Sushi/ Kumar Jain, Advocates for respondent No."}}, {"text": "JAsWANT SINGH", "label": "JUDGE", "start_char": 2434, "end_char": 2447, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by- JAsWANT SINGH, J.-This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No.", "canonical_name": "JASWANT SINGH, JJ."}}, {"text": "Kishori Lal", "label": "PETITIONER", "start_char": 2684, "end_char": 2695, "source": "ner", "metadata": {"in_sentence": "The facts leading to this appeal are : On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector, Baran, against Birdhi Lal, respondent No.", "canonical_name": "88\n\nKISHORI LAL"}}, {"text": "Kota District", "label": "GPE", "start_char": 2935, "end_char": 2948, "source": "ner", "metadata": {"in_sentence": "513, 669 and 678 situate in \"- village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act)."}}, {"text": "sections 180 and 183", "label": "PROVISION", "start_char": 2955, "end_char": 2975, "source": "regex", "metadata": {"statute": null}}, {"text": "Rajasthan Tenancy Act, 1955", "label": "STATUTE", "start_char": 2983, "end_char": 3010, "source": "regex", "metadata": {}}, {"text": "November 9, 1963", "label": "DATE", "start_char": 3317, "end_char": 3333, "source": "ner", "metadata": {"in_sentence": "The appellant thereup-0n preferred an appeal to the Revenue Appellate Authority who allowed the , same by his judgment dated November 9, 1963, and reversing the ) juc; lgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser."}}, {"text": "High Conrt of Raiasthan", "label": "COURT", "start_char": 3858, "end_char": 3881, "source": "ner", "metadata": {"in_sentence": "Dissatisfied with the decisions of • the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Conrt of Raiasthan by means of a petition under Article 226 of t]le Constitution."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 3911, "end_char": 3922, "source": "regex", "metadata": {"linked_statute_text": "the Rajasthan Tenancy Act, 1955", "statute": "the Rajasthan Tenancy Act, 1955"}}, {"text": "March 10, 1975", "label": "DATE", "start_char": 4003, "end_char": 4017, "source": "ner", "metadata": {"in_sentence": "The High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 5 ( 43) of the Act and not a trespasser as conceived by section 5 ( 44) of the Act, was not liable to be e}, oeted from the land."}}, {"text": "section 5", "label": "PROVISION", "start_char": 4102, "end_char": 4111, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 4166, "end_char": 4175, "source": "regex", "metadata": {"statute": null}}, {"text": "Kislhori Lal", "label": "OTHER_PERSON", "start_char": 4274, "end_char": 4286, "source": "ner", "metadata": {"in_sentence": "Dissatisfied with this judgment, Kislhori Lal has come up 'rthis Court."}}, {"text": "section 5", "label": "PROVISION", "start_char": 5182, "end_char": 5191, "source": "regex", "metadata": {"statute": null}}, {"text": "Kishori Lal", "label": "PETITIONER", "start_char": 5481, "end_char": 5492, "source": "ner", "metadata": {"in_sentence": "The above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him.", "canonical_name": "88\n\nKISHORI LAL"}}, {"text": "section 180", "label": "PROVISION", "start_char": 6908, "end_char": 6919, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 7065, "end_char": 7074, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 23", "label": "PROVISION", "start_char": 7080, "end_char": 7085, "source": "regex", "metadata": {"statute": null}}, {"text": "Kishori Lal", "label": "RESPONDENT", "start_char": 7634, "end_char": 7645, "source": "ner", "metadata": {"in_sentence": "The High Court had recorded the finding, on this part of the case : \"It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the -1 'Act as aforesaid, his claim was not upheld under section 180 so that ' the suit was decreed as one under section 18~\".", "canonical_name": "88\n\nKISHORI LAL"}}, {"text": "sections 180 and 183", "label": "PROVISION", "start_char": 7652, "end_char": 7672, "source": "regex", "metadata": {"statute": null}}, {"text": "section 180", "label": "PROVISION", "start_char": 7733, "end_char": 7744, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 7789, "end_char": 7799, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_591_613_EN", "year": 1976, "text": "MUMBAI KAMGAR SABHA, BOMBAY A\n\nv. )\n\nM/S ABDULBHAI F AIZULLABHAI & ORS.\n\nMarch 10, 1976\n\n[V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.] B\n\n' Payn1ent of Bonus Act, 1965-Workers' Union-Not being a party to dispute if had locus standi-Bonus Act-If a complete code-Bonus based on custom, usage or a condition of service-If excluded by the Act.\n\nRes judicata-if applicable to industrial disputes.\n\nA considerable number of workmen were employed by a large number of small businessmen in a locality in the city. Prior to 1965, the employe1s C made cx-rtratia payment to the workers by way of bonus which they stopped from that year.\n\nA Board of Arbitrators appointed under s. lOA of the Industrial Disputes Act, to which the bonus dispute was referred, rejected the workers• demand for bonus. The dispute was eventually 'referred to an Industrial Tribunal which in limine dismissed the workers' demand as being barred by res judicata,1 in view of the decision of the Arbitration Board.\n\nThe Tribunal' in addition. held that bonus so far paid having been_ founded on tradition and custom, did not fall within the four-corners of the Bonus Act which is a complete code and came to the conclusion that the workers were not D entitled to bonus.\n\nOn appeal to this Court it was contended that (i) the appellant-Union not being a party to the dispute had no locus standi, (ii) the claim of the workmen not being profit-based bonus, which is what the Bonus Act deals with, the Act has no application to this case; and (iii) since no case of customary or contract bonus was urged before the Arbitration Board such a_ ground was barred by the general principles of res judicata.\n\nDismissing the appeal.\n\nHELD: 1 (a) In an industrial dispute the process of conflict resolution is informal, rough and ready and invites a liberal approach. Technically the union cannot be the appellant, the workmen being the real parties. 1bere is a terminological lapse in the cause title, but a reading of the petition, the description of the parties, the grounds urged and grievances aired, show that the battl~ was between the workers and the employers and the Union represented the workers.\n\nThe substance of the matter being obvious, formal def6cts fade away. [596H]\n\n(b) Procedural prescriptions are handmaids, not mistresses of justtce and failure of fair play is the spirit in which Courts must view processual deviances.\n\nPublic interest is promoted by a spacious construction of locus .standi in our socio-econornic circumstances, conceptual latitudinarianisn1 permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.\n\n[597B; DJ\n\nDhabolkar [1976] I S.C.R. 306 and Nawabgani Sugar Mills [1976] I S.C.C . 120 held inapplicable.\n\n(e) In industrial law collective bargaining, union representation at conciliations, arbitrations, adjudications and appellate and other proceedings is a welcome development and an enlightened advance in industrial life. [597GJ\n\nIn the instant case the union is an abbreviation for the totality of workmen involved in the dispute. The appeal is, therefore, an appeal by the workmen compendiously projected and impleaded through the union. [598Dl\n\nA 2(a) The demands referred by the State Govt. under s. lO(l)(d) of the\n\nInustrial Disputes Act, specifically speak of payment of bonus by the employers which had become custom or usar:e or a condition of service in the establish~\n\nments. The subject matter of the dispute referred by the Govt. dealt with bonus based on custom or condition of service. The Tribunal was bound to \\ investigate this question. The workers in their statements urged that the demand\n\nwas not based on profits or financial results of the employer but was based on y' custom.\n\n[599 D-E] B\n\n(b) The pleadings, the terms of reference and the surrounding circumstances\n\nsupport the only conclusion_that the core of the cause of action is custom and/or term of service, not sounding in or conditioned by profits. The omission to • mention the name of festival as a matter of pleading did not detract from the clain1 of customary bonus. An examination of the totality of materials leads to the inevitable result that what had been claimed by the workmen \\vas bonus based on custom and service condition, not one based on profit. [600E; 601B]\n\nMessrs. lsvahani Ltd. v. lspahani Etnployees' Union (19601 1 S.C.R. 24, Bombay Co. [19641 7 S.C.R. 477, Jardine Henderson [1962] Supp. 3 S.C.R. 382, Howrah-Am/a Light Rly. [1966] II LLJ 294, 302, Tulsidas Khimji [1962] I LLJ 435 and Ti/ak Co. A.LR. 1959 Cal. 797 referred to.\n\n(c) \\Vhen industrial jurisprudence speaks of bonus it enters the area of right and clain1 to what is due beyond strict wages.\n\nViewed from this augle prima facil' one is led to the conclusion that if the Bonus Act deals wholly and solely with profit bonus it cannot operate as a bar to a different species of claim merely because the word 'bonus' is common to both. [604G]\n\n(d) The welfare of the working classes is not only a human problem but a case where the success of the nation's economic adventures depends on the cooperation of the working classes to make a better India.\n\nAgainst such a perspective of developmental jurisprudence there is not much difficulty in recognising c-utomary bonus and contractual bonus as permissible in indnstrial law. [605BJ\n\n<I.\n\nE Churakulam Tea Estate [1969] 1 SCR 931, lspahani [1960] 1 S.C.R. 24.\n\nBombay Co. [1964] 1 S.C:R. 477. Jardine Henderson [1962] Supp. 3 S.C.R. 382, Howrah-Amta LiRht Rly. [19661 II LLJ 294. 302 and Tulsidas Khlmji [1962] I LLJ 435 referred to. \"'\n\n3(a) It is true that if the Bonus Act is a complete code and is exhaustive of the subject whatever the species of bonus, there may be a brtr to grant of bonus not covered by its provisions.\n\nBut it is quite conceivable that the codifi cation may be of everything relating to profit bonus in which case other types of bonus are left untouched. Merely calling a statute a code is not to silence the claimant for bonus under heads which have nothin, g to do with the subject matter of the code. [605D]\n\n(b) The history of the Act, the Full Bench formula, the Bonus Commission Report and the statutory milieu as also the maiuscule pattern of bonus prevalent in the Indian industrial world, converge to the point that the paramount purpose of the Act was to reRulate profit bonus. If such be the design of the statute, its scheme cannot be stretched to supersede what it never meant to touch or tackle. [607C-DJ\n\n(c) The objects and reasons of the Bonus Act indicate that the subject matter of the statute was the question of payment of bonus based on profit to employees employed in establishments. Schematically speaking, statutory bonus is profit bonus. To avoid an unduly heavy burden under different heads of bonus it is provided in s. 17 that where an employer has paid any puia bonus or other custon1ary bonus, he would be entitled tO deduct the amount of bonus so paid from the amount of bonus payable by him under the Act. If the customary bonus is thus recognised statutorily and, if in any instance it hap pened to be much higher than the bonus payable under the Act. there is no provision totally cutting off the customary bonus.\n\nThe provision for deduction\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (Krishna ly,, r, J.) 593\n\nin s. 17 on the other hand, indicates the independent existence of customary bonus althot>gh, to some extent, its quantum is adjustable towards statutory boruus.\n\nSection 34 does not mean that there cannot be contractual bonus or other species of bonus. This provision only emphasises the importance of the obligation of the employer, in every case, to pay the statutory bonus.\n\nThe other sub-sections of s. 34 also do not destroy the survival of other types of bonus than provided by the Bonus Act. The heart of the statute, pJainly read, from its object and provisions, reveals that the Act has no sweep wider than profit bonus. [607E-G; 608 B-Dl ·\n\n(d) The fact that certain types of bonus which are attended with pecularities deserving aH special treatment have been expressly saved from the bonus Act did not mean that whatever hadnot been expressly saved was by necessary implication included in the Bonus Act.\n\n[608D]\n\n( e) The long title of the Bonus Act seeks to provide for bonus to p\\!rsons employed \"in certain establislunents\" not in all establishments. Moreover,\n\ncustomary bonus does not require calculation of profits, available surplus, C because it is a payment founded on long usage and the Act gives no guidance to fix the quantum of festival bonus. It is, therefore, clear that the Bonus Act deals with only profit bonus and matters connected therewith and does not govern customary, traditional or contractual bonus.\n\n[608G--H]\n\n(f) The Bonus Act speaks and speaks as a whole code on the sole subject of profit-based bonus but is silent on and cannot therefore annihilate by implication. other distinct and different kinds of bonus such as the one oriented D on custom.\n\n[609D]\n\nG'hewar Chand's case [1969) 1 S.C.R. 366 distinguished and hcl<l inapplic-\n\n.. __.,\n\nable.\n\n(g) The principle that a nliing of a superior court is binding law is not of scriptural sanctity but is of ratio-wise luminosity \"'ithin the edifice of facts where the judicial lamp plays the legal flame.\n\nSo there is no impediment in reading (; l; cwar Chand's case as confined to profit-bonus, leaving room for nonstatutory play of customary bonus. That case relates to profit bonus under the Industrial Disputes Act. The major inarticulate premise of the statute is that it deals \\\\litb-and only withprofit-based bonus. There is no categorical provision in the Bonus .Act nullifying all other kinds of bonus, nor does such a conclusion arise by necessary implication. The core question about the policy of the Parliament that was agitated in that case turned on the availability of the Industrial Disputes Act as an independent method of claiming profit bonus de hors the Bonus Act and the Court took the view that it would be subversive of the scheme of the Act to allow an invasion from the flank in that manner.\n\nA discerning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves no doubt that the Act leaves untouched customary bonus.\n\n[609E-H; 61 ID-E]\n\n(4) So long as Pandurang stands industrial litigation is no exception to the general principle underlying the doctrine of res judicata.\n\nBut the case of Pandurang is distinguishable. In that case there was a binding award of the Industrial Tribunal relating to the claim which had not been put an end to. and so this Court took the view that so long as that a ward stood the same claim under n different guise could be subversive of the rule of res judicata.\n\nIn the present case the Arbitration Board dealt with one dispute; the Industrial\n\n1ribunal V.'ith a fresh dispute. The Board enquired into one cause of action based on profit bonus; the Tribunal was called upon to go into a different\n\nclaim.\n\n[612D-F]\n\n[The court expressed a doubt about the extension of the sophisticated doctrine of constructive res judicata to indµstrial law which is governed bv special methodology of conciliation. ad.indication and considerations of peaceful H industrial relations where collective bargaining and pragmatic justice claim !precedence over formalised rules of decision based on individual contests, specific causes of action and findings on particular issues.]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 61 of 1971.\n\nAppeal by Special Leave from the Award dated 14-7-71 of the Industrial Tribunal Maharashtra Bombay in Reference (I.T.) No. 116 of 1970.\n\nV. M. Tarkunde. P. H. Parekh, H. K. Sowani and Manju Jetley for the Appellant.\n\nG. B. Pai, Shri Narain, 0. C. Mathur and J. B. Dandachanji for Respondent Nos. 27, 68, 160, 182, 226, 265, 312, 403 522 722 and 903. ' '\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-A narration of the skeletal facts, sufficient to get a hng of the our legal. issues deba.ted a! the bar in thi~ ~PP, eal, by special leave, will help direct the discuss10n along a d1Sc1plined course, although the broader social arguµients addressed have spilled over the banks of the jural stream.\n\nNag Devi, a locality in the city of Bombay, is studded with small hardware businesses where pipes and fittings, nuts and bolts, tools and other small products, are made and/ or sold.\n\nThese establishments, well over a thousand, employ a considerable number of workmen in the neighbourhood of 5,000, although each unit has (barring four), less than the statutory minimum of 20 workmen. This heavy density of undertakings and workers naturally produced an association of employers and a Union of workmen, each recognising the other, for the necessary convenience of collective bargaining.\n\nApparently, these hardware merchants huddled together in the small area, were getting on well in their business and in their relations with their workmen, and t!1i; goodwill manifested itself in ex-gratia payments to them of small amounts for a number of years prior to 1965, when trouble began.\n\nAlthough rooted in goodness and grace, the annual repetition of these payments ripened, in the consciousness of the workers, into a sort of right-nothing surprising when , we see in our towns and tern .. pies a trek of charity-seekers claiming benevolence as of right from shop-keepers and pilgrims, especially when this kindly disposition has been kept up over long years. The compassion of yesterday crystallises as the claim of today, and legal right begins as that which is humanistically right. Anyway, the hardware merchants of Nag Devi, made of sterner stuff,_in the year 1965, abruptly declined to pay the goodwill sums of the spread-out past and the frustrated workmen frowned on this stoppage by setting up a right to bonus averring considerable profits for the Industry (if one niay conveniently use that expres· sion for a collective coverage of the conglomeration of hardware establishments). The defiant denial and the consequent dispute resulted in the appointment of a Board of Arbitrators under s. 10A of the Industrial Disputes Act to arbitrate upon twelve demands put forward by the Mumbai Kamgar Sabha, Bombay (the Union which representq the bulk of workers employed in the tiny, but \"numerous, establishments). The charter of demands included, inter alia, claim for 4\n\n) '\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (Krish11a Iyer, J.) 5 95\n\nmonths' wages as bonus for the year 1965. The arbitral board, how- A ever, rejected the demand for bonus. The respondents-establishments discontinued these payments thereafter and the Union's insistence on bonus led to conciliation efforts.\n\nThe Deputy Commissioner of Labour mediated but since his intervention did not melt the hardened mood of the employers. formal demands for payment of bonus were made by the Union and government was persuaded to refer the dispute for adjudication to an Industrial Tribunal. The Tribunal formulated B two issues as arising from the statements. of the parties and rendered his award dismissing the reference.\n\nAt this stage, it may be useful to set out the terms of reference made under s. lO(l)(d) of the Industrial Disputes Ac\\, 1947 (for short, the ID Act), for adjudication by the Tribunal : C\n\n\"!. Whether the establishments (mentioned in the annexure) have been giving bonus to their workers till 1965 ? If so, how long before 1965 have the employers been giving bonus to their workmen ? And at what rate ?\n\n2. Whether payment of bonus by the employers to their worKmen has become custom or usage or condition of service in these establishments ? If so, what should he the basis on which employers should make payment of bonus to their workmen for the years ending on any date in 1966, 1967 1968 and 1969?\n\nFollowing upon the statements of parties, the Tribunal framed two issues which ran thus :\n\n\"!. Whether Award of the Arbitration Board made in Reference (VA) No. I of 1967 and published in M.G.G. Part\n\nI-1 dated 31st October 1968, pages 4259-4286, operates as res judicata to the demands of the workmen.\n\n2. Whether the reference in respect of the demands is tenable and legal.\"\n\nHe answered the first in the affirmative and the second in the negative.\n\nThe Union, representing the workers in the mass, has assailed the\n\nfindings of the Tribunal, the reasonings he !)as adopted and the mis- G direction he has allegedly committed. The Tribunal did not enter the merits of the claim but dismissed it in limine on the score that the demand for bonus was barred by res judicata the arbitral board's decision negativing the bonus for 1965 being the basis of this holding. The second ground for reaching the same conclusion was that the Bonus Act was a comprehensive and exhaustive law dealing with the entire subject of bonus and its beneficiaries. In short, in his view, the Bonus R Act was a complete Code and no species of bonus could survive outside the contours of that statute. Admittedly, here the claim for bonus for the relevant four years was founded on tradition or custom or\n\nSUPREME COURT REPORTS_ .\n\n[1976] 3 S.~.R. - - A condition of service and in that light, the Tribunal made short shrift of the workmen's plea in these words :\n\n\"In my opinion, the demand pertaining to the practice or custom prevailing in the establishments before 1965 is not such a matter as has to be adjudicated and it also does not fall under the provisions of Bonus Act. I, therefore, find that the reference in that.respect also is not tenable and legal.\"\n\nThe submissions of counsel may be itemised into four contentions which may be considered seriatim. They are :\n\n(a) Was the Industrial Tribunal competent to entertain the\n\n.,, dispute at all 1 . . _\n\n(b) Was the claim for bonus for the years 1966-69 barred by res judicata 1\n\n(c) Was there. apart from profit-baed bonus, customary bonus ___,,··. _; or bonus as a condition of service ? \\_\n\n(d) If answer to (c) is in favour of the workmen, does the Bonus Act interdict snch a demiind since it does not provide for those categories of bonus and confines itself to profit-based bonus, or does the Bonus Act spea!< on the topic of bonus . of all species and, therefore, stands four square between a claim for bonus and its grant, unless it finds statutory ex- . pression in the provisions of that Act ? ·\n\nThe first contention which, curiously enough, ha' appealed to the Industrial Tribunal, need :iot be investigated as it is devoid of merit and has rightly been given up by .counsel for the respondent. A . casual perusal of the provisions bearing on the jurisdiction of the Labour Court and the Industrial Tribunal as well as the relevant schedules will convince anyone that this industrial dispute comes within the wider ambit of the Industrial Tribunal's powers. It is unfortunate that the Tribunal has made. this palpable error. It is right to give plausible reasons for one's verdict and not mar it by bad, perfunctory supp! ementaries.\n\nFairness to respondent's counsel constrains us to consider in limine a fiawsome plea forcibly urged that .the Union figured as the appellant before _us but being no party to the dispµte (which was between the workers on the one hand and the establishments on the other) had no locus standi. No right of the Union qua Union .was involved and the real disputants were the workers. Surely, there is terminological - lapse in the cause-title because, in fact, the aggrieved appellants are the workers collectively, not the Union. But a bare reading of the petition, _the description of parties, the grounds urged and grievances aired, leave us in no doubt that the battle is between the workers and employers and the Union represents. as a collective noun, as it were, the numerous humans whose presence is indubitable in the contest, though formally invisible on the party array. The substance of the\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (K; ishna_Iyer, J.) 5 97\n\nmatter is obvious and formal defects. in such circumstances, fade away.\n\nA We are not dealing with a civil litigation governed by the Civil Procedure Code but w.ith an industrial diSpute where the process of conflict resolution is informal, rough-and-ready and invites a liberal approach.\n\nProcedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the SEirit in which Courts must view processual deviances.\n\nOur adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay B and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a party.\n\nWher<:>foul play is absent, and fairness is not faulted, latitude is a grace of processual justice.\n\nTest litigations, representative actions, . pro bona publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and C a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance onperipheral procedural short-comings. Even Art. 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as disti.[Iguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our\n\nD- . socio-economic circumstances and conceptual latitudinarianis.m permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law. Therefore, the decisions cited before us founded on the jurisdiction under Art. 226 are inept and themselves somewhat out of tune with the modem requirements of E jurisprudence calculated to benefit the community. Two rulings of this Court more or less endorse this general approach : Dhabolkar(1 ) and Newabganj Sugar Mills(').\n\nAll. this apart, we are dealing with an industrial dispute which, in some respects, lends itself to more informality especially in the matter of Union representation. Technically, the Union cannot be the appellant, the workmen being the real parties. But the infelicity of drafting notwithstanding, the Union's role as merely representing the workers is made clear in the description of the parties. Learned counsel took\n\nus through s. 36(1) and (4) of the Act, rr. 29 and 36 of the Central Rules under that Act, s. 15 (2) of the Payment of Wages Act and some rulings throwing dim light on . the rule regarding representation in G industrial litigation. We deem it needless to go deeper into this question, for in industrial law, collective bargaining. union representation at conciliations, arbitrations, adjudications and appellate and otber proceedings is a welcome development and an enlightened advance in industrial life .\n\nOrganised labour, inevitably involves unionisation.· Welfare of. H workers being a primary .concern of our Coustitution (Part IV), we\n\n(1) [1976] l S.C.R; 306.\n\n(2) (1976) 1 S.C.C. 120.\n\nhave to understand and interpret the new norms of procedure at the pre-litigative and litigative stages, conceptually recognising the representative capacity of labour unions.\n\nOf course, complications may arise where inter-union rivalries and kilkenny cat competitions impair the peace and solidarity of the working class. It is admitted, in this case, that there is only one, union and .so we are not cqlled upon to visualize the difficult situations counsel for the respondents invited us to do, where a plurality of unions pollute workers' unity and create situations calling for investigation mto the representative credentials of the party appearing before the Tribunal or court. It is enough, on the facts of this case, for us to take the Union as an abbreviation for the totality of workmen involved in the dispute, a convenient label which, for reasons of expediency, converts a lengthy party array into a short and meaningful one, group representation through unions being familiar in collective bargaining and later litigation. We do not expect the rigid insistence on each workman having to be a party eo nomine.\n\nThe whole body of workers, without their names being set out, is, in any case, sufficient, according to the counsel for the respondents, although strictly speaking, even there an amount of vagueness exists.\n\nFor these reasons, we decline to frustrate this appeal by acceptance of a subversive technicality.\n\nWe regard this appeal as one by the workmen compendiously projected and impleaded through the Union.\n\nNext we come upon the plea of.res judicata, as a roadblock in the way of the appellant. But we will deal with it last, as was done by counsel, and so straight to the piece de resistance of this !is. Points\n\n(b) and (c) bearing on bonus therefore claim our first attention and, in a sense, are integrated and amenable to common discussion.\n\nShri G. B. Pai, appearing for the respondents, contended that the claim put forward by the appellant before the Tribunal was, on the face of it, unsustainable on the short ground that what . was pleaded was profit-based bonus only and, therefore, fell squarely within the Bonus Act. That Act being a complete Code, it expressly excluded by s. 1 (3) all establishments employing less than 20 workmen and all but four of the respondents were admittedly such small undertakings, with the result that the death knell to the plea of bonus was tolled by the Act itself.\n\nT):ierefore, the conclusion . was irresistible,\n\n- argued counsel for the respondents, that the plea for a profit-based bonus, being negatived by the-statute, stands self-condemned.\n\nThis argument drives us into an enquiry as to whether the claim before the Tribunal was for profit-based bonus. \"Yes'', was his holding and so he said 'no' to the workmen. The answer is the same, if the claim is founded on a similar bs.is.\n\nShri Tarkunde, for the appellant, countered this seemingly fatal submission by urging that whatever might have been the - species of bonus demanded in 1965, the present dispute referred by the State Government related to a totally different type of bonus, namely, customary bonus or one which was a term of the employment itself. Even\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (Krishna Iyer, !.) 599\n\nif this be true, Shri G. B. Pai has his case that the Bonus Act is allcomprehensive and no kind of bonus can gain legal recognition if it falls outside the sweep and scope of the Bonus Act itself.\n\nNo brand of bonus has life left if it does not find a place in the oxygen tent of the complete Code called the Bonus Act.\n\nWhat thus first falls for our examination is the reference by the\n\nState Government to the Tribunal, the pleading of the workmen before B the Tribunal and the counter statement by the employers before the Tribunal with a view to ascertain the character of the bonus demanded by the workers and covered by the dispute. It must be remembered that the award has rejected the claim not substantively but on the ground of two legal bars and care must be taken not to mix up maintainability with merits.\n\nA short cut is a wrong cut often times and the Tribunal's easy recourse to dismissal on preliminary grounds may well C lead-and it has, as will be presently perceived-to a re-opening of the case many years later if the higher Court reverses the legal findings.\n\nBe that as it may, let us test the validity of the plea that only a profitbased bonus has been claimed by the workers.\n\nThe demands referred by the State Government under s. 10(1) (d) specifiaclly speak of payment of bonus by the employers which 'has D become custom or usage or a condition of service in the establishments'. The subsidiary or rather consequential point covered by the reference is 'if so, what shonld be the basis on which employers should make payment of bonus to their workmen for the years ... '.\n\nIt is plain that the subject matter of the dispute, as referred by the Government, deals with bonus based on custom or condition of service. The Tribunal is therefore bound to investigate this question, the terms of E refereace being the operational basis of its jurisdiction.\n\nThe workmen, in their statement, have asserted that bonus had been paid for several years and what transpired at the conciliation stages is clear from the letter of the Commissioner of Labour who adverts to the 'usual' custom and practice of payment of bonus'.\n\nThe colour of the workers' claim has been clarified further in paragraphs F 10 to 12 of their statement before the Tribunal.\n\nWhile they do mention that the hardware merchants of Nag Devi have been making large profits during the years in question and, therefore, can afford to pay bonus according to the standards and criteria applicable to large and prosperous industrial establishments, the real foundation of their claim is set out in indubitable language as attributable to 'custom, usage and condition of service'.\n\nSnrely, they have no case of bonus dependent G upon the quantum of profits of the establishments nor uniformity region-wise. On the other han~, the amount of bonus, the time of payment, etc., vary from estabhshment to esab!1shm.ent. The c'.'nstant factor, however, is allegedly that there 1s consistency, predictability and uniformity', continuity and payment 'without reference t? the fluctuations in the financial performance and. profits of. eac)l firm .\n\nThe Sabha does not mince words when, in praymg for relief, 1t stas H that the Tribunal 'be pleased to restore the custom, sage and conditions of service represented by the payment of bonus I~ these firms. In short, the bedrock of the bonus claim of the workers 1s custom and\n\nusage and/or implied condition of service. Nor have the establishments, who are the respondents before the Tribunal and before us, made any mistake about the nature of the demand.\n\nIn their statement before the Tribunal they have urged that a scrutiny of the accounts of the firms is unnecessary 'since the demand is not based on the profits or the financial results of the employers but is based on custom':\n\n\"The contentions of the Sabha that the conditions oi service under all these employers should be governed by one standard and one criteria is, not tenable. Since all the shops are not owned by one person and since every shop is a different entity there is no question of uniformity of service conditions.\n\nMoreover, there is no law which lays down that the service conditions of the employees under all these employers should be uniform. It is submitted that the reference to the capital-turnover ratio in this paragraph is irrelevant. It is also submitted that the Sabha's demand that a sample scrutiny of the Accounts of the firms should be made by the Tribunal is irrelevant in this respect since the demand is not based on the profits or the financial results of the employers but is based on custom.\"\n\nMore over the ex gratia payments for the pre-Bonus Act period are admitted by the respondents.\n\nThey seek sanctuary on the counterplea that free acts of grace, even if repeated, can neither amount to a custom, usage or condition of service.\n\nIn sum, a study of the pleadings, the terms of reference and the surrounding circumstances supports the only conclusion that, peripheral reference to the profits of the establishments notwithstanding, the core of the cause of action or the kernel of the claim for bonus is custom and/ or term of service, not sounding in or conditioned by profits.\n\nShri G. B. Pai did urge that the precedents of this Court have linked custom-based bonus with some festival or other and that bonus founded on custom de hors some festival is virtually unknown to caselaw on the point.\n\nFrom this he argues that since the bonus has not been related by reference to any festival by the workmen in their pleadings (reference to Diwali as the relevant festival in the statement of the case in this Court is an ingenious innovation to fit into the judge-made law according to Shri Pai) the claim must fail.\n\nLegal life is breathed into customary bonus only by nexus with Puja or other festival.\n\nWe are unable to agree with this rather meretricious submission.\n\nSurely, communal festivals are occasions of rejoicing and spending a.nd employers make bonus payments to employees to help them meet the extra expenses their families have to inc11r.\n\nOurs is a festival-ridden society with many religions contributing to their plurality.\n\nThat is why our primitive practice of linking payment of bonus with some distinctive festival has sprouted.\n\nAs we progress on the secular road, maybe the Republic Day or the Independence Day or the Founder's Day may well become the occasion for customary bonus. The crucial question is not whether there is a festival which buckles the bonus and the custom.\n\nWhat is legally telling is whether by an unbroken flow\n\n• ,\n\n\\ r\n\nMUMBAI KAMGAR SABHA v. ABDUL BHAJ (Krishna Tyer, !.) 601\n\nof annual payments a custom or usage has flowered, so that a right to A bonus based thereon can be predicated.\n\nThe custom itself precipitates from and is proved by the periodic payments induced by the sentiment of the pleasing occasion, creating a mutual consciousness, after a ripening passage of time, of an obligation to pay and a legitimate expectation to receive.\n\nWe are, therefore, satisfied that the omission to mention the name of a festival, as a matter of pleading, does not detract from the claim of customary bonus. The impact of B this omission on proof of such custom is a different matter with which we are not concerned at this stage since the Tribunal has not yet enquired. into the merits.\n\nShri Pai urged that the custom, even if true, stood broken in 1965 and, therefore, during the post-1965 period, customary bonus stood extinguished.\n\nThe effect of the arbitral board's negation of the c profit-based bonus claim in 1965 on custom-based bonus for the subsequent period is again relevant, if at all, as evidence, which falls outside our consideration at present.\n\nIn the event of the Tribunal having to adjudicate upon the question, maybe this rather anaemic circumstance will be urged by the employer and explained by the employees.\n\nThere is hardly any doubt that custom has been recognised in the past as. a source of the right to bonus as the several decisions cited before us by Shri Tarkunde make out ands. 17(a) of the Bonus Act, in a way, recognizes such a root of title. Jn Churakulam Tea Estate(') this Court surveyed the relevant case law at some length. lspahani( 2 ) implied as a term of the contract the payment of bonus from an unbroken, long spell.\n\nVaidialingam J., in Churakulam(') referring to some of the precedents, observed :\n\n\"In lspahani's case(') this Court had to consider a claim for Puja bonus, in Bengal, and the essential ingredients, for sustaining such a claim when it is based on an implied agreement.\n\nAfter stating that the claim, for Puja Bonus, can be b, ased either as a matter of implied agreement between the employers and employees, creating a term of employment for payment of Puja bonus, or that even where no implied agreement can be inferred, it may be payable as a customary bonus, this Court, in the said decision, specifically dealt with a claim for payment of bonus as an implied condition of services.\n\nThis Court further accepted as correct the tests laid down by the Appellate Tribunal in Mahalaxmi Cotton Mills Ltd., Calcutta v. Mahalaxmi Cotton Mills Workers' Union (1952 L.A.C. 370) for inferring that there is an impl; cd agreement for grant of such bonus.\n\nThe three circumstances, laid down by the Appellate Tribunal, were : (I) that the payment must be unbroken: (2) that it must be for a sufficiently long period; and (3) that the circumstances, in which payment was made should be such as to exclude that it was paid out of bounty .....\n\n\nThis Court, again, had to consider the essential ingredients to be establtshed when payment of bonus as customary or traditional, is claimed-again related t~ a festival-in The Graham Trading Co. (India) Ltd. v. Its Workmen (1960 1 SCR 107, 111) and dealt with the question as follows :\n\n\"In dealing with puja bonus based on an implied term of employment, it was pointed out by us in Messrs.\n\nIspahani Ltd. v. lspahani Employees' Union that a term may be implied, even though the payment may not have been at a uniform rate throughout and the Industrial Tribunal woul<l be justified in deciding what should be the quantum of payment in a particular year taking into account the varying payments made in previous years.\n\nBut when the question of customary and traditional bonus arises for adjudication, the considerations may be somewhat different.\n\nIn such a case, the Tribunal will have to consider: (i) whether the payment has been over an unbroken series of years; (ii) whether it has been for a sufficiently long period though the length of the period might depend on the circumstances of each case; even so the period may normally have to be longer to justify an inference of traditional and customary puja bonus than may oo the case with puja bonus based on an implied term of employment; (iii) the circumstance that the payment depended npon the earning of profits would have to be excluded and therefore it must be shown that payment was made in years of loss.\n\nIn dealing with the question of custom, the fact that the payment was called ex gratii. by the employer when it was made, would, however, make no difference in this regard because the proof of custom depends upon the effect of the relevant factors enumerated by us; and it would not be materially affected by unilateral declarations of one party when the said declarations are inconsistent with the course of conduct adopted by it; and (iv) the payment must have been at a uniform rate throughout to justify an inference that the payment at such and such rate had become customary and traditional in the particular concern.\n\nIt will be seen that these tests are in substance more stringent than the tests applied for proof of puja bonus as an implied term of employment.\n\nIt will be seen from the above extract that an additional circumstance has also been insisted upon, in the case of customary or traditional bonus, that the payment must have been at a uniform rate throughout to justify an inference that the payment at such and such a rate had become customary and traditional in the particular concero.\"\n\n(pp. 936-937)\n\n/ ..\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (Krishna Iyer, J.) 60 3\n\nIn Bombay Co. (1) this Court, after pointing out the distinction in the ingredients of customary and contractual bonus, affirmed the .existence of categories like customary bonus which are different from and unconnected with profit-based bonus.\n\nThe learned Judge discussed Jardine Henderson(') and other rulings, but the judicial chorus of legally claimable customary or contractual bonus is not marred by .any discordant note.\n\nIt may be otiose to refer to holdings of High Courts when this Court has laid down the law.\n\nEven so, two decisions, one of Patna and the other of Calcutta, deserve mention.\n\nOne of us, (Untwalia J., as he then was) speaking for the Division Bench, observed in Howrah-Amta Light Rly. ( 3 ) thus :\n\n\"Apart from the profit bonus, the sense of social justice has led to the recognition in law of the right of the workmen to get other kinds of bonus which do not depend upon nor are necessarily connected with the earnings of profits by the industrial concern.\n\nOne such kind of bonus is that which is paid on the occasion of special festival well celebrated in particular parts of India, as for example, puja bonus in Bengal and Divali bonus in Western India.\"\n\nThe Court, referring to Tulsi<las Khim ji (' J, restated the tests for the claim of customary bonus and rightly held that these tests are but circumstances and not conditions precedent, that it is not necessary to 'Show that such bonus has been paid even in years of loss.\n\nThe grounds to be made out for customary, as distinguished from cvn- 1ractual, bonus overlap in many respects but differ in some aspects.\n\nP. B. Mukherji, J as he then was, in Ti/ak Co. Cl observed :\n\n\"Akin to this conception of bonus is the case of a bonus annexed to the employment by custom or social practices such as Customary bonus and Puja or Festivity bonus.\n\nIn case of such customary and traditional bonus, the question\n\nof profit may or may not arise at all and such customary and F traditional bonus will depend on the content and terms of that custom or the tradition on which the claim for bonus is made.\n\n\"Each claim for bonus must depend on the facts of such claim.\n\nNo doctrinaire view about bonus is possible or desirable.\n\nThis much however is judicially settled that bonus is not deferred wages.\n\nJt is a narrow and static view that considers bonus as always an ex gratia payment or a glorified tip or 'Bakshish' or a mere cash patronage payable at the pleasure of the employer.\n\nIn the industrial jurisprudence of a modern economic society, it is a legal claim and a legal category, whose potentialities are not as yet fully conceived, but whose types and boundaries the Courts in\n\n\n(2) [1962] Supp. 3 S.C.R. 382.\n\n(J) [(1966] [[ LLJ 295, 302.\n\n(4) [1962] I LLJ 435.\n\n(5) AIR. 1959 Col. 797 .\n\nA India are struggling to formulate. It is a vital instrument of industrial peace and progress, dynamic in its implication and operation.\"\n\nSince we are not called upon to investigate the veracity of the claim we stop with stating that the employers' awareness of social justice, which fertilises the right of his employees for bonus, blooms in many B ways of which, profit-hascd honus is but one--not the only one. AU this is the indirect bonanza of Part IV of the Constitution which bespeaks the conscience of the nation, including the community of employers.\n\nLaw is not petrified by the past, but responds to the call of the changing times.\n\nSo too the social consciousness of employers.\n\nOf course, Labour has its legal-moral duty to the community of a disciplined contribution to the health and wealth of the Industry.\n\nLaw C is not always an organiser of one-way traffic.\n\nThis general survey of the case-law conclusively makes out that Labour's claim for bonus is not inflexibly and solely pegged to profit as the one and only right.\n\nBonus is a word of many generous connotations and, in the Lord's mansion there arc many houses.\n\nThere is profit-based bonus which is one specific kind of claim and perhaps the D most common.\n\nThere is customary or traditional bonus which has its emergence from long, continued, usage leading to a promissoryand-exceptancy situation materialising in a right.\n\nThere is attendance bonus, production bonus and what not.\n\nAn examination of the totality of pertinent materials drives us to the inevitable result that what has been claimed by the workmen in the present case is bonus based on custom and service condition-not one based on profit.\n\nBut the E critical question pops up : Is the Bonus Act a killer of every other kind of bonus not provided for by it ?\n\nWe have thus to move on to a study of the scheme of the Bonus Act in order to ascertain whether it extinguishes claims founded on customary bonus or contractual bonus.\n\nIn one sense, a bonus may be a mere gift or gratuity as a gesture of goodwill or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition is fulfilled.\n\nAny extra consideration given for what is received, or something given in addition to what is ordinarily received by, or strictly due to the recipient is a bonus (Black's Legal Dictioncry).\n\nBut when industrial jurisprudence speaks of 'bonus', it enters the area of right and claim to what is due beyond strict wages.\n\nViewed from this angle, prima facie one is led to the conelusion that if the Bonus Act deals wholly and solely with profit bonus, it cannot operate as a bar to a different species of claim merely because the word bonus is common to both.\n\nOf course, if the statute has spoken so comprehensively, as it can, effect n1ust be given to it.\n\nThe cosmos of bonus is expanding as working class contcntn1cnt and prosperity become integral components of industrial peace and progress.\n\nThe bone of contention between the parties before us is as to whether the Bonus Act is the alpha and omega of all extra claims, outside wages and salaries, labelled bonus with separate adjectives\n\n.·\":\n\n) ..\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (Krishna Iyer, J.) 605\n\ndemarcating the identity of each species.\n\nBut this issue has to be A >ized up not in vacuo but against the backdrop of the progressive .change around us.\n\nToday it is accepted doctrine that Labour is the backbone of the Jiation, particularly in the area of economic self-reliance.\n\nThis means the welfare of the working classes is not only a human problem but a <:ase where the success of the nation's economic adventures depends B on the cooperation of the working classes to make a better India.\n\nIndeed, on the national agenda is the question of Labour participation in Management.\n\nAgainst such a perspective of developmental jurisprudence there is not much difficulty in recognising customary bonus and contractual bonus as permissible in Industrial Law, given proper averments and sufficient proof.\n\nShri G. B. Pai bas raised what he regards as a lethal infirmity in C the claim of the Sabha. In his submission the Bonus Act is a complete Code and what is not covered by its provisions cannot be awarded by the Tribunal. It is true that if the Bonus Act is a complete Code and is exhaustive of the subject, whatever the species of bonus, ihere may be a bar, but it is quite conceivable thatthe codification may be of everything relating to profit bonus in which case other types of bonus arc left untouched.\n\nMerely calling a statute a Code is not D to silence the claimant for bonus under heads which have nothing to do with the subject matter of the Code.\n\nOn listening to the intricate argument about implicit codification of the law of bonus by this AcL one is reminded of Professor Gilmore who put the case against codification thus : (')\n\n\"The law, codified, has proved to be quite as unstable, E unpredictable, and uncertain-quite as mulishly unrulyas the common law, uncodified, had ever been.\n\nThe rules of law, purified, have remained the exclusive preserve of the lawyers; the people are still very much in our toils and clutches as they ever were-if not more so.\"\n\nThe argument of the Bonus Act being an all-inclusive Code :i,, base< I on the anatomy of the Act and the ruling in Ghewar Chand(').\n\nSo the judicial task is to ascertain the history and object of the Act. the relevant surrounding circumstances leading up to it, its scheme and the prohibitions, exclusions, exemptions and savings v.ihich reveal the intent and ambit of the enactment.\n\nLong ago, Plowden, with sibylline instinct, pointed out that the best way to construe the scope of an Act of Parliament is not to stop with the words of the sections. 'Every law consists of two parts viz., of body and soul.\n\nThe letter of the law is the body of the law, and the sense and reason of the law is the soul of the law'.\n\nThe 'social conscience' of the judge hesitates to deprive the working class, for whom Part IV of the Constitution has shown concern, of such rights as they currently enjoy by mere implication from a statute unless there are compulsive provisions constraining the court to the conclusion.\n\nFrom this perspective, let us\n\n(I) Aspects of Con1parative Commercial Law, 1969 Edn. Siegel & Foster at pp.\n\n449-450-Mod. Law Rev. 1975 Jany Part P. 30.\n\n(2) [1969] l S.C.R. 366\n\nA examine exclusionary contention based on the body and soul of the Bonus Act. If the Bonus Act is a complete Code, on a true decoding of its scheme and spirit, the industrial Court cannot take off the ground with any other forms of bonus-yes, that is the implication of a complete Code'.\n\nBonus has varying conceptual contents in different branches of B law and life.\n\nWe are here concerned with its range of meanings in industrial law but, as expatiated earlier, there is enough legal room for plural patterns of bonus, going by lexicographic or judicial learning. It implies no disrespect to legal dictionaries if we say that precedents notwithstanding, the critical word 'bonus' is so multiform that the judges have further to refine it and contextually define it. Humpty Dumpty's famous. words in 'Through the Looking Glass'-'Whelll I use C a word . . . it means just what I choose it to mean . . . neither more nor less'-is an exaggerated cynicism.\n\nWe have to bring in some legal philosophy into this linguistic problem as it incidentally involves doctrinal issues where the Constitution is not altogether non-aligned.\n\nStatutory interpretation, in the creative Indian context, may look for light to the lodestar of Part IV of the Constitution e.g., Arts. 39(a) and (c) and Art. 43.\n\nWhere two judicial choices are available, the D construction in conformity with the social philosophy of Part IV has preference.\n\nIn !a/an Trading Co.(') Shah J. (as he then was) gave a synopsis of the development of the branch of industrial law relating to bonus from the days of the First World War to the Report of the Bonus Commission culminating in the Bonus Act, 1965.\n\nThe story of 'war E bonus', the Full Bench formula and this Court's view that 'bonus is not a gratuitous payment made by the employer to his workmen, nor a deferred wage, and that where wages fall short of the living standard and the industry makes profit part of which is due to the contribution of labour, a claim for bonus may be legitimately made by the workmen' are set out in that decision.\n\nThe Full Bench formula was based on profits and the terms of reference to the Commission put profit in F the forefront as the foundation of the Scheme-'to define the concept of bonus, to consider in relation to industrial employments the question of payment of bonus based on profits and to recommend principles for computation of such bonus aud methods of payment ... '.\n\nA glance at the various Chapters of the Report brings home the point that bonus based on profits is its central theme.\n\nThe conclusions and recommendations revolve round the concept of profit bonus.\n\nLittle argu- G ment is needed to hold that the bonus formula suggested by the Commission was profit-oriented.\n\nIndeed, that was its only concern.\n\nThe Act, substantially modelled on these proposals, has adopted a blueprint essentially worked out on profit.\n\nThe presiding idea being a simplified version of bonus linked to profits over a period, shedding the complex calculations in the Full Bench Formula, the statute did not cover other independent species like customary or contractual H bonus which had become an economic reality and received judicial recognition.\n\nThere were marginal references to and accommodation\n\n(1) [1967] I S.C.R. 15.\n\n• ,\n\nr /\n\nMUMBAI KAMGAR SABHA v. ABDUL BHAJ (Krishna Iyer, J.) 60 7\n\nof other brands of bonus but they were for better effectuating the spirit A and subtance of profit-based bonus.\n\nThe question then is : Was the Bonus Act only a simpler reincarnation of the Full Bench formula, as argued by Sri Tarkunde, or was it, going by the provisions and precedents, a full codification of multiform bonuses, thus giving a knock-down blow to any customary but illegitimate demand for bonus falling outside the statute, as contended by Sri Pai ? Indeed, we were taken through the well-known categories of bonus vis a vis the statutory provisions with impressive and knowledgeable thoroughness by Shri Pai with a view to strengthen his perspective that the Act encompassed the whole law and left nothing outside its scope.\n\nTo begin with, the history of the Act, the Full Bench formula which was its judicial ancestor, the Commission Report which was its irnrnediate progenitor and the statutory milieu as also the majuscule pattern of bonus prevalent in the Indian industrial world, converge to the point that the paramount purpose of the Payment of Bonus Act was to regulate profit bonus, with incidental incursions into other allied claims like customary or attendance bonus. If such be the design of the statute, its scheme cannot be stretched to supersede what it never meant to touch or tackle .\n\nThe objects and reasons of the Bonus Act indicate that the subject matter of the statute is 'the question of payment of bonus based on profit to employees employed in establishments'.\n\nThe Report of the Commission is also referred to in the objects and reasons and the tenor E is the same.\n\nThe long title of the Act is non-committal, but the concept of 'profit' as the basis for bonus oozes through the various provisions.\n\nFor instance, the idea of accounting year, gross profit and the computation thereof, the methodology of arriving at the available surplus and the items deductible from gross profits, have intimate relevance to profit bonus-and may even be irrelevant to customary or traditional bonus or contractual bonus.\n\nSimilarly, the provision for F set on and set off of allocable surplus and the like are pertinent to profit-based bonus.\n\nSchematically speaking, statutory bonus is profit bonus.\n\nNevertheless, there is provision for avoidance of unduly heavy burden under different heads of bonus.\n\nFor this reason it is provided in s. 17 that where an employer has paid any puja bonus or other customary bonus, he will be entitled to deduct the amount of bonus so paid from the amount of bonus payable by him nnder the Act.\n\nOf G course, if the customary bonus is thus recognised statutorily and, if in any instance it happens to be much higher than the bonus payable under the Act, there is no provision totally cutting off the customary bonns.\n\nThe provision for deduction in s. 17, on the other hand, indicates the independent existence of customary bonus although, to some extent, its quantum is adjustable towards statutory bonus.\n\nAgain, s. 34 provides for giving affect to the Bonus Act thus : H\n\n\"Notwithstanding anything inconsistent therewith contained in any other law . . . or in the terms of any award,\n\nA agreement, settlement or contract of service made before\n\n29th May, 1965\".\n\nThis does not mean that there cannot be contractual bonus or other species of bonus.\n\nThis provision only emphasises the importance of the obligation of the employer, in every case, to pay the statutory bonus.\n\nThe other sub-sections of s. 34 also do not destrov the survival of other types of bonus than provided by the Bonus -Act.\n\nShri G. B. Pai used the provisions of the Coal Mines Provident Fund and Bonus Scheme Act, 1948, referred to in s. 35 of the Bonus Act, for the purpose of making good his thesis that the Bonus Act has comprehensive coverage except where it expressly saves any other scheme of bonus.\n\nOur understanding of s. 35 is different.\n\nCoal mines are extremely hazardous undertakings and they are largely located in agrarian areas where the agricultural workers absent themselves for long periods to attend to agricultural work and do not report themselves for mining work.\n\nCoal mines have many peculiarities and the workmen employed there have to be treated separately from the point of view of incentive for attendance.\n\nTherefore, attendance bonus for a miner is a separate subject attended with peculiarities deserving of special treatment and bas been expressly saved from the Bonus Act.\n\nThis does not mean that whatever bas not been expressly sa vcd is, by necessary implication, included in the Bonus Act.\n\nOf course, there are provisions for exemptions and exclusions in the Bonus Act itself, particularly, vis-a-vis small establishments and public sector undertakings.\n\nThere is also marginal reference ins. 2(21) to s. 2(21) (iv) to other kinds of bonus, including incentive, production and attendance bonus. The heart of the statute, painly read from its object and provisions, reveals that Act bas no sweep wider than profit bonus.\n\nThere was reference to the payment of Bonus (Amendment) Ordinance, 1975 by counsel on both sides.\n\nWe find that the long title has been expanded and now covers bonus\n\n\"on the basis of profit or on the basis of production or productivity\".\n\nThis amendment itself implies that formerly a narrower species of bonus, namely, that based on profit had alone been dealt with.\n\nThe limits on contraetnal bonus also tends to feed our conclusions. The implications of the ceiling set by the recent amendment to the law falls outside our scope and we keep away from determining it. Sufficient unto the day is the evil thereof.\n\nIt is clear further from the long title of the Bonus Act of 1965 that it seeks to provide for bonus to persons employed 'in certain establishments'-not in all establishments.\n\nMoreover, customary bonus does not require calculation of profits, available surplus, because it is a payment founded on long nsage and justified often by spending on festivals and the Act gives no gnidance to fix the quantum of festival bonus; nor does it expressly wish such a usage.\n\nThe conclusion seems to be fairly clear, unless we strain judicial sympathy contrarywise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contraetnal bonus.\n\nMUMBAI KAMGAR SABHA v. ABDUL BHAI (Krishna Iyer,!.) 609\n\nThe end product of our study of the anatomy and other related factors is that the Bonus Act spreads the canvas wide to exhaust profit-based bonus but beyond its frontiers is not void but other cousin claims bearing the caste name 'bonus' flourish-miniatures of other . colours!\n\nThe Act is neither proscriptive nor predicative of other existences.\n\nThe trump card of Sri G. B. Pai is the ruling in Ghewar Chand.(') B If the ratio there is understood the way Shri Pai would have it the workmen have no case to present.\n\nFor, establishments employing less than 20 workers are excluded from the benignant campus of the Act and the appellants fall outside the grace of the statute for that reason alone.\n\nDoes the decision exhaust the branch of jurisprudence on every kind of bonus or merely lays down that profit-based bonus-the most fOmmon one and complicated in working out on the mathematics C -0f the full Bench Formula-has been picked out for total statutory treatment and for that pattern of bonus the Act operates as a complete Code?\n\nThe Tribunal understood the former way and followed\n\n~ it up with a rejection, on the ground of a legal bar, of the admittedly non-profit-based claim for bonus.\n\nShri Tarkunde argues the reasoning to be a misunderstanding of the meaning of the ruling.\n\nWe hold that the Bonus Act speaks, and speaks as a whole Code, on the sole subject D -0f profit-based bonus but is silent on, and cannot therefore annihilate • by implication, otlier distinct and different kinds of bonus such as the one oriented on custom.\n\nWe confess that the gravitational pull on judicial construction of Part IV of the Constitution has, to some extent, influenced our choice.\n\nIt is trite, going by Anglophonic principles, that a ruling of a E superior court is binding law.\n\nIt is not of scriptural sanctity but is an -0f ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame.\n\nBeyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry; regardless of varying circumstances and myriad developments.\n\nRealism dictates that a judgment has to be read, subject to the facts directly presented for F consideration and not affecting those matters which may lurk in the record.\n\nWhatever be the position of subordinate courts' casual observations, generalisations and sub silentio determinations must be judiciously read by courts of coordinate jurisdiction and, so viewed, we are able to discern no impediment in reading Ghewar Chand(') as confined to profit-bonus, leaving room for non-statutory play of customary bonus.\n\nThe case dealt with a bonus claim by two sets of w01:k- G men, based on profit of the business but the workmen fell outside the ambit of the legislation by express exclusion or exemption. Nothing relating to any other type of bonus arose and cannot be impliedly held to have been decided.\n\nThe governing principle we have to appreciate as a key to the understanding of Ghewar Chand(') is that it relates to a case of profit bonus urged under the Industrial Disputes Act by two sets of workmen, employed by establishments H which are either excluded or exempted from the Bonus Act.\n\nThe major inarticulate premise of the statute is that it deals with-and only\n\n\nwith-profit-based bonus as has been explained at some length earlier.\n\nThere is no categorical provision in the Bonus Act nullifying all other kinds of bonus, nor does such a conclusion arise by necessary implication.\n\nThe ruling undoubtedly lays down the law thus :\n\n\"Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is not possible to accept the construction snggested on behalf of the respondents that the Act is not an exhaustiv.: Act dealing comprehensively with the subject-matter cf bonus in all its aspects or that Parliament still left it open to those to whom the Act does riot apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through industrial adjudication under the Industrial Disputes Act or other corresponding law.\"\n\nBut this statement, contextually construed, means that profit-bonus not founded on the provisions of the Bonus Act and by resort to an adventure in industrial dispute under the Industrial Disputes Act is no longer permissible.\n\nWhen Parliament has expressly excluded or exempted certain categories from the Bonus Act, they are bowled out so far as profit-based bonus is concerned.\n\nYou cannot resurrect profit-bonus by a back-door method, viz. resort to the machinery of the Industrial Disputes Act.\n\nThe pertinence of the following observations of Shela! J., becomes self-evident, understood in this setting :\n\n\"We are not impressed by the argument that Parliament in excluding such petty establishments could not have intended that employees therein who were getting bonus under the full Bench formula should lose that benefit.\n\nAs aforesaid, Parliament was evolving for the first time a statutory formula in regard to bonus and laying down a legislative policy in regard thereto as to the classes of persons who would be entitled to bonus thereunder. It laid down the definition of an 'employee' far more wider than the definition of a 'workman' in the Industrial Disputes Act and the other corresponding Acts.\n\nIf, while doing so, it expressly excluded as a matter of policy certain petty establishments in view of the recommendation of the Commission in that regard, viz., that the application of the Act would lead to harassment of petty proprietors and disharmony between them and their employees, it cannot be said that Parliament did not intend or was not aware of the result of exclusion of employees of such petty establishments.\"\n\nLikewise, reference to agreements and settlements providing for bonus being exempted from the applicability of the Act does not militate against the survival of contractual banns (we are not referring to the impact of the latest amendment by Ordinance of 1975). Viewed thus and in the light of the observations earlier extracted, the following passage fits into the perspective we have outlined :\n\n\"Section 32(vii) exempts from the applicability of the Act (the Bonus Act) those employees who have entered\n\nMUMBAI KAMGAR SABHA v. ABDUL BHAI (Krishna Iyer, J.) 611\n\nbefore May 29, 1965 into an agreement or settlement with A their employers for payment of bonus linked with production or productivity in lieu of bonus based on profits and who may enter after that date into such agreement or settlement for the period for which such agreement or settlement is in operation.\n\nCan it be said that in cases where there is such an agreement or settlement in operation, Vhough this clause expressly excludes sucli employees from claiming B: bonus under the Act during such period, the employees in such cases can still resort to the Industrial Disputes Act 'md claim bonus on the basis of the Full Bench Formula?\n\nThe answer is obviously in the negative for the object in enacting cl. (vii) is to let the parties work out such an agreement or settlement.\n\nIt cannot be that despite this position, Parliament intended that those employees had still the option C of throwing aside such an agreement or settlement, raise a dispute under the Industrial Disputes Act and claim bonus under the Full Bench Formula. The contention, therefore, that the exemption under s. 32 excludes those employees from claiming bonus under fue Act only and not from claiming bonus under the Industrial Disputes Act or such other Act is not correct.\" ))\n\nThe core question about the policy of the Parliament that was agitated in that case turned on the availability of the Industrial Disputes Act as an independent method of claiming profit bonus de hors the Bonus Act and the Court took the view that it would be subversive of the scheme of the Act to allow an invasion from the flank in that manner.\n\nThe following observations strengthen this approach : E \"Surely, Parliament could not have intended to exempt these establishments from the burden of bonus payable under foe Act and yet have left the door open for their employees to raise industrial disputes and get bonus under the Full Bench formula whicb it has rejected by laying down a different statutory formula in the Act.\n\nFor instance, is it to be, contemplated that though the Act by s. 32 exempts F institutions such as the Universities or the Indian Red Cross Society or hospitals, or any of the establishments set out in\n\ncl. (ix) of that section, they would still be liable to pay bonus if the employees of !l10se institutions were to raise a dispute under the Industrial Disputes Act and claim bonus in accordance with the Full Bench Formula.\n\nThe legislature would in that case be giving exemption by one hand and G taking it away by the other, thus frustrating the very object of s. 32.\n\nWhere, on the other hand,, Parliament intended to retain a previous provision of law under which bonus was payable, or was being paid it has expressly saved such provision.\n\nThus, under s. 35 the Coal Mines\n\n 1 Provident Fund and Bonus Sa'hemes Act, 1946 and any scheme made thereunder are saved.\n\nIf, therefore, Parlia- H ment wanted to retain the right to claim bonus by way of industrial adjudication for those who are either excluded or exempted from the Act, it would have made an express\n\nsaving provision to that effect as it has done for employees in Coal Mines.\"\n\nA discerning and concrete analysis of the scheme of the Act and the \\ reasoning of the Conrt leaves us in no doubt that it leaves untouched customary bonus. •\n\nThe plea of constructive res judicata is based on the 'might and ought' doctrine.\n\nShri Pai's argument is that before the Arbitration Board no case of customary or contract bonus was urged for the year 1965 and so, in later years, such a ground is barred by lhe general principles of res judicata.\n\nSections I OA, 18 and 19(3) of the Industrial Disputes Act were pressed before us to demonstrate the prior award was binding on the workers and reading it in the light of Pandurang(') the bar was spelt out.\n\nIt is clear law, so long as the above ruling stands, that industrial litigation is no exception to the general principle underlying the doctrine of res judicata. \\Ve do entertain doubt about the extension of the sophisticated doctrine of constructive res judicata to industrial law which is governed by special methodology of conciliation, adjudication and considerations of peaceful industrial relations, where collective bargaining and pragmatic justice claim precedence over formalised rules of decision based. on individual contests, specific causes of action and findings on particular issues, but we are convinced that Pandurang(') does not apply at all to our case.\n\nThere overtime wages were claimed earlier under the Factories Act and the case was rejected by the Tribunal.\n\nAfter this rebuff, a like claim was repeated but sustaining it on the Bombay Shops and Establishments Act.\n\nThis new ground to support the same claim was held to be barred because the workmen could and ought to have raised the issue that the Factories Act failing, the Shops Act was available to them to back up their demand.\n\nThe fallacy in invoking this decision lies in the fact that as early as 1950 there was a binding award of the Industrial Tribunal relating to the claim. which had not been put an end to, and so this Court took the view that so long as that award stood, the same claim under a different guise (the\n\nShops Act) could be subversive of the rule of res judicata.\n\nThe decisive circumstance which distinguishes that case is containd in the observation :\n\n\"If the workers are dissatisfied with any of the items in respect of which their claim has been rejected it is open to them to raise a fresh industrial dispute.\"\n\nThat is to say, if a fresh dispute had been raised, after terminating the prior award, no bar of res judicata could have been urged. Here, the Arbitration Board dealt with one dispute; the Industrial Tribunal, with a fresh dispute.\n\nThe Board enquired into one cause of action based on profit bonus; the Tribunal was called uoon. bv the terms of reference, to go into a different claim. This basic difference was lost sight of by the Tribunal and so he slipped into an error. 'Iba dangers of constructive res judicata in the area of suits vis a vis writ\n\npetitions under Art. 226 and as between proceedings under Art, 226 and Art. 32 are such as to warrant a closer study. To an extent the\n\n(1) [19751 !I LLJ. 345.\n\nMUMBAI KAMGAR SABHA v. ABDUL BHAI (Krishna Iyer, !. ) 613\n\nLaw Commission of India in its Report(') has touched on this topic.\n\nIndustrial disputes are an a fortiori case.\n\nDispute-processing is not by Court litigation alone.\n\nIndustrial peace best flourishes where non-Iitigative mechanisms come into cheerful play before tensions develop or disputes brew.\n\nSpeaking generally, alternatives to the longish litigative process is a joyous chailenge to the Indian activist jurist and no field is in need of the role\n\nof avoidance as a means of ending or pre-empting disputes as industrial life.\n\nLitigation, whoever wins or loses, is often the funeral of both.\n\nWe are a developing country and neci! techniques of maximising mcdiatory methodology as potent processes even where litigation has erupted.\n\nThis socially compulsive impulse prompted the setting in motion of a statesman-like effort by the senior counsel on both sides, with helpful promptings from the Bench, to advise their clients into a conciliatory mood.\n\nShould we have at all hinted to the advocates to resolve by negotiation or stick to our traditional function\n\n1 of litigative adjudication?\n\nIn certain spheres, 'judicious irreverence' to !\"- judicialised argumentation is a better homage to justice ! Regrettably, the exercise proved futile and we have to follow up our conclusions with necessary directions.\n\nThe findings we have reached may now be formally set down.\n\nWe hold that the Bonus Act (as it stood in 1965) does not har claims to customary bonus or those based on conditions of service. Secondly we repel the pica of res judicata.\n\nThere is no merit in the view that the Industrial Tribunal has no jurisdiction to try the dispute referred to it.\n\nWe set aside the award and direct the Tribunal to decide on the merits the subject-matter of the dispute referred to it by the State Government.\n\nThe appeal is hereby allowed but, having regard to the over-all circumstances, the parties will bear their costs.\n\nP.B.R.\n\nAppeal allowed.\n\n(I) 54lh Report. Code of Civil Procedt re, 1908\n\npp. 20-21.", "total_entities": 107, "entities": [{"text": "MUMBAI KAMGAR SABHA, BOMBAY", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "MUMBAI KAMGAR SABHA, BOMBAY", "offset_not_found": false}}, {"text": "S ABDULBHAI F AIZULLABHAI & ORS", "label": "RESPONDENT", "start_char": 39, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "M/S ABDULBHAI FAIZULLABHAI & ORS", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 113, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "N.L. 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M. Tarkunde", "label": "LAWYER", "start_char": 11748, "end_char": 11762, "source": "ner", "metadata": {"in_sentence": "V. M. Tarkunde."}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 11764, "end_char": 11776, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh, H. K. Sowani and Manju Jetley for the Appellant."}}, {"text": "H. K. Sowani", "label": "LAWYER", "start_char": 11778, "end_char": 11790, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh, H. K. Sowani and Manju Jetley for the Appellant."}}, {"text": "Manju Jetley", "label": "LAWYER", "start_char": 11795, "end_char": 11807, "source": "ner", "metadata": {"in_sentence": "P. H. Parekh, H. K. Sowani and Manju Jetley for the Appellant."}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 11828, "end_char": 11837, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, Shri Narain, 0.", "canonical_name": "G. B. Pai"}}, {"text": "Narain,", "label": "LAWYER", "start_char": 11844, "end_char": 11851, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, Shri Narain, 0."}}, {"text": "0. C. Mathur", "label": "LAWYER", "start_char": 11852, "end_char": 11864, "source": "ner", "metadata": {"in_sentence": "G. B. Pai, Shri Narain, 0."}}, {"text": "J. B. Dandachanji", "label": "LAWYER", "start_char": 11869, "end_char": 11886, "source": "ner", "metadata": {"in_sentence": "C. Mathur and J. B. Dandachanji for Respondent Nos."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 12010, "end_char": 12022, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-A narration of the skeletal facts, sufficient to get a hng of the our legal.", "canonical_name": "Krish11a Iyer"}}, {"text": "Nag Devi", "label": "OTHER_PERSON", "start_char": 12326, "end_char": 12334, "source": "ner", "metadata": {"in_sentence": "Nag Devi, a locality in the city of Bombay, is studded with small hardware businesses where pipes and fittings, nuts and bolts, tools and other small products, are made and/ or sold."}}, {"text": "Bombay", "label": "GPE", "start_char": 12362, "end_char": 12368, "source": "ner", "metadata": {"in_sentence": "Nag Devi, a locality in the city of Bombay, is studded with small hardware businesses where pipes and fittings, nuts and bolts, tools and other small products, are made and/ or sold."}}, {"text": "Nag Devi", "label": "GPE", "start_char": 13745, "end_char": 13753, "source": "ner", "metadata": {"in_sentence": "Anyway, the hardware merchants of Nag Devi, made of sterner stuff,_in the year 1965, abruptly declined to pay the goodwill sums of the spread-out past and the frustrated workmen frowned on this stoppage by setting up a right to bonus averring considerable profits for the Industry (if one niay conveniently use that expres· sion for a collective coverage of the conglomeration of hardware establishments)."}}, {"text": "s. 10A", "label": "PROVISION", "start_char": 14223, "end_char": 14229, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 14237, "end_char": 14260, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Mumbai Kamgar Sabha, Bombay", "label": "ORG", "start_char": 14313, "end_char": 14340, "source": "ner", "metadata": {"in_sentence": "The defiant denial and the consequent dispute resulted in the appointment of a Board of Arbitrators under s. 10A of the Industrial Disputes Act to arbitrate upon twelve demands put forward by the Mumbai Kamgar Sabha, Bombay (the Union which representq the bulk of workers employed in the tiny, but \"numerous, establishments)."}}, {"text": "Krish11a Iyer", "label": "JUDGE", "start_char": 14540, "end_char": 14553, "source": "ner", "metadata": {"in_sentence": "The charter of demands included, inter alia, claim for 4\n\n) '\n\nMUMBAI KAMGAR SABHA v. ABDULBHAI (Krish11a Iyer, J.) 5 95\n\nmonths' wages as bonus for the year 1965.", "canonical_name": "Krish11a Iyer"}}, {"text": "are not dealing with a civil litigation governed by the Civil Procedure Code", "label": "STATUTE", "start_char": 20139, "end_char": 20215, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 21279, "end_char": 21287, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 22010, "end_char": 22018, "source": "regex", "metadata": {"statute": null}}, {"text": "Dhabolkar(1", "label": "JUDGE", "start_char": 22220, "end_char": 22231, "source": "ner", "metadata": {"in_sentence": "Two rulings of this Court more or less endorse this general approach : Dhabolkar(1 ) and Newabganj Sugar Mills(').", "canonical_name": "Dhabolkar(1"}}, {"text": "Newabganj Sugar Mills", "label": "ORG", "start_char": 22238, "end_char": 22259, "source": "ner", "metadata": {"in_sentence": "Two rulings of this Court more or less endorse this general approach : Dhabolkar(1 ) and Newabganj Sugar Mills(')."}}, {"text": "s. 36(1)", "label": "PROVISION", "start_char": 22698, "end_char": 22706, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 15", "label": "PROVISION", "start_char": 22778, "end_char": 22783, "source": "regex", "metadata": {"statute": null}}, {"text": "Payment of Wages Act", "label": "STATUTE", "start_char": 22795, "end_char": 22815, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "G. B. Pai", "label": "LAWYER", "start_char": 25263, "end_char": 25272, "source": "ner", "metadata": {"in_sentence": "Shri G. B. Pai, appearing for the respondents, contended that the claim put forward by the appellant before the Tribunal was, on the face of it, unsustainable on the short ground that what .", "canonical_name": "G. B. Pai"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 25598, "end_char": 25602, "source": "regex", "metadata": {"statute": null}}, {"text": "Tarkunde", "label": "OTHER_PERSON", "start_char": 26252, "end_char": 26260, "source": "ner", "metadata": {"in_sentence": "Shri Tarkunde, for the appellant, countered this seemingly fatal submission by urging that whatever might have been the - species of bonus demanded in 1965, the present dispute referred by the State Government related to a totally different type of bonus, namely, customary bonus or one which was a term of the employment itself."}}, {"text": "s. 10(1)", "label": "PROVISION", "start_char": 27893, "end_char": 27901, "source": "regex", "metadata": {"linked_statute_text": "No brand of bonus has life left if it does not find a place in the oxygen tent of the complete Code called the Bonus Act", "statute": "No brand of bonus has life left if it does not find a place in the oxygen tent of the complete Code called the Bonus Act"}}, {"text": "Pai", "label": "OTHER_PERSON", "start_char": 32355, "end_char": 32358, "source": "ner", "metadata": {"in_sentence": "From this he argues that since the bonus has not been related by reference to any festival by the workmen in their pleadings (reference to Diwali as the relevant festival in the statement of the case in this Court is an ingenious innovation to fit into the judge-made law according to Shri Pai) the claim must fail."}}, {"text": "Vaidialingam", "label": "JUDGE", "start_char": 34982, "end_char": 34994, "source": "ner", "metadata": {"in_sentence": "Vaidialingam J., in Churakulam(') referring to some of the precedents, observed :\n\n\"In lspahani's case(') this Court had to consider a claim for Puja bonus, in Bengal, and the essential ingredients, for sustaining such a claim when it is based on an implied agreement."}}, {"text": "Bengal", "label": "GPE", "start_char": 35142, "end_char": 35148, "source": "ner", "metadata": {"in_sentence": "Vaidialingam J., in Churakulam(') referring to some of the precedents, observed :\n\n\"In lspahani's case(') this Court had to consider a claim for Puja bonus, in Bengal, and the essential ingredients, for sustaining such a claim when it is based on an implied agreement."}}, {"text": "(1960 1 SCR 107", "label": "CASE_CITATION", "start_char": 36439, "end_char": 36454, "source": "regex", "metadata": {}}, {"text": "Jardine Henderson", "label": "OTHER_PERSON", "start_char": 39149, "end_char": 39166, "source": "ner", "metadata": {"in_sentence": "The learned Judge discussed Jardine Henderson(') and other rulings, but the judicial chorus of legally claimable customary or contractual bonus is not marred by .any discordant note."}}, {"text": "Patna", "label": "GPE", "start_char": 39429, "end_char": 39434, "source": "ner", "metadata": {"in_sentence": "Even so, two decisions, one of Patna and the other of Calcutta, deserve mention."}}, {"text": "Calcutta", "label": "GPE", "start_char": 39452, "end_char": 39460, "source": "ner", "metadata": {"in_sentence": "Even so, two decisions, one of Patna and the other of Calcutta, deserve mention."}}, {"text": "Untwalia", "label": "JUDGE", "start_char": 39492, "end_char": 39500, "source": "ner", "metadata": {"in_sentence": "One of us, (Untwalia J., as he then was) speaking for the Division Bench, observed in Howrah-Amta Light Rly. ("}}, {"text": "Western India", "label": "GPE", "start_char": 40047, "end_char": 40060, "source": "ner", "metadata": {"in_sentence": "One such kind of bonus is that which is paid on the occasion of special festival well celebrated in particular parts of India, as for example, puja bonus in Bengal and Divali bonus in Western India.\""}}, {"text": "Tulsi<las Khim ji", "label": "JUDGE", "start_char": 40088, "end_char": 40105, "source": "ner", "metadata": {"in_sentence": "The Court, referring to Tulsi<las Khim ji (' J, restated the tests for the claim of customary bonus and rightly held that these tests are but circumstances and not conditions precedent, that it is not necessary to 'Show that such bonus has been paid even in years of loss."}}, {"text": "P. B. Mukherji", "label": "JUDGE", "start_char": 40477, "end_char": 40491, "source": "ner", "metadata": {"in_sentence": "P. B. Mukherji, J as he then was, in Ti/ak Co. Cl observed :\n\n\"Akin to this conception of bonus is the case of a bonus annexed to the employment by custom or social practices such as Customary bonus and Puja or Festivity bonus."}}, {"text": "Is the Bonus Act", "label": "STATUTE", "start_char": 43377, "end_char": 43393, "source": "regex", "metadata": {}}, {"text": "have thus to move on to a study of the scheme of the Bonus Act", "label": "STATUTE", "start_char": 43461, "end_char": 43523, "source": "regex", "metadata": {}}, {"text": "Gilmore", "label": "OTHER_PERSON", "start_char": 46512, "end_char": 46519, "source": "ner", "metadata": {"in_sentence": "On listening to the intricate argument about implicit codification of the law of bonus by this AcL one is reminded of Professor Gilmore who put the case against codification thus : (')\n\n\"The law, codified, has proved to be quite as unstable, E unpredictable, and uncertain-quite as mulishly unrulyas the common law, uncodified, had ever been."}}, {"text": "Ghewar Chand", "label": "PETITIONER", "start_char": 47017, "end_char": 47029, "source": "ner", "metadata": {"in_sentence": "The argument of the Bonus Act being an all-inclusive Code :i,, base< I on the anatomy of the Act and the ruling in Ghewar Chand(').", "canonical_name": "G'hewar Chand"}}, {"text": "Plowden", "label": "OTHER_PERSON", "start_char": 47297, "end_char": 47304, "source": "ner", "metadata": {"in_sentence": "Long ago, Plowden, with sibylline instinct, pointed out that the best way to construe the scope of an Act of Parliament is not to stop with the words of the sections. '"}}, {"text": "Humpty Dumpty", "label": "OTHER_PERSON", "start_char": 48857, "end_char": 48870, "source": "ner", "metadata": {"in_sentence": "Humpty Dumpty's famous."}}, {"text": "Arts. 39(a)", "label": "PROVISION", "start_char": 49345, "end_char": 49356, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 43", "label": "PROVISION", "start_char": 49369, "end_char": 49376, "source": "regex", "metadata": {"statute": null}}, {"text": "Shah", "label": "JUDGE", "start_char": 49533, "end_char": 49537, "source": "ner", "metadata": {"in_sentence": "a/an Trading Co.(') Shah J. (as he then was) gave a synopsis of the development of the branch of industrial law relating to bonus from the days of the First World War to the Report of the Bonus Commission culminating in the Bonus Act, 1965."}}, {"text": "First World War to the Report of the Bonus Commission culminating in the Bonus Act, 1965", "label": "STATUTE", "start_char": 49664, "end_char": 49752, "source": "regex", "metadata": {}}, {"text": "Was the Bonus Act", "label": "STATUTE", "start_char": 51579, "end_char": 51596, "source": "regex", "metadata": {}}, {"text": "Shri Pai with a view to strengthen his perspective that the Act", "label": "STATUTE", "start_char": 52059, "end_char": 52122, "source": "regex", "metadata": {}}, {"text": "Payment of Bonus Act", "label": "STATUTE", "start_char": 52502, "end_char": 52522, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 17", "label": "PROVISION", "start_char": 53814, "end_char": 53819, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 54260, "end_char": 54265, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 54426, "end_char": 54431, "source": "regex", "metadata": {"statute": null}}, {"text": "29th May, 1965", "label": "DATE", "start_char": 54659, "end_char": 54673, "source": "ner", "metadata": {"in_sentence": "or in the terms of any award,\n\nA agreement, settlement or contract of service made before\n\n29th May, 1965\"."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 54914, "end_char": 54919, "source": "regex", "metadata": {"statute": null}}, {"text": "Pai used the provisions of the Coal Mines Provident Fund and Bonus Scheme Act, 1948", "label": "STATUTE", "start_char": 55022, "end_char": 55105, "source": "regex", "metadata": {}}, {"text": "s. 35", "label": "PROVISION", "start_char": 55122, "end_char": 55127, "source": "regex", "metadata": {"linked_statute_text": "Pai used the provisions of the Coal Mines Provident Fund and Bonus Scheme Act, 1948", "statute": "Pai used the provisions of the Coal Mines Provident Fund and Bonus Scheme Act, 1948"}}, {"text": "s. 35", "label": "PROVISION", "start_char": 55315, "end_char": 55320, "source": "regex", "metadata": {"linked_statute_text": "Pai used the provisions of the Coal Mines Provident Fund and Bonus Scheme Act, 1948", "statute": "Pai used the provisions of the Coal Mines Provident Fund and Bonus Scheme Act, 1948"}}, {"text": "s. 2(21)", "label": "PROVISION", "start_char": 56228, "end_char": 56236, "source": "regex", "metadata": {"statute": null}}, {"text": "hold that the Bonus Act", "label": "STATUTE", "start_char": 59114, "end_char": 59137, "source": "regex", "metadata": {}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 60943, "end_char": 60966, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "is no categorical provision 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{"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 32(vii)", "label": "PROVISION", "start_char": 64097, "end_char": 64112, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 64825, "end_char": 64848, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 65230, "end_char": 65253, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 65352, "end_char": 65357, "source": "regex", "metadata": {"statute": null}}, {"text": "Act only and not from claiming bonus under the Industrial Disputes Act or such other Act", "label": "STATUTE", "start_char": 65413, "end_char": 65501, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 65641, "end_char": 65664, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 66316, "end_char": 66321, "source": "regex", "metadata": {"linked_statute_text": "Act only and not from claiming bonus under the Industrial Disputes Act or such other Act", "statute": "Act only and not from claiming bonus under the Industrial Disputes Act or such other Act"}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 66597, "end_char": 66620, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 32", "label": "PROVISION", "start_char": 66819, "end_char": 66824, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 35", "label": "PROVISION", "start_char": 67013, "end_char": 67018, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 67894, "end_char": 67917, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Pandurang", "label": "JUDGE", "start_char": 68692, "end_char": 68701, "source": "ner", "metadata": {"in_sentence": "on individual contests, specific causes of action and findings on particular issues, but we are convinced that Pandurang(') does not apply at all to our case.", "canonical_name": "Pandurang"}}, {"text": "overtime wages were claimed earlier under the Factories Act", "label": "STATUTE", "start_char": 68747, "end_char": 68806, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Factories Act", "label": "STATUTE", "start_char": 69093, "end_char": 69106, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 70361, "end_char": 70369, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 70416, "end_char": 70423, "source": "regex", "metadata": {"statute": null}}, {"text": "hold that the Bonus Act", "label": "STATUTE", "start_char": 71949, "end_char": 71972, "source": "regex", "metadata": {}}, {"text": "Code of Civil Procedt re, 1908", "label": "STATUTE", "start_char": 72538, "end_char": 72568, "source": "regex", "metadata": {}}]}
{"document_id": "1976_3_614_619_EN", "year": 1976, "text": "UNION OF INDIA AND ORS.\n\nSUGAULI SUGAR WORKS (P) LTD.\n\nMarch 11, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nIndian I<ailway's Act as it stood an1ended by Act 46 of 1959 and prior to- 1961 a1nencbne11t Ss. 72 and 74-Liability of the Railway in respect of goods sent at Railway's risk is the sa1ne as that of a bailee under the Indian Contract Act 1872 Ss. 151, 152, 161-I::nquiry under Sections 83 and 84 of the Railways Act read lritiz s. 2 of the Indian Raihva).'S Board Act (4 of 1905) and nlfe 18 of the Railv; ay Board Rules is a Joint Enquiry, adniissible 1t11der S.\\. 5, 7 and 9 of the Evidence Act-Not covered, for clai111 of privileges, under s. 123 of tf1e Evidence Act read with Art. 298 of the Constitution-Correct n1eas11re of dama{!FS for purposes of awarding d(1mages for negligence under the Roi/ways Act--Jt'lwt is.\n\nThe nondelivery of the goods booked by the respondent on September 5, 1955 to .several destinations under \"Railway Risk\" due to the sinking of \"Barge No. 6, carrying the wagons containing the goods\" led to the filing of four suits Vlhich were dismissed by the Trial Court holding that the accftlent was not due to the negligence of the Railway employees.\n\nThe High Court,\n\naccpting the appeal of the respondent by its judgment dated April 13, 1966 held that the sinking of BaI\"ge was not due to \"inevitable accident\" hut due to the serious negligence of the Railway employees and their failure of duty to take due cnre which it \\Vas required to take as a bailee as revealed hr their own Enquiry Committee held with reference to Ss. 83 and 84 of the Railways Act read \\.Vith section 2 of the Indian Railways Board Act (4 of 19-05) and\n\nrul~ 18 of the Railway Board Ruks. The High Court remanded the suits for determination of the quantum of the decretal amount due to the respondent.\n\nThe trial court after remand gave decrees in favour of the respondoot on 10th September, 1966 without interest claimed up to the date of filing of the suit and interest \"pendent-lite\". The High Court, on appeal by the respondent by its judgment dated 3·9·1968 allowed interest \"vendentlite'', <1nd futur~ interest at the rate of 4!·% per annum.\n\nDismissing the two sets of appeal by the Union, one by Special' Leave. against the order dated 13-4·1966 determinin.(!; the liability and anothr by certificate against the judgment dated 3-9·1968 awarding interest the High Court.\n\nHELD : (I) The liability of the Railway was that of a bailee.\n\nThe consignments were booked at Railway risk. The onus of proving that the Railway employees took the necessary amount of care and they were not guilty of negligence rested on the Railway Authorities. The question of onus is not\n\nimportant when the entire evidence is before the court. In the instant case there was no legal evidence to prove \"inevitable accident\" but suppression of important documents and non production of important witnesses in charge of the Barge. The Barge sank because of the serious and gross negligence of the railway employees and the railways did not take due care which it was. required to take as a bailee. f617B-D: 618F-Gl\n\n(II) The Enquiry Committee, in the instant case, is a Joint Enquirv. under the rules and the report is admissible under Ss. 5, 7 and 9 of the Evidence Act.\n\nThe claim for privilege is not admissible because no such claim was made _>- before the Courts bttlow and there was no affidavit of the Minister incharge or the Secretary of the Department to support a claim for privilege. [(1160-H-l\n\n(III) One of the principles for award of damages is that so far as possib1e he who has proved a breach of a bargain to supply \\\\:hat he has cpntraCted to get is to be placed as far as money can do it, in as good a ituation as if the contract ha.d been performed. The fundamental basis thus is co1npensation for the pecuniarv loss which naturally flows from the breach. Therefore,\n\nthe principle is that as far as possible the injured party should be placed in as good a situation if the contract has been performed.\n\nJn other words, it is to provide compensation for the loss which ---nti; irally flows fom !he breach.\n\nThe market rate is a presumptive test because it 1s the general intention .of law that in giving damages for breach of contract, the party complaining\n\nshould, o far as it can be by money, be placed in the same position as he \\Vould have been in if the contract had been performed.\n\nThe rule as to market -price is intended to secure only an indemnity to the purchaser.\n\nThe market value is taken because it is presumed to be the true value of the goods to the purchaser. 1n the instant case, the High Court correctly appli..::d these 'Principles and adopted the contract price in the facts and circumstances of the case as the correct basis of compensation. [619-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1562 to 1573 -Of 1971.\n\nFrom the Judgment and Decree dated the 13-4-1966 and 3-9-1968 -0f the Patna High Court in Appeals from Original Decree Nos. 127-\n\n130, 246 and 247 of 1958.\n\nS. P. Nayar for the Appellants.\n\nP. K. Chatterjee and Rathin Dass for Respondents in C. As. 1566, 1567, 1572 and 1573 of 1971.\n\nA. N. Sinha and P. K. Mukherjee !or Respondents in C.As. 1562- D • {)5 and 1568-71 of 1971.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.-These appeals are by certificate from the judgment ; ind decree of the High Court at Patna dated 13 April, 1966 and 3 \"September, 1968.\n\nFour suits were filed by Sugauli Sugar Works Limited for recovery of money on account of non delivery of consignments.\n\nTwo suits were filed by Majhaulia Sugar Works for recovery of money on account of non delivery of two consignments.\n\nThe suits were filed in the Court of the Subordinate Judge, Motihari in Bihar.\n\nT'he plaintiffs are respondent.\n\nThe case of the respondents was F that goods were booked on 5 September, 1955 to several destinations 11nder railway risk.\n\nThe goods did not reach the destinations. The respondents alleged that non delivery was on account of gross negligence and misconduct on the part of the Railways.\n\nThe defence was that the wagons containing the goods in suit along with other wagons were taken on Barge No. 6 from Samaria -Ghat to Mokamah Ghat on 7 September, 1955.\n\nThere was an accident.\n\nThe Barge witlh all the wagons sank in the river Ganges.\n\nThe Railways contended that the employees were not guilty of any negligence or misconduct.\n\nThe Subordinate Judge dismissed all the suits and held that the accident was not because of the negligence of the railway employees.\n\nThe High Court accepted the appeals filed l:iy the respondent. The High Court held that tlhe consignments were booked at railway risk cand there was no explanation given for the sinking of the Barge.\n\nThe High Court held that the Barge sank because of serious negligence of the railway employees and it was not a case of inevitable accident.\n\nThe High Court also held that the railway did not take the care which it was required to take as a bailee.\n\nThe High Court delivered the judgment on 13 April, 1966 and sent to the trial court for determination of the issue : \"What is the amount for which the plaintiffs are entitled to a decree in this case?\"\n\nOne group of appeals is against the judgment of the High Court dated 13 April, 1966 which determined the liability.\n\nThe Additional Subordinate Judge, Motihari, who tried the issue on remand by an order dated 10 September, 1966 gave decrees in favour of the respondent.\n\nThe High Court by judgment dated 3 September, 1968 set aside the judgment and decree of the trial court on remand.\n\nThe High Court awarded decrees in favour of the respondents.\n\nThe second group of appeals is by certificate against the judgment of the High Court dated 3 September, 1968.\n\nOne of the contentions raised before the High Court and repeated here is that the High Court should not have relied on an enquiry report into the accident.\n\nThe High Court held that there was an enquiry under Rule 18 of the Rules made by the Railway Board. The High Court referred to sections 83 and 84 of the Railways Act.\n\nSection 83 provides that if there is any accident attended with loss of human life or grievous hurt or with serious injury to property, notice shall be given to various persons.\n\nSection 84 confers power on the Central Government to make Rules for several purposes including the purpose of prescribing the duties of railway servants, police officers, inspectors and Magistrates on the occurrence of an accident. Section 2 of the Indian Railway Board Act authorises the Central Government to invest the Railway Board with all or any of the powers or functions of the Central Government under the Railways Act.\n\nThe Central Government authorised the Railway Board to make rules in pursuance of section 84 of the Railways Act.\n\nRule 18 of the Railway Board Rules provides that whenever an accident has occurred in the course of working a Railway, the Agent or Manager shall cause an enquiry to be promptly made by a committee of railway officers (to be called a joint enquiry) for the thorough investigation of the cases which led to the accident.\n\nIt is also provided in the rule that an enquiry may be dispensed with in certain cases.\n\nJn the present case the enquiry was held hy three officers.\n\nThe enquiry report which is marked as Exhibit 9 was contended by the respondent to be admissible under sections 5. 7, 9 and 35 of h_c Evidence Act.\n\nThe Railway contended that the report was a pnv1- 1cged document and further claimed that the enquiry was a private enquiry.\n\nThe High Court rightly rejcted both the co_ntcnt10ns.\n\nFirst. the High Court held that. o prv1lege had been claimed and there was no affidavit of the Mm1ster m charge or the Secretary of the department to support a claim for privilege.\n\nThe High Court\n\nalso referred to the fact that the report was called for by the Court A of the Subordinate Judge at Gaya and the Railways did not claim any privilege there.\n\nSecond, the High Court also rightly held that the enquiry report was admissible under sections 5, 7 and 9 of the Evidence Act.\n\nThe High Court did not go into the question whether it was admissible under section 35 of the Evidence Act.\n\nThe High Court further held that the Railways did not examine B important witness, viz., the Commander of the ferry who was on the spot when the Barge was in trouble.\n\nThe High Court held that the Railways suppressed important documents like the marine certificate and the stock register which would have given the life history and the capacity of the Barge.\n\nThe High Court correctly drew adverse inference against the appellants for non production of important witness and important documents. c\n\nThe liability of the railway was that of a bailee.\n\nThe consign.- ments were booked at railway risk.\n\nThe onus of proving that the railway employees took the necessary amount of care and that they were not guilty of negligence rested on the Railway Authorities. The High Court held that it was not a case of unavoidable accident and\n\nthat the Barge sank because of gross negligence of railway employees and the railways did not take the amount of care Which it was required to take as a bailee.\n\nThe question of onus is not important when the entire evidence is before the Court. The High Court found that Rasul the Sarang of 'Chapra' was responsible for the accident because he had failed to exercise proper judgment while manoeuvring bis own vessel for the purpose of heaving up the anchor of Barge No. 6 and he failed to exercise initiative to save the barge by breaching it on the nearest char, instead of taking it to the Simariaghat goods jetty. The High Court also held that the Commander of the ferry found that he visited the steamer 'Samastipur' and Barge No. 6 when there was difficulty in heaving the anchor of the barge and thereafter went away, leaving the matter entirely in the hands of the sarang. The High Court held that these officers were responsible for not staying on board until the barge was out of trouble.\n\nThe High Court found that Barge No. 6 was very old. It was bttilt in 1897. It underwent heavy repairs in 1953. The time of the accident was at about 2-20 p.m. on 7 September, 1955. \"Samastipur\" started towing the barge, went about a mile when the radius rod of Samastipur broke down. Radius rod is a part of the paddle by which a steamer is driven: The radius rod of Samastipur was repaired in due course. It then heaved up its anchor. The anchor of the barge could not be lifted.\n\nThere was a danger whistle.\n\nRasul, the Sarang of \"Chapra\" came with his steamer to the aid of Samastipur. Two officers Lall and Devia herein before mentioned left the matter in the hands of the three sarangs. Lall, the Commander of the Ferrv was not examined.\n\nThe Assistant Mechanical Engineer was examined.\n\nThe High Court found that Rasul did not take the steamer and the barge to the Diara but took them to Simarighat. The steamer and the\n\n7-608SCI/76\n\nA barge reached jetty at Simariaghat. When the barge was about to be attached to the jetty, it sank.\n\nThe High Court found that the strength of the current in the month of September was a known factor. The railway employees were used to ply the steamer and the barge between the two ghats dunng the month of September.\n\nThe railway employees were found to equip themselves with appropriate appliances and necessary skill for the job of talcing the barge across. The High Conn found that there was no satisfactoy explanation for the sinking of the barge. The High Court also found that there was no explanation why the anchor of the barge could not be lifted.\n\nAccording to the High Court, this might have been due to defective or insufficient appliance for haulage of the anchor.\n\nThe High Court also found that there was no evidence to show that there was any unforeseen difficulty, by reason of which the anchor could not be heaved up. The fact that the anchor could not be lifted was held by the High Court to be on account of the negligence of the railway employees.\n\nThe High Court also referred to the fact that the barge developed a big hole and there was no explanation how this happened. The High Court felt that this could be explained by assuming that Chapra pulled the barge in such a way as to make the anchor chain rub against the\n\nbottom plates of the barge so as to create the hole. The ffgh Court ' found no other reasons because there is no suggestion that there was any submerged tree or stone, and the hole was caused because the barge accidentally struck against any such substance. Since the creation of the hole could not be attributed, according to the High Court to anything unforeseen, it was due to the negligence of the railway employees.\n\nThe High Court further found that if the barge had been towed to --..( the Diara, it could not sink. The water near the Diara must have been shallow so that the wagons. upon the barge could not be submerged in the water near it. On the other hand, Rasul took the steamer and the barge to a much longer distance and the passage must have taken a considerable time. Besides, the water near the jetty was undoubtedly deep and the wagons were also submerged.\n\nThe High Court on these findings correctly came to the conclusion that the barge sank because of the serious negligence of the railway employees and the railways did not take the care which it was required to take as a bailee.\n\nThe High Court passed decrees awarding the respondents price of sugar and costs of damages and interest pendente lite and future interest.\n\nThe appellant contended that the contract price should not have been awarded.\n\nThe High Court said that the evidence of plaintiff's witness Gaya Prasad showed the selling ra•e of sugar and there was no challenge to that evidence. The High Court found that the goods were despatched on 4 September, 1955. The barge sank on 7th September, 1955, and, therefore, the contract price would be the correct\n\nmeasure of damages. The High Court on the facts and circumstances A of the case found that the contract price would also be the same as the market price at that time.\n\nThe market rate is a presumptive test because it 1s the general intention of the law that, in giving damage for breach of contract, the party complainiug should, so far as It can be done by money, be placed in the same position as he would have been in if the contract had been B performed. The rule as to market price is intended to secure only an indemnity to the purchaser. The market value is taken because it is presumed to be the true value of the goods to the purchaser. One of the principles for award of damages JS that as far as possible he who has proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, m as gocd a situation as if the contract had been pertormed.\n\nThe fundamental basis thus C is compensation for the pecuniary loss which naturally flows from the breach. Therefore, the principle JS that as far as possible the injured party should be placed in as good a situation as if the contract had been performed.\n\nIn other words, it 1s to provide compensation for pecuniary loss which naturally flows from the breach. The High Court correctly applied these principles and adopted the contract price in the facts and circumstances of the case as the correct basis for compensa- D tion.\n\nFor these reasons, the judgment of the High Court is affirmed. The appeals are dismissed with one set of costs.\n\nS.R.\n\nAppeals dismissed.", "total_entities": 60, "entities": [{"text": "UNION OF INDIA AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA AND ORS", "offset_not_found": false}}, {"text": "SUGAULI SUGAR WORKS (P) LTD", "label": "RESPONDENT", "start_char": 25, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "SUGAULI SUGAR WORKS (P) LTD", "offset_not_found": false}}, {"text": "March 11, 1976", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "March 11, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. 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P. Nayar", "label": "LAWYER", "start_char": 5038, "end_char": 5049, "source": "ner", "metadata": {"in_sentence": "S. P. Nayar for the Appellants."}}, {"text": "P. K. Chatterjee", "label": "LAWYER", "start_char": 5071, "end_char": 5087, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and Rathin Dass for Respondents in C. As.", "canonical_name": "P. K. Chatterjee"}}, {"text": "Rathin Dass", "label": "LAWYER", "start_char": 5092, "end_char": 5103, "source": "ner", "metadata": {"in_sentence": "P. K. Chatterjee and Rathin Dass for Respondents in C. As."}}, {"text": "A. N. Sinha", "label": "LAWYER", "start_char": 5166, "end_char": 5177, "source": "ner", "metadata": {"in_sentence": "A. N. Sinha and P. K. Mukherjee !"}}, {"text": "P. K. Mukherjee", "label": "LAWYER", "start_char": 5182, "end_char": 5197, "source": "ner", "metadata": {"in_sentence": "A. N. Sinha and P. K. Mukherjee !", "canonical_name": "P. K. Chatterjee"}}, {"text": "RAY", "label": "JUDGE", "start_char": 5303, "end_char": 5306, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.-These appeals are by certificate from the judgment ; ind decree of the High Court at Patna dated 13 April, 1966 and 3 \"September, 1968."}}, {"text": "Sugauli Sugar Works Limited", "label": "ORG", "start_char": 5475, "end_char": 5502, "source": "ner", "metadata": {"in_sentence": "Four suits were filed by Sugauli Sugar Works Limited for recovery of money on account of non delivery of consignments."}}, {"text": "Majhaulia Sugar Works", "label": "ORG", "start_char": 5594, "end_char": 5615, "source": "ner", "metadata": {"in_sentence": "Two suits were filed by Majhaulia Sugar Works for recovery of money on account of non delivery of two consignments."}}, {"text": "Subordinate Judge, Motihari", "label": "COURT", "start_char": 5728, "end_char": 5755, "source": "ner", "metadata": {"in_sentence": "The suits were filed in the Court of the Subordinate Judge, Motihari in Bihar."}}, {"text": "Bihar", "label": "GPE", "start_char": 5759, "end_char": 5764, "source": "ner", "metadata": {"in_sentence": "The suits were filed in the Court of the Subordinate Judge, Motihari in Bihar."}}, {"text": "5 September, 1955", "label": "DATE", "start_char": 5860, "end_char": 5877, "source": "ner", "metadata": {"in_sentence": "The case of the respondents was F that goods were booked on 5 September, 1955 to several destinations 11nder railway risk."}}, {"text": "Samaria -Ghat", "label": "GPE", "start_char": 6204, "end_char": 6217, "source": "ner", "metadata": {"in_sentence": "6 from Samaria -Ghat to Mokamah Ghat on 7 September, 1955."}}, {"text": "Mokamah Ghat", "label": "GPE", "start_char": 6221, "end_char": 6233, "source": "ner", "metadata": {"in_sentence": "6 from Samaria -Ghat to Mokamah Ghat on 7 September, 1955."}}, {"text": "7 September, 1955", "label": "DATE", "start_char": 6237, "end_char": 6254, "source": "ner", "metadata": {"in_sentence": "6 from Samaria -Ghat to Mokamah Ghat on 7 September, 1955."}}, {"text": "13 April, 1966", "label": "DATE", "start_char": 7057, "end_char": 7071, "source": "ner", "metadata": {"in_sentence": "The High Court delivered the judgment on 13 April, 1966 and sent to the trial court for determination of the issue : \"What is the amount for which the plaintiffs are entitled to a decree in this case?\""}}, {"text": "Additional Subordinate Judge, Motihari", "label": "COURT", "start_char": 7340, "end_char": 7378, "source": "ner", "metadata": {"in_sentence": "The Additional Subordinate Judge, Motihari, who tried the issue on remand by an order dated 10 September, 1966 gave decrees in favour of the respondent."}}, {"text": "10 September, 1966", "label": "DATE", "start_char": 7428, "end_char": 7446, "source": "ner", "metadata": {"in_sentence": "The Additional Subordinate Judge, Motihari, who tried the issue on remand by an order dated 10 September, 1966 gave decrees in favour of the respondent."}}, {"text": "sections 83 and 84", "label": "PROVISION", "start_char": 8063, "end_char": 8081, "source": "regex", "metadata": {"statute": null}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 8089, "end_char": 8101, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 83", "label": "PROVISION", "start_char": 8104, "end_char": 8114, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 84", "label": "PROVISION", "start_char": 8283, "end_char": 8293, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 8315, "end_char": 8333, "source": "ner", "metadata": {"in_sentence": "Section 84 confers power on the Central Government to make Rules for several purposes including the purpose of prescribing the duties of railway servants, police officers, inspectors and Magistrates on the occurrence of an accident."}}, {"text": "Section 2", "label": "PROVISION", "start_char": 8516, "end_char": 8525, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Railway Board Act", "label": "STATUTE", "start_char": 8533, "end_char": 8557, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 8699, "end_char": 8711, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 84", "label": "PROVISION", "start_char": 8796, "end_char": 8806, "source": "regex", "metadata": {"statute": null}}, {"text": "Railways Act", "label": "STATUTE", "start_char": 8814, "end_char": 8826, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 5", "label": "PROVISION", "start_char": 9403, "end_char": 9413, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 5, 7 and 9", "label": "PROVISION", "start_char": 10072, "end_char": 10091, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 10190, "end_char": 10200, "source": "regex", "metadata": {"statute": null}}, {"text": "Rasul the Sarang", "label": "OTHER_PERSON", "start_char": 11328, "end_char": 11344, "source": "ner", "metadata": {"in_sentence": "The High Court found that Rasul the Sarang of 'Chapra' was responsible for the accident because he had failed to exercise proper judgment while manoeuvring bis own vessel for the purpose of heaving up the anchor of Barge No."}}, {"text": "Samastipur", "label": "OTHER_PERSON", "start_char": 12238, "end_char": 12248, "source": "ner", "metadata": {"in_sentence": "Samastipur\" started towing the barge, went about a mile when the radius rod of Samastipur broke down."}}, {"text": "Rasul", "label": "OTHER_PERSON", "start_char": 12567, "end_char": 12572, "source": "ner", "metadata": {"in_sentence": "Rasul, the Sarang of \"Chapra\" came with his steamer to the aid of Samastipur."}}, {"text": "Lall", "label": "OTHER_PERSON", "start_char": 12658, "end_char": 12662, "source": "ner", "metadata": {"in_sentence": "Two officers Lall and Devia herein before mentioned left the matter in the hands of the three sarangs."}}, {"text": "Devia", "label": "OTHER_PERSON", "start_char": 12667, "end_char": 12672, "source": "ner", "metadata": {"in_sentence": "Two officers Lall and Devia herein before mentioned left the matter in the hands of the three sarangs."}}, {"text": "Simarighat", "label": "GPE", "start_char": 12950, "end_char": 12960, "source": "ner", "metadata": {"in_sentence": "The High Court found that Rasul did not take the steamer and the barge to the Diara but took them to Simarighat."}}, {"text": "Simariaghat", "label": "GPE", "start_char": 13021, "end_char": 13032, "source": "ner", "metadata": {"in_sentence": "The steamer and the\n\n7-608SCI/76\n\nA barge reached jetty at Simariaghat."}}, {"text": "Gaya Prasad", "label": "WITNESS", "start_char": 15728, "end_char": 15739, "source": "ner", "metadata": {"in_sentence": "The High Court said that the evidence of plaintiff's witness Gaya Prasad showed the selling ra•e of sugar and there was no challenge to that evidence."}}, {"text": "4 September, 1955", "label": "DATE", "start_char": 15873, "end_char": 15890, "source": "ner", "metadata": {"in_sentence": "The High Court found that the goods were despatched on 4 September, 1955."}}, {"text": "7th September, 1955", "label": "DATE", "start_char": 15910, "end_char": 15929, "source": "ner", "metadata": {"in_sentence": "The barge sank on 7th September, 1955, and, therefore, the contract price would be the correct\n\nmeasure of damages."}}]}
{"document_id": "1976_3_620_624_EN", "year": 1976, "text": "NATHA SINGH &. ORS.\n\nTHE FINANCIAL COMMISSIONER, TAXATION, PUNJAB&.\n\nORS.\n\nMarch 11, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]\n\nConstitution of India~ Art. 226-Error of law absent in concurrent decisions of Revenue authorities-High Court justified in refraining to exercise appellate jurisdiction in writ proceedings.\n\nCode of Civil Procedure, Order 41, r. 27-Reception of additional evidence by appellate courts di'scretionary-Limitations-Test to be applied.\n\nAppellant Natha Singh was recorded as a land owner in revenue records.\n\nUnder the Punjab Security of Land Tenures Act, 1953, the Collector, Ferozepore, declared an area of 63 standard acres and 4 units, as surplus land in his hands. The sons of Natha Singh appealed to the Commissioner, Jullundur division, who remanded the case for fresh determination of \"surplus area\".\n\nOn a re-examination of faCts, the Collector, Ferozepore, overruled the pleas of the appellants.\n\nTheir appeal to the Commissioner, Jullundur division, and a further revision petition to the Financial Commissioner, Taxation, Punjab, were also dismissed.\n\nAll these orders were challenged before the High Court under Art. 226. The High Court dismissed the matter in limine, but granted a certificate under Art. 133(1)(a).\n\nThe appellants contended before this Court that in the facts and circumstances of the case, the High Court could not dismiss the writ, petition in limine, as the revenue authorities had wrongly computed the 'surplus area'. They further contended that appellants No. 2 and 3 were not afforded proper and adequate opportunity by the Collector to prove their claims. The appellant9 also applied for permission to adduce additional documentary evidence.\n\nDismissing the appeal, the Court, HELD : ( 1) In dealing with a petition under Art. 226 of the Constitution, the High Court cannot exercise the jurisdiction of an appellate court. and cannot re-examine or disturb the findings of fact arrived at by an inferior Court or a tribunal in the absence of an error of law. [622E-F]\n\n(2) In the instant case, the orders passed by the revenue authorities did not suffer from any error of law so as to warrant interference in writ proceedings and the High Court was justified in dismissing in limine the writ petition preferred by the appellants.\n\n[623F]\n\n(3) The application of the appellants for additional evidence cannot be allowed in view of the well-established principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in order 41 rule 27 of the Code of Civil Procedure.\n\nThe true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced.\n\n[623G-H, 624AJ\n\nArjun Sing/z alias Puran v. Kartar Singh &: Ors. [1951] SCR 258 referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1308 of 1968.\n\nFrom the order dated 1st May, 1967 of the Punjab and Haryana High Court at Chandigarh in Civil Writ No. 707 of 1967.\n\n/-.\n\n~ATtt; A SINGH v. FINANCIAL COMMISSIONER (Jaswanl Singh, J.) 62 i\n\nHardyal Hardy, Naunit Lal and Miss La/ita Kohli, for the appel- A !ants.\n\n0. P. Sharma and P. N. Puri, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-This appeal by certificate under Article 133 (l){a) of the Constitution of India granted by the High Court of Punjab and Haryana at Chandigarh is directed against its order dated May 1, 1967, dismissing in limine the writ petition filed by the appellants herein.\n\nThe facts giving rise to this appeal are : Natha Singh, appellant No. 1 herein, was recorded in revenue records as land-owner in respect of 39 standard acres and 9t nnits of land in village Malout, 53 standard acres and St units in village Kanamgarh and 4 standard acres and 2 units in village Bhagwanpur. By his order dated July 5, 1959, the !hen Collector, Ferozepore, acting under the provisions of the Punjab Security of Land Tenures Act, 1953, hereinafter referred to as 'the Act' declared an area of 63 standard acres and H units out of the aforesaid land aggregating 93 standard acres and H units as surplus in the hands of Natha Singh. Rajinder Singh and Jarnail Singh, appellants Nos. 2 and 3 herein, who are the sons of appellant No. 1, went up in appeal against the said order of the Collector to the Commissioner, Jullundur Division, who vide his order dated July 20, 1965 allowed the appeal, set aside the aforesaid order of the Collector and remanded the case for fresh determination of the \"Surplus Area.\" After re-examination of the case on remand, the Collector, ferozepore, vide his order dated December 20, 1965, overruled the plea raised by appellants Nos. 2 and 3 that the area comprised in khasra Nos. 296, 297, 517, 519, 285, 293 and 206 which was in their cultivating possession as tenants under appellant No. I before the commencement of the Act should be treated 'Tenants Permissible Area' and excluded from the surplns pool ancl held that the entries in khasra girdawaries on which the claim of the said appellants was grounded could not be relied upon as they had been tampered with. The Collector further held that even taking the entries at their face value, appellants Nos. 2 and 3 could not be treated tenants as contemplated by the Punjab Tenancy Act, 1887 (Act XVI of 1887) as they were not paying any rent to appellant No. 1. The Collector also overruled the plea raised by appellant No. 1 that there was some 'banjar' land which had to be excluded while reckoning the permissible area.\n\nDissatisfied with this order, the appellants preferred an appeal to the C0mmissioner, Jullundur Division, who by his order dated November 7, 1966 dismissed the same and upheld the aforesaid order of !he Collector, Ferozepore. Aggrieved by these orders, the appellants took the matter in revision to the Financial Commissioner, Taxation, Punjab,\n\nwho also bv his order dated March 3, 1967, affirmed the aforesaid orders of the Collector, Ferozepore, and Commissioner. Jnllnndur Division. All these orders were challenged by the appellants before the High Conrt of Punjab and Harvana by means of a petition under Article 226 of the Constitution but the same, as already stated, was dismissed in limine. The High C:ourt. however. granted a certificate to the appellants under Article 133(1) (a) of the Constitntion.\n\nAppearing in support of the appeal, Mr. Hardayal Hardy has contended that the writ petition filed by the appellants could not, in the facts and circumstances of the case, be a1sm1ssed in limine by the High Court. Elaborating by his submission, the learned counsel has urged that the orders passed by the revenue authorities could not be sustained as they did not, while computing the 'Surplus Area', leave out the permissible area which even according to the khasra girdawaries and Roznamcha Waqaiti which is maintained for the purpose of recording changes in cultivation was being cultivated by appellants Nos. 2 and 3, as tenants of appellant No. 1 since 1951-52; that 30 bighas of land which was recorded as 'banjar' at the time of the commencement of the Act and did not fall within the definition of land as contained in section 2(8) of the Act had not been taken into account while evaluating and assessing the \"Surplus Area\", and that appellants Nos. 2 and 3 were not afforded proper and adequate opportunity by the Collector to prove the claim put forth by them.\n\n).,.\n\nMr. Hardayal Hardy has, in conclusion, drawn our attention to _.,. the application made by the appellants for permission to adduce additional documentary evidence in the form of khasra girdawaries for the years 1952 to 1960, the grounds of appeal preferred by the appellants before the Commissioner, the grounds of revision filed by them before the Financial Commissioner, the depositions of appellant No. I and J.\n\nGurcharan Singh, Patwari, and forms A.D:E. and F. and its inclusion in the record and has emphasized that the aforesaid documents which are relevant and necessary for disposal of the appeal should be allowed to be produced.\n\nWith regard to the first contention advanced on behalf of the a.ppellants, it is sufficient to observe that it has been time and again observed by this Court that in dealing with a petition under Article 226 of the Constitution, the High Court cannot exercise the jurisdiction of an appellate court and cannot re-examine or disturb the findings of fact arrived at by an inferior court or a tribunal in the absence of any error of law.\n\nSo far as the contention of the learned counsel for the appellants based on the revenue record is concerned, it may be remarked that it has been concurrently found by the Collector and the Commissioner who examined the original khasra girdawaries that they had been tampered with .by the revenue staff in collusion with the appeilants. In the circumstances, it would not be safe to place any reliance on them. The reliance sought to be placed on 'Roznamcha Waqaiti' is also an after thought.\n\nNo authenticated copy of the 'Roznamcha Waqaiti' with reference to which we are invited to verify the entries in the khasra girdawaries has been included in the record. It is also significant that no reliance either before the Collector or before the Commissioner or even before the Financial Commissionr seems to have been piaced upon the 'Roznamcha Waqaiti'. It is also to be noted that even in the application for leave to adduce additional evidence, no mention has been made of any entry in 'Roznamcha Waqaiti'. Even if the entries in khasra girdawaries are treated as genuine, they can be of little\n\n>-·\n\nNATH;\\ SINGH v. FINANCIAL COMMISSIONER (Jaswant Singh, J.) 62 3\n\nassistance to the appellants as they do not at all, as observed by the Collector, appear to show that any rent was being paid by the appellants Nos. 2 and 3 to appellant No. 1. In the absence of payment of rent or in the absence ot material to show that there was a contract between appellant No. 1 and appellants Nos. 2 and 3 absolving the latter of the liability to pay rent, it is ditlicult to uphold the daim of appellants Nos. 2 and 3 that they were tenants of appellant No. 1.\n\nSo far as the claim regarding 'banjar' land is concerned, it would suffice to say that the Collector who examined the revenue record found that there was no land which fell within that category. It cannot\n\nbe dIBputed that a land-owner who wishes to claim the benefit of the exclusion of 'banjar qadim' or 'banjar jadid' land from the purview of land has to prove that it was not at the relevant date being put to\n\nany agricultural purpose or a purpose subservient to agriculture or used C for pasture. No such proof seems to have been adduced in the instant case. It is also important to note that even before the Commissioner, the appellant did not plead that any 'banjar' land was not left out of consideration while assessing the 'Surplus Area'. All that was urged before the Commissioner was that the land comprised in khasra No.\n\n864 of village Malout had not been left out of account although it was banjar.\n\nThe Commissioner repelled this plea as he found from the D examination of the record that the area comprised in the said khasra number was 'Chair Pumkin Sarak' which had not been taken into account while assessing the 'Surplus Area of appellant No. 1.\n\nThe contention raised on behalf of the appellants that they were not allowed an opportunity of establishing their claim cannot also be . countenanced. There is nothing on the record to indicate that the E appellants were denied opportunity to prove their case. The Financial Commissioner has categorically found that appellants Nos. l and :.l bad full opportunity to place on record their evidence to establish that they were cultivating the land of their father as his tenants and that they did not avail of that opportunity by placing any material on the re.'ord to show that, or that there was a private partition as sought to be urged by them before him.\n\nIn view of the foregoing reasons we are satisfied that tne orders passed by the revenue authorities did not suffer from any error of law so as to warrant interference in writ proceedings and the High Court was justified in dismissing in limine that writ petition preferred by the appellants.\n\nSo far as the application of the appellants for additional evidence is concerned it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored.\n\nThe true test to be applied in dealing with applications for additional\n\nevidence i; whether the appellate court is able to pronounce judgment un the materials before It, Without taking mto consideration the additional evidence sought to be adduced. (See Arjun Singh Alias J>uran\n\nv. Kartar Singh and Ors.('). In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to the spurious. ·\n\nWe also do not find any other substantial reason to accede to the request of the appellants to allow them to adduce additional evidence.\n\nThere is no inherent lacuna or obscurity which we reqwre to be filled up or removed to be able to pronounce judgment.\n\nThe application of the appellants is accordingly rejected.\n\nIn the result we do not find any merit in this appeal which is also\n\n~. ..\n\nhereby dismissed but in the circumstances of the case without any .... order as to costs.\n\nM.R.\n\nAppeal dismissed.\n\n(I) [1951] S. C. R. 258.", "total_entities": 42, "entities": [{"text": "NATHA SINGH &. ORS", "label": "PETITIONER", "start_char": 0, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "NATHA SINGH &. 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GUPTA*", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 129, "end_char": 150, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 152, "end_char": 160, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 320, "end_char": 343, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Punjab Security of Land Tenures Act, 1953", "label": "STATUTE", "start_char": 544, "end_char": 585, "source": "regex", "metadata": {}}, {"text": "Natha Singh", "label": "PETITIONER", "start_char": 707, "end_char": 718, "source": "ner", "metadata": {"in_sentence": "The sons of Natha Singh appealed to the Commissioner, Jullundur division, who remanded the case for fresh determination of \"surplus area\".", "canonical_name": "NATHA SINGH &. ORS"}}, {"text": "Ferozepore", "label": "GPE", "start_char": 880, "end_char": 890, "source": "ner", "metadata": {"in_sentence": "On a re-examination of faCts, the Collector, Ferozepore, overruled the pleas of the appellants."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1150, "end_char": 1158, "source": "regex", "metadata": {"linked_statute_text": "Under the Punjab Security of Land Tenures Act, 1953", "statute": "Under the Punjab Security of Land Tenures Act, 1953"}}, {"text": "Art. 133(1)(a)", "label": "PROVISION", "start_char": 1239, "end_char": 1253, "source": "regex", "metadata": {"linked_statute_text": "Under the Punjab Security of Land Tenures Act, 1953", "statute": "Under the Punjab Security of Land Tenures Act, 1953"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 1786, "end_char": 1794, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "order 41 rule 27", "label": "PROVISION", "start_char": 2614, "end_char": 2630, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 2634, "end_char": 2661, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Hardyal Hardy", "label": "LAWYER", "start_char": 3261, "end_char": 3274, "source": "ner", "metadata": {"in_sentence": "~ATtt; A SINGH v. FINANCIAL COMMISSIONER (Jaswanl Singh, J.) 62 i\n\nHardyal Hardy, Naunit Lal and Miss La/ita Kohli, for the appel- A !", "canonical_name": "Hardayal Hardy"}}, {"text": "Naunit Lal", "label": "LAWYER", "start_char": 3276, "end_char": 3286, "source": "ner", "metadata": {"in_sentence": "~ATtt; A SINGH v. FINANCIAL COMMISSIONER (Jaswanl Singh, J.) 62 i\n\nHardyal Hardy, Naunit Lal and Miss La/ita Kohli, for the appel- A !"}}, {"text": "La/ita Kohli", "label": "LAWYER", "start_char": 3296, "end_char": 3308, "source": "ner", "metadata": {"in_sentence": "~ATtt; A SINGH v. FINANCIAL COMMISSIONER (Jaswanl Singh, J.) 62 i\n\nHardyal Hardy, Naunit Lal and Miss La/ita Kohli, for the appel- A !"}}, {"text": "P. Sharma", "label": "LAWYER", "start_char": 3338, "end_char": 3347, "source": "ner", "metadata": {"in_sentence": "P. Sharma and P. N. Puri, for the respondents."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 3352, "end_char": 3362, "source": "ner", "metadata": {"in_sentence": "P. Sharma and P. N. Puri, for the respondents."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 3481, "end_char": 3492, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 3507, "end_char": 3528, "source": "regex", "metadata": {}}, {"text": "Malout", "label": "GPE", "start_char": 3902, "end_char": 3908, "source": "ner", "metadata": {"in_sentence": "1 herein, was recorded in revenue records as land-owner in respect of 39 standard acres and 9t nnits of land in village Malout, 53 standard acres and St units in village Kanamgarh and 4 standard acres and 2 units in village Bhagwanpur."}}, {"text": "Kanamgarh", "label": "GPE", "start_char": 3952, "end_char": 3961, "source": "ner", "metadata": {"in_sentence": "1 herein, was recorded in revenue records as land-owner in respect of 39 standard acres and 9t nnits of land in village Malout, 53 standard acres and St units in village Kanamgarh and 4 standard acres and 2 units in village Bhagwanpur."}}, {"text": "Bhagwanpur", "label": "GPE", "start_char": 4006, "end_char": 4016, "source": "ner", "metadata": {"in_sentence": "1 herein, was recorded in revenue records as land-owner in respect of 39 standard acres and 9t nnits of land in village Malout, 53 standard acres and St units in village Kanamgarh and 4 standard acres and 2 units in village Bhagwanpur."}}, {"text": "July 5, 1959", "label": "DATE", "start_char": 4037, "end_char": 4049, "source": "ner", "metadata": {"in_sentence": "By his order dated July 5, 1959, the !"}}, {"text": "Punjab Security of Land Tenures Act, 1953", "label": "STATUTE", "start_char": 4118, "end_char": 4159, "source": "regex", "metadata": {}}, {"text": "Rajinder Singh", "label": "PETITIONER", "start_char": 4356, "end_char": 4370, "source": "ner", "metadata": {"in_sentence": "Rajinder Singh and Jarnail Singh, appellants Nos."}}, {"text": "Jarnail Singh", "label": "PETITIONER", "start_char": 4375, "end_char": 4388, "source": "ner", "metadata": {"in_sentence": "Rajinder Singh and Jarnail Singh, appellants Nos."}}, {"text": "July 20, 1965", "label": "DATE", "start_char": 4583, "end_char": 4596, "source": "ner", "metadata": {"in_sentence": "1, went up in appeal against the said order of the Collector to the Commissioner, Jullundur Division, who vide his order dated July 20, 1965 allowed the appeal, set aside the aforesaid order of the Collector and remanded the case for fresh determination of the \"Surplus Area.\""}}, {"text": "ferozepore", "label": "GPE", "start_char": 4792, "end_char": 4802, "source": "ner", "metadata": {"in_sentence": "After re-examination of the case on remand, the Collector, ferozepore, vide his order dated December 20, 1965, overruled the plea raised by appellants Nos."}}, {"text": "December 20, 1965", "label": "DATE", "start_char": 4825, "end_char": 4842, "source": "ner", "metadata": {"in_sentence": "After re-examination of the case on remand, the Collector, ferozepore, vide his order dated December 20, 1965, overruled the plea raised by appellants Nos."}}, {"text": "Punjab Tenancy Act, 1887", "label": "STATUTE", "start_char": 5477, "end_char": 5501, "source": "regex", "metadata": {}}, {"text": "High Conrt of Punjab and Harvana", "label": "COURT", "start_char": 6284, "end_char": 6316, "source": "ner", "metadata": {"in_sentence": "All these orders were challenged by the appellants before the High Conrt of Punjab and Harvana by means of a petition under Article 226 of the Constitution but the same, as already stated, was dismissed in limine."}}, {"text": "Article 226", "label": "PROVISION", "start_char": 6346, "end_char": 6357, "source": "regex", "metadata": {"linked_statute_text": "the Punjab Tenancy Act, 1887", "statute": "the Punjab Tenancy Act, 1887"}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 6508, "end_char": 6522, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Hardayal Hardy", "label": "LAWYER", "start_char": 6589, "end_char": 6603, "source": "ner", "metadata": {"in_sentence": "Appearing in support of the appeal, Mr. Hardayal Hardy has contended that the writ petition filed by the appellants could not, in the facts and circumstances of the case, be a1sm1ssed in limine by the High Court.", "canonical_name": "Hardayal Hardy"}}, {"text": "Roznamcha Waqaiti", "label": "PETITIONER", "start_char": 7031, "end_char": 7048, "source": "ner", "metadata": {"in_sentence": "Elaborating by his submission, the learned counsel has urged that the orders passed by the revenue authorities could not be sustained as they did not, while computing the 'Surplus Area', leave out the permissible area which even according to the khasra girdawaries and Roznamcha Waqaiti which is maintained for the purpose of recording changes in cultivation was being cultivated by appellants Nos.", "canonical_name": "Roznamcha Waqaiti"}}, {"text": "section 2(8)", "label": "PROVISION", "start_char": 7375, "end_char": 7387, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 8464, "end_char": 8475, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Roznamcha Waqaiti", "label": "PETITIONER", "start_char": 9693, "end_char": 9710, "source": "ner", "metadata": {"in_sentence": "It is also to be noted that even in the application for leave to adduce additional evidence, no mention has been made of any entry in 'Roznamcha Waqaiti'.", "canonical_name": "Roznamcha Waqaiti"}}, {"text": "Order 41, Rule 27", "label": "PROVISION", "start_char": 12808, "end_char": 12825, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12829, "end_char": 12856, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, 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{"document_id": "1976_3_625_627_EN", "year": 1976, "text": "SANTI RANJAN DASS GUPTA\n\nM/S DASIJRAM MIRZAMAL\n\nMarch 11, 1976\n\n[A. N. RAY, C.J., M. JI. BEG AND JASWANT SINGH, JJ.]\n\n~25\n\nIndian Limitation Act, 1908, :1. 15, whether attachment of decree amount1 to •stay' within the meaning of-Execution application struck off-Another application on decree becoming executable, if continuation of t.he previous one.\n\nThe respondent obtained a m.oney-decree against the appellant, from the Subordinate judge, Gauhati, and applied for its execution. The appellant applied for an adjustment of the decree, <:IIld the respondent's application for execution was dismissed.\n\nThe appellant then obtained a' decree from the Subordinate C Judge, Nowgong, against the respondent, and in its execution, got his cGauhati decree attached. The appellant then withdrew his adjustment-application.\n\nThe High Court allowed the respondent's appeal for execution of the Gauhati decree. The Subordinate Judge, Gauhati, struck off his original executionapplication from the file.\n\nThereafter, the attachment order ceased to be operative on account of the High Court's allowance of the respondent's appeal in the Nowgong matter, and the respondent again applied for execution of the Gauhati decree, but the SuborJinate Judge, Gauhati, dismissed the application D\n\nas time-barred. The High Court allowed his appeal and directed the execution to proceed. The appellant contended before this Court that attachment of the respondent's decree did not amount to a 'stay' within the meaning of S. 15 of the Indian Limitation Act, and therefore, his second application for execution was barred by limitation, not having been filed within three years of the first one being struck off by the Subordinate Judge, Gauhati.\n\nDismissing the appeal, the Court\n\nHELD : ( 1) The order obtained by the appellant attaching the decree of the respondent precluded the respon.dent from executing the decree during the Y time th.: rittnchnicnt \\\\'as in fore::.\n\nThere was no question of limitation because the application was filed within three years from 28 April, 1964, when the bar against execution was raised and the attachment order ceased to be operative.\n\n[627B~]\n\n(2) The order striking off the execution application was mere consigning\n\nit to the record-room for statistical purposes. The application for execution F on 27th July, 1965, is a continuation of the old application.\n\nL627D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 858 of 1968.\n\nFrom the Judgment and Decree dated 7-7-67 of the Assam and Nagaland High Court at Gauhati in Misc.\n\nAppeal Nos. 36 and 37 of 1966.\n\nSarjoo Prasad and A. K. Nag for the appellant.\n\nB. P. Maheshwari for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRAY, CJ. Thi• appeal by certificate is from the order dated 26 . July, 1967 of the High Court of Assam.\n\nThe only question in this appeal is whether the responden:'s application filed on 27 July, 1965 for excution of !he decree obtamed by him is barred by limitation.\n\nSUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nThe respondent on 7 January, 1952 obtained a decree against the appellant for the sum of Rs. 71,980 in a money suit filed in the Court of Subordinate Jndge, Gauhati. On 8 December, 1956 the respondent decree-holder filed an application No. 89/56 for executing the said decree. On 15 July, 1957 the appellant, the judgment debtor, filed an application pleading adjustment of the decree. On 15 April, 1958 the judgment debtor withdrew the said application.\n\nOn 18 December, 1957 the Subordinate Judge Gauhati dismissed the decree-holder's application No. 89 /56. The decree-holder preferred an appeal. The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree.\n\nMeanwhile on 18 January, 1958 the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs. 1,22,000 in the Court of the Subordinate Judge at Nowgong.\n\nIn execution of the decree in the Nowgong suit the appellant on or about 29 January, 1958 obtained an attachment of the respondent's decree passed in the Gauhati suit.\n\nOn 13 August, 1959 the Subordinate Judge, Gauhati struck off the execution application No. 89/56 from the file.\n\nThe respond, ent filed an appeal against the decree obtained by the • appellant in the Nowgong suit.\n\nThe High Court on 28 April 1964 accepted the appeal filed by the respondent and dismissed the N owgong\n\nsuit filed by the appellant.\n\nOn 27 July, 1965 the respondent filed an application for execution E in the Court of the Subordinate Judge, Gauhati. The appellant preferred an objection contending that the application is barred by limitation.\n\nOn 4 March, 1966 the Subordinate Judge dismissed the execution ---1,'\n\napplication as barred by time.\n\nOn 26 July, 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed.\n\nThe contention of the appellant is that the order obtained by the appellant attaching the respondent's decree did not amount to a stay within the meaning of section 15 of the Indian Limitation Act, 1908, and therefore, the respondent's application for execution which was filed on 27 July, 1965 was barred by limitation. The appellant contended that when the Subordinate Judge, Gauhati on 13 August, 1959' struck off the execution application of the respondent the respondent should have filed an application for execution within three years from that date.\n\nThe High Court referred to the order dated 29 January, 1958 passed by the N owgong Court attaching the decree obtained by the respondent. The High Court relied on the provisions contained in Order 21 Rule 53 (1) (b) of the Code of Civil Procedure and held that the attachment continued restraining the respondent from executing the decree until the notice issued by the Court attaching the decree was recalled.\n\nThe Nowgong court did not pass any order recalling tho\n\nS. R. DASS GUPTA V. DASURAM MIRZAMAL (Ray, C.J.) 627\n\norder.\n\nOn l March, 1958 the Nowgong court passed an order which A. was as follows :\n\n\"Notice served.\n\nNo objection filed by J. D. (meaning thereby judgment debtor). Heard both parties. Execution case is struck off for the present. Attachment to continue until further orders.\"\n\nIn the context of this order of attachment passed by the Nowgong court the attachment continued until the Nowgong suit was dismissed by the High Court on 28 April, 1964.\n\nThe High Court rightly held that there was no question of limitation because the application was filed within three years from 28 April, 1964 when the bar against execution was raised and the order restraining the respondent decree holder from executing the decree in the Gauhati suit ceased to be operative.\n\nAnother contention which had been raised by the appellant and repeated here is that when the Gauhati court on 13 Angust, 1959 struck off the execution case No. 89/56 the execution application filed on 27 July, 1965 was barred by time. The High Court held that the Gauhati Court on 13 August, 1959 merely struck off the execution application, and, therefore, the subsequent application which was made I) was a continuation of the execution proceedings.\n\nThe High Court held that striking off. the application did not amount to any order deciding the merits of the application.\n\nThe order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to have precluded the respondent from executing the decree during the time the attachment was in force. The other conclusion of the High Court that the execution application dated 27 July, 1965 was a continuation of the earlier application is also correct. The order striking\n\noff the execution application has been rightly construed by the High Court as merely consigning the application to the Record Room for statistical purposes. The application dated 27 July, 1965 indicates in column 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August, 1959 because of the order of attachment passed by the Nowgong court. The attachment order was nullified only when the appellant's suit was dismissed by the High Court on 28 April, 1964. The respondent's decree became execntable at that time. The inescapable conclusion is that the application for execution on 27 July, 1965 is a continuation of the old application.\n\nFor these reasons, the judgment of the High Court is affirmed. The appeal is dismissed with costs. ·\n\nM.R.\n\nAppeal dismissed.", "total_entities": 36, "entities": [{"text": "SANTI RANJAN DASS GUPTA", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "SANTI RANJAN DASS GUPTA", "offset_not_found": false}}, {"text": "M/S DASIJRAM MIRZAMAL", "label": "RESPONDENT", "start_char": 25, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "M/S DASIJRAM MIRZAMAL", "offset_not_found": false}}, {"text": "March 11, 1976", "label": "DATE", "start_char": 48, "end_char": 62, "source": "ner", "metadata": {"in_sentence": "SANTI RANJAN DASS GUPTA\n\nM/S DASIJRAM MIRZAMAL\n\nMarch 11, 1976\n\n[A. N. RAY, C.J., M. JI."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 65, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. JI. BEG", "label": "JUDGE", "start_char": 82, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 123, "end_char": 150, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Subordinate C Judge, Nowgong", "label": "COURT", "start_char": 651, "end_char": 679, "source": "ner", "metadata": {"in_sentence": "The appellant then obtained a' decree from the Subordinate C Judge, Nowgong, against the respondent, and in its execution, got his cGauhati decree attached."}}, {"text": "Subordinate Judge, Gauhati", "label": "COURT", "start_char": 906, "end_char": 932, "source": "ner", "metadata": {"in_sentence": "The Subordinate Judge, Gauhati, struck off his original executionapplication from the file."}}, {"text": "Nowgong", "label": "GPE", "start_char": 1126, "end_char": 1133, "source": "ner", "metadata": {"in_sentence": "Thereafter, the attachment order ceased to be operative on account of the High Court's allowance of the respondent's appeal in the Nowgong matter, and the respondent again applied for execution of the Gauhati decree, but the SuborJinate Judge, Gauhati, dismissed the application D\n\nas time-barred."}}, {"text": "SuborJinate Judge, Gauhati", "label": "COURT", "start_char": 1220, "end_char": 1246, "source": "ner", "metadata": {"in_sentence": "Thereafter, the attachment order ceased to be operative on account of the High Court's allowance of the respondent's appeal in the Nowgong matter, and the respondent again applied for execution of the Gauhati decree, but the SuborJinate Judge, Gauhati, dismissed the application D\n\nas time-barred."}}, {"text": "S. 15", "label": "PROVISION", "start_char": 1500, "end_char": 1505, "source": "regex", "metadata": {"statute": null}}, {"text": "Limitation Act", "label": "STATUTE", "start_char": 1520, "end_char": 1534, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "27th July, 1965", "label": "DATE", "start_char": 2320, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "The application for execution F on 27th July, 1965, is a continuation of the old application."}}, {"text": "Sarjoo Prasad", "label": "LAWYER", "start_char": 2584, "end_char": 2597, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and A. K. Nag for the appellant."}}, {"text": "A. K. Nag", "label": "LAWYER", "start_char": 2602, "end_char": 2611, "source": "ner", "metadata": {"in_sentence": "Sarjoo Prasad and A. K. Nag for the appellant."}}, {"text": "B. P. Maheshwari", "label": "LAWYER", "start_char": 2632, "end_char": 2648, "source": "ner", "metadata": {"in_sentence": "B. P. Maheshwari for the respondent."}}, {"text": "RAY", "label": "JUDGE", "start_char": 2714, "end_char": 2717, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, CJ."}}, {"text": "18 December, 1957", "label": "DATE", "start_char": 3482, "end_char": 3499, "source": "ner", "metadata": {"in_sentence": "On 18 December, 1957 the Subordinate Judge Gauhati dismissed the decree-holder's application No."}}, {"text": "Subordinate Judge Gauhati", "label": "COURT", "start_char": 3504, "end_char": 3529, "source": "ner", "metadata": {"in_sentence": "On 18 December, 1957 the Subordinate Judge Gauhati dismissed the decree-holder's application No."}}, {"text": "High Court at Gauhati", "label": "COURT", "start_char": 3627, "end_char": 3648, "source": "ner", "metadata": {"in_sentence": "The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree."}}, {"text": "1 July, 1959", "label": "DATE", "start_char": 3652, "end_char": 3664, "source": "ner", "metadata": {"in_sentence": "The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree."}}, {"text": "18 January, 1958", "label": "DATE", "start_char": 3776, "end_char": 3792, "source": "ner", "metadata": {"in_sentence": "Meanwhile on 18 January, 1958 the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs."}}, {"text": "13 August, 1959", "label": "DATE", "start_char": 4135, "end_char": 4150, "source": "ner", "metadata": {"in_sentence": "On 13 August, 1959 the Subordinate Judge, Gauhati struck off the execution application No."}}, {"text": "section 15", "label": "PROVISION", "start_char": 5069, "end_char": 5079, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Limitation Act, 1908", "label": "STATUTE", "start_char": 5087, "end_char": 5114, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "27 July, 1965", "label": "DATE", "start_char": 5193, "end_char": 5206, "source": "ner", "metadata": {"in_sentence": "The contention of the appellant is that the order obtained by the appellant attaching the respondent's decree did not amount to a stay within the meaning of section 15 of the Indian Limitation Act, 1908, and therefore, the respondent's application for execution which was filed on 27 July, 1965 was barred by limitation."}}, {"text": "29 January, 1958", "label": "DATE", "start_char": 5514, "end_char": 5530, "source": "ner", "metadata": {"in_sentence": "The High Court referred to the order dated 29 January, 1958 passed by the N owgong Court attaching the decree obtained by the respondent."}}, {"text": "Order 21 Rule 53", "label": "PROVISION", "start_char": 5662, "end_char": 5678, "source": "regex", "metadata": {"linked_statute_text": "the Indian Limitation Act, 1908", "statute": "the Indian Limitation Act, 1908"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 5690, "end_char": 5717, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. R. DASS GUPTA", "label": "JUDGE", "start_char": 5939, "end_char": 5955, "source": "ner", "metadata": {"in_sentence": "The Nowgong court did not pass any order recalling tho\n\nS. R. DASS GUPTA V. DASURAM MIRZAMAL (Ray, C.J.) 627\n\norder."}}, {"text": "28 April, 1964", "label": "DATE", "start_char": 6426, "end_char": 6440, "source": "ner", "metadata": {"in_sentence": "In the context of this order of attachment passed by the Nowgong court the attachment continued until the Nowgong suit was dismissed by the High Court on 28 April, 1964."}}, {"text": "Gauhati court", "label": "COURT", "start_char": 6846, "end_char": 6859, "source": "ner", "metadata": {"in_sentence": "Another contention which had been raised by the appellant and repeated here is that when the Gauhati court on 13 Angust, 1959 struck off the execution case No."}}, {"text": "13 Angust, 1959", "label": "DATE", "start_char": 6863, "end_char": 6878, "source": "ner", "metadata": {"in_sentence": "Another contention which had been raised by the appellant and repeated here is that when the Gauhati court on 13 Angust, 1959 struck off the execution case No."}}, {"text": "Gauhati Court", "label": "COURT", "start_char": 7017, "end_char": 7030, "source": "ner", "metadata": {"in_sentence": "The High Court held that the Gauhati Court on 13 August, 1959 merely struck off the execution application, and, therefore, the subsequent application which was made I) was a continuation of the execution proceedings."}}, {"text": "Nowgong court", "label": "COURT", "start_char": 8117, "end_char": 8130, "source": "ner", "metadata": {"in_sentence": "The application dated 27 July, 1965 indicates in column 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August, 1959 because of the order of attachment passed by the Nowgong court."}}]}
{"document_id": "1976_3_628_636_EN", "year": 1976, "text": "HARBANSLAL JAGMOHANDAS & ANR.\n\nPRABHUDAS SHIVLAL\n\nMarch 12, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nBombay Rents Hotel anti Lodging House J?ates Control Act 1947-Exp/a- 11ation I to s. 12-Sec. 11-12(3)(a)(b)-Whether a tenant must raise dispute as to standard rent within one month fron1 receipt of notice or whether can be raised in written statement.\n\nBoth the appeals raise a common question as to whether a tenant in order to resist passing of a decree of eviction under the provisions contained in ' 12(3 )(a) of the Bombay Rent Act 1947 must dispute the standard rent within one month from the date of receipt of the notice from the landlord terminating the tenancy on the ground of arrears of rent or \\Vhether a tenant can raise such a dispute in the written statement. The Gujarat High Court toot a view that the dispute as to standard rent has to be raised within one month from the service of the notice on the tenant. The Bombay High Court ha,,\n\ntaken a contrary view and held that the tenant can raise a dispute as to standard rent in his written statement in answer to the suit and in such a case the provisions of s. 12(3) (a) of the Act will apply.\n\nJn the Gujarat case. the High Court found that the tenant did not raise the dispute within one montll of the service of the notice terminating the tenancy inter alia, on the ground of arrears of rent for more than 6 months. In the Bombay appeal the dispu1c\n\nwas not raised within one month from the date of the receipt of the notice. It was, however, raised in the written statement. Under s. 11 of the Act. the court has power to determine standard rent when there is a dispute between the landlord and tenant regarding the amount of standard rent.\n\n1-IELD: (1) Under s. 12 of the Act the landlord is not entitled to recover possession of the premises so long as the tenant pays or is ready and willing to pay the amount of standnrd rent and !Jermitted increases.\n\nSection 12(2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent. until the expiration of one month next after notice in writing of the payment of the standard rent.\n\nSection 12(3) (a) provides for passing a decree for cvictiOn of the tenant is in arrears for a period of 6 months and neglects to make t_he payment after the expiration of the notice period provided there is no dispute regarding the amount of standard rent. Clause 12(3)fa) provides that in any other. case no decree for eviction should be pac; sed if the tenant pays or tender\" in the court the standard rent and permitted increases which is due and thereafter continues to pay or tender in court regular1y such rent till the suit isfinally decided.\n\nExplanation I to s. 12 provides that where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and wi11ing to pay such amount if before the expiry of the period of one month from the receipt of the notice he makes an application under s. 11 for the fixation of the t'ltandard rent and thereafter pays the rent fixed by the Court. [632-B, GJ\n\n(2) The Bqmbay High Court view overlookc; the limitation of time within which a dispute is to be raised as to standard rent.\n\nThe view of the Bombay High Court that dispute within one month of the service of the notice terminatin• the tenancv is one mode of raisin):! a dispute and there i<i nnother mode of raising the -dispute at anv stage of the suit. nullifies the provisions contained in s. 12 and explanation thereto and confers a right on the tenant where the 1ea:is1ation does not contemplate such right. The provisions in s. 11 (3) of the Act deal with orders which may be passed by the court during the pendency of the application disputing the rent. Provisions of s. 11 ( 4) of the Act deal with orders \\vhich may be passed consequent upon dispute as to rent. It is\n\nonly when a~ application disputing the rent fa made witi.~ the time contm- A plated by Explanation I to s. 12 of the Act that the provisions on sub-secttona\n\n(3) and (4) of s. 11 are attracted. [635F-H, 636AJ\n\n\" CIVIL APPELLA:rE JURISDICTION : Civil Appeal No. 282 of 1971.\n\nAppeal by special Leave from the Judgment and Order dated 22-U-70 of the Gujarat High Court in C.R.A. No. 1353 of 1970 and\n\nCIVIL APPEAL NO. 2068/71\n\nAppeal by Special Leave from the fodgment ad. Order. dated the 31-3-71 of the Bombay High Conrt m Special Civil Apphcat10n No. 859 of 1967.\n\nD. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No. 282 of 1971 referred to as the Guiarnt Appeal is by special leave from the order dated 22 December,\n\n1970 of the High Court of Gujarat rejecting a revision application agaimt the judgment and decree passed by the Extra Assistant Judge on 17 September, 1970.\n\nCivil Appeal No. 2068 of 1971 hereinafter referred to as the Bombay Appeal is by special leave from the judgment and order dated 21 March, 1971 of the High Court of Bombay.\n\nBoth the appeals raise a common question as to whether the provision contained in section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 194 7 hereinafter referred to as the Act applies. The Gujarat High Court took the view that the provisions of section 12 (3) (a) of the Act apply to the suit.\n\nThe Bombay High Court took the view that the provisions contained in section 12 (3) (a) of the Act do not apply to the suit, but that the suit is governed by the provisions contained in section 12 (3)\n\n(b) of the Act.\n\nThe principal question is whether on receipt of a notice from the landlord terminating the tenancy on the ground of arrears of rent dispute as to standard rent has to be raised before the expiry of the period of one month after the service of the notice.\n\nThe Gujarat High Court has taken the view that the dispute as to standard rent is to be raised within one month from the service of the notice on the tenant.\n\nThe Bombay High Court has taken a contrary view and held that the tenant can raise a dispute as to standard rent in his written statement in answer to the suit and in\n\nA such a case the provisions of section 12 (3) (b) of the Act will apply.\n\nIn the Gujarat appeal the respondent filed a suit for recovery of possession of a portion of the ground floor of a building on the ground that the appellant was iri arrears of rent from 1 September, 1964 and also on the ground that the respondent bonafide required possession of the premises in suit.\n\nThe Third Joint Civil Judge in the trial court gave a decree in favour of the respondent for possession of the premises.\n\nThe trial court held that the appellants were in arrears of rent from 1 September, 1964 an, t that they were not ready and willing to pay the rent.\n\nThe trial Court further held that the contractual rent in respect of the premises was not unreasonable and excessive.\n\nThe appellants in the Gujarat appeal filed an appeal in the court of District judge of Surat.\n\nThe Appellate Court by judgment dated 17 September, 1970 confirmed the judgment and decreed the suit.\n\nThe appellants thereafter filed a revision application before the Gujarat High Court on the ground that the court should have held that the case fell under section 12 (3) (b) of the Act.\n\nThe High Court rejected the revision application at sight.\n\nThe facts found in the Gujarat appeal are as follows: The appellants paid rent to the respondent up to 31 August, 1964.\n\nThe respondent landlord by notice dated 14 November, 1966 terminated the tenancy of the appellants, inter alia, on the ground that the appeUants were in arrears of rent for more than six months.\n\nThe appellants received the notice on 6 December, 1966.\n\nThe respondent filed the suit on 2 February, 1967.\n\nIn the Gujarat appeal appellants contended that they raised the dispute about the standard rent by their letters dated 17 November, 1966; 19 December, 1966 and 11 February, 1967, and therefore, there was a dispute as to standard rent and the provisions contained in section 12 (3) (a) of the Act do not apply.\n\nThe Appellate Court found that the letters dated 17 November, 1966 and 19 December, 1966 alleged to have been written by the appellants to the respondent were manufactured by the appellants and the certificate.!\n\nof posting were obtained by unscrupulous means. As to the alleged letter of the appellants dated 11 February, 1967 the Appellate Court found that in that letter the appellants referred to the letters dated 17 November 1966 and 19 December, 1966.\n\nThe respondent by his reply datd 16 February, 1967 denied that the respondent ever received any Jetter dated 17 November, 1966 or 19 December, 1966.\n\nOn this evidence the Appellate Court found that there was no dispute as to rent within one month of the service of the notice terminatini\n\nthe tenancy.\n\nIn the Bombay Appeal the notice terminating the tenancy was dated 5 April, 1963 to deliver possession on the expiration of 15 May, 1963. The suit was filed on 11 September, 1963. The\n\nappellants landlords alleged that the tenants were in arrears from 15 A Mardi, 1960 to 15 March, 1963, viz., for over six months. In the Bombay appeal the trial Court gave a decree for possession.\n\nThe Appellate Court confirmed the judgment of the trial Court.\n\nIn an application under Article 227 of the Constitution the Bombay High Court held that when the respondent paid all arrears and costs of the suit on 23 December, 1964 it could not he said that the respondent did not comply with the provisions of section 12 ( 3) (b) of the Act B The Bombay High Court took the view that the Full Bench of the Bombay High Court in Dattu Subhana Panhalkar v. Gajanan Vithoba Bob hate & A nr. (') held that a tenant could raise a dispute as to standard rent by raising an issue as to standard rent in the written statement.\n\nThe provisions contained in sections 12 (3) (a) and (b) of the C Act are as follows:\n\n\"(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent of permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof unlil the expiration of the period of one month after notice referred to in sub- D section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession .\n\n(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such date as the Court may fix the tenant pays or tenders in Court the standard rent and permitted increase• then due and thereafter continues to E pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.\"\n\nExplanation I to section 12 of the Act is as follows :-\n\n\"In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under F this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2) he makes an application to the Court under sub-section (3) of section 11 and !hereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.\" G The following provisions with regard to standard re1_1t re found in section 11 of the Act.\n\nThe Court may, upon an application made to it for that purpose, or in any suit or proceedings, fix the standard rent, inter alia, where there is any dispute between the landlo'.d nd the tenant regarding the amont of standard rent. If any apphca.tion for fixing the standard rent 1s made by a tenant who has received H a notice from the landlord under sub-section (2) of section 12,, the Court shall forthwith specify the amount of rent or permitted\n\n(l) A.l.R. 1971 Born. 396 .\n\nincreases which are to be deposited in Court by the tenant and make an order directing the tenant to deposit such amount in Court cir at the option of the tenant make an order to pay to the landlord such amount thereof as the Court may specify, pending the final decision of the application.\n\nOut of any amount deposited in Court, the Court may make an order for payment of such reasonable sum to the landlord towards payment of rent or increases due to him as it thinks fit.\n\nIf the tenant fails to deposit such amount or, as the case may be, to pay such amount thereof to the landlord, his application shall be dismissed.\n\nUnder section 12 of the Act the landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act.\n\nSub-section (2) of section 12 of the Act states that no suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act.\n\nClause (a) of sub-section (3) of section 12 of the Act provides for the passing of a decree for eviction first, where the rent is payable by the month; second, there is no dispute regarding the amount of standard rent or permitted increases; third, the rent or increases are in arrears for a period of six months; and fourth, the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2) of section 12 of the Act.\n\nClause (b) of sub-section (3) of section 12 of the Act, states that in any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may, fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.\n\nExplanation I to section 12 of the Act provides that where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shaII be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.\n\nCounsel for the appellant in the Gujarat appeal relied on the Bombay view that there is no limitation of time during which a disc pute must be raised and none can be implied from the Explanation.\n\nThe Bombay High Court has not agreed with the view of the Gujarat\n\nHigh Court in Amba/a/ v. Badaldas('). The Bombay view is that the A dispute in section 12(,3) (a) is not limited only to a dispute raised within one' month of the notice as contemplllted in section 12(3) (b) of the Act.\n\nThe Bombay High Court relied on section 11 ( 4) of the Act the provisions whereof are as follows :-\n\n\"Where at any stage of a suit for recovery of rent whether with or without. a claim for possession of the pre- B mises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court Shall and in any other case if it appears to the Court that it is just and proper to make such an order the Court may make an order directing the nant to deposit in Court forthwith such amount of the rent as the Court considers c to be reasonably due to the land_lord, or at the option of the tenant an order directing him to pay to the landlord such amount thereof as the Court may specify.\n\nThe Court may further make an order directing the tenant to deposit in Court periodically, such amount as it considers proper as interim standard rent, or at the option of the tenant an order to pay to the landlord such arnonnt thereof, as the Court D may specify, during the pendency of the suit.\n\nThe Court may also direct if the tenant fails to comply with any order made as aforsaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify.\" E\n\nThe Bombay High Court held that to limit raising a dispute within one month from the service of notice would render the provisions of section 11 ( 4) nugatory. The Bombay High Court held that the effect of sections 11 and 12 of the Act is to give the tenant a right to dispute the standard rent in the event of a suit and if the tenant raises a dispute in answer to a suit for recovery of rent it would be a dis-\n\nF . pute within the meaning of section 12(3) (a) of the Act and would take the suit out of the provisions of that sub-section.\n\nThe Gujarat High Court in the decision in Ambalal's case\n\n(supra) and in Chum/al Shiv/al v. Chimanlal Nagindas(') took the view that in order to avoid the operation of section 12(3) (a) of the Act the dispute in regard to standard rent or permitted increases must G be raised at the latest before the expiry of one month from the date of service of notice nnder section 12(2) of the Act and it is not enough to raise a dispute for the first time in the written statement.\n\nIn Ambalal's case (supra) the question was as to what Should be stage at which the dispute in regard to standard rent or permitted increases must be raised in order to take the case out of ection 12(3) (a) of the Act. The Gujarat High Court held that.the dispute is one which H is in existence at the date of the notice or at any rate before the ex-\n\n(I) A.1.R. 1964 Guj. 9.\n\n8-608SCI/76\n\n(2) (1966) VII Gujarat Law Reporters 945.\n\nA piry of one month from the date of.its service and not the one raised subsequently in a written statement with a view to avoiding the operation of section 12(3) (a) of the Act.\n\nCounsel for the appellants' in the Gujarat appeal contended that the decision in Vora Abbasbhai v.\n\nHaji Gulamnabi(') has overruled Amblal's case (supra). In Vora Abbasbhai's case the notice terminating the tenancy was dated 1 December, 1956. - The tenant by reply dated 7 December, 1956 contended that the contractual rent was excessive.\n\nThe tenantmade an application on 5 Janvary 1957 for fixation of standard rent nnder section 11 (1) of the Act.\n\nWhile the application was pending the landlord filed the suit on 27 January, 1957 for ejectment. The tenant in the written statement reiterated the contention that the contractual rent was excessive andthat the standard rent should be fixed by the Court. On these facts the question in Vora Abbasbhai's case (supra) was whether the case fall within section 12(3) (a) or section 12(3) (b) of the Act.\n\nThe only point in controversy in Vora Abbasbhai's case (supra) was whether the second condition in section 12(3) (a) of the Act, viz., that there was no dispute regarding the amount of standard rent was fulfilled.\n\nThe landlord's contention was that the dispute concerning standard rent is oue which must have been raised before service of the notice and since there was admittedly no dispute in regard to standard rent or permitted increases at the date of service of the notice under section 12 -(2) of the Act the second condition in section 12(3) (a) that there was no dispute was satisfied.\n\nThis Court did not accept the landlord's contention there and held that the defendant in that case raised the contention by reply dated 7 December, 1956 that the contractual rent was excessive and raised the same contention in the application filed for fixation of standard rent.\n\nThe Gujarat High Court in Ambalal's case (supra) held that in order to attract the applicability of section 12 (3) (a) of the Act there must be non-existence of the dispute at the date of the notice and such non-existence must continue right up to the expiration of one month from the date of service of the notice so that if the dispute is raised at any time prior to the expiration of the said period on one month, the operation of section 12(3) (a) would be excluded. The latest point of time when according to Ambalal's case (supra) the dispute in re.gard to the standard rent must be raised in order to avoid the operation of section 12(3) (a) of the Act is the expiry of one month from the date of service of the notice. Ambalal's case (supra) rl!d not say that the dispute concerning standard rent must be raised before service of the notice in order to repel the applicability of section 12(3) (a) of the Act. If the dispute is in existence prior to the expiry of one month after service of the notice though subsequent to the date of th!' notice that would be sufficient to oust the operation of section 12(3) (a) of the Act. The decision of this Court in Vora Abbasbhai's case (supra) has not overruled the decision in Ambalal's case (supra). In Ambalal's case (supra) the conclusion is a single\n\n(1) [1964] 5 S.C.R. 157.\n\none and it is that in order to exclude the operation of section 12(3)\n\n(a) of the Act the dispute must be in existence latest within one month after service of the notice.\n\nThe question as to when a dispute is to be raised came up for consideration in Shah Dhansukhlal Chhangan- /al v.\n\nDalichand Virchand Shroff & Ors.(').\n\nThe appellant fell into arrears of rent in that case.\n\nThe landlord gave a notice to the tenant on 18 April, 1955 demanding the arrears of rent and also terminating the tenancy of the defendant with effect from 31 May, 1955. The notice was received by the defendant on 21 April, 1955, The suit for ejectment was filed on 15 March, 1956 on the ground that the defendent was in arrears of payment of rent and permitted increases and as such not entitled to the protection of the Act.\n\nThis Court held that section 12 (1) of the Act must be read with Explanation and so read it means that the tenant can only be considered to be ready and willing to pay if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section ( 3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court.\n\nThis Court found in Chhaganlal's case (supra) that the tenant made no payment within the period of one month of the notice of ejectment and further that although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11 (3) of the Act.\n\nThe tenant can claim protection from the operation of section 12(3) (a) of the Act only if the tenant makes an application within one month of the service of the notice terminating the tenancy by raising a dispute as to standard rent.\n\nThe view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent. The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and there is another mode of raising the dispute at any stage of the suit.\n\nThe view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.\n\nThe provisions in section 11 (3) of the Act deal with orders which\n\nmay be passed by the Court during the pendency of the application disputing the ren(. Provisions in section 11 ( 4) of the Act deal with H orders which may be passed consequent upon dispute as to rent. It is\n\n(I) [1968j 3 S.C.R. 346.\n\n636 SUPttEME COURT REPORTS\n\n[1976} 3 S.C.R.\n\nA only when an application disputing rent is made within the time contemplated by Explanation I to section 12 of the Act that the provisions in sub-section (3) and (4) of section 11 are attracted.\n\nFor the foregoing reasons we uphold the view of the Gujarat High Court and we do not accept the view of the Bombay High Court. We B dismiss Civil Appeal No. 282 of 1971 with costs. We accept Civil Appeal No. 2068 of 1971 and the judgment of the Bombay High Court is set aside. The decree passed by the Civil Judge on 31 October, 1964 and affirmed by the Assistant Judge on 27 September, 1966 is restored. The appellants will be entitled to costs.\n\nP.H.P.\n\nC. A. No. 282 of 1971 dismissed.\n\nC. A. No. 206& of 1971 allowed. \"\\", "total_entities": 105, "entities": [{"text": "HARBANSLAL JAGMOHANDAS & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "HARBANSLAL JAGMOHANDAS & ANR", "offset_not_found": false}}, {"text": "PRABHUDAS SHIVLAL", "label": "RESPONDENT", "start_char": 31, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "PRABHUDAS SHIVLAL", "offset_not_found": false}}, {"text": "March 12, 1976", "label": "DATE", "start_char": 50, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "PRABHUDAS SHIVLAL\n\nMarch 12, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 67, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 84, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "M. 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V. Patel", "label": "LAWYER", "start_char": 4543, "end_char": 4554, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "S. K. Dholakia", "label": "LAWYER", "start_char": 4556, "end_char": 4570, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "R. C. Bhatia", "label": "LAWYER", "start_char": 4575, "end_char": 4587, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 4621, "end_char": 4632, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "Makohn F. A. Pereize", "label": "LAWYER", "start_char": 4634, "end_char": 4654, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "H. S. Parihar", "label": "LAWYER", "start_char": 4659, "end_char": 4672, "source": "ner", "metadata": {"in_sentence": "D. V. Patel, S. K. Dholakia and R. C. Bhatia for Appellants in\n\nC. A. 282/71\n\nV. S. Desai, Makohn F. A. Pereize and H. S. Parihar for Appellants in C. A. 2068/71\n\nV. S. Desai, H. S. Parihar and I. N. Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "I. N. 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Shroff for Respondent in\n\nC.A. 282/71\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.--Civil Appeal No."}}, {"text": "21 March, 1971", "label": "DATE", "start_char": 5242, "end_char": 5256, "source": "ner", "metadata": {"in_sentence": "2068 of 1971 hereinafter referred to as the Bombay Appeal is by special leave from the judgment and order dated 21 March, 1971 of the High Court of Bombay."}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 5264, "end_char": 5284, "source": "ner", "metadata": {"in_sentence": "2068 of 1971 hereinafter referred to as the Bombay Appeal is by special leave from the judgment and order dated 21 March, 1971 of the High Court of Bombay."}}, {"text": "section 12", "label": "PROVISION", "start_char": 5369, "end_char": 5379, "source": "regex", "metadata": {"statute": null}}, {"text": "Hotel and Lodging House Rates Control Act", "label": "STATUTE", "start_char": 5409, "end_char": 5450, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 5562, "end_char": 5572, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act", "statute": "Hotel and Lodging House Rates Control Act"}}, {"text": "section 12", "label": "PROVISION", "start_char": 5681, "end_char": 5691, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act", "statute": "Hotel and Lodging House Rates Control Act"}}, {"text": "section 12", "label": "PROVISION", "start_char": 5798, "end_char": 5808, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act", "statute": "Hotel and Lodging House Rates Control Act"}}, {"text": "section 12", "label": "PROVISION", "start_char": 6446, "end_char": 6456, "source": "regex", "metadata": {"linked_statute_text": "Hotel and Lodging House Rates Control Act", "statute": "Hotel and Lodging House Rates Control Act"}}, {"text": "District judge of Surat", "label": "COURT", "start_char": 7250, "end_char": 7273, "source": "ner", "metadata": {"in_sentence": "The appellants in the Gujarat appeal filed an appeal in the court of District judge of Surat."}}, {"text": "17 September, 1970", "label": "DATE", "start_char": 7314, "end_char": 7332, "source": "ner", "metadata": {"in_sentence": "The Appellate Court by judgment dated 17 September, 1970 confirmed the judgment and decreed the suit."}}, {"text": "section 12", "label": "PROVISION", "start_char": 7535, "end_char": 7545, "source": "regex", "metadata": {"statute": null}}, {"text": "6 December, 1966", "label": "DATE", "start_char": 7982, "end_char": 7998, "source": "ner", "metadata": {"in_sentence": "The appellants received the notice on 6 December, 1966."}}, {"text": "section 12", "label": "PROVISION", "start_char": 8319, "end_char": 8329, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 227", "label": "PROVISION", "start_char": 9597, "end_char": 9608, "source": "regex", "metadata": {"statute": null}}, {"text": "23 December, 1964", "label": "DATE", "start_char": 9723, "end_char": 9740, "source": "ner", "metadata": {"in_sentence": "In an application under Article 227 of the Constitution the Bombay High Court held that when the respondent paid all arrears and costs of the suit on 23 December, 1964 it could not he said that the respondent did not comply with the provisions of section 12 ( 3) (b) of the Act B The Bombay High Court took the view that the Full Bench of the Bombay High Court in Dattu Subhana Panhalkar v. Gajanan Vithoba Bob hate & A nr. (')"}}, {"text": "section 12", "label": "PROVISION", "start_char": 9820, "end_char": 9830, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 12", "label": "PROVISION", "start_char": 10157, "end_char": 10168, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 11122, "end_char": 11132, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 11511, "end_char": 11521, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 11708, "end_char": 11718, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 12102, "end_char": 12112, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 12842, "end_char": 12852, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 13218, "end_char": 13228, "source": "regex", "metadata": {"statute": null}}, {"text": "section 106", "label": "PROVISION", "start_char": 13597, "end_char": 13608, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 13616, "end_char": 13640, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 12", "label": "PROVISION", "start_char": 13676, "end_char": 13686, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 14108, "end_char": 14118, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 14165, "end_char": 14175, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 14665, "end_char": 14675, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 15036, "end_char": 15046, "source": "regex", "metadata": {"statute": null}}, {"text": "Gujarat\n\nHigh Court", "label": "COURT", "start_char": 15418, "end_char": 15437, "source": "ner", "metadata": {"in_sentence": "The Bombay High Court has not agreed with the view of the Gujarat\n\nHigh Court in Amba/a/ v. Badaldas(')."}}, {"text": "section 12(,3)", "label": "PROVISION", "start_char": 15506, "end_char": 15520, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 15617, "end_char": 15630, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 15680, "end_char": 15690, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 17158, "end_char": 17168, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 11 and 12", "label": "PROVISION", "start_char": 17230, "end_char": 17248, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 17469, "end_char": 17482, "source": "regex", "metadata": {"statute": null}}, {"text": "Ambalal", "label": "OTHER_PERSON", "start_char": 17608, "end_char": 17615, "source": "ner", "metadata": {"in_sentence": "The Gujarat High Court in the decision in Ambalal's case\n\n(supra) and in Chum/al Shiv/al v. Chimanlal Nagindas(') took the view that in order to avoid the operation of section 12(3) (a) of the Act the dispute in regard to standard rent or permitted increases must G be raised at the latest before the expiry of one month from the date of service of notice nnder section 12(2) of the Act and it is not enough to raise a dispute for the first time in the written statement.", "canonical_name": "Ambalal"}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 17734, "end_char": 17747, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(2)", "label": "PROVISION", "start_char": 17928, "end_char": 17941, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 18620, "end_char": 18633, "source": "regex", "metadata": {"statute": null}}, {"text": "Amblal", "label": "OTHER_PERSON", "start_char": 18783, "end_char": 18789, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellants' in the Gujarat appeal contended that the decision in Vora Abbasbhai v.\n\nHaji Gulamnabi(') has overruled Amblal's case (supra).", "canonical_name": "Ambalal"}}, {"text": "Vora Abbasbhai", "label": "OTHER_PERSON", "start_char": 18809, "end_char": 18823, "source": "ner", "metadata": {"in_sentence": "In Vora Abbasbhai's case the notice terminating the tenancy was dated 1 December, 1956. -"}}, {"text": "section 11", "label": "PROVISION", "start_char": 19075, "end_char": 19085, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 19452, "end_char": 19465, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 19473, "end_char": 19486, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 19603, "end_char": 19616, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 19990, "end_char": 20000, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 20041, "end_char": 20054, "source": "regex", "metadata": {"statute": null}}, {"text": "7 December, 1956", "label": "DATE", "start_char": 20237, "end_char": 20253, "source": "ner", "metadata": {"in_sentence": "This Court did not accept the landlord's contention there and held that the defendant in that case raised the contention by reply dated 7 December, 1956 that the contractual rent was excessive and raised the same contention in the application filed for fixation of standard rent."}}, {"text": "section 12", "label": "PROVISION", "start_char": 20482, "end_char": 20492, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 20816, "end_char": 20829, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 21013, "end_char": 21026, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 21270, "end_char": 21283, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 21487, "end_char": 21500, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 5 S.C.R. 157", "label": "CASE_CITATION", "start_char": 21693, "end_char": 21712, "source": "regex", "metadata": {}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 21771, "end_char": 21784, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 22544, "end_char": 22554, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 22848, "end_char": 22858, "source": "regex", "metadata": {"statute": null}}, {"text": "Chhaganlal", "label": "OTHER_PERSON", "start_char": 22977, "end_char": 22987, "source": "ner", "metadata": {"in_sentence": "This Court found in Chhaganlal's case (supra) that the tenant made no payment within the period of one month of the notice of ejectment and further that although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11 (3) of the Act."}}, {"text": "section 11", "label": "PROVISION", "start_char": 23223, "end_char": 23233, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 23305, "end_char": 23318, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 23917, "end_char": 23927, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 24062, "end_char": 24072, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 24212, "end_char": 24222, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 24491, "end_char": 24501, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 24563, "end_char": 24573, "source": "regex", "metadata": {"statute": null}}, {"text": "31 October, 1964", "label": "DATE", "start_char": 24907, "end_char": 24923, "source": "ner", "metadata": {"in_sentence": "The decree passed by the Civil Judge on 31 October, 1964 and affirmed by the Assistant Judge on 27 September, 1966 is restored."}}, {"text": "27 September, 1966", "label": "DATE", "start_char": 24963, "end_char": 24981, "source": "ner", "metadata": {"in_sentence": "The decree passed by the Civil Judge on 31 October, 1964 and affirmed by the Assistant Judge on 27 September, 1966 is restored."}}]}
{"document_id": "1976_3_637_644_EN", "year": 1976, "text": "K. V. NARAYANAN\n\nK. V. RANGANANDHAN & ORS.\n\nMarch 12, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]\n\nHindu Law-Joint family and paftition-Allotment to a member of properties for discharge of fan1ily debts-When may be regarded as his exclusive property-Manager'.s liability for account-From lvhich date.\n\nThe appellant and V, father of respondents, were brothers. They, together with their cousin, formed a joint Hindu family. In a partition in 1929 between the two branches, certain properties were given to V for discharging C -some family debts.\n\nV took over the management of his branch of the family and after discharging the debts. filed in 1956 a suit for vartition against the appe11ant claiming, inter alia, that one of the items earmarked for the discharge of the debts which remained undisposed of, was his exclusive property as it was given to him absolutely; and also for accounts on the ground that the appellant took over the management from 1938. The trial court negatived the claim in respect of the property, but directed the appellant to give accounts from 1947 when admittedly he took over management.\n\nOn appeal, the High Court upheld V's claim with respect to the property and gave rriodified direc- D tions for accounts by the parties.\n\nDismissing the appeal to this Court,\n\nHELD : ( 1) The properties given to V became his separate properties from the date of the partition deed of 1929 and were not liable to partition. f643Al\n\n(~) The salient features of the deed are, (i) the sole responsibility for discharge of the debts was placed on V; (ii) V's liability was not to the extent E of the properties but was irrespective of the sufficiency or otherwise of the properties and any deficit or surplus was to be met or enjoyed by him exclusively; (iii) the cousin was no longer liable for the debts: (iv) in case there was a default on V's part, and if any loss was caused to the cousin he was to be indemnified by V; and (v) exclusive dominion and control over, and enjoyment of, the properties, was vested in V in consideration of the obligation undertaken by him to discharge the debts. The properties were thus given to V in view of his personal undertaking to discharge the debts, and, the conveyance was iu the nature of remuneration for services to be rendered by him.\n\n{642 C-G]\n\nJ<a; Kumar Singh Kukam Chll11.dii v. Co1nmissioner of Income-tax Madhya Pradesh (1971] 1 SCR 748 referred to.\n\n(l:J) The arrang:ement was valid because it was bona fide and its terms were . fair. [643E]\n\nSahu Madho Das v. Pandit Muka11d Ram [1955] 2 SCR 22, Maturi Pullaiah\n\nv. Maturi Narasimham AIR 1966 SC 1836 and S. Shanmugam Pillai & Ors. v.\n\nG K. Shanmugam Pillai & Ors. AIR 1972 SC 2069 referred to.\n\n(c) There was no blendin~ of the properties by V with other joint family properties. There was no evidence of any intention on V's part to abandon his separate rights over the properties. The mere fct that they were not separately entered by him in the account books or that no separite account of the earnings from them was maintained by him cannot rob them of their separate character. [644B-C]\n\nLakkireddi Chi1111a Venkata Reddi & Ors. v. Lakkireddi Lakshmama [1964] 2 S.C.R. 172 and G. Naruyana Ram v. C. Chamaraju & Ors. A.1.R. 1968 S.C. 1276 referred to .\n\n(d) If any amount of the joint family funds was used by V for the discharge of the debts, the respondents (legal representatives of V) would . be liable for them, but that would not affect the character of the properties.\n\n[644 C-DJ\n\n(2) It is well-settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager, a coparcener, seeking partiti.Qn, cannot call upon the manager to account for his past dealings with the family property.\n\nSince there was no evidence of any misappropriation by V, he was not liable for .accounts during his period of management. [644E-F]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1365 of 196& •\n\nFrom the Judgment and Decree dated the 8-12-66 of the Madras High Court in Appeal No. 609 of 1961.\n\nK. N. Balasubrahmaniam and Miss Lily Thomas for the Appellant.\n\nK. Jayaram for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-This is an appeal by certificate granted by the High Court of Judicature at Madras under Article 133(1) (a) and (b) of the Constitution of India against its judgment and decree dated December 8, 1966 in A. S. No. 609 of 1961.\n\nThe facts culminating in this appeal lie in a short compass and may be briefly stated thus :\n\nKota Venkatachala Pathy whose legal representatives are the respondents herein and Kota Narayanan, the appellant herein, were real brothers being the sons of one Kola Rangaswami Chettiar.\n\nTogether with their cousin _Subramanyam Chettiar, the son of Kota Kuppuswami Chettiar, the brother of Kota Rangaswami Chettiar, they formed a joint family which was a trading one.\n\nPrior to 1927, Subramanyam Chettiar was the manager and karta of the family.\n\nAfter 1927 Kota Venkatachala Pathy took over the management of the family and its properties.\n\nBy registered deed dated May 29, 1929 (Exh. A-1) a partition of joint family properties was effected between Subramanyam Chettiar on the one hand and Kota Venkatachala Pathy and his brother, Kota Narayanan, who was then a minor, on the other, each branch taking a half share.\n\nAs karta of the .ioint family.\n\nSubramanyam Chettiar had, before November 20, 1927 incurred debts to the tune cf Rs. 9,506/- from several creditors. Five items of joint family properties detailed in Schedule D-1 to the deed of partition were earmarked for the discharge of the aforesaid debts and were given over to Kota Venkatachala Pathy who was made responsible for the discharge of the debts.\n\nThese debts were discharged by Kota Venkatachala Pathy before March 26, 1934. On, September 7, 1956, Kota Venkatachala Pathy brought a suit, being No. 0. S. 87 of 1956, in the Court of the Subordinate Judge of Vellore, North Arcot, for partition and separate possession of 3 /4th of the properties set out in Schedule 'A.' to the plaint, 1/2 of the properties set out in Schedule A-1 to the plaint and whole of the properties set out in Schedule 'B' to the plaint.\n\nOne of the items namely, item No. 1 of Schedule\n\nK. V. NARAYANAN v. K. v. RANGANANDHAN (!aswant Singh, !.) 639\n\n'B' to the plaint wliich consists of four shops is what remains undisposed out of the properties mentioned in Schedule 'D-1' to the deed of partition which were set apart for the purpose of discharging the aforesaid debts incurred by Subramanyam Chettiar before 1927.\n\nThe case as set out by Kota Veukatachala Pathy in his plaint was that the properties set out in Schedule 'B-1' to Vhe deed of partition were given ovei: to him absolutely for the , discharge of the aforesaid debts set out in Schedule 'D' to the deed of partition and it was provided in the said deed that either he would discharge the debts mentioned in the deed or undertake to pay the same himself within a monrh from the registration of the document and obtain and hand over to Subramanyam Chettiar receipts from the creditors specifically mentioned there that Subramanyam Chettiar was not liable for payment of the aforesaid debts and that if the aforesaid conditions were not satisfied by him i.e. by Kata Venkatachala Pathy and any loss was occasioned to the former, the latter would be liable for those losses.\n\nThe case of Kola Veukatachala Pathy further was that since he had discharged the debts detailed in Schedule 'D' to the deed of partition, he was entitled to the exclusive possession of item No. 1 of\n\nSchedule 'B' to the plaint as his self acquired property by virtue of the terms of deed of partition and also to the rest of the properties detailul in the said Schedule 'B' as he had purchased the same with. his own funds.\n\nKota Veukatachala Pa thy based his claim of 3 I 4rh share in properties detailed in Schedule 'A' to the plaint on the ground that he was entitled to l/4th by birth as a coparcener and the rest of the half share allotted to Subramanyam Chettiar as he had purchased the same from auction purchasers.\n\nThe relief for accounts was based by Kola Veukatachala Pathy on the ground that there was an oral division in status in 193 8 and it was the appellant who was managing the properties either as a co-owner or as an agent since then.\n\nThe appellant resisted the claim of extra share made by Kata Venkatachala Pathy and contended that the latter was entitled only to half share in all Vhe suit properties.\n\nAccording to the appellant, the family debts set out in Schedule 'D' to the aforesaid deed of partition was discharged by Kota Veukatachala Pathy not only by the saie of the properties set out .in Schedule 'D-1' to the deed of partition but also by substantially utilising other joint family properties available for division. It was also contended by the appellant that since Kota Venkatachala Pathy acted as Karta of his branch, the aforesaid deed of partition should be construed as meaning that any item salvaged or saved after the discharge of the aforesaid family debts would be ancestral property and not exclusive property of the plaintiff.\n\nAs regards the properties other than item No. 1 of Exhibit 'B' of the plaint, it was contended by the appellant that they were also to be shared half and half between him and Kota Venkatachala Pathy\n\nas they were purchased from the joint family funds.\n\nWith regard to the relief for rendition of accounts, the appellant contended that he became the Karta of the joint family in 1947 and Kota Venkatachalit Pathy was not entitled to the relief of rendition of account till the date of the suit when alone there was a division of status and not in 1938 as claimed by Kota Veukatachala Pathy .\n\nll On a consideration of the evidence adduced in the case, the Tri~!\n\nCourt by its j11dgment and decree dated September 12, 1960, held that there was no division in status till the date of the suit.\n\nWit!h regard to item No. 1 of Schedule 'B' to the plaint, the Trial Court held that the total amount of debts paid was Rs. 15,669-6-2 and out of D-1 Schedule properties of the estimated value of Rs. 9,506/- only Rs. 2,575/- were realized from the sale of four items thereof and the B balance of the debts were discharged from out of the joint family assets like jewels, outstandings realized and other immovable properties allotted to Rangaswamy Chettiar's branch in 1929 partition\n\nand that the conversion of such joint family assets was made by Kola Venkatachala Pathy who was managing the family till 1957.\n\nThe Trial Court accordingly held that the properties namely item No. l of Schedule 'B' to the plaint should be deemed to have been salvaged C by detriment to the paternal estate.\n\nThe Trial Court alsp found that as the defendant-appellant herein was a minor at the time of 1929 partition and Kota Venkatachala Pathy, the original plaintiff had acted as his guardian, the latter must be deemed to have acted for the former also when he undertook to discharge the debts and that as between the original plaintiff and defendant to whom the properties were jointly allotted under Exhibit A-1, there was a position of implied D , trust in respect of properties set out in Schedule 'A' and 'B' to he plaint.\n\nThe Trial Court also upheld the appellant's plea of blending of all the properties by Kata Venkatacha]a Pathy.\n\nThe Trial Court also found that properties covered by sale deeds Exhibit B-1 and Exhibit B-4 which originally formed part of the half share allotted to Subramanyam Chettiar though purdhased by the original plaintiff in his own name were joint family properties and as such were liable E to partition in equal shares.\n\nThe Trial Court negatived the claim of Kata Venkatachala Pathy for a share in excess of one half in the aforesaid properties and held that he was entitled to only one half of all the suit properties.\n\nThe Trial Court also decreed t!hat the . appellant shall render true and proper accounts in respect of the income and expenses regarding half share of the respondents in the properties mentioned in Schedule A, A-1 and B to the plaint from F 194 7 onwards but did not give directions as to the assets and funds of capital nature withdrawn by Kata Venkatachala Pathy from out of the joint family utilised for his own separate and independent bnsiness.\n\nAggrieved by this judgment, Kata Venkatachala Pathy, the original plaintiff, whose legal representatives are the respondents herein, preferred an appeal to the High Court of Judicature of Madras.\n\nBy its judgment dated December 8, 1966, the High Court allowed the appeal in part, set aside the judgment and decree of the Trial .Court and decreed the suit brought by the original plaintiff with regard to item No.\n\nI of Schedule -B to the plaint holding that the properties mentio~ . i_n Schedule D-:1 to the partition deed were conveyed absolutely to the ong1nal plaintiff in lieu of his undertaking to be liable to discharge the entire debts mentioned in Schedule 'D' to the partition deed whether the pr<!\"\n\nperties were sufficient .or insufficient to discharge the same and 1f there was any surplus out of the properties he was to have the same absolutely, but if the propeties were not sufficient, be was to discharge the debts on his own re8ponsibility without making Subram- A anyam Chettiar liable for the same; that though a portion of the debts were discharged out of the joint family funds that only cast on the legal representatives of the original plaintiff a liability to account to the appellant for such drawings as the original plaintiff might have made and whatever amount was found to be so drawn would have to be debited against his i.e. the original plaintiff, after giving him credit for whatever amount he might have put into the common fund. The B High Court further held that in determining the net drawals by fue original plaintiff from the joint family funds, credit would be given to him for drawings made by the appellant by way of receipts of ren1s from item No. 1 of Schedule 'B' to the plaint; that the original plaintiff was not 'liable to account for the joint family properties as there was no proof of mismanagement, mishandling or improper application of joint family properties or funds and that the defendant was C also not liable to account to the original plaintiff for the management of the properties of which he was in charge. The High Court affirmed the judgment of the Trial Court in regard to the properties covered by Exhibits B-1 and B-4 holding that these were acquired with the common funds of the original plaintiff and the appellant which he was managing.\n\nDissatisfied with this judgment and decree, the defendant has come up in appeal to this Court.\n\nThe learned counsel for the appellant has, while supporting the appeal, strenuously urged that the properties mentioned in Schedule D-1 to the deed of partition (Exh. A-1) were not intended by the parties thereto to be given to Kota Venkatachala Pathy as his separate properties but were given to him only for a specific purpose viz. for discharging the family debts; that the ancestral properties could not be converted into separate properties by means of an arrangement arrived at between Subramanyam Chettiar and Kota Venkatachala Pathy; that !he character of a property has to be decided after considering whether it is saved as a result of detriment to the paternal estate and as in the instant case, property mentioned at item No. 1 of Schedule D-1 to the deed . of partition was saved by using the joint family assets, the said property could not but be regarded as the ancestral property of the parties which was subject to partition.\n\nHe has further urged that in any event D-1 Schedule properties lost the character of separate properties as they were blended by Kota Venkatachala Pathy with the joint family properties.\n\nHe has lastly urged that the directions given by the High Court with regard to accounting cannot be sustained as they are neither clear nor justified.\n\nThe principal question for determination in this case is whether the properties mentioned in D-1 Schedule to the deed of partition were separate properties of Kota Venkatachala Pathy or retained the character of ancestral properties.\n\nThe answer to this question depends largely on the construction of the deed of partition . (Exh. A-1), material portion whereof is reproduced below for facility of refocence :-\n\n\"Venkatachala Pathy the individual No. 2 shall discharge the debts described in 'D' Schedule, the debts payable to ouisiders by Subramanyam Chetti amongst us for the\n\namount borrowed for conducting the family business prior to 20-11-27 and individual No. 2 for discharging the loans, shall enjoy absolutely the properties mentioned in Schedule\n\nD-1.\n\nVenkatachalapathi Chetti, the individual No. 2 shall either discharge the debts within a month from the date of registration of this document and obtain receipt for the creditors stating that Subramanyam Chetti is not liable to the aforesaid loans and shall give those receipts to Subramanyam Chetti. If it is not done so and rhereby any loss is cansed to Subramanyam Chetti by creditors, Venkatachalapathi Chetti shall be liable for those losses.\n\nThe aforesaid Venkatachalapathi Chetti himself shall get possession of D-1 Schedule properties given to him in lieu of discharging the aforesaid debts whether rhose properties are adjusted to the aforesaid debts, or whether there remain any balance or auy deficit\".\n\nThe salient features of the deed as extracted above are : ( 1) sok responsibility for discharge of the debts detailed in Schedule D-1 to the deed of partition which were payable to the outsiders was placed on Kota Venkatachala Pathy.\n\n(2) The liability cast on Kota Venkatachala Pathy for the discharge of the debts was not to the extent of the\n\npoperties detailed in Sdhedule D-1 to the deed of partition but was irrespective of the sufficiency or otherwise of the properties and any deficit or surplus was to be met or enjoyed by him exclusively.\n\n(3) The debts were to be discharged by Kota Venkatachala Pathy . within a month of the registration of the deed and he was required to have it in writing from the creditors that Subramanyam Chettiar was no longer liable fur the debts. ( 4) In case, there was a default on the part of Kota Venkatachala Pathy to discharge the debts as undertaken by him and any loss was caused to Subramanyam Chettiar, to the former was to indemnify the latter. (5) Exclusive dominion, control and enjoyment of the properties mentioned in Schedule D-1 was vested in Kota Venkatachala Patihy in consideration of the obligation undertaken by him to discharge the debts.\n\nThe aforesaid salient features leave no manner for doubt that the properties mentioned in D-1 Schedule to the deed of partition were given to Kota Venkatachala Pathy in lie_u of the personal undertaking given by him to discharge the aforesaid debts.\n\nIn other words, the conveyance of the properties to Kola Venkatachala Pathy was in the nature of remuneration for the services to be rendered by him.\n\nIt will be useful in this connection to refer to the decision of this Court in Ra; Kumar Singh Kukam Chandii v. Commissioner of Income-tax, Madhya Pradesh(') where on the question whether the managing director's remuneration received iJy the assessee was assessable in his individual hands or in rhe hands of the assessee's Hindu undivided family, this Court expressed the view that the remuneration was assessable as the assessee's individual income and not as the income of his Hindu undivided family.\n\nWe are, therefore, of the\n\n(I) [1971J 1 S.C.R. 748.\n\nview that Schedule D-1 properties were given absolntely to Kola A Venkatachala Pathy as his separate properties.\n\nLet us now see as to whether the aforesaid arrangement entered between the members of the Hindu undivided family whereby properties mentioned in Schedule D-1 to the deed of partition were made over to Kola Venkatachala Pathy was valid according to Hindu Law.\n\nA reference to page 426 of Mayne's Treatise on Hindu Law and B Usage (11th Edition) makes it clear that while dividing the family estate, it is necessary for the joint family to take account of both the assets and the debts for which the undivided estate is liable and to make provision for discharge of the debts.\n\nIt is also well settled by the decisions of this Court in Sahu Madho Das v. Pandit, Mukand Ram(') Maturi Pullaian v. Maturi Narasimham( 2 ) and S. Shanmugam Pillai & Ors. v. K. Shanmugam Pillai Ors. (3 ) that if family arrangements C which are governed by a special equity peculiar to themselves or entered into bonafide to maintain peace or bring about harmony in th~ family and the terms thereof are fair taking into consideration the circumstances of the case, every effort must be made by the Court to recognise and sustain it.\n\nExamining the matter in the light of these principles, we find that by the aforesaid arrangement both Subramanyam Chettiar and the defendant-appellant were absolved of the respon- I> sibility to discharge the family debts and liability was cast on Kota Venkatachala Pathy alone to discharge the same irrespective of the fact whether the properties mentioned in Schedule D-1 to Exhibit A-1 ultimately turned out to be sufficient or insufficient to meet the burden.\n\nThus the arrangement being bonafide and its terms being fair, we cannot but hold that it was valid and the properties detailed in Schedule D-1 to the deed of partition became separate properties E. of Kola Venkalachala Pathy from the date of the execution of the deed of prtition and are not liable to partition.\n\nThis takes us to the question as to whether there was, as contended by the appellant, any blending of the properties menioned in Schedule D-1 to the deed of partition with the rest of the properties of the joint family consisting of Kota Venkatachala Pathy and the F appellant. It is true that property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by t'he owner into the common stock with intention of abandoning his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case.\n\nIt must be established that there was a clear G intention on the part of the coparcener to waive his separate rights such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons Whom the holder is not bound to support or from the failure to maintain separate accounts for an Hi\n\n(I) [19551 2 S.C.R. 22.\n\n(2) A.I.R.1966 S.C. \\'836.\n\n(3) A.LR. 1972 S.C. 2069 .\n\nSUPREME COURT ~EPORTS [l 97f>] 3 S.C.R.\n\nact of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. (See Lakkireddi Chinna Venkata Reddi & Ors. v. Lakkireddi Lakshmama(') and G. Narayana Ram\n\nv. G. Chamaraju & Ors. (').\n\nIn the instant case we are unable to find that there was any intention on the part of Kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D-1 to the deed of partition.\n\nThe mere fact that these properties were not separately entered by Kola Venkatachala.Pat'hy in the account books or that no separate account of the earning from these properties was maintained by him cannot rob the properties of their character ad' self acquired properties. We are accordingly of the view that there was no blending of the properties by Kola Venkatachala Pathy as contended by the appellant.\n\nThe mere fact that some amount out of the joint family funds was used for discharge of tlhe debts mentioned in Schedule to the deed of partition is also of no consequence. If any amount out of the joint family funds was used for the discharge of the outsta!)dings payable to the outside debtors, the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable for them.\n\nThere is also no substance in the last contention advanced on behalf of the appellant.\n\nThe legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking parti- E lion is not entitled to call upon the manager to account for his past dealing with the family property.\n\nThe coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being no evidence to establish any misappropriation or fraudulent conversion of the joint family property by Kota Venkatachala Pathy during the period he acted as karta of the family, we are unable to interfere with the F direction issued by the High Court which is' just and proper.\n\nFor the foregoing reasons, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.\n\nV.P.S.\n\n(I) {1964] 2 S.C.R. 172.\n\n(2) A.LR. 1968 S.C. 1276.\n\nAppeal dismissed.", "total_entities": 65, "entities": [{"text": "K. V. NARAYANAN", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "K. V. NARAYANAN", "offset_not_found": false}}, {"text": "K. V. RANGANANDHAN & ORS", "label": "RESPONDENT", "start_char": 17, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "K. V. RANGANANDHAN & ORS", "offset_not_found": false}}, {"text": "March 12, 1976", "label": "DATE", "start_char": 44, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "March 12, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]"}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 61, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 77, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "(1971] 1 SCR 748", "label": "CASE_CITATION", "start_char": 2388, "end_char": 2404, "source": "regex", "metadata": {}}, {"text": "[1955] 2 SCR 22", "label": "CASE_CITATION", "start_char": 2549, "end_char": 2564, "source": "regex", "metadata": {}}, {"text": "AIR 1966 SC 1836", "label": "CASE_CITATION", "start_char": 2604, "end_char": 2620, "source": "regex", "metadata": {}}, {"text": "AIR 1972 SC 2069", "label": "CASE_CITATION", "start_char": 2685, "end_char": 2701, "source": "regex", "metadata": {}}, {"text": "[1964] 2 S.C.R. 172", "label": "CASE_CITATION", "start_char": 3179, "end_char": 3198, "source": "regex", "metadata": {}}, {"text": "Madras High Court", "label": "COURT", "start_char": 4012, "end_char": 4029, "source": "ner", "metadata": {"in_sentence": "1365 of 196& •\n\nFrom the Judgment and Decree dated the 8-12-66 of the Madras High Court in Appeal No."}}, {"text": "K. N. Balasubrahmaniam", "label": "LAWYER", "start_char": 4058, "end_char": 4080, "source": "ner", "metadata": {"in_sentence": "K. N. Balasubrahmaniam and Miss Lily Thomas for the Appellant."}}, {"text": "Lily Thomas", "label": "LAWYER", "start_char": 4090, "end_char": 4101, "source": "ner", "metadata": {"in_sentence": "K. N. Balasubrahmaniam and Miss Lily Thomas for the Appellant."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 4122, "end_char": 4132, "source": "ner", "metadata": {"in_sentence": "K. Jayaram for the Respondent."}}, {"text": "High Court of Judicature at Madras", "label": "COURT", "start_char": 4264, "end_char": 4298, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-This is an appeal by certificate granted by the High Court of Judicature at Madras under Article 133(1) (a) and (b) of the Constitution of India against its judgment and decree dated December 8, 1966 in A. S. No."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 4305, "end_char": 4319, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 4339, "end_char": 4360, "source": "regex", "metadata": {}}, {"text": "Kota Narayanan", "label": "OTHER_PERSON", "start_char": 4620, "end_char": 4634, "source": "ner", "metadata": {"in_sentence": "The facts culminating in this appeal lie in a short compass and may be briefly stated thus :\n\nKota Venkatachala Pathy whose legal representatives are the respondents herein and Kota Narayanan, the appellant herein, were real brothers being the sons of one Kola Rangaswami Chettiar."}}, {"text": "Kola Rangaswami Chettiar", "label": "OTHER_PERSON", "start_char": 4699, "end_char": 4723, "source": "ner", "metadata": {"in_sentence": "The facts culminating in this appeal lie in a short compass and may be briefly stated thus :\n\nKota Venkatachala Pathy whose legal representatives are the respondents herein and Kota Narayanan, the appellant herein, were real brothers being the sons of one Kola Rangaswami Chettiar.", "canonical_name": "Kola Rangaswami Chettiar"}}, {"text": "Subramanyam Chettiar", "label": "PETITIONER", "start_char": 4754, "end_char": 4774, "source": "ner", "metadata": {"in_sentence": "Together with their cousin _Subramanyam Chettiar, the son of Kota Kuppuswami Chettiar, the brother of Kota Rangaswami Chettiar, they formed a joint family which was a trading one.", "canonical_name": "Subram- A anyam Chettiar"}}, {"text": "Kota Kuppuswami Chettiar", "label": "OTHER_PERSON", "start_char": 4787, "end_char": 4811, "source": "ner", "metadata": {"in_sentence": "Together with their cousin _Subramanyam Chettiar, the son of Kota Kuppuswami Chettiar, the brother of Kota Rangaswami Chettiar, they formed a joint family which was a trading one."}}, {"text": "Kota Rangaswami Chettiar", "label": "OTHER_PERSON", "start_char": 4828, "end_char": 4852, "source": "ner", "metadata": {"in_sentence": "Together with their cousin _Subramanyam Chettiar, the son of Kota Kuppuswami Chettiar, the brother of Kota Rangaswami Chettiar, they formed a joint family which was a trading one.", "canonical_name": "Kola Rangaswami Chettiar"}}, {"text": "Kota Venkatachala Pathy", "label": "OTHER_PERSON", "start_char": 4996, "end_char": 5019, "source": "ner", "metadata": {"in_sentence": "After 1927 Kota Venkatachala Pathy took over the management of the family and its properties.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "May 29, 1929", "label": "DATE", "start_char": 5105, "end_char": 5117, "source": "ner", "metadata": {"in_sentence": "By registered deed dated May 29, 1929 (Exh."}}, {"text": "November 20, 1927", "label": "DATE", "start_char": 5422, "end_char": 5439, "source": "ner", "metadata": {"in_sentence": "Subramanyam Chettiar had, before November 20, 1927 incurred debts to the tune cf Rs."}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 5556, "end_char": 5566, "source": "regex", "metadata": {"statute": null}}, {"text": "March 26, 1934", "label": "DATE", "start_char": 5817, "end_char": 5831, "source": "ner", "metadata": {"in_sentence": "These debts were discharged by Kota Venkatachala Pathy before March 26, 1934."}}, {"text": "September 7, 1956", "label": "DATE", "start_char": 5837, "end_char": 5854, "source": "ner", "metadata": {"in_sentence": "On, September 7, 1956, Kota Venkatachala Pathy brought a suit, being No."}}, {"text": "S. 87", "label": "PROVISION", "start_char": 5909, "end_char": 5914, "source": "regex", "metadata": {"statute": null}}, {"text": "Subordinate Judge of Vellore, North Arcot", "label": "COURT", "start_char": 5944, "end_char": 5985, "source": "ner", "metadata": {"in_sentence": "S. 87 of 1956, in the Court of the Subordinate Judge of Vellore, North Arcot, for partition and separate possession of 3 /4th of the properties set out in Schedule 'A.' to the plaint, 1/2 of the properties set out in Schedule A-1 to the plaint and whole of the properties set out in Schedule 'B' to the plaint."}}, {"text": "Kota Veukatachala Pathy", "label": "OTHER_PERSON", "start_char": 6625, "end_char": 6648, "source": "ner", "metadata": {"in_sentence": "The case as set out by Kota Veukatachala Pathy in his plaint was that the properties set out in Schedule 'B-1' to Vhe deed of partition were given ovei: to him absolutely for the , discharge of the aforesaid debts set out in Schedule 'D' to the deed of partition and it was provided in the said deed that either he would discharge the debts mentioned in the deed or undertake to pay the same himself within a monrh from the registration of the document and obtain and hand over to Subramanyam Chettiar receipts from the creditors specifically mentioned there that Subramanyam Chettiar was not liable for payment of the aforesaid debts and that if the aforesaid conditions were not satisfied by him i.e. by Kata Venkatachala Pathy and any loss was occasioned to the former, the latter would be liable for those losses.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Kata Venkatachala Pathy", "label": "PETITIONER", "start_char": 7308, "end_char": 7331, "source": "ner", "metadata": {"in_sentence": "The case as set out by Kota Veukatachala Pathy in his plaint was that the properties set out in Schedule 'B-1' to Vhe deed of partition were given ovei: to him absolutely for the , discharge of the aforesaid debts set out in Schedule 'D' to the deed of partition and it was provided in the said deed that either he would discharge the debts mentioned in the deed or undertake to pay the same himself within a monrh from the registration of the document and obtain and hand over to Subramanyam Chettiar receipts from the creditors specifically mentioned there that Subramanyam Chettiar was not liable for payment of the aforesaid debts and that if the aforesaid conditions were not satisfied by him i.e. by Kata Venkatachala Pathy and any loss was occasioned to the former, the latter would be liable for those losses.", "canonical_name": "Kata Venkatachala Pathy"}}, {"text": "Kola Veukatachala Pathy", "label": "OTHER_PERSON", "start_char": 7433, "end_char": 7456, "source": "ner", "metadata": {"in_sentence": "The case of Kola Veukatachala Pathy further was that since he had discharged the debts detailed in Schedule 'D' to the deed of partition, he was entitled to the exclusive possession of item No.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Kota Veukatachala Pa", "label": "OTHER_PERSON", "start_char": 7846, "end_char": 7866, "source": "ner", "metadata": {"in_sentence": "Kota Veukatachala Pa thy based his claim of 3 I 4rh share in properties detailed in Schedule 'A' to the plaint on the ground that he was entitled to l/4th by birth as a coparcener and the rest of the half share allotted to Subramanyam Chettiar as he had purchased the same from auction purchasers.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Kota Venkatachalit Pathy", "label": "OTHER_PERSON", "start_char": 9585, "end_char": 9609, "source": "ner", "metadata": {"in_sentence": "With regard to the relief for rendition of accounts, the appellant contended that he became the Karta of the joint family in 1947 and Kota Venkatachalit Pathy was not entitled to the relief of rendition of account till the date of the suit when alone there was a division of status and not in 1938 as claimed by Kota Veukatachala Pathy .", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Rangaswamy Chettiar", "label": "OTHER_PERSON", "start_char": 10425, "end_char": 10444, "source": "ner", "metadata": {"in_sentence": "2,575/- were realized from the sale of four items thereof and the B balance of the debts were discharged from out of the joint family assets like jewels, outstandings realized and other immovable properties allotted to Rangaswamy Chettiar's branch in 1929 partition\n\nand that the conversion of such joint family assets was made by Kola Venkatachala Pathy who was managing the family till 1957."}}, {"text": "Kola Venkatachala Pathy", "label": "OTHER_PERSON", "start_char": 10537, "end_char": 10560, "source": "ner", "metadata": {"in_sentence": "2,575/- were realized from the sale of four items thereof and the B balance of the debts were discharged from out of the joint family assets like jewels, outstandings realized and other immovable properties allotted to Rangaswamy Chettiar's branch in 1929 partition\n\nand that the conversion of such joint family assets was made by Kola Venkatachala Pathy who was managing the family till 1957.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Kata Venkatacha]a Pathy", "label": "PETITIONER", "start_char": 11390, "end_char": 11413, "source": "ner", "metadata": {"in_sentence": "The Trial Court also upheld the appellant's plea of blending of all the properties by Kata Venkatacha]a Pathy.", "canonical_name": "Kata Venkatachala Pathy"}}, {"text": "Kata Venkatachala Pathy", "label": "PETITIONER", "start_char": 12414, "end_char": 12437, "source": "ner", "metadata": {"in_sentence": "Aggrieved by this judgment, Kata Venkatachala Pathy, the original plaintiff, whose legal representatives are the respondents herein, preferred an appeal to the High Court of Judicature of Madras.", "canonical_name": "Kata Venkatachala Pathy"}}, {"text": "Court of Judicature of Madras", "label": "COURT", "start_char": 12551, "end_char": 12580, "source": "ner", "metadata": {"in_sentence": "Aggrieved by this judgment, Kata Venkatachala Pathy, the original plaintiff, whose legal representatives are the respondents herein, preferred an appeal to the High Court of Judicature of Madras."}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 12873, "end_char": 12883, "source": "regex", "metadata": {"statute": null}}, {"text": "Subram- A anyam Chettiar", "label": "PETITIONER", "start_char": 13359, "end_char": 13383, "source": "ner", "metadata": {"in_sentence": "perties were sufficient .or insufficient to discharge the same and 1f there was any surplus out of the properties he was to have the same absolutely, but if the propeties were not sufficient, be was to discharge the debts on his own re8ponsibility without making Subram- A anyam Chettiar liable for the same; that though a portion of the debts were discharged out of the joint family funds that only cast on the legal representatives of the original plaintiff a liability to account to the appellant for such drawings as the original plaintiff might have made and whatever amount was found to be so drawn would have to be debited against his i.e. the original plaintiff, after giving him credit for whatever amount he might have put into the common fund.", "canonical_name": "Subram- A anyam Chettiar"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 14914, "end_char": 14924, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 15534, "end_char": 15544, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkatachala Pathy", "label": "RESPONDENT", "start_char": 16490, "end_char": 16508, "source": "ner", "metadata": {"in_sentence": "A-1), material portion whereof is reproduced below for facility of refocence :-\n\n\"Venkatachala Pathy the individual No.", "canonical_name": "Venkatachalapathi Chetti"}}, {"text": "Subramanyam Chetti", "label": "PETITIONER", "start_char": 16617, "end_char": 16635, "source": "ner", "metadata": {"in_sentence": "2 shall discharge the debts described in 'D' Schedule, the debts payable to ouisiders by Subramanyam Chetti amongst us for the\n\namount borrowed for conducting the family business prior to 20-11-27 and individual No.", "canonical_name": "Subram- A anyam Chettiar"}}, {"text": "20-11-27", "label": "DATE", "start_char": 16716, "end_char": 16724, "source": "ner", "metadata": {"in_sentence": "2 shall discharge the debts described in 'D' Schedule, the debts payable to ouisiders by Subramanyam Chetti amongst us for the\n\namount borrowed for conducting the family business prior to 20-11-27 and individual No."}}, {"text": "Schedule\n\nD", "label": "PROVISION", "start_char": 16824, "end_char": 16835, "source": "regex", "metadata": {"statute": null}}, {"text": "Venkatachalapathi Chetti", "label": "RESPONDENT", "start_char": 16840, "end_char": 16864, "source": "ner", "metadata": {"in_sentence": "Venkatachalapathi Chetti, the individual No.", "canonical_name": "Venkatachalapathi Chetti"}}, {"text": "Venkatachalapathi Chetti", "label": "RESPONDENT", "start_char": 17303, "end_char": 17327, "source": "ner", "metadata": {"in_sentence": "The aforesaid Venkatachalapathi Chetti himself shall get possession of D-1 Schedule properties given to him in lieu of discharging the aforesaid debts whether rhose properties are adjusted to the aforesaid debts, or whether there remain any balance or auy deficit\".", "canonical_name": "Venkatachalapathi Chetti"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 17677, "end_char": 17687, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 18627, "end_char": 18637, "source": "regex", "metadata": {"statute": null}}, {"text": "Kota Venkatachala Patihy", "label": "OTHER_PERSON", "start_char": 18654, "end_char": 18678, "source": "ner", "metadata": {"in_sentence": "5) Exclusive dominion, control and enjoyment of the properties mentioned in Schedule D-1 was vested in Kota Venkatachala Patihy in consideration of the obligation undertaken by him to discharge the debts.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 19727, "end_char": 19737, "source": "regex", "metadata": {"statute": null}}, {"text": "Kola A Venkatachala Pathy", "label": "OTHER_PERSON", "start_char": 19776, "end_char": 19801, "source": "ner", "metadata": {"in_sentence": "view that Schedule D-1 properties were given absolntely to Kola A Venkatachala Pathy as his separate properties.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 19976, "end_char": 19986, "source": "regex", "metadata": {"statute": null}}, {"text": "Subramanyam Chettiar", "label": "PETITIONER", "start_char": 21042, "end_char": 21062, "source": "ner", "metadata": {"in_sentence": "Examining the matter in the light of these principles, we find that by the aforesaid arrangement both Subramanyam Chettiar and the defendant-appellant were absolved of the respon- I> sibility to discharge the family debts and liability was cast on Kota Venkatachala Pathy alone to discharge the same irrespective of the fact whether the properties mentioned in Schedule D-1 to Exhibit A-1 ultimately turned out to be sufficient or insufficient to meet the burden.", "canonical_name": "Subram- A anyam Chettiar"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 21301, "end_char": 21311, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 21535, "end_char": 21545, "source": "regex", "metadata": {"statute": null}}, {"text": "Kola Venkalachala Pathy", "label": "OTHER_PERSON", "start_char": 21606, "end_char": 21629, "source": "ner", "metadata": {"in_sentence": "Thus the arrangement being bonafide and its terms being fair, we cannot but hold that it was valid and the properties detailed in Schedule D-1 to the deed of partition became separate properties E. of Kola Venkalachala Pathy from the date of the execution of the deed of prtition and are not liable to partition.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 21848, "end_char": 21858, "source": "regex", "metadata": {"statute": null}}, {"text": "SUPREME COURT", "label": "COURT", "start_char": 23033, "end_char": 23046, "source": "ner", "metadata": {"in_sentence": "SUPREME COURT ~EPORTS [l 97f>] 3 S.C.R.\n\nact of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. ("}}, {"text": "Schedule D", "label": "PROVISION", "start_char": 23469, "end_char": 23479, "source": "regex", "metadata": {"statute": null}}, {"text": "Kola Venkatachala.Pat'hy", "label": "OTHER_PERSON", "start_char": 23576, "end_char": 23600, "source": "ner", "metadata": {"in_sentence": "The mere fact that these properties were not separately entered by Kola Venkatachala.", "canonical_name": "Kola A Venkatachala Pathy"}}, {"text": "1964] 2 S.C.R. 172", "label": "CASE_CITATION", "start_char": 25289, "end_char": 25307, "source": "regex", "metadata": {}}]}
{"document_id": "1976_3_645_650_EN", "year": 1976, "text": "AZAMJAHI MILLS LTD. HYDERABAD\n\nTiffi COMMISSIONER OF INCOME TAX, HYDERABAD\n\nMarch 17, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nIncome-tax-Assessee in Princely State-Payment by Government of India by cheque posted in British India-Whether receipt by assessee in British India liable to Indian Income Tax.\n\nThe Government of India was placing bulk purchase orders with the assessee-company, a textile mill, which had, during the assessment years 1945-46,\n\n1946·47 and 1947-48, its registered office in the Hyderabad State outside British India. After the despatch of the goods, the assessee was submitting its bill in the prescribed form which also contained the receipt. The receipt had the words 'Please pay by cheque to self/Banker on Bank/Treasury at ...... • and the assessee used to enter the words 'Hyderabad (Dn), in the blank space after 'at'. But on the back of the bulk purchase order form. there were ins true tions that the payment was to be made by the Controller of Supply' Accounts, Bombay, and the Government of India had also issued general instructions to all textile mills in the Princely States that all payments were to be made 'by cheque on Government Treasury in Br. India, or alternatively on a branch in Br. India, which transacts Government business of the Reserve Bank of India.\n\nAll payments were made on behalf of the Government of India by cheques which were sent to the assesseeby post. Some of the cheques were drawn on banks in Br. India and others on banks in the Hyderabad State .\n\nHELD : The sale proceeds should be held to have been received by the assessee from the Government of India in British India and not in Hyderabad E\n\nState, and hence were subject to Indian incometax. [647F-G]\n\nIn the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of the cheque would not operate as delivery of the cheque to the creditor.\n\nWhere, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the F purpase of receiving such payment. Such an agreement or request need not be express and may be implied from the facts and circumstances.\n\n[648A-CI\n\nThe facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee that the payment would be rllade on account of goods supplied by the assessee, by cheques.\n\nThe cheques were in the very nature of things to be sent from British India by post as that is the usual and normal agency for transmis.sion.\n\nAs the G cheques were sent to the assesseee on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to have been made in British India to the agent of the assessee. [647G-648A]\n\nIndo re Malwa United Mills Ltd. v. Commissioner of Incon1e-tax, 59 ITR 738; Conunissioner of Income-tax, Bombay South, Bombay v. Ogale Glass-\n\nWorks Ltd., 25 !TR 529 and Shri lagdish Mills Ltd. v. Commissioner of Income. tax, 37 ITR 114, followed.\n\nCommissioner of Income-tax, Bihar & Orissa v. Patney &: Co. 36 ITR 488, distinguished.\n\nA CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 980-982 of 1971.\n\nAppeals by Special Leave from the Judgment and Order elated the 9-2-70 of the Andhra Pradesh High Court in case Referred No. 1 of ~\n\n1967.\n\nR. Vasudev Pillai and P. K. Pillai for the Appellant.\n\nR. M. Mehta and S. P. Nayar, for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.-This judgment would disposed of three civil appeals Nos. 980 to 982 of 1971 which have been filed by special leave against c the judgment of the Andhra Pradesh High Court on a reference under section 66 of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act) answering besides two other questions with which we\n\nare not concerned, the following question against the assessee appellant -+ and in favour of the revenue :\n\n\"Whether, on the facts and in the circumstances of the case, the sale proceeds were received from Government of India in British India?\"\n\nThe assessee company is a public limited company registered in what was at the relevant time the Nizam's Dominion (hereinafter referred to as Hyderabad State) outside British India. The matter relates to assessment years 1945-46, 1946-47 and 1947-48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 1'espectively. ·\n\nThe assessee company had a textile mill at Warangal in Hyderabad State.\n\nDuring the Second World War the company supplied textile goods to the Department of Supplies, Government of India under what was known as \"Panel System\". The Government used to place bulk purchase orders with the company for the supply of goods according to specifications. The delivery of the goods used to be made by the company FOR Warrangal. After the goods were despatched, the assessee company submitted bill in form W.S.B. 116 giving details of the supply. The prescribed form contained the following receipt :\n\n\"Received Payment\n\nContractor's Signature\n\nOne anna stamp on original copy only.\n\nPlease pay by ChC'que to Sdf\n\non Bank Bankers at .. _, Treasury Contractor's signature\n\nThe assessee used to enter the words \"Hyderabad (Dn)\" in the blank space after the word \"at\". On the back of the bulk purchase order form, there were instructions that the payment was to made by the Controller of Supply Accounts Bombay. The Government of India issued general instructions to all textile mills in the Indian States that all payments were to be made \"by cheque on Government Treasury in British India, or alternatively on a branch in British India, which •\n\ntransacts Government business of the Reserve Bank of India\". All payments were made on behlf of the Government of Ind.ia by cheques, which were sent to the assessee by post. Some of these cheques were drawn on banks in British India and the others on banks in Hyderabad\n\nState.\n\nAll the cheques received from the Government, including those drawn on banks in British India, were collected through the assessee's bankers in Hyderabad State.\n\nIn making the assessment the Income-tax Officer held that the sale proceeds in respect of cheques, which bad been drawn on banks in British India, were received by the assessee in British India and as such the assessee was liable to tax under the Act.\n\nIn respect of cheques drawn on the banks in Hyderabad State, the Income-tax Officer held that no income had accrued in British India and was, therefore, not subject to assessment under the Act. The assessee took the matter in appeal to the Assistant Commissioner claiming that no portion of the income had been received in British India. The Appell.. late Assistant Commissioner held that the entire sale proceeds had been I received in British India and he, therefore, passed an order enhancing the assessed amount. On further appeal by the assessee the Income-tax Appellate Tribunal upheld the order of the Assistant Commissioner. At the request of the assessce the question reproduced above along with two other questions relating to the power of the Appellate Assistant Commissioner to enhance the amount of assessable income as nlso the question of limitation were referred to the High Court. The High Court answered the question reproduced above as well as the other two questions with which we are not concerned, in favour of the revenue and against the assessee.\n\nSo far as the question reproduced above is concerned, the High Court took the view that the matter was concluded by the decision of this Court in the case of Indore Malwa\n\nUnited Mills Ltd. v. Commissioner of Income-tax(').\n\nIn appeal before us Mr. Vasudev Pillai on behalf of the appellant has •assailed the judgment of the High Court and has contended that on the facts and circumstances of the case, the sale proceeds should be held to have been received by the assessee from the Government of India not in British India but in Hyderabad State. There is, in our opinion, no force in this contention.\n\nIt would appear from the resume of facts given above tliat all payments were made on behalf of the Government of India by cheques and those cheques were sent by post from British India to the assessee.\n\nThe facts of the case and the course of dealings show that it was the G understanding between the Government of India and the assessee company that the payment would be made on account of the goods supplied by the assessee by cheques. The cheques were in the very nature of things to be sent from British India by post as that is usual and. normal agency for transmission of such articles. As the cheques were sent to the assessee company on behalf of the Government of India by post from British India in pursuance of an understanding bet- H ween the parties, the payment to the assessee shall be treated to' have\n\n(!) 59 LT.R.738.\n\n64$\n\nSUPRBME COURT REPORTS\n\n,. [1976] 3 S.C.R.\n\nbeen made in British India. The post office in such cases is taken to be an agent of the assessee company. The position in law is that in the: absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting. of cheque would not operate as delivery of the cheque to the creditor. Where, however, a cheque is sent by post iii pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment.\n\nThe agreement or request need not, however, be express; it may also be implied to be spelt -out from the facts and circumstances of ihe case.\n\nThe question of law arising in this case is not res integra and is concluded by three decisions of this Court. In Commissioner of lncometax, Bom/Jay South, Bom/Jay v. Ogale Glass Works Ltd.(') the assessee, a non-resident company carrying on business of manufacturing certain articles in t]\\e State of Aundh, secµred some contract for the supply of goods to the Government of India. The contract provided that \"unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque ou a Government Trea5ury in India or on a branch of the Reserve Bank of India or the Imperial Bank of lndia transacting Government business.\" The assessee submitted the bill in the prescribed form and wrote on it as follows : \"Kindly remit the amount by a cheque in our favour on any bank in Bombay.\" The assessee received cheques drawn on the Bombay branch of the Reserve Bank of India.\n\nThe assessee realised the amount of the cheques through the Aundh Bank. It was held that the posting of cheques in Delhi in law amounted to payment in Delhi. It was further observed that the circumstances of the case revealed an ill!plied agreement under which cheques were accepted unconditionally as payment. Even if the cheques, according to this Court, were taken conditionally the cheques having been not dishonoured, the payment related back to the dates of the receipt of the cheques and in law the dates of payment were the dates of the delivery of the cheques. Income, profifa and gains in respect of the sales made to (he Government of Inilia were accordingly held to have been received by the assessee in British India. Dealing with the question of the understanding between the parties in that case, this Court observed :\n\n\"According to the course of business usage in general to which, as part of the surrounding circumstances, attention has to be paid, under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal's findings they were in fact rceived by the assessee by post.\"\n\nThe above case been sought to be distinguished by Mr. Pillai on the ground that in that case the assesee had written on the bill form the\n\n(!) 25I.T.R. 529. •\n\nwords : \"kindly remit the amount by cheque in our favour on any bank in Bombay.\" It is said that the bill submitted by the appellant contamed no such writing.\n\nA similar argument was advanced on behalf of the assessee company in the case of Shri Jagdish Mills Ltd.\n\nv. Commissioner of Income-tax(') and it was held that the absence of such an express request would not make material difference if the course of dealings between the parties showed n implied request by the assessee company to send the cheques by post. In Jagdish Mills' case tho assessee company was incorporated in Baroda State outside British India. The company accepted orders for the supply of goods F.O.R.\n\nBaroda to the Government of India.\n\nThe manufacture and deli very of goods took place at Baroda. The company after effecting delivery of the goods submitted bills in the prescribed form which contained the sentence that \"Government should pay the mount due to the company by cheque.\" There was, however, nothing in the bills to show in what way the payment by cheque was to be made. The company thereafter received at Baroda, in payment of its bills, cheques through post from the Government drawn on a Government Treasury or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.\n\nThe company endorsed the cheques and sent them either to Bombay or Ahmedabad in its banking account at such places. It was held that according to the course of business usage in general which. was followed in the case,. the parties must have intended that the cheques should be sent by post which was the usual and normal agency for transmission of suoh articles.\n\nAn implied request by the company to send the cheques by post from Delhi was accordingly inferred.\n\nThe post office was held to have become the agent of the assessee for the purpose of receiving those payments.\n\nThL> Court consequently came to the conc\\u; ion that the amounts of cheques were received by the assessee in British India and as such were liable to be taxed under section 4(1) (a) of the Act.\n\nThe facts of the case of Indore Malwa United Mills Ltd. v. Commissioner of l ncome-tax (supra) were similar to those oE the present case. In that case the assessee, a non-resident, carried on the business of manufacturing textile goods at Indore, outside British India.\n\nThe assessee supplied textile goods to the Stores Department of the Government of India under orders placed by the latter with the assessee at Indore. The delivery of the goods was F.O.R. Indore. The bills contained the following instruction for payment : \"Please pay by cheque to self on a bank at Indore.\" The Government of India drew cheques in favour of the assessee for the amounts of the bills on the Reserve Bank of India, Bombay and sent them by post to the assessee at Indore.\n\nThe assessee deposited the cheques in its account with the Imperial Bank of India, Indore and on clearance. the amounts were credited to that account.\n\nQuestion which arose for decision was whether the assessee company was liable to pay tax in the taxable territories on the ground that the sale proceeds, which included the profit element therein, were received in the taxable territories. It was held that if by an agreement. express or implied, between the creditor and the debtor or\n\n(l) 37I.T.R. ll4 .\n\n9--608 SCI/76\n\nby request, express or implied, by the creditor, the debtor is authorised to pay tbe debt by a cheque, and to send the cheque to the creditor by post, the post office becomes the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. It was also held that there was an implied agreement between the parties that the Government of India wouid send the cheque by post to the assessee. The sale proceeds which included the profit clement therein were, in the opinion of this Court, received in .\n\nBritish India where the cheques were posted, and the profits in respect of the sales were taxable under section 4(1 )(a) of the Act.\n\nMr. -Pillai has referred to the case of Commissioner of Income-tax, Bihar & Orissa v. Patney & Co.(1) This case cannot be of much help because in that case the assessee had expressly reqmre:l the commission to be paid at Secunderabad outside British India. It was because of this circumstance that this Court found that the rule laid down in Ogale Glass Works' case (supra) did not apply and the money was not received by the assessee in British India.\n\nSo far as the present case is concerned it has already been pointed out above, that the circumstances of the case and the course of dealings between the parties show that there was an implied agreement or understanding between the parties that the money would be sent to, the assessee by cheques posted from British India. The High Court, in our opinion, rightly decided the question reproduced abnve aQainst the assessee appellant and in favour of the revenue. The appeals consequently fail and are dismissed but in the circumstances without costs.\n\nV.P.S.\n\nAppeaL' dismissed.\n\n(!) 36 I.T.R. 488.\n\n. \"", "total_entities": 50, "entities": [{"text": "AZAMJAHI MILLS LTD. HYDERABAD", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "AZAMJAHI MILLS LTD. HYDERABAD", "offset_not_found": false}}, {"text": "Tiffi COMMISSIONER OF INCOME TAX, HYDERABAD\n", "label": "RESPONDENT", "start_char": 31, "end_char": 75, "source": "metadata", "metadata": {"canonical_name": "THE COMMISSIONER OF INCOME TAX, HYDERABAD", "offset_not_found": false}}, {"text": "March 17, 1976", "label": "DATE", "start_char": 76, "end_char": 90, "source": "ner", "metadata": {"in_sentence": "HYDERABAD\n\nTiffi COMMISSIONER OF INCOME TAX, HYDERABAD\n\nMarch 17, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 93, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 110, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Government of India", "label": "ORG", "start_char": 313, "end_char": 332, "source": "ner", "metadata": {"in_sentence": "The Government of India was placing bulk purchase orders with the assessee-company, a textile mill, which had, during the assessment years 1945-46,\n\n1946·47 and 1947-48, its registered office in the Hyderabad State outside British India."}}, {"text": "Hyderabad", "label": "GPE", "start_char": 808, "end_char": 817, "source": "ner", "metadata": {"in_sentence": "The receipt had the words 'Please pay by cheque to self/Banker on Bank/Treasury at ...... • and the assessee used to enter the words 'Hyderabad (Dn), in the blank space after 'at'."}}, {"text": "Bombay", "label": "GPE", "start_char": 1001, "end_char": 1007, "source": "ner", "metadata": {"in_sentence": "there were ins true tions that the payment was to be made by the Controller of Supply' Accounts, Bombay, and the Government of India had also issued general instructions to all textile mills in the Princely States that all payments were to be made 'by cheque on Government Treasury in Br."}}, {"text": "Br. India", "label": "GPE", "start_char": 1189, "end_char": 1198, "source": "ner", "metadata": {"in_sentence": "there were ins true tions that the payment was to be made by the Controller of Supply' Accounts, Bombay, and the Government of India had also issued general instructions to all textile mills in the Princely States that all payments were to be made 'by cheque on Government Treasury in Br."}}, {"text": "Reserve Bank of India", "label": "ORG", "start_char": 1286, "end_char": 1307, "source": "ner", "metadata": {"in_sentence": "India, which transacts Government business of the Reserve Bank of India."}}, {"text": "British India", "label": "GPE", "start_char": 2620, "end_char": 2633, "source": "ner", "metadata": {"in_sentence": "The cheques were in the very nature of things to be sent from British India by post as that is the usual and normal agency for transmis.sion."}}, {"text": "R. Vasudev Pillai", "label": "LAWYER", "start_char": 3532, "end_char": 3549, "source": "ner", "metadata": {"in_sentence": "R. Vasudev Pillai and P. K. Pillai for the Appellant."}}, {"text": "P. K. Pillai", "label": "LAWYER", "start_char": 3554, "end_char": 3566, "source": "ner", "metadata": {"in_sentence": "R. Vasudev Pillai and P. K. Pillai for the Appellant."}}, {"text": "R. M. Mehta", "label": "LAWYER", "start_char": 3587, "end_char": 3598, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta and S. P. Nayar, for the Respondent."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3603, "end_char": 3614, "source": "ner", "metadata": {"in_sentence": "R. M. Mehta and S. P. Nayar, for the Respondent."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 3681, "end_char": 3687, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.-This judgment would disposed of three civil appeals Nos."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 3837, "end_char": 3862, "source": "ner", "metadata": {"in_sentence": "980 to 982 of 1971 which have been filed by special leave against c the judgment of the Andhra Pradesh High Court on a reference under section 66 of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act) answering besides two other questions with which we\n\nare not concerned, the following question against the assessee appellant -+ and in favour of the revenue :\n\n\"Whether, on the facts and in the circumstances of the case, the sale proceeds were received from Government of India in British India?\""}}, {"text": "section 66", "label": "PROVISION", "start_char": 3884, "end_char": 3894, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 3902, "end_char": 3929, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Nizam's Dominion", "label": "ORG", "start_char": 4363, "end_char": 4379, "source": "ner", "metadata": {"in_sentence": "The assessee company is a public limited company registered in what was at the relevant time the Nizam's Dominion (hereinafter referred to as Hyderabad State) outside British India."}}, {"text": "October 5, 1944", "label": "DATE", "start_char": 4566, "end_char": 4581, "source": "ner", "metadata": {"in_sentence": "The matter relates to assessment years 1945-46, 1946-47 and 1947-48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 1'espectively. ·"}}, {"text": "October 5, 1945", "label": "DATE", "start_char": 4583, "end_char": 4598, "source": "ner", "metadata": {"in_sentence": "The matter relates to assessment years 1945-46, 1946-47 and 1947-48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 1'espectively. ·"}}, {"text": "October 5, 1946", "label": "DATE", "start_char": 4603, "end_char": 4618, "source": "ner", "metadata": {"in_sentence": "The matter relates to assessment years 1945-46, 1946-47 and 1947-48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 1'espectively. ·"}}, {"text": "Warangal", "label": "GPE", "start_char": 4680, "end_char": 4688, "source": "ner", "metadata": {"in_sentence": "The assessee company had a textile mill at Warangal in Hyderabad State."}}, {"text": "of Supplies, Government of India", "label": "ORG", "start_char": 4791, "end_char": 4823, "source": "ner", "metadata": {"in_sentence": "During the Second World War the company supplied textile goods to the Department of Supplies, Government of India under what was known as \"Panel System\"."}}, {"text": "Sdf\n\non Bank Bankers", "label": "ORG", "start_char": 5336, "end_char": 5356, "source": "ner", "metadata": {"in_sentence": "Please pay by ChC'que to Sdf\n\non Bank Bankers at .. _, Treasury Contractor's signature\n\nThe assessee used to enter the words \"Hyderabad (Dn)\" in the blank space after the word \"at\"."}}, {"text": "Government of Ind.ia", "label": "ORG", "start_char": 5972, "end_char": 5992, "source": "ner", "metadata": {"in_sentence": "All payments were made on behlf of the Government of Ind.ia by cheques, which were sent to the assessee by post."}}, {"text": "British India and as such the assessee was liable to tax under the Act", "label": "STATUTE", "start_char": 6493, "end_char": 6563, "source": "regex", "metadata": {}}, {"text": "Indore Malwa", "label": "OTHER_PERSON", "start_char": 7796, "end_char": 7808, "source": "ner", "metadata": {"in_sentence": "So far as the question reproduced above is concerned, the High Court took the view that the matter was concluded by the decision of this Court in the case of Indore Malwa\n\nUnited Mills Ltd. v. Commissioner of Income-tax(')."}}, {"text": "Vasudev Pillai", "label": "OTHER_PERSON", "start_char": 7887, "end_char": 7901, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Vasudev Pillai on behalf of the appellant has •assailed the judgment of the High Court and has contended that on the facts and circumstances of the case, the sale proceeds should be held to have been received by the assessee from the Government of India not in British India but in Hyderabad State."}}, {"text": "SUPRBME COURT REPORTS", "label": "COURT", "start_char": 9084, "end_char": 9105, "source": "ner", "metadata": {"in_sentence": "64$\n\nSUPRBME COURT REPORTS\n\n,. ["}}, {"text": "Aundh", "label": "GPE", "start_char": 10195, "end_char": 10200, "source": "ner", "metadata": {"in_sentence": "In Commissioner of lncometax, Bom/Jay South, Bom/Jay v. Ogale Glass Works Ltd.(') the assessee, a non-resident company carrying on business of manufacturing certain articles in t]\\e State of Aundh, secµred some contract for the supply of goods to the Government of India."}}, {"text": "India", "label": "GPE", "start_char": 10550, "end_char": 10555, "source": "ner", "metadata": {"in_sentence": "The contract provided that \"unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque ou a Government Trea5ury in India or on a branch of the Reserve Bank of India or the Imperial Bank of lndia transacting Government business.\""}}, {"text": "Imperial Bank of lndia", "label": "ORG", "start_char": 10607, "end_char": 10629, "source": "ner", "metadata": {"in_sentence": "The contract provided that \"unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque ou a Government Trea5ury in India or on a branch of the Reserve Bank of India or the Imperial Bank of lndia transacting Government business.\""}}, {"text": "Aundh Bank", "label": "ORG", "start_char": 10971, "end_char": 10981, "source": "ner", "metadata": {"in_sentence": "The assessee realised the amount of the cheques through the Aundh Bank."}}, {"text": "Delhi", "label": "GPE", "start_char": 11026, "end_char": 11031, "source": "ner", "metadata": {"in_sentence": "It was held that the posting of cheques in Delhi in law amounted to payment in Delhi."}}, {"text": "Government of Inilia", "label": "ORG", "start_char": 11543, "end_char": 11563, "source": "ner", "metadata": {"in_sentence": "Income, profifa and gains in respect of the sales made to (he Government of Inilia were accordingly held to have been received by the assessee in British India."}}, {"text": "Pillai", "label": "OTHER_PERSON", "start_char": 12203, "end_char": 12209, "source": "ner", "metadata": {"in_sentence": "The above case been sought to be distinguished by Mr. Pillai on the ground that in that case the assesee had written on the bill form the\n\n(!)", "canonical_name": "-Pillai"}}, {"text": "Jagdish Mills", "label": "ORG", "start_char": 12830, "end_char": 12843, "source": "ner", "metadata": {"in_sentence": "In Jagdish Mills' case tho assessee company was incorporated in Baroda State outside British India."}}, {"text": "Baroda", "label": "GPE", "start_char": 12891, "end_char": 12897, "source": "ner", "metadata": {"in_sentence": "In Jagdish Mills' case tho assessee company was incorporated in Baroda State outside British India."}}, {"text": "Imperial Bank of India", "label": "ORG", "start_char": 13561, "end_char": 13583, "source": "ner", "metadata": {"in_sentence": "The company thereafter received at Baroda, in payment of its bills, cheques through post from the Government drawn on a Government Treasury or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business."}}, {"text": "Ahmedabad", "label": "GPE", "start_char": 13685, "end_char": 13694, "source": "ner", "metadata": {"in_sentence": "The company endorsed the cheques and sent them either to Bombay or Ahmedabad in its banking account at such places."}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 14360, "end_char": 14372, "source": "regex", "metadata": {"statute": null}}, {"text": "Indore", "label": "GPE", "start_char": 14629, "end_char": 14635, "source": "ner", "metadata": {"in_sentence": "In that case the assessee, a non-resident, carried on the business of manufacturing textile goods at Indore, outside British India."}}, {"text": "Reserve Bank of India, Bombay", "label": "ORG", "start_char": 15068, "end_char": 15097, "source": "ner", "metadata": {"in_sentence": "The Government of India drew cheques in favour of the assessee for the amounts of the bills on the Reserve Bank of India, Bombay and sent them by post to the assessee at Indore."}}, {"text": "Imperial Bank of India, Indore", "label": "ORG", "start_char": 15207, "end_char": 15237, "source": "ner", "metadata": {"in_sentence": "The assessee deposited the cheques in its account with the Imperial Bank of India, Indore and on clearance."}}, {"text": "section 4(1 )(a)", "label": "PROVISION", "start_char": 16332, "end_char": 16348, "source": "regex", "metadata": {"statute": null}}, {"text": "-Pillai", "label": "OTHER_PERSON", "start_char": 16366, "end_char": 16373, "source": "ner", "metadata": {"in_sentence": "Mr. -Pillai has referred to the case of Commissioner of Income-tax, Bihar & Orissa v. Patney & Co.(1) This case cannot be of much help because in that case the assessee had expressly reqmre:l the commission to be paid at Secunderabad outside British India.", "canonical_name": "-Pillai"}}, {"text": "Secunderabad", "label": "GPE", "start_char": 16583, "end_char": 16595, "source": "ner", "metadata": {"in_sentence": "Mr. -Pillai has referred to the case of Commissioner of Income-tax, Bihar & Orissa v. Patney & Co.(1) This case cannot be of much help because in that case the assessee had expressly reqmre:l the commission to be paid at Secunderabad outside British India."}}, {"text": "Ogale Glass Works", "label": "ORG", "start_char": 16704, "end_char": 16721, "source": "ner", "metadata": {"in_sentence": "It was because of this circumstance that this Court found that the rule laid down in Ogale Glass Works' case (supra) did not apply and the money was not received by the assessee in British India."}}]}
{"document_id": "1976_3_651_660_EN", "year": 1976, "text": "MAINA SINGH\n\nSTATE OF RAJASTHAN\n\nMarch 17, 1976\n\n[R. S. SARKARIA AND P. N. SHJNGHAL, JJ.]\n\nPenal Code-Murder-Co-iiccused acquitted-Appellant alone co11victeds. 149 or s. 34-lf applicable.\n\n'The appellant and 'tour others Were charged 'vith offences under S<i. 302/149 I.P.C., the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp-edged weapon. The trial co1ni acquitted the four accused but convicted the appellant under s. 302 read with s. 34, I.P.C-.\n\nThe High Court dismissed the appeal of the State against acquit- C tal as also lhe appellant's appeal against conviction.\n\nIn appeal to this Court, it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of the other accued when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence \\vhich he might have committed in his individual capacity.\n\nD • 'Allowing the appeal in part,\n\nHELD : It was not permissible for the High Court to invoke s. 149 or s. 34.\n\nJ.P.C.\n\n[659D-E]\n\n( 1) In a given case even if the charge disclosed only the named persons as co-accused and the prosecution witnesses confined their testimony to them. it would be permissible to conclude that others, hamed or unnamed, acted con- E jointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.\n\n[657D]\n\nThe charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co-accused, and with no other person. The trial in fact went on that basis throughout.\n\nThere was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person.\n\nSo when the other four co-accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant in causing injuries to the deceased.\n\nThe appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.\n\n[659C-E]\n\nDharam Pal v. The Stale of U.P., A.l.R. 1975 S.C. 1917 explained and fol lowed.\n\nThe Ki11g v. Plummer, [1902] 2 K.B. 339; Topandas v. The State of Bombay, [1955] 2 S.C.R. 881; Mohan Singh v. State of Punjab, [1962] Supp. 3 S.C.R. -'. 848; Krishna Guvind Patil v. State of Maharashtra, [1964] 1 S.C.R. 678; Ram Bilas Singh v. State tYf Bihar, [1964] I S.C.R. 775 and Yeswa11t v. State of Maharashtra, [1973] I S.C.R. 291 referred to.\n\n(2) The appellant was guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting and was. therefore, guilty H of an offence under s. 326 I.P.C. From the medical evidence, it is not possible to say that the death of the deceased was caused by gun shot or by blunt weapon injuries. It however proved that the appellant inflicted gun shot injuries on the deceased, one of the injuries being grievous.\n\n[659H]\n\nA CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 242\n\nof 1971.\n\nAppeal by Special Leave from the Judgment and Order dated 21-4-1971 of the Rajasthan High Court at Jodhpur in D. B. Criminal Appeal No. 343 of 1969.\n\nHarbans Singh for the Appellant.\n\nS. M. lain for Respondent.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.-This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court date<! April 21, 1971 upholding the trial court's judgment convicting him of an offence under s. 302 read with s. 34 I.P.C. for causing the death of Amar Singh and of an offence under s. 326 I.P.C. for causing grievous injuries to Amar Singh's son Ajeet Singh (P.W. 2), and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and a fine of Rs. 100 /- for the other offence.\n\nThe deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jee! Singh and Puran Singh used to live in 'chak' No. 77 GB, in Ganganagar district of Rajasthan while Narain Singh used to live in another 'chak'. It was alleged that the relatic>ns between Amar Singh and Maina Singh were strained, as Maina Singh suspected that Amar Singh was giving information about his smuggling activities. Amar Singh was having some construction work done in his house and had engaged Isar Ram (P.W. 3) as a mason.\n\nOn June 29, 1967, at about sun set, the deceased Amar Singh, his son Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) went to the 'diggi' in 'murabba' 35 for bath. Ajeet Singh took his bath, and was changing his clothes and Isar Ram was nearby. Amar Singh was cleaning his 'Iota' after attending the call of nature. It is alleged that at that time Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh came to the 'diggi' along with Narain Singh. Maina Singh was armed with a .12 bore gun, Puran Singh with a 'takua' and the other three with 'gandasis'.\n\nMaina Singh fired at Amar Singh, but could not hit him. The gun shots however hit Ajeet Singh (P.W. 2) on his legs and he jumped into a dry water course which was nearby to take cover.\n\nMaina Singh fired again, but without success.\n\nAmar Singh ran towards the sugarcane field crying for help but was chased by the accused. Ajeet Singh thereupon ran towards 'chak' No. 78 GB and ultimately went and lodged a report at Police Station Anoopgarh at 10 p.m. after covering a distance of about six miles.\n\nThe five accused however followed Amar Singh. Maina Singh fired his gun at Amar Singh and he fell down. The other accused went near him and gave 'gandasi' blows, and Maina Singh gave a blow or two with the butt end of his guu which broke and the broken pieces fell down.\n\nAmar Singh sue cum bed to his injuries on the spot, and the accused ran away.\n\nOn the report of Ajeet Singh about the incident which took place by the time he left for the police station, the police registered a case\n\n?-··\n\nMA!NA SINGH v. RAJASTHAN (Shinghal, !.) 653\n\nfor an offence under s. 307 read with s. 149 I.P.C. and started investigation. The body of Amar Singh was sent for post-mortem examination.\n\nThe report Ex. P. 9 of Dr. Shanker Lal (P.W. 5) is on the ·record. The injuries of Ajeet Singh (P.W. 2) were also examined by Dr. Shanker Lal and his report in that connection is Ex. P .10. It was found that there were several gun shot injuries, incised wounds and lacerated wounds on the body of the deceased, and there were as many as 12 gun shot wounds on the person of Ajeet Singh (P.W. 2). All the li\\ c accused were found absconding and could be taken into custody after proceedings were started against them under ss. 8 7 and 88 Cr. P. C.\n\nMaina Singh held a licence for gun Ex. 23 and led to its recovery during the course of the investigation vide memorandum Ex. P.43. At that time, its butt was found to be missing. Its broken . pieces had however been recovered by the investigating officer earlier, along with the empty cartridges.\n\nThe prosecution examined Ajeet Singh (P.W. 2), Isar Ram (P.W.\n\n3) and Smt. Jangir Kaur (P.W. 7) the wife of the deceased as eye witnesses of the incident. The accused denied the allegation of the prosecution altogether, but Maina Singh admitted that the gun belonged to him and he held a licence for it. The Sessions Judge disbelieved the evidence of Sm!. Jangir Kaur (P.W. 7) mainly for the reason that her name had not been mentioned in the first information report. He took the view that the statements of Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) were inconsistent regarding the part played by Hardeep Singh, Jeet Singh, Narain Singh and Puran Singh accused, and although he held that one or more of the accused persons, besides Maina Singh, might be responsible for causing injuries to the deceased, along with Maina Singh, he held further that it could not be ascertained which one of the accused was with him.\n\nHe also took the view that \"some one else might have been with him\" and he therefore gave the benefit of doubt to accused Hardeep Singh, Jeet Singh, Puran Singh and Narain Singh and acquitted them. As the statements of Ajeet Singh (P.W. 2)\n\nand Isar Ram (P.W. 3) were fonnd to be consistent against appellant Maina Singh, and as there was circumstantial evidence in the shape of the recovery of empty cartridges near the dead body, and gun Ex. 23. as well as the medical evidence, and the fact that the accused had absconded, the learned Sessions Judge .convicted and sentenced him as aforesaid.\n\nAn appeal was preferred by the, State against the acqnittal of the remaining four accused; and Maina Singh also filed an appeal against\n\nhis conviction. The High Court dismissed both the appeals and main- G tained the conviction and sentence of Maina Singh as aforesaid.\n\nMr. Harbans Singh appearing on behalf of appellant Maina Singh has not been able to challenge the evidence on which appellant Maina Singh has been convicted, but he has raised the substantial argument that he could not have been convicted of the offence of murder under s. 302 read with s. 34 I.P .C. when the four co-accused had been acqnitted and the Sessions Judge had found that it was not possible to record a conviction under s. 302 read with s. 149 I.P.C. or s. 148 I.P.-C. It has been argued that when the other four accused were given\n\nthe benefit of doubt and were acquitted, it could not be held, in law, that they formed an unlawful assembly or that any offence was committed by appellant Maina Singh in prosecution of the common object of that assembly. It has been argued further that, a fortiori, it was not permissible for the Court of Sessions or the High Court to take the view that a criminal act was done .by appellant Maina Singh in furtherance of the common intention of the \"other accused\" when those accused had been named to be no other than Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh who had all been acquitted. It has therefore been argued that all that was permissible for the High Court was to convict appellant Maina Singh of any offence which he might have committed in his individual capacity, without reference to the participation of any other person in the crime. /On the other hand, it has been argued by Mr. S. M. Jain that as the learned Sessions Judge had acquitted the remaining four accused by giving them the benefit of doubt, and had recorded the finding that one or more of the accused persons or some other person might have participated in the crime along with Maina Singh, the High Court was quite justified in upholding the conviction of the appellant Maina Singh of an offence under s. 302/34 l.P.C.\n\nThe relevant portion of the judgment of the trial court, which bears on the controversy and has been extracted with approval in the impunged judgment of the High Court, is as follows,-\n\n\"The injuries found on the person of the deceased Amar Singh were with fire arm, blunt as well as sharp weapon. fire arm injuries and the blunt weapon injuries have been assigned to Maina Singh and so there must have been other person also along with Maina Singh in causing injuries to the deceased. It can be so inferred from the statements of Isar Ram and Ajeet Singh also. These facts could no doubt create a strong suspicion that one or more of the accused persons might be responsible along with Maina Singh in caus\" ing injuries to the deceased. In view of the statement of Isar Ram and A jeet Singh it cannot however be ascertained which one of the accused was with Maina Singh and it was also possible that some one else might have been with him.\n\nIn such a case the prosecution version against these four accused persons are not proved beyond doubt.\n\nThey are therefore not guilty of the offence with which they have been charged.\" It would thus appear that the view which has found favour with the High Court is that as there were in.iuries with fire arm and with blunt and sharp-edged weapons, and as the fire arm and the blunt weapon injuries had been ascribed to Maina Singh, there must have been one other person with him in causing the injuries to the deceased. At the same time, it has been held further that these facts could only cr3ate a strong suspicion \"that one or more of the accused persons might be responsible along with Maina Singh in causing the injuries to the deceased\", but it could not be ascertained which one of the accused was with him and that it was also possible that \"some one else might have been with him.\" The finding therefore is that the other person\n\n• •\n\n.. •\n\nmight have been one of the other accused or some one else, and not that the other associate in the crime was a person other than the accused.\n\nThus the finding is not categorical and does not exdude the possibility of infliction of the injuries in furtherance of the common intention of one of the acquitted accused and the appellant.\n\nAnother significant fact which bears on the argument of Mr.\n\nHarbans Singh is that while in the original charge sheet the Sessions Judge specifically foamed appellant Mairni Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly, he altered that charge but retained, at the same time, the charge that Maiua Singh formed an unlawful assembly along with the \"other accused\" with the common object of murdering Amar Singh and intentionally caused injuries to him along with the \"other accused\" in prosecution of that common object.\n\nIn this case therefore Maina Singh and the other four accused were alleged, all along, to have participated in the crime and were named in the charge sheet as the perpetrators of the crime without there being an allegation that some other person (besides the accused) took part in it in any manner whatsoever. It was in fact the case from the very beginning, including the first information report, that the offence was committed by all the five named accused, and. even the evidence of the prosecution was confined to them all through and to no other person. The question is whether the High Court was right in upholding the conviction of the appellant with reference to .s. 34 l.P.C. in these circumstances ?\n\nSuch a question came up for consideration in this Court on earlier occasions, and we shall refer to some of those decisions in order to appreciate the argument of Mr. Jain that the decision in Dharam Pal v. The State of U.P. ( 1) expresses the latest view of this Court and would justify the appellant's conviction by invoking s. 34 I.P.C.\n\nWe may start by making a reference to The King v. Plummer(') which, as we shall show, has been cited with approval by this Court in some of its decisions. That was a case where there was a trial of an indictment charging three persons jointly with conspiring together.\n\nOne of them pleaded guilty, and a judgment was passed against him, and the other two were acquitted. It was alleged that the judgment passed against the one who pleaded guilty was bad and could not stand. Lord Justice Wright held that there was much authority to the effect that if there was acquittal of the only alleged co-conspirators, no judgment could have been passed on the appellant, if he had not pleaded guilty, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the apoellant and the others and none between them and him. In taking that view he made a reference to Harrison v. Errison( 3) where noon an indictment of three for riot two were found not guilty and one guiltv. and upon error brought it was held a \"void verdict\". Bruce J., who was the other judge in the case made a reference to the following\n\nfl) A.I.R. 1975 S.C. 1917.\n\n(2) [1902] 2. K.B. 339. (3l [1365] Popham 202.\n\nstatement in Chitty's Crimina:l Law while agreeing with the view taken by Wright J.,-\n\n\"And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him.\"\n\nThis Court approved Plummer's case (supra)' in its decision in To pandas v. The State of Bombay( 1). That was a case where four named individuals were charged with having committed an offence under s. 120-B I.P.C. and three out of those four were acquitted. This Court held that the remaining accused conld not be convicted of tl1e offence as his alleged co-participators had been acquitted, for that would be clearly illegal. ·\n\nA similar point came up for consideration in Mohan Singh v. State of Punjab('). There two of the five persons who were tried together were acquitted while two were convicted under s. 302 read with s. 149 and s. 147 I.P.C. In the charge those five accused persons and none others were mentioned as forming the unlawful assembly and the evidence led in the case was confined to them. The proved facts showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by common intention of fatally assaulting the deceased.\n\nWhile examining the question of their liability, it was observed as follows,-\n\n\"Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the .evidence are confined to the person< n.amed in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then s. 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named.\n\nIn such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named.\n\nIn such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.\"\n\n\n(2) [1962j Supp 3 S.C.R. 848.\n\nIn taking this view this Court took note of its earlier decisions in A Dalip Singh v. State of Punjab('), Bharwad Mena Dana v. State of Bombay(') and Kartar Singh v. State of Punjab( 3 ).\n\nThe other case to which we may make a reference is Krishna Govind Patil v. State of Maharashtra('). It noticed and npheld the earlier decision in Mohan Singh's case (supra) and after referring to the portion which we have extracted, it was held as follows,- B\n\n\"It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to. by the prosecution witnesses, and the court, on the basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclusion is really based on evidence.\"\n\nIt would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to. the conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, arted conjointly with one of the charged accused if there was other evidence to lead to that conclusion, but not otherwise.\n\nThe decision in Krishna Govind Patil's case (supra) was followed by the decision in Ram Bilas Singh v. State of Bihar('). After noticing and approving the view taken in Plummer's case (supra) and the decisions in Mohan Singh's case (supra) and Krishna Govind Patil's case (supra) this Court stated the law once again as follows,-\n\n\"The decisions of this Court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged nnlawful assembly consists of five or more' named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an nnlawful assembly unless it comes to the definite conolusion that five or more of the named persons were members thereof.\n\nWhere, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified, it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of s. 149 I.P.C. provided it comes to\n\n(I) [1954] S.C. R. 145.\n\n(2) (1960) 2. S.C.R. 172.\n\n\n(5) 1964 I S.C.R. 775\n\nA the conclusion that five or more persons participated in the incident.\"\n\nThe other decision to which our attention has been invited i& Yeswant v. State of Maharashtra(!). The decision in Krishna Govind Patil (supra) was cited there on behalf of the appellant and, while referring to the view expressed there, it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused himself.\n\nBut as the Court was not satisfied that the identify of the person who used the axe on Sukal was satisfactorily established as that of Brahmanand Tiwari, it took the view that the remaining accused could be convicted with the aid of s. 34 for the offences committed by them. This Court did not therefore disagree with the view taken in Krishna Govind Patil's case (supra) but purported to follow it in its decision and took the aforesaid view in regard to the identity of Brahmanand Tiwari for the purpose of distinguishing it from the case of Krishna Govind Patil (supra) where there was not a single observation in the judgment to indicate that persons other than the named accused participated in the offence and there was no evidence also in that regard.\n\nThe matter once again came up for consideration in Sukh Ram\n\nv. State of U.P. (') The Court referred to its earlier decisions including those in Mohan Singh's case (supra) and Krishna Govind Patil's case (supra) and, while distinguishing them on facts, it observed that as the prosecution did not put forward a case of the commission of crime by one known person and one or two unknown persons as in Sukh Ram's case (supra), and there was no evidence to the effect that the named accused bad committed the crime with one or more other persons, the acquittal of the other two accused raised no bar to the conviction of the appellant under s. 302 read with s. 34 I. P. C.\n\nThe decision in Sukh Ram's case (supra) cannot therefore be said to lay down a contrary view for it has upheld the view taken in the earlier decisions of this Court.\n\nThat Iea.ves the case of Dharam Pal v. State of V.P. (supra) for consideration.\n\nIn that case four accused were tried with fourteen others for rioting.\n\nThe trial court gave benefit of doubt to eleven of them and acquitted them.\n\nThe remaining seven were convicted for the offence under s. 302/149 I.P.C. and other offences.\n\nThe High Court gave benefit of doubt to four of them, and held that at least four of the accused participated in the crime because of their admission and the injuries.\n\nOn appeal this Court found that the attacking party could not conceivably have been of less than five because that was the number of the other party; and it was in that connection that it held that there was no doubt about the number of the participants being not less than five.\n\nIt was also held that as eighteen accused participated in the crime, and the Court gave the benefit of doubl to be on the side of safety. as a matter of abundant caution, reducing the number to less than five, it may not be difficult lei reach the conclnsion, having regard to undeniable facts, that t'he number of the\n\n\n(2) [1974] 2S.C.R. 518.\n\nparticipants could not be less than five.\n\nThat was therefore a case A which was decided on its own facts but, even so, it was observed as follows.-\n\n\"It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and there is no, doubt about the identity of even one.\"\n\nIt cannot therefore be said that the decision in Dharam Pal's case\n\n(supra) is any different from the earlier decisions of this Court, or that it goes to support the view which has been taken by the High Court in the case before us.\n\nThe view which has prevailed with this Court all along will therefore apply to the case before us.\n\nAs has been stated, the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co-accused, and with no other person. The trial in fact went on that basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person.\n\nSo when the other four co-accused have been given the benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased. It was as such not permissible to invoke s. 149 or s. 34 I. P. C.\n\nMaina Singh would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.\n\nThe High Court has held that there could be no room for doubt that the fire arm and the blunt weapon injuries which were found on Vhe person of Amar Singh were caused by appellant Maina Singh, and that finding has not been chaUenged before us by Mr. Harbans Singh.\n\nDr. Shanker Lal (P. W. 5) who performed the post-mortem examination stated that while all those injuries were collectively sufficient in the ordinary course of nature to cause death, he could not say whether any of them was individually sufficient to cause death in the ordinary course of nature. It is not therefore possible to hold that the death of Amar Singh was caused by the gun shot or the blunt weapon injuries which were inflicted by appellant Maina Singh.\n\nDr. Shanker Lal has stated that the fracture of the frontal bone of the deceased could have been caused by external injuries Nos. 8, 10 and 12, and that he could die of that injury also but, of those three injuries injury No. 12 was inflicted by a sharp-edged weapon and could not possibly be imputed to the appellant. The evidence on record therefore does not go to show that he was responsible for any such injury as could have resulted in Amar Singh's death.\n\nThe evidence however proves that he inflicted gun shot injuries on the deceased, and Dr.\n\nShanker Lal has stated that one of those injuries (injury No. 26) was grievous. ' Maina Singh was 1:herefore guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting, and was guilty of an offence under s. 326 I. P. C.\n\nIn the circumstances of the case, we think it proper to sentence him to rigorous\n\nimprisonment for 10 years for that offence.\n\nAs has been stated, he has been held gnilty of a similar offence for the injuries inflicted on Ajeet Singh (P. W. 2) and his conviction and sentence for that other offence nnder s. 326 I. P. C. has not been challenged before us.\n\nThe appeal is therefore allowed to the extent that the conviction of Maina Singh under s. 302/34 I. P. C. is altered to one under s. 326 I. P. C. and the sentence is reduced to rigorous imprisonment for ten years thereunder.\n\nThe conviction under s. 326 for causing injuries to Ajeet Singh, and the sentence of rigorous imprisonment for three years and a fine of Rs. 100 /- call for no interference and are confirmed.\n\nBoth the sentences will run concurrently.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 100, "entities": [{"text": "MAINA SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "Mairni Singh", "offset_not_found": false}}, {"text": "STATE OF RAJASTHAN", "label": "RESPONDENT", "start_char": 13, "end_char": 31, "source": "metadata", "metadata": {"canonical_name": "STATE OF RAJASTHAN", "offset_not_found": false}}, {"text": "March 17, 1976", "label": "DATE", "start_char": 33, "end_char": 47, "source": "ner", "metadata": {"in_sentence": "MAINA SINGH\n\nSTATE OF RAJASTHAN\n\nMarch 17, 1976\n\n[R. S. SARKARIA AND P. N. SHJNGHAL, JJ.]"}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 50, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 91, "end_char": 101, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 34", "label": "PROVISION", "start_char": 167, "end_char": 172, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 268, "end_char": 273, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 483, "end_char": 489, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 500, "end_char": 505, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 507, "end_char": 512, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 149", "label": "PROVISION", "start_char": 1160, "end_char": 1166, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 1170, "end_char": 1175, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "[1955] 2 S.C.R. 881", "label": "CASE_CITATION", "start_char": 2490, "end_char": 2509, "source": "regex", "metadata": {}}, {"text": "[1964] 1 S.C.R. 678", "label": "CASE_CITATION", "start_char": 2620, "end_char": 2639, "source": "regex", "metadata": {}}, {"text": "s. 326", "label": "PROVISION", "start_char": 2939, "end_char": 2945, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 2946, "end_char": 2951, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Harbans Singh", "label": "PETITIONER", "start_char": 3437, "end_char": 3450, "source": "ner", "metadata": {"in_sentence": "Harbans Singh for the Appellant.", "canonical_name": "Harbans Singh"}}, {"text": "S. M. lain", "label": "LAWYER", "start_char": 3471, "end_char": 3481, "source": "ner", "metadata": {"in_sentence": "S. M. lain for Respondent.", "canonical_name": "S. M. lain"}}, {"text": "SHINGHAL", "label": "JUDGE", "start_char": 3543, "end_char": 3551, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.-This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court date<!"}}, {"text": "Maina Singh", "label": "JUDGE", "start_char": 3571, "end_char": 3582, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSHINGHAL, J.-This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court date<!", "canonical_name": "Mairni Singh"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 3732, "end_char": 3738, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 3749, "end_char": 3754, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3755, "end_char": 3760, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Amar Singh", "label": "OTHER_PERSON", "start_char": 3787, "end_char": 3797, "source": "ner", "metadata": {"in_sentence": "April 21, 1971 upholding the trial court's judgment convicting him of an offence under s. 302 read with s. 34 I.P.C. for causing the death of Amar Singh and of an offence under s. 326 I.P.C. for causing grievous injuries to Amar Singh's son Ajeet Singh (P.W. 2), and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and a fine of Rs."}}, {"text": "s. 326", "label": "PROVISION", "start_char": 3822, "end_char": 3828, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 3829, "end_char": 3834, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ajeet Singh", "label": "WITNESS", "start_char": 3886, "end_char": 3897, "source": "ner", "metadata": {"in_sentence": "April 21, 1971 upholding the trial court's judgment convicting him of an offence under s. 302 read with s. 34 I.P.C. for causing the death of Amar Singh and of an offence under s. 326 I.P.C. for causing grievous injuries to Amar Singh's son Ajeet Singh (P.W. 2), and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and a fine of Rs."}}, {"text": "Maina Singh", "label": "PETITIONER", "start_char": 4108, "end_char": 4119, "source": "ner", "metadata": {"in_sentence": "The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jee!", "canonical_name": "Mairni Singh"}}, {"text": "Hardeep Singh", "label": "OTHER_PERSON", "start_char": 4139, "end_char": 4152, "source": "ner", "metadata": {"in_sentence": "The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jee!"}}, {"text": "Jee! Singh", "label": "OTHER_PERSON", "start_char": 4154, "end_char": 4164, "source": "ner", "metadata": {"in_sentence": "The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh, Jee!", "canonical_name": "A jeet Singh"}}, {"text": "Puran Singh", "label": "OTHER_PERSON", "start_char": 4169, "end_char": 4180, "source": "ner", "metadata": {"in_sentence": "Singh and Puran Singh used to live in 'chak' No."}}, {"text": "Ganganagar district", "label": "GPE", "start_char": 4218, "end_char": 4237, "source": "ner", "metadata": {"in_sentence": "77 GB, in Ganganagar district of Rajasthan while Narain Singh used to live in another 'chak'."}}, {"text": "Rajasthan", "label": "GPE", "start_char": 4241, "end_char": 4250, "source": "ner", "metadata": {"in_sentence": "77 GB, in Ganganagar district of Rajasthan while Narain Singh used to live in another 'chak'."}}, {"text": "Narain Singh", "label": "OTHER_PERSON", "start_char": 4257, "end_char": 4269, "source": "ner", "metadata": {"in_sentence": "77 GB, in Ganganagar district of Rajasthan while Narain Singh used to live in another 'chak'."}}, {"text": "Isar Ram", "label": "WITNESS", "start_char": 4562, "end_char": 4570, "source": "ner", "metadata": {"in_sentence": "Amar Singh was having some construction work done in his house and had engaged Isar Ram (P.W. 3) as a mason."}}, {"text": "June 29, 1967", "label": "DATE", "start_char": 4596, "end_char": 4609, "source": "ner", "metadata": {"in_sentence": "On June 29, 1967, at about sun set, the deceased Amar Singh, his son Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) went to the 'diggi' in 'murabba' 35 for bath."}}, {"text": "Ajeet Singh", "label": "OTHER_PERSON", "start_char": 4662, "end_char": 4673, "source": "ner", "metadata": {"in_sentence": "On June 29, 1967, at about sun set, the deceased Amar Singh, his son Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) went to the 'diggi' in 'murabba' 35 for bath.", "canonical_name": "A jeet Singh"}}, {"text": "Isar Ram", "label": "OTHER_PERSON", "start_char": 4811, "end_char": 4819, "source": "ner", "metadata": {"in_sentence": "Ajeet Singh took his bath, and was changing his clothes and Isar Ram was nearby."}}, {"text": "Jeet Singh", "label": "OTHER_PERSON", "start_char": 4981, "end_char": 4991, "source": "ner", "metadata": {"in_sentence": "It is alleged that at that time Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh came to the 'diggi' along with Narain Singh.", "canonical_name": "A jeet Singh"}}, {"text": "Police Station Anoopgarh", "label": "ORG", "start_char": 5578, "end_char": 5602, "source": "ner", "metadata": {"in_sentence": "78 GB and ultimately went and lodged a report at Police Station Anoopgarh at 10 p.m. after covering a distance of about six miles."}}, {"text": "s. 307", "label": "PROVISION", "start_char": 6223, "end_char": 6229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 6240, "end_char": 6246, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 6247, "end_char": 6252, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Shanker Lal", "label": "OTHER_PERSON", "start_char": 6370, "end_char": 6381, "source": "ner", "metadata": {"in_sentence": "P. 9 of Dr. Shanker Lal (P.W. 5) is on the ·record."}}, {"text": "Shanker Lal", "label": "WITNESS", "start_char": 6473, "end_char": 6484, "source": "ner", "metadata": {"in_sentence": "The injuries of Ajeet Singh (P.W. 2) were also examined by Dr. Shanker Lal and his report in that connection is Ex."}}, {"text": "ss. 8", "label": "PROVISION", "start_char": 6864, "end_char": 6869, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Jangir Kaur", "label": "WITNESS", "start_char": 7263, "end_char": 7274, "source": "ner", "metadata": {"in_sentence": "Jangir Kaur (P.W. 7) the wife of the deceased as eye witnesses of the incident."}}, {"text": "Maina Singh", "label": "WITNESS", "start_char": 7412, "end_char": 7423, "source": "ner", "metadata": {"in_sentence": "The accused denied the allegation of the prosecution altogether, but Maina Singh admitted that the gun belonged to him and he held a licence for it."}}, {"text": "Maina Singh", "label": "PETITIONER", "start_char": 8416, "end_char": 8427, "source": "ner", "metadata": {"in_sentence": "As the statements of Ajeet Singh (P.W. 2)\n\nand Isar Ram (P.W. 3) were fonnd to be consistent against appellant Maina Singh, and as there was circumstantial evidence in the shape of the recovery of empty cartridges near the dead body, and gun Ex.", "canonical_name": "Mairni Singh"}}, {"text": "Harbans Singh", "label": "PETITIONER", "start_char": 8980, "end_char": 8993, "source": "ner", "metadata": {"in_sentence": "Mr. Harbans Singh appearing on behalf of appellant Maina Singh has not been able to challenge the evidence on which appellant Maina Singh has been convicted, but he has raised the substantial argument that he could not have been convicted of the offence of murder under s. 302 read with s. 34 I.P .C. when the four co-accused had been acqnitted and the Sessions Judge had found that it was not possible to record a conviction under s. 302 read with s. 149 I.P.C. or s. 148 I.P.-C. It has been argued that when the other four accused were given\n\nthe benefit of doubt and were acquitted, it could not be held, in law, that they formed an unlawful assembly or that any offence was committed by appellant Maina Singh in prosecution of the common object of that assembly.", "canonical_name": "Harbans Singh"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 9246, "end_char": 9252, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 9263, "end_char": 9268, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 9408, "end_char": 9414, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 149", "label": "PROVISION", "start_char": 9425, "end_char": 9431, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 9432, "end_char": 9437, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 148", "label": "PROVISION", "start_char": 9442, "end_char": 9448, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. M. Jain", "label": "JUDGE", "start_char": 10434, "end_char": 10444, "source": "ner", "metadata": {"in_sentence": "/On the other hand, it has been argued by Mr. S. M. Jain that as the learned Sessions Judge had acquitted the remaining four accused by giving them the benefit of doubt, and had recorded the finding that one or more of the accused persons or some other person might have participated in the crime along with Maina Singh, the High Court was quite justified in upholding the conviction of the appellant Maina Singh of an offence under s. 302/34 l.P.C.\n\nThe relevant portion of the judgment of the trial court, which bears on the controversy and has been extracted with approval in the impunged judgment of the High Court, is as follows,-\n\n\"The injuries found on the person of the deceased Amar Singh were with fire arm, blunt as well as sharp weapon.", "canonical_name": "S. M. lain"}}, {"text": "s. 302", "label": "PROVISION", "start_char": 10821, "end_char": 10827, "source": "regex", "metadata": {"statute": null}}, {"text": "A jeet Singh", "label": "OTHER_PERSON", "start_char": 11618, "end_char": 11630, "source": "ner", "metadata": {"in_sentence": "In view of the statement of Isar Ram and A jeet Singh it cannot however be ascertained which one of the accused was with Maina Singh and it was also possible that some one else might have been with him.", "canonical_name": "A jeet Singh"}}, {"text": "Mairni Singh", "label": "PETITIONER", "start_char": 13235, "end_char": 13247, "source": "ner", "metadata": {"in_sentence": "Another significant fact which bears on the argument of Mr.\n\nHarbans Singh is that while in the original charge sheet the Sessions Judge specifically foamed appellant Mairni Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly, he altered that charge but retained, at the same time, the charge that Maiua Singh formed an unlawful assembly along with the \"other accused\" with the common object of murdering Amar Singh and intentionally caused injuries to him along with the \"other accused\" in prosecution of that common object.", "canonical_name": "Mairni Singh"}}, {"text": "Maiua Singh", "label": "PETITIONER", "start_char": 13523, "end_char": 13534, "source": "ner", "metadata": {"in_sentence": "Another significant fact which bears on the argument of Mr.\n\nHarbans Singh is that while in the original charge sheet the Sessions Judge specifically foamed appellant Mairni Singh and the other accused Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly, he altered that charge but retained, at the same time, the charge that Maiua Singh formed an unlawful assembly along with the \"other accused\" with the common object of murdering Amar Singh and intentionally caused injuries to him along with the \"other accused\" in prosecution of that common object.", "canonical_name": "Mairni Singh"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 14425, "end_char": 14430, "source": "regex", "metadata": {"statute": null}}, {"text": "Jain", "label": "OTHER_PERSON", "start_char": 14631, "end_char": 14635, "source": "ner", "metadata": {"in_sentence": "Such a question came up for consideration in this Court on earlier occasions, and we shall refer to some of those decisions in order to appreciate the argument of Mr. Jain that the decision in Dharam Pal v. The State of U.P. ( 1) expresses the latest view of this Court and would justify the appellant's conviction by invoking s. 34 I.P.C.\n\nWe may start by making a reference to The King v. Plummer(') which, as we shall show, has been cited with approval by this Court in some of its decisions."}}, {"text": "s. 34", "label": "PROVISION", "start_char": 14791, "end_char": 14796, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 14797, "end_char": 14802, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Wright", "label": "JUDGE", "start_char": 15293, "end_char": 15299, "source": "ner", "metadata": {"in_sentence": "Lord Justice Wright held that there was much authority to the effect that if there was acquittal of the only alleged co-conspirators, no judgment could have been passed on the appellant, if he had not pleaded guilty, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the apoellant and the others and none between them and him.", "canonical_name": "Wright"}}, {"text": "Bruce", "label": "JUDGE", "start_char": 15874, "end_char": 15879, "source": "ner", "metadata": {"in_sentence": "Bruce J., who was the other judge in the case made a reference to the following\n\nfl) A.I.R. 1975 S.C. 1917."}}, {"text": "Chitty", "label": "OTHER_PERSON", "start_char": 16044, "end_char": 16050, "source": "ner", "metadata": {"in_sentence": "statement in Chitty's Crimina:l Law while agreeing with the view taken by Wright J.,-\n\n\"And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him.\""}}, {"text": "Wright", "label": "JUDGE", "start_char": 16105, "end_char": 16111, "source": "ner", "metadata": {"in_sentence": "statement in Chitty's Crimina:l Law while agreeing with the view taken by Wright J.,-\n\n\"And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him.\"", "canonical_name": "Wright"}}, {"text": "Plummer", "label": "OTHER_PERSON", "start_char": 16404, "end_char": 16411, "source": "ner", "metadata": {"in_sentence": "This Court approved Plummer's case (supra)' in its decision in To pandas v. The State of Bombay( 1)."}}, {"text": "s. 120", "label": "PROVISION", "start_char": 16582, "end_char": 16588, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 16591, "end_char": 16596, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 302", "label": "PROVISION", "start_char": 16994, "end_char": 17000, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 149", "label": "PROVISION", "start_char": 17011, "end_char": 17017, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "s. 147", "label": "PROVISION", "start_char": 17022, "end_char": 17028, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 17029, "end_char": 17034, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 149", "label": "PROVISION", "start_char": 17823, "end_char": 17829, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "section 149", "label": "PROVISION", "start_char": 18338, "end_char": 18349, "source": "regex", "metadata": {"statute": null}}, {"text": "section 149", "label": "PROVISION", "start_char": 18634, "end_char": 18645, "source": "regex", "metadata": {"statute": null}}, {"text": "Mohan Singh", "label": "OTHER_PERSON", "start_char": 19183, "end_char": 19194, "source": "ner", "metadata": {"in_sentence": "It noticed and npheld the earlier decision in Mohan Singh's case (supra) and after referring to the portion which we have extracted, it was held as follows,- B\n\n\"It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to."}}, {"text": "Krishna Govind Patil", "label": "OTHER_PERSON", "start_char": 20400, "end_char": 20420, "source": "ner", "metadata": {"in_sentence": "The decision in Krishna Govind Patil's case (supra) was followed by the decision in Ram Bilas Singh v. State of Bihar(')."}}, {"text": "s. 149", "label": "PROVISION", "start_char": 21629, "end_char": 21635, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 21636, "end_char": 21641, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sukal", "label": "OTHER_PERSON", "start_char": 22154, "end_char": 22159, "source": "ner", "metadata": {"in_sentence": "The decision in Krishna Govind Patil (supra) was cited there on behalf of the appellant and, while referring to the view expressed there, it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused himself."}}, {"text": "Brahmanand Tiwari", "label": "PETITIONER", "start_char": 22196, "end_char": 22213, "source": "ner", "metadata": {"in_sentence": "The decision in Krishna Govind Patil (supra) was cited there on behalf of the appellant and, while referring to the view expressed there, it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari, and could be that accused himself.", "canonical_name": "Brahmanand Tiwari"}}, {"text": "Brahmanand Tiwari", "label": "PETITIONER", "start_char": 22386, "end_char": 22403, "source": "ner", "metadata": {"in_sentence": "But as the Court was not satisfied that the identify of the person who used the axe on Sukal was satisfactorily established as that of Brahmanand Tiwari, it took the view that the remaining accused could be convicted with the aid of s. 34 for the offences committed by them.", "canonical_name": "Brahmanand Tiwari"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 22484, "end_char": 22489, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Sukh Ram", "label": "OTHER_PERSON", "start_char": 23062, "end_char": 23070, "source": "ner", "metadata": {"in_sentence": "The matter once again came up for consideration in Sukh Ram\n\nv. State of U.P. (') The Court referred to its earlier decisions including those in Mohan Singh's case (supra) and Krishna Govind Patil's case (supra) and, while distinguishing them on facts, it observed that as the prosecution did not put forward a case of the commission of crime by one known person and one or two unknown persons as in Sukh Ram's case (supra), and there was no evidence to the effect that the named accused bad committed the crime with one or more other persons, the acquittal of the other two accused raised no bar to the conviction of the appellant under s. 302 read with s. 34 I. P. C.\n\nThe decision in Sukh Ram's case (supra) cannot therefore be said to lay down a contrary view for it has upheld the view taken in the earlier decisions of this Court."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 23649, "end_char": 23655, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 23666, "end_char": 23671, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 24136, "end_char": 24142, "source": "regex", "metadata": {"statute": null}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 24147, "end_char": 24152, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Dharam Pal", "label": "OTHER_PERSON", "start_char": 25418, "end_char": 25428, "source": "ner", "metadata": {"in_sentence": "It cannot therefore be said that the decision in Dharam Pal's case\n\n(supra) is any different from the earlier decisions of this Court, or that it goes to support the view which has been taken by the High Court in the case before us."}}, {"text": "s. 149", "label": "PROVISION", "start_char": 26402, "end_char": 26408, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 26412, "end_char": 26417, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 326", "label": "PROVISION", "start_char": 28127, "end_char": 28133, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 326", "label": "PROVISION", "start_char": 28449, "end_char": 28455, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 302", "label": "PROVISION", "start_char": 28588, "end_char": 28594, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 326", "label": "PROVISION", "start_char": 28631, "end_char": 28637, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 326", "label": "PROVISION", "start_char": 28748, "end_char": 28754, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_661_671_EN", "year": 1976, "text": "BOARD OF REVENUE ETC.\n\nA. M. ANSARI ETC.\n\nMarch 17, 1976\n\n(A. N. RAY, C.J., M.. H. BEG AND JASWANT SINGH, JJ.]\n\nIndian Stamp (Andhra Pradesh Extension and Amendment) Act XIX of 1959-Arts. 31(c) and 35(c)--Scope of-Lease and licence-Distinction.\n\nSales Tax-JVhether payabh on annual auction Sales.\n\nUnder the terms and conditions of sale th'e respondents, who were the high- C est bidders at an auction of forest produce, were called upon to pay stamp duty on the agreements to be executed by them as if they were leases of immovable property falling under Art. 31(c) and on the deposits of security as mortgages under art. 35(c) of the ll!ldian Stamp Act, 1899 as also sales tax on the bid amounts. In a petition under art. 226, the respondents contended that the right to pluck, collect and take away the forest produce v.-as not a right or interest in immovable property within the meaning of art. 31(c) of the Stamp Act, the security deposits were not mortgages nor did the Government carry on any business of sale and, as such. they were not liable to pay the amounts D demanded. The High Court allowed the petitions.\n\nDismissing the State's appeal,\n\nHELD : The acquisition by the respondents not being an interest in the soil but merely a right to cut 1he fructus narurales, the agreements possessed the characteristics of licences and did not amount to leases so as to attract the applicability of art. 31 ( c) of the Stamp Act. [667D]\n\nFirm Chhotabhai Jethabai Patel & Co. & Or9. v. The State of Madhya Pradesh. [1953] S.C.R. 476 and Mahadeo v. State of Bombay 1959 S.C.J. 1021 : A.I.R. 1959 S.C. 735 referred 10.\n\n(1) A study of the definitions of immovable property occurring in the\n\n Transfer of Property Act, the Jtegistration Act and the General Clauses Act shows that it is the creation of an interest in immovable property or a right to possess it that distinguishes a f.ase from a licence. A licence does not create an interest in the property to which it relates while a lease does. In the case F of a lease there is transfer of a right to enjoy the property. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential to look to the substance and essence of the agreement and not to its form.\n\n[665F-G]\n\nAssociated Hotels of lndia Lid. v. R. N. Kapoor A.l.R. 1959 S.C. 1262; Kauri Timber Company Litnited v. The Commissioner of Taxes, [1913] A.C. 771 (776) Marsliall v. Green (1875) L.R.l.C.P.l.D. 35 and Firm Chhotabhili G Jethabai Patel & Co. & Ors. v. The State of Madhya Pradesh [1953] S.C.R. 576 referred to.\n\nMahadeo v. State of Bombay :t959 S.C.J. 1021 : AIR 1959 S.C. 735 distinguished.\n\nIn the instant case the salient. features emerging from the agreements are\n\n(i) that they were made for a short duration of 9 to 10 months; (ii) they did not create any estate or interest in the land and (iii) the respondents were not granted exclusive possession and control of the land but were merely granted H the right to pluck, cut, carry awa:1 and appropriate the forest produce, present or future. The right to go on tbt: land was only ancillary to the real purpose of the contract.\n\n[667C-DJ\n\n(2) The respondent could not be called upon to pay stamp duty under Art. 35(c) of the_ Stamp Act.\n\nFor an instrument to fall within the definition of mortgage deed contained in s. 2 ( 17) of the Stamp Act it is necessary that it should satisfy the essential conditions by creating a right over or in rspect of a specified property in favour of another person. [6710; 670G]\n\nIn the instant case there is nothing in the relevant clause of the sale notice to indicate that any right over or in the security deposits was created in favour of the State Government.\n\n[67JA]\n\nReference under Stan1p Act, Section 46 15 l.L.R. Mad. 134 nnd Rishidev Sondhi v. Dhampur Sugar Mills A.I.R. 1947 All. 190 F.B. approved.\n\n(3) (a) The respondents were not liable to pay sales lax. It cannot be said that the Government, by holding auction of forest produce, carried on business in the sale of that class of goods, which is an essential condition to make the respondents liable to pay sales tax.\n\n[670D] State of Gujarat v. Raipur Manufacturing Co. Ltd. (1967) 19 S.T.C. l(S.C.) followed.\n\n(b) The consideration of profit motive cannot be regarded as an essential ingredient of the term 'business in view of the amendment in the definition of 1 'dealer' in 1966. The auctions were carried on only annually and not at fre- .......,_ quent intervals. The important element of frequency being lacking it cannot be held that the Government was carrying on the business of sale of \"lorest produce.\n\n[669D-EJ\n\nP.T.C.C.S. Merchants Union v. State of A.P., (1958) 2 An. W.R. JOO:\n\n(1958) 9 S.T.C. 723; Raja Bhairabendra v. Superintendent of Taxes (1958) 9 S.T.C. 60; Orient Paper Mills Ltd. v. The State of Madhya Pradesh and Ors.\n\n(1971) 28 S.T.C. 532; Deputy Commissioner of Agricultural Income-Tax and Sales Tax, Qui/on v. Travancore Rubber and Tea Co. ( 1967) 20 S.T.C. 520\n\n(S.C.); Deputy Commissioner of Agricultural Income-tax and Sales Tax, Qui/on\n\nv. Midland Rubber anlt Produce Co. Ltd. [1970] 25 S.T.C. 57 (S.C.) Ramakrishna Dea v. The Collector of Sales Tax, Orissa (1955) 6 S.T.C. 674 referred to.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 67 to 122 and 238 of 1969.\n\nFrom the Judgment and Decree dated the 21-8-67 of the Andhra Pradesh High Court in Writ Petitions Nos. 489, 491, 537, 538, 539, 540, 541, 561, 635, 636, 638, 639, 677, 684, 686, 688, 695, 710, F\n\n711, 71Z 713, 714, 715,716, 71~718, 719, 811, 81Z 813, 83~ 831, 832, 853, 854, 855, 867, 870, 1146, 1216, 1219, 1260, 1261, 1265, 1284, 1285, 1292, 1293, 1294, 1309, 1310, 1340, 1446, 1447, 1697 and 687 of 1967 respectively.\n\nP. Ram Reddy, B. Parthasarthi for the Appellants.\n\nK. J. John and J. B. Dadaclumji for Respondent in CAs. 67, 78, 79, 100, 101, and 103 of 1969.\n\nG. Narayana Rao for Respondent in CAs. 69-73/69.\n\nH. K. Puri and R. V. Pillai for Respondents in CAs Nos. 77, 83, 89, 90, 93, 95, 96, 102 and 120/69.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-This bunch of Civil Appeals Nos. 67-122 238 of 1969 by certificate granted under Article 133(1) (b) of the Constitution by the High Court of Judicature of Andhra Pradesh at\n\nHyderabad by its order dated June, 28, 1968 against its common judgment and order dated August 21, 1967, passed in Writ Petition\n\nNos. 489, 491, 537 to 541, 635, 684, 685, 687, 688, 830 to 832, 561, 1219, 715 to 719, 812, 813, 1216, 677, 638, 639, 695, 853 to 856, 636, 867, 870, 1146, 1285, 1260, 1261, 1284, 1292, 1293, 1294, 1309, 1310, 1340, 1447, 1697 and 1265 of 1967 which raise interesting questions of law relating to the interpretation of some of the provisions of the Indian Stamp Act, 1899 and the Andhra Pradesh General Sales Tax Act, 1957 shall be disposed of by this judgment.\n\nThe facts giving rise to these appeals are : The Forest Department of the Government of Andhra Pradesh after giving a sale notice held, in accordance with the terms and conditions thereof, an auction in 1967 in respect of various items of forest produce viz. timber, fuel, bamboos, minor foref.t produce, beedi leaves, tanning barks, parks mohwa etc.\n\nClause 23 of the notice inter alia required the contractors to pay within 10 days of the receipt of the confirmation f orders of the competent authority: (a) the balance of the !st instalment amount, as might be fixed by the Divisional Forest Officer,\n\n(b) 6t% of the bid amount as security deposit; (c) sales tax on the bid amount at the rates current at the time of the sale.\n\nClause 60 of the notice provided that the contractors would at all times comply with the provisions of the Indian Stamp (Andhra Pradesh Extension and Amendment) Act XIX of 1959, and the Andhra Pradesh Court Fees and Suits Valuation Act, 1956, and all the rules that might, from time to time, be in force ther1under.\n\nThe respondents herein being the highest bidders in respect of some items of the forest prnduce were called upon to pay in terms of the above noted conditions the stamp duty on the agreements to be executed by them as if they were leases of immovable property falling under Article 3!(c) of the Indian Stamp Act, 1899.\n\nThey were also called upon to pay sales tax on the bid amount in terms of clause (23) of the sale notice.\n\nThey were further called upon to pay stamp duty on the deposits made by them by way of security as mortgages, falling within Article 35(c) of the Stamp Act. Aggrieved by the said notices, the respondents filed the aforesaid petitions under Article 226 of the Constitution for issue of appropriate writs etc. declaring the aforesaid demand notices as illegal and void and restraining the appellants from enforcing or taking any proceeding for the levy and recovery of the amounts mentoned therein.\n\nThe respondents contended before the High Court that as the right to pluck, collect and take away beedi leaves and to cut and carry away bamboos, standing timber etc. was not a right or interest in immovable property so as to attract Article 31 ( c) of the Stamp Act, there could be no question of payment by them of the stamp duty.\n\nThe . respondents also challenged the demand made from them for payment of sales tax on the bid amount on the ground that as the Government did not carry on any business of sale, the demand was illegal.\n\nThey further challenged the demand of stamp duty under Article 3 5 ( c) of the Stamp Act pleading that the securify deposits were not mortgages so as to attract the provisions of the said Article of the Stamp Act.\n\nThe petitions were contested by the appellants herein who contended inter alia that pursuant to clause ((JU) of the terms and conditions of. the sale nonce, the respondents were bound to pay the stamp dunes that were chargeable in view of the extension ol the Indian Stamp Act to the whole of the State of Andhra Pradesh by the Indian Stamp (Andhra Pradesh Extension and Amendment) Act XIX of 1959 with effect from April 1, 1959, and repeal ot the Hyderabad Stamp Act, and the rules, notifications, instructio!lS etc. made or issued thereunder: that the right acquired by the respondents was not merely a right to collect, appropriate and sell beedi leaves that had already grown but also the right to collect, use and sell beedi leaves that would subsequently grow on the standing trees and their branches taking nourishment from the land during the period of lease which showed that the respondents obtained under the agreement an interest in immovable property.\n\nThe appellants further contended that the respondents were, according to the sale notice, liable to pay sales tax on the bid amount as a!So the stamp duty on security deposits which fell within the definition of mortgages as contemplated by the Stamp Act.\n\nOn a careful consideration of the respective stands of the parties, the High Court negatived the contentions of the appellants and allowed the petitions.\n\nAggrieved by the Judgment and order of the J; Iigh Court, the appellants applied for certificate under Article 133(l)(b) of the Constitution which, as already stated, was granted to them.\n\nThis is how the appeals are before us.\n\nThree questions fall for consideration in these appeals.\n\nThe first question that we are called upon to determine is whether the agreements Which the respondents were called upon to execute in respect of the aforesaid rights relating to forest produce were in the nature of leases or licences.\n\nIt is necessary in this connection to notice at the outset the distinction between a lease and a licence by reference to the relevant Acts.\n\nSection 2 (16) of the Stamp Act defines the lease as meaning a lease of immovable property but this definition, it would be noted, is neither exhaustive nor self-explanatory.\n\nWe are, therefore, driven to find out the true meaning of the term by turning to the Transfer of Property Act. Section 105 of the said Act defines 'lease' as follows :- .\n\n\"A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised, or of money.\"\n\n'Licence' is defined in section 52 of the Easement Act, 1882 as under:-\n\n\"Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something whic~ would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence\".\n\n...\n\nThe expression 'immovable property' is not defined in the Stamp Act but is defined in section 3 of the Transfer of Property Act, section 2(6) of the Registration Act and section 3(26) of the General Clauses Act.\n\nAn idea as to the meaning of the expression can also be gleaned from section 2 ('7) of the Sales of Goods Act.\n\nAccording to learned counsel for the appellants, it is the definition of 'immm- able property as given in section 3 (26) of the General Clauses Act that has to be applied in determining. whether the agreements in question fall within the definition of 'lease' or not. It would be useful at this stage to set out in juxtaposition the definitions of 'immovable property' as contained in the aforesaid Acts, as also the definition of goods as given in the Sale of Goods Act:-\n\nSection 3(26) of General Clauses Act Section 3 of Trans- Section 2(6) of Scciion 2(7) of\n\nSale of Goods Act fer of Property Registration Act\n\n\"Imm'.Jvable prooerty\" sh:i.ll include land, benefits to arise out of land, and things attached to the earth, or prm1nently fastened to anything attached to the earth.\n\nt\\ct.\n\nIn this J'\"ct, unless there is ~1omething repugnant in the subject or context\n\n\"immovable property\" does not include standing timber, growing crops or grass.\n\n\"Immovable pro- In this Act, perty'' includes unless there is land, buildings, anything repugnhereditary allowant in the subances, rights to ject or context, ways, lights, ferries \"goods\" means or any other beneevery kind of fit to arise out of movable proland, and things perty other than attached to the actionable claims earth or permamoney; and innently fastened to eludes stock and anything which shares, growing is attached to the crops, grass and earth, but not things attached to standing timber or forming part growing crops nor of the land which grass. are agreed to be severed before or under the contract or sale.\n\nA close study of the above definitions shows that it is the creation of an interest in immovable property or right to possess it that distinguishes a lease from a licence.\n\nA licence does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease.\n\nAs to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case.\n\nFor the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not to its form. We are fortified in this view by the decision of this Court in Associated Hotels of India Ltd. v. R. N. Kapoor where Subba Rao, J. (with whom Das, J. agreed) observed:\n\n\"If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence.\n\nThe legal possession, therefore, continues to be\n\n(1) A.LR. 1959 S.C. 1262.\n\n10-608SCI/76\n\nwith the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose.\n\nBut for the permission, his occupation would be unlawful.\n\nIt does not create in his favour any estate or interest in the property.\n\nThere is therefore, clear distinction between the two concepts. , The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thonght that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee.\n\nBut there was a change and the recent trend of judicial\n\nopinion is reflected in Errington v. Errington [1952] 1 All ER 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155:\n\n\"The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.\" The Court of Appea'1 again in Cobb v. Lane [1952] I All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document At p, 1201, Somervell L.J., stated:\n\n\" ........ The solution that would seem to have been found is, one would expect, that it must depend on the intention of the parties\".\n\nDenning L.J, said much to the same effect at p. 1202 :\n\n\"The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a F personal privilege with no interest in the land?\"\n\nThe following propositions may, therefore, be taken as well-established : ( 1) To ascertain whether a document creates a licence or lease,, the substance of the document must be preferred to the form : (2) the real test is the intention of the parties-whether they intended to create a lease or a licence; (3) if the document creates an interest G in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and ( 4) if under the document a party gets exclusive possession of the property, 'prima facie' he is considered. to be a tenant, but circumstances may be established which negative the intention to create a lease.\" H The crucial tests to be employed in cases of the present nature can be gathered from the observations made by Lord Shaw while delivering the judgment of the Board in Kauri Timber Company Limited v.\n\n' \" ;-\n\n. ....\n\nThe Commissioner of Taxes('). According to those observations, in order, an agreement can be said to partake of the character of lease, it is necessary that the grantee should have obtained an interest in and possession of land.\n\nIf the rnntract does not create an interest in land then to use the words of Lord Coleridge, C.J. in Marshall v. Green(')\n\nthe land would be considered as a mere warehouse of the thing sold and the contract would be a contract for goods.\n\nFor the purpose, therefore, of ascertaining the intention of the parties and finding out the character of the agreements in question, it is necessary to notice the ~:alien! features of the agreements.\n\nThe first salient feature of the agreements is that they were for a shor.t duration of nine to ten months.\n\nThe second important feature of the agreements is that they did not create any estate or interest in land.\n\nThe third salient feature of the agreements is that the respondents were not gramcd exclusive possession and control of the land but were merely granted the right to pluck, cut, carry away and appropriate the forest produce that might have been existing at the time of the contract or which might have come into existence during the short period of the currency of the agreements.\n\nThe right to go on the land was only ancillary to the real purpose of the contract.\n\nThus the acqnisition by the respondents not being an interest in the soil but merely a right to cut the fructus naturales, we arc clearly of the view that the agreements in question possessed the characteristics of licences and did not amount to leases so as to attract the applicability of Article 31 ( c) of the Sta\"1p Act.\n\nThe conclusion arrived at by us gains strength from the judgment\n\nof this Court in Firm Chhotabhai Jethahai Patel and Co. & Ors. v.\n\nE The State of Madhya Prade<h(') where contracts and agreements enter0d into by person with th'' previous proprietors of certain estates and mahals in the State under which they acquired the rights to pluck. coJlect and carry away tendu leaves, to cultivate, culture and acquire lac, and to cut and carry away teak and timber and miscellaneous species of trees called hardwood and bamboos were held in essence and effect to be licences.\n\nThere is, of course a judgment of this Court in M ahadeo v. State of Bombay(') where seemingly a somewhat different view was expressed but the facts of that case were quite distinguishable.\n\nIn that case apart from the bare right to take the leaves (}f tendu trees, there were further benefits including the right to occupy the land, to erect buildmgs and to take away other forest produce not necessarily standing G timber, growing crop or grass and the rights were spread over many years.\n\nFor the foreging reasons, the first question has to be decided in favour of the respondents.\n\nThe second question that falls for consideration is whether the respondents could be validly called upon to pay the sales tax.\n\nFor\n\n(I) [19!3] A.C. 771, 776.\n\n(3) [1953] S.C.R. 476.\n\n(2) [1875] L.R.I.C.P.I.D. 35.\n\n(4) [1959] S.C.J. 1021=A.T.R.1959 S.C. 7)5.\n\nthe decision of this question, it is necessary to examine a few provisions of the Andhra Pradesh General Sales Tax Act 1957.\n\nThe charging section is section 5 which in so far as it is relevant for the puq; iose of these appeals runs thus :-\n\n\"5. Levy of tax on Sales or Purchases of Goods :-\n\n(1) Every dealer (other than a casual trader and an agent of a non-resident dealer) whose total turnover for a year is not less than Rs. 25,000 and every agent of a nonresident dealer whatever be his turnover for the year, shall pay a tax for each year, at the rate of four paise on every rupee of his turnover:\n\n\"Every casual trader shall pay a tax at the rate of four paise on every rupee of his turnover :\n\nProvided that a dealer in jaggery shall pay a tax at the rate of two paise on every rupee upto the 31st March 1966 and at the rate of three paise on every rupee on and from the 1st April 1966, of his tutn-over irrespective of the quantum of turnover\".\n\nThe term 'dealer'has been defined in section 2(e) of the Act as follows:- \"dealer\" means any person who_ carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes (i) the Central Government, a State Government, local authority, a company, a Hindu undivided family or any society (including a co-operative society), club, firm or association which carries on such business ..... \"\n\nThe term 'business' has been defined in section 2 (bbb) of the Act as follows :- F \"'business' includes-(i) any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacturing whether or not with trade, commerce, manufacture, adventure concern is carried on or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues therefrom; and\n\n(ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adven~ ture or concern\".\n\n'Sale' is defined in section 2(n) thus :\n\n'Sale' with all its grammatical variations and cognate expressions means every transfer of t!he property in goods by one person to another in the course of trade or business, for cash, or for deferred payment, or for any other valuable consideration, and includes any transfer of materials for money consideration in the execution of a\n\nworks contract provided that the contract for the transfer of such materials can be separated from the contract for the services and the work done, although the two conracts are embodied in a single document or in the supply or distribution of goods by a society (including a co-operative society), club, firm or association to its members, but does not include a mortgage, hypothecation or pledge of, or a charge on, goods\".\n\nIn order that the sales tax should be payable by the respondents in accordance with the obligation imposed on them by clause (23) of the sale notice, it is necessary that the Government of Andhra Pradesh should have been carrying on the business of selling the forest produce. In State of Gujarat v.\n\nRaipur Manufacturing Co.\n\nLtd.( 1), this court while examining the term 'business' in another context observed that 'whether a person carries on business in a particular commodity must depend upon the volume, frequency, continuity and regularity of transactions of purchase and sale in a 1class of goods and the transactions must ordinarily be entered into with a profit motive.\n\nThe Court further went on to observe that when a subsidiary product is turned out in the factory of the assessee regularly and continuously and it is being sold from time to time, an intention to carry on business in such product may be reasonably attributed to the assessee.\n\nAs the consideration of profit motive cannot be regarded an essential constituent of the term 'business' in view of the amendment introduced in the definition of the term 'dealer' in 1966, what we are left to consider is whether the other ingredients of the term 'business' viz. volume, frequency, continuity and regularity of transactions of sale and purchase are satisfied in the instant cases.\n\nThe auctions of the forest produce by the Government of Andhra Pradesh are adntittedly carried on only annually and not at frequent intervals. Thus the important element of frequency being lacking in the instant cases, it cannot be held that the said Government was carrying on the business of sale of forest produce.\n\nIn P. T. C. C. S.\n\nMerchants Union v.\n\nState of A.P.('). where a person who grew agricultural products and incidentally sold the same, it was held that no sales tax was payable as it could not be said that the person carried on business.\n\nA similar view was expressed in Raja Bhairabendra v.\n\nSuperintendent of Taxes(') where standing sal trees grown spontaneously in his Zamindari were sold by the Zamindar by auction and the purchasers were permitted to fell the trees and sell them after sawing and other processes.\n\nIn Orient Paper Mills Ltd. v. The State of Madhya Pradesh & Ors.(•) it was held that the State Government or the forest department could not, merely by selling the forest produce grown on their land, be regarded as carrying on any business of buying, selling, supplying or distributing goods and therefore in respect of mere sales of forest produce, neither the State Government nor the forest department was a dealer within the meaning of the definition in section 2( d) of the M.P. General Sales Aax Act, 1958. In Deputy Commissioner\n\n(!) (1967) 19 S.T.C. 1 (SC.)\n\n(3) (1958) 9 S.T.C. 60.\n\n(2) (1958) 9 S.T.C. 723.\n\n(4) (1971) 28 S.T.C. 532.\n\nof Agricultural liu; ome-tax and Sales Tax, Qui/on v.\n\nTravancore Rubber and Tea Co.( 1) and Deputy Commissioner of Agricultural Income-tax and Sales Tax, Qui/on v. Midland Rubber and Produce Co.(') Lt. where the only facts established were that the assessee converted the latex tapped from its rubber trees into sheets and effected a sale of those sheets to its customers and the conversion of latex into sheets was a process essential for the transport and marketing of the produce, it was held that the department had not been able to discharge the onus of proving that the assessee was carrying on business and was, therefore, a dealer within the meaning of section 2(b) of the Central Sales Tax Act, 1956. In Ramakrishna Deo v.\n\nThe Collector of Sales Tax, Orissa(') where Maharaja of Jeypore had sold the sal trees from his forest for preparing sleepers, it was held that he was not a dealer within the meaning of the Orissa Act because he was not carrying on the business of selling or supplying the goods for the reason that the element of purchase, one of the necessary ingredients of the business was absent.\n\nIn view of the foregoing discussion, we find ourselves unable to hold that the Government of Andhra Pradesh by holding auction of forest produce carried on business in the sale of that class of goods.\n\nAs such, the respondents could not be made liable to pay the sales tax.\n\nThere now remains for consideration only the last question as to whether the security deposits made by the respondents were in the nature of mortgages so as to make the respondents liable to pay the stamp duty under Article 35(c) of the Stamp Act.\n\nFor the determination of this question, it is necessary to scrutinize the definition of 'mortgage deed' as contained in section 2 ( 17) of the Stamp Act which runs thus:-\n\n\"2(17). Mortgage-deed includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, or an existing or future debt, or the performance of an engagement, one person transfers, or creates to, or in favour of, another, a right over or in respect of specified property\".\n\nA bare perusal of the above definition makes it clear that in order that an instrument should fall within the above definition, it is neces' sary that the instrument should satisfy the essential conditions by creating a right over or in respect of a specified property in favour of another person.\n\nBearing in mind the above mentioned essential requisites of a deed of mortgage let us examine clause (17) of the sale notice to which alone our attention has been invited.\n\nClause ( 17) runs thus :-\n\n\"Earnest money deposit to be returned-The earnest money deposits of all bidders except those of the successful bidders collected at the time of sale according to condition 5 above, will be returned to the depositors, on the conclusion\n\n(1) (1967) 20 S.T.C. 520 (SC.)\n\n(2) (1970) 25 S.T.C. 57 (S.C.).\n\n(J) (1955) 6 S.T.C. 674.\n\nJ.,\n\nof the sales provided that the officer conducting the sale, may A if he considers it advisable, retain the deposits of any bidders\".\n\nThere is nothing in the above clause to indicate that any right over or in the security deposits was created in favour of the State Government.\n\nIn Reference under Stamp Act, section 46(1) where a licence issued to an arrack renter expressly required as one of its conditions B that the licensee should deposit a sum equal to three months' rental as a security for the due performance of the contract and the licensee executed a muchalka stating that he agreed to all the terms and conditions mentioned in the licence, it was held that neither the licence nor the muchalka taken separately or together fulfilled the conditions of a mortgage as defined in the Stamp Act i.e., neither thereby actually created an interest in the deposit in favour of the Government.\n\nIn Rishidev Sondhi v. Dhampur Sugar Mills(') it was held that an instrument in which specific sums have been offered as security is not a mortgage deed within the meaning of section 2(17) as money is not 'specified property'.\n\nIn view of the above we have no manner of doubt that the res- D • pondents could not be called upon to pay the stamp duty under Article 35(c) of the Stamp Act.\n\nIn the result the appeals fail and are hereby dismissed with costs.\n\nP.B.R.\n\nAppeals dismissed.\n\n(1) 151.L.R. Mad.134.\n\n(2) A.LR. 1947 All. 190 (F.B.)", "total_entities": 89, "entities": [{"text": "BOARD OF REVENUE ETC", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "BOARD OF REVENUE ETC", "offset_not_found": false}}, {"text": "A. M. ANSARI ETC", "label": "RESPONDENT", "start_char": 23, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "A. M. 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Ram Reddy", "label": "LAWYER", "start_char": 5746, "end_char": 5758, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, B. Parthasarthi for the Appellants."}}, {"text": "B. Parthasarthi", "label": "LAWYER", "start_char": 5760, "end_char": 5775, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, B. Parthasarthi for the Appellants."}}, {"text": "K. J. John", "label": "LAWYER", "start_char": 5797, "end_char": 5807, "source": "ner", "metadata": {"in_sentence": "K. J. John and J. B. Dadaclumji for Respondent in CAs."}}, {"text": "J. B. Dadaclumji", "label": "LAWYER", "start_char": 5812, "end_char": 5828, "source": "ner", "metadata": {"in_sentence": "K. J. John and J. B. Dadaclumji for Respondent in CAs."}}, {"text": "G. Narayana Rao", "label": "LAWYER", "start_char": 5892, "end_char": 5907, "source": "ner", "metadata": {"in_sentence": "G. Narayana Rao for Respondent in CAs."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 5942, "end_char": 5952, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and R. V. Pillai for Respondents in CAs Nos."}}, {"text": "R. V. Pillai", "label": "LAWYER", "start_char": 5957, "end_char": 5969, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and R. V. Pillai for Respondents in CAs Nos."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 6186, "end_char": 6200, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Stamp Act, 1899", "label": "STATUTE", "start_char": 6758, "end_char": 6780, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Andhra Pradesh General Sales Tax Act, 1957", "label": "STATUTE", "start_char": 6789, "end_char": 6831, "source": "regex", "metadata": {}}, {"text": "Forest Department of the Government of Andhra Pradesh", "label": "PETITIONER", "start_char": 6921, "end_char": 6974, "source": "ner", "metadata": {"in_sentence": "The facts giving rise to these appeals are : The Forest Department of the Government of Andhra Pradesh after giving a sale notice held, in accordance with the terms and conditions thereof, an auction in 1967 in respect of various items of forest produce viz."}}, {"text": "Clause 23", "label": "PROVISION", "start_char": 7224, "end_char": 7233, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh General Sales Tax Act, 1957", "statute": "the Andhra Pradesh General Sales Tax Act, 1957"}}, {"text": "Clause 60", "label": "PROVISION", "start_char": 7603, "end_char": 7612, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh General Sales Tax Act, 1957", "statute": "the Andhra Pradesh General Sales Tax Act, 1957"}}, {"text": "Andhra Pradesh Court Fees and Suits Valuation Act, 1956", "label": "STATUTE", "start_char": 7789, "end_char": 7844, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 3", "label": "PROVISION", "start_char": 8194, "end_char": 8203, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh Court Fees and Suits Valuation Act, 1956", "statute": "the Andhra Pradesh Court Fees and Suits Valuation Act, 1956"}}, {"text": "Indian Stamp Act, 1899", "label": "STATUTE", "start_char": 8215, "end_char": 8237, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 35(c)", "label": "PROVISION", "start_char": 8472, "end_char": 8485, "source": "regex", "metadata": {"linked_statute_text": "the Indian Stamp Act, 1899", "statute": "the Indian Stamp Act, 1899"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 8587, "end_char": 8598, "source": "regex", "metadata": {"linked_statute_text": "the Indian Stamp Act, 1899", "statute": "the Indian Stamp Act, 1899"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 9079, "end_char": 9089, "source": "regex", "metadata": {"linked_statute_text": "the Indian Stamp Act, 1899", "statute": "the Indian Stamp Act, 1899"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 9438, "end_char": 9447, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Stamp Act", "label": "STATUTE", "start_char": 9858, "end_char": 9874, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 133(l)(b)", "label": "PROVISION", "start_char": 11079, "end_char": 11096, "source": "regex", "metadata": {"linked_statute_text": "So the stamp duty on security deposits which fell within the definition of mortgages as contemplated by the Stamp Act", "statute": "So the stamp duty on security deposits which fell within the definition of mortgages as contemplated by the Stamp Act"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 11641, "end_char": 11650, "source": "regex", "metadata": {"linked_statute_text": "So the stamp duty on security deposits which fell within the definition of mortgages as contemplated by the Stamp Act", "statute": "So the stamp duty on security deposits which fell within the definition of mortgages as contemplated by the Stamp Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 11902, "end_char": 11926, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 105", "label": "PROVISION", "start_char": 11928, "end_char": 11939, "source": "regex", "metadata": {"statute": null}}, {"text": "section 52", "label": "PROVISION", "start_char": 12216, "end_char": 12226, "source": "regex", "metadata": {"statute": null}}, {"text": "Easement Act, 1882", "label": "STATUTE", "start_char": 12234, "end_char": 12252, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 12696, "end_char": 12705, "source": "regex", "metadata": {"linked_statute_text": "the Easement Act, 1882", "statute": "the Easement Act, 1882"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 12713, "end_char": 12737, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 2(6)", "label": "PROVISION", "start_char": 12739, "end_char": 12751, "source": "regex", "metadata": {"linked_statute_text": "the Easement Act, 1882", "statute": "the Easement Act, 1882"}}, {"text": "Registration Act", "label": "STATUTE", "start_char": 12759, "end_char": 12775, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3(26)", "label": "PROVISION", "start_char": 12780, "end_char": 12793, "source": "regex", "metadata": {"linked_statute_text": "the Easement Act, 1882", "statute": "the Easement Act, 1882"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 12801, "end_char": 12820, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 2", "label": "PROVISION", "start_char": 12892, "end_char": 12901, "source": "regex", "metadata": {"linked_statute_text": "the Easement Act, 1882", "statute": "the Easement Act, 1882"}}, {"text": "section 3", "label": "PROVISION", "start_char": 13041, "end_char": 13050, "source": "regex", "metadata": {"linked_statute_text": "the Easement Act, 1882", "statute": "the Easement Act, 1882"}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 13063, "end_char": 13082, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 13388, "end_char": 13405, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3(26)", "label": "PROVISION", "start_char": 13409, "end_char": 13422, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 13426, "end_char": 13445, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 3", "label": "PROVISION", "start_char": 13446, "end_char": 13455, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act", "statute": "General Clauses Act"}}, {"text": "Section 2(6)", "label": "PROVISION", "start_char": 13466, "end_char": 13478, "source": "regex", "metadata": {"linked_statute_text": "General Clauses Act", "statute": "General Clauses Act"}}, {"text": "Sale of Goods Act fer of Property Registration Act", "label": "STATUTE", "start_char": 13499, "end_char": 13549, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Immovable pro- In this Act", "label": "STATUTE", "start_char": 13887, "end_char": 13913, "source": "regex", "metadata": {}}, {"text": "Subba Rao", "label": "JUDGE", "start_char": 15354, "end_char": 15363, "source": "ner", "metadata": {"in_sentence": "We are fortified in this view by the decision of this Court in Associated Hotels of India Ltd. v. R. N. Kapoor where Subba Rao, J. (with whom Das, J. agreed) observed:\n\n\"If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence."}}, {"text": "Das", "label": "JUDGE", "start_char": 15379, "end_char": 15382, "source": "ner", "metadata": {"in_sentence": "We are fortified in this view by the decision of this Court in Associated Hotels of India Ltd. v. R. N. Kapoor where Subba Rao, J. (with whom Das, J. agreed) observed:\n\n\"If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence."}}, {"text": "Denning", "label": "JUDGE", "start_char": 16415, "end_char": 16422, "source": "ner", "metadata": {"in_sentence": "But there was a change and the recent trend of judicial\n\nopinion is reflected in Errington v. Errington [1952] 1 All ER 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155:\n\n\"The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy.\"", "canonical_name": "Denning L.J"}}, {"text": "Somervell L.J.", "label": "JUDGE", "start_char": 16987, "end_char": 17001, "source": "ner", "metadata": {"in_sentence": "The Court of Appea'1 again in Cobb v. Lane [1952] I All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document At p, 1201, Somervell L.J., stated:\n\n\" ........ The solution that would seem to have been found is, one would expect, that it must depend on the intention of the parties\"."}}, {"text": "Denning L.J", "label": "JUDGE", "start_char": 17148, "end_char": 17159, "source": "ner", "metadata": {"in_sentence": "Denning L.J, said much to the same effect at p. 1202 :\n\n\"The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a F personal privilege with no interest in the land?\"", "canonical_name": "Denning L.J"}}, {"text": "Shaw", "label": "OTHER_PERSON", "start_char": 18279, "end_char": 18283, "source": "ner", "metadata": {"in_sentence": "H The crucial tests to be employed in cases of the present nature can be gathered from the observations made by Lord Shaw while delivering the judgment of the Board in Kauri Timber Company Limited v.\n\n' \" ;-\n\n. ...."}}, {"text": "Coleridge", "label": "JUDGE", "start_char": 18691, "end_char": 18700, "source": "ner", "metadata": {"in_sentence": "If the rnntract does not create an interest in land then to use the words of Lord Coleridge, C.J. in Marshall v. Green(')\n\nthe land would be considered as a mere warehouse of the thing sold and the contract would be a contract for goods."}}, {"text": "Article 31", "label": "PROVISION", "start_char": 20024, "end_char": 20034, "source": "regex", "metadata": {"statute": null}}, {"text": "Andhra Pradesh General Sales Tax Act 1957", "label": "STATUTE", "start_char": 21559, "end_char": 21600, "source": "regex", "metadata": {}}, {"text": "section 5", "label": "PROVISION", "start_char": 21627, "end_char": 21636, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh General Sales Tax Act 1957", "statute": "the Andhra Pradesh General Sales Tax Act 1957"}}, {"text": "1st April 1966", "label": "DATE", "start_char": 22358, "end_char": 22372, "source": "ner", "metadata": {"in_sentence": "25,000 and every agent of a nonresident dealer whatever be his turnover for the year, shall pay a tax for each year, at the rate of four paise on every rupee of his turnover:\n\n\"Every casual trader shall pay a tax at the rate of four paise on every rupee of his turnover :\n\nProvided that a dealer in jaggery shall pay a tax at the rate of two paise on every rupee upto the 31st March 1966 and at the rate of three paise on every rupee on and from the 1st April 1966, of his tutn-over irrespective of the quantum of turnover\"."}}, {"text": "section 2(e)", "label": "PROVISION", "start_char": 22471, "end_char": 22483, "source": "regex", "metadata": {"linked_statute_text": "the Andhra Pradesh General Sales Tax Act 1957", "statute": "the Andhra Pradesh General Sales Tax Act 1957"}}, {"text": "Central Government", "label": "ORG", "start_char": 22768, "end_char": 22786, "source": "ner", "metadata": {"in_sentence": "The term 'dealer'has been defined in section 2(e) of the Act as follows:- \"dealer\" means any person who_ carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, and includes (i) the Central Government, a State Government, local authority, a company, a Hindu undivided family or any society (including a co-operative society), club, firm or association which carries on such business ..... \"\n\nThe term 'business' has been defined in section 2 (bbb) of the Act as follows :- F \"'business' includes-(i) any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacturing whether or not with trade, commerce, manufacture, adventure concern is carried on or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues therefrom; and\n\n(ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adven~ ture or concern\"."}}, {"text": "section 2", "label": "PROVISION", "start_char": 23018, "end_char": 23027, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(n)", "label": "PROVISION", "start_char": 23549, "end_char": 23561, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 24509, "end_char": 24537, "source": "ner", "metadata": {"in_sentence": "In order that the sales tax should be payable by the respondents in accordance with the obligation imposed on them by clause (23) of the sale notice, it is necessary that the Government of Andhra Pradesh should have been carrying on the business of selling the forest produce."}}, {"text": "section 2( d)", "label": "PROVISION", "start_char": 26987, "end_char": 27000, "source": "regex", "metadata": {"statute": null}}, {"text": "General Sales Aax Act, 1958", "label": "STATUTE", "start_char": 27013, "end_char": 27040, "source": "regex", "metadata": {}}, {"text": "of Agricultural liu; ome-tax and Sales Tax, Qui/on v.\n\nTravancore Rubber and Tea Co.( 1)", "label": "RESPONDENT", "start_char": 27174, "end_char": 27262, "source": "ner", "metadata": {"in_sentence": "of Agricultural liu; ome-tax and Sales Tax, Qui/on v.\n\nTravancore Rubber and Tea Co.( 1) and Deputy Commissioner of Agricultural Income-tax and Sales Tax, Qui/on v. Midland Rubber and Produce Co.(') Lt."}}, {"text": "Deputy Commissioner of Agricultural Income-tax and Sales Tax, Qui/on v. Midland Rubber and Produce Co.(') Lt", "label": "RESPONDENT", "start_char": 27267, "end_char": 27375, "source": "ner", "metadata": {"in_sentence": "of Agricultural liu; ome-tax and Sales Tax, Qui/on v.\n\nTravancore Rubber and Tea Co.( 1) and Deputy Commissioner of Agricultural Income-tax and Sales Tax, Qui/on v. Midland Rubber and Produce Co.(') Lt."}}, {"text": "section 2(b)", "label": "PROVISION", "start_char": 27836, "end_char": 27848, "source": "regex", "metadata": {"linked_statute_text": "General Sales Aax Act, 1958", "statute": "General Sales Aax Act, 1958"}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 27856, "end_char": 27883, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 35(c)", "label": "PROVISION", "start_char": 28785, "end_char": 28798, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act, 1956", "statute": "the Central Sales Tax Act, 1956"}}, {"text": "section 2", "label": "PROVISION", "start_char": 28938, "end_char": 28947, "source": "regex", "metadata": {"statute": null}}, {"text": "section 46(1)", "label": "PROVISION", "start_char": 30449, "end_char": 30462, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(17)", "label": "PROVISION", "start_char": 31213, "end_char": 31226, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 35(c)", "label": "PROVISION", "start_char": 31394, "end_char": 31407, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_672_679_EN", "year": 1976, "text": "VEERA IBRAHIM\n\nSTATE OF MAHARASHTRA March 18, 1976\n\n[R. S. SARKARIA AND N. L. UNTWALIA, JJ.]\n\nConstitution of India, Art. 20(3), conditions for applicabilitv of, whether enquiry is 'accusation' lvithin the meaning of-Evidence Act, S. 24, when attracted-What amounts to 'confession' under S. 24.\n\nA truck was seized with its contents of contraband goods for foreign make~ on which no duty had been paid.\n\nThe appellant who was in charge of the goods, was arrested while escaping from the truck and Rs. 2000/- were seized from him. His statement was recorded under S. 108, Customs Act. 1962.\n\nThe appellant and the driver of the truck. were convicted by the Trial Court. under Ss. 135 (a) and 135 (b) of the Customs Act, 1962, and S. 5 of the Imports & Exports (Control) Act, 1947. The High Court upheld their con viction under S. 135 (a) of the Customs Act, and acquitted ihem of the other charges.\n\nIn appeal by leave granted under Art. 134(1) (c) of the Constitution, the appellant contended before this Court that his statement taken under S. 108, Customs Act, could not be used against him; firstly, as it was hit by Art. 20(3) of the Constitution on account of .its havin2 been taken while he was already an 'accused' under S. 124, Bombay Police Act, and secondly. it was barred under S. 24, Evidence Act, the same being a confession obtained under compulsion of law.\n\nIt was also contended that in the absence of the requisite notification under S. 123(2), Customs Act, the statutory presumption under S. 123 could not be invoked by the prosecution, and without the same. the facts of the case were insufficient to establish an offence a2ainst the appellant under S. 135, Customs Act.\n\nDismissing the appeal, the Court,\n\nHELD : ( 1 ) To claim the benefit of the guarantee against testimonial compulsion embodied in clause (3) of Art. 20, it must be shown, firstly, that the person wn.o made the statement was 'accused of any offence', secondly, that he made this statement under compulsion.\n\nOnly a person against whom a formal accusation relating to the commission of an offence bas been levelled would fall within its ambit. [674C-D]\n\nR. C. Mehta v. State of West Bengal, [1969] 2 S.C.R. 461, applied.\n\n(2) To attract the prohibition enacted in S. 24 Evidence Act, these facts must be established.\n\n(i) that the statement in question is a confession;\n\n(ii) that such confession has been made by an accused person;\n\n(iii)\n\n(iv)\n\nthat it has been made to a person in authority;\n\nthat the confession has been obtained by reason of any inducement threat or promise proceeding from a person in authority.\n\n(v) Such inducement, threat or promise, must have reference to the charge against the accused person;\n\n(vi) The inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.\n\n[676F-H, 677 A]\n\n\\ ..\n\n(3) A tatrucnt in order to amount to a 'confession'. must either admit in A terms the offence, or at any rate substantially all the facts which constitute the offence.\n\nAn admission of an incriminating fact. howwover grave, is not I by itself a confessiop_.\n\nA statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount • to a 'confession'. [677 A-Cl\n\nPekala Naraya11a v. R. 66 I. A. 66 Palvinder Kaur v. State of Punjab [19531 S.C.R. 94, Om Prakash v. State, A.I.R. 1960 S.C. 409, referred to.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 234 of 1971.\n\nFrom the Judgment and Order dated the 26-3-71 of the Bombay High Court at Bombay in Criminal Appeal No. 1434 of 1970.\n\nK. R. Chaudhury and K. Rajendra Chaudhury for the Appellant.\n\nH. R. Khanna and M. N. Shroff for Respondent.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J.-Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Preventive Department, Bombay before the Chief Presidency Magistrate for his prosecution aJong with one Abdul Umrao Rauf, accused No. 1, in respect of offences under ss. 135(a) and 135(b) of the Customs Act, 1962 and s. 5 of the Imports and Exports (Control) Act 194 7.\n\nThe trial Magistrate convicted both the accused on all the three charges and sentenced them to two years rigorous imprisonment on each count with a direction that the sentences wouJd run concurrently.\n\nAgainst that judgment, two separate appeaJs were filed by the convicts in the Bombay High Court which acquitted both the accused of the offences under s. 5 of the Imports and Exports (Control) Act, 1947 and under s. 135 (b) of the Customs Act, but maintained their conviction ou the charge under s. 135(a) of that Act reducing the sentence to one year's rigorous imprisonment.\n\nThe High Court, however, granted a certificate under Article 134(1) (c) of the Constitution, on the basis of which, this appeal has been filed.\n\nThe main question with reference to which the certificate was granted by the High Court, was : whether s. 108 of the Customs Act, 1962 is ultra vires the provisions of cl. (3) of Article 20 of the Constitution ? But Mr. Chaudhry, appearing for the appdlant, does not press this question now before us.\n\nThe first contention canvassed by the Counsel is that on the facts G and circumstances of the case, the appellant's statement recorded under s. 108 of the Customs Act 1962, on the foot of which the appellant has been convicted, was hit by clause (3) of Article 20 because at the time of making that statement, the appellant was \"accused of any offence\" under s. 1_24 of the Bombay Police Act, and the statement was obtained under compuJsion of law.\n\nStress has been placed on the fact that the appellant was, in fact, arrested by the H police on a charge under s. 124 of the Bombay Police Act and the goods were seized under a Panchnama, prepared by them in the course of investigation.\n\nIn this connection, reference has been made to\n\nA M. P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors. (1)\n\nOn the other hand, Mr. H. R. Khanna, appearing for the respon- . dent submits that the words \"accused of any offence\" occurring in Art. 20 ( 3) take in only that person against whom a formal accusation of an offence has been levelled.\n\nTwo other conditions for the applicability of this Clause, according to the Counsel, are : (a) that the testimony in question had been obtained under compulsion, and (b) it relates to the offence of which he stands formally accused.\n\nThese conditions, it is maintained, were not fulfilled in the present case.\n\nClause ( 3) of Article 20 provides :\n\n\"No person accused of any offence shall be compclkd c to be a witness against himself\".\n\nFrom an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was \"accused of any offence\" secondly, that he made this statement under compulsion.\n\nThe phrase \"accused of any offence\" has been the subject of several decisions of this Court so that by now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit.\n\nIn R. C. Mehta v. State of West Bengal,(') this point came up for consideration in the context of a statement recorded by an officer of E Customs in an enquiry under s. 171-A of the Sea Customs Act. One of the contentions raised was, that a person against whom such an enquiry is made is a 'person accused of an offence', and on that account, he cannot be compelled to be a witness against himself and the statement obtained or evidence collected under the aforesaid provision by the Officer of Customs is inadmissible. This contention was repelled. Shah J., speaking for the Court, made these apposite observa- F tions :\n\n\"Under s. 171-A of the Sea Customs Act, a Customs Officer has power in an enquiry in connection with the smuggling of goods to sµmmon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by cl. ( 3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required.\n\nThe expression \"any person\" includes a person who is suspected or believed to be concerned in the smuggling of goods.\n\nBut a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an\n\n(I) [1954] S.C.R.1077.\n\n(2) [1969J 2 S.C.R. 461.\n\noffence within the meaning of Art. 20(3) of the Constitu- A tion.\n\nThe steps taken by the Customs Officer are for the\n\nI purpose of holding an enquiry under the Sea Customs Act 'md for adjudging confiscation of goods dutiable or prohibit- • ed and imposing penalties.\n\nThe Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence.\n\nHis primary duty is to prevent smuggling and B • to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringin.g the provisions of the Sea Customs Act he is not accusing t'he person of any offence punishable at a trial before a magistrate\". ·\n\nAfter a survey of case law, the Court pointed out the cirCUID6lances, the existence of which is ordinarily necessary to clothe a person with the character of a \"person accused of an offence\" : c\n\nt \"Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent D • to try or end to another Magistrate for trial the offence.\n\nWhere a Customs Officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do r under Art. 221) of the Constitution for the purpose of bolding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence.\n\nIn the E case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate\".\n\nThe above-quoted observations are a complete answer to the contention of the appellant.\n\nIn the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs Officer under s. 108, the appellant was not a person \"accused of any offence\" under the Customs Act, 1962.\n\nAn accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under s. 135(a) and s. 135(b) of the Customs Act.\n\nG True, that the appellant was arrested by the police on December 12, 1967 on suspicion of having committed an offence under s. 124, of the Bombay Police Act and a Panchnama of the packaees in the truck was also prepared. But the factual ingredients of that offence are materially different from those of an offence under the Customs Act. This will be apparent from a bare reading of s. 124 of the Bombay Police Act, which provides : H\n\n.> \"Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is\n\nA reason to believe is stolen property or property fraudulently obtained shall, if he fails to account for such possession or to act to the satisfaction of the Magistrate, on c0nviction, \\ be phed with imprisonment for a term (which may extend to one year but shall not, except for reasons to be • recorded in writing, be less than one month and shall also\n\nB be liable to the fine which may extend to five hundred rupees).\n\nEven in respect of that offence, the police did not register any case or enter any F .I.R. which normaJ.Iy furnishes a foundation for\n\ncommencing a police investigation.\n\nThe police did not open the packages or prepare inventories of the goods packed therein. Indeed, the police appear to have dropped further proceedings. They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951. They informed the Customs\n\nauthorities, who opened the packages, inspected the goods and on -t finding them contraband goods, -seized them under a Panchnama.\n\nThe Customs authorities called the appellant and his companion to the Customs House, took them into custody, and after due com-\n\nD pliance with the requirements of law, the Inspector of Customs questioned the appellant and recorded his statement under s. 108 of the Customs Act.\n\nUnder the circumstances it was manifest that at the ' time when the Custosm Officer recorded the statement of the appel- !ant, the latter was not formally \"accused of any offence.\" The High Court was therefore right in holding that the statement recorded by the Inspector of Cnstoms was not hit by Article 20(3) of the Constitution.\n\nE The next question to be considered is, whether this statement was hit by s. 24 of the Evidence Act.\n\nThe contention is that this statemen! was obtained under compulsion of law inasmuch as he was required to state the truth under threat of prosecution for perjury.\n\nFor reasons that follow, we are unable to sustain this contention.\n\nF To attract the prohibition enacted in s. 24, Evidence Act, these facts must be established :\n\n(i) that the statement in question is a confession;\n\n(ii) that such confession has been made by an accused person;\n\n(iii) that it has been made to a person in authority;\n\n(iv) that the confession has been obtained by reason of any inducement, threat or promise a person in authority; proceeding from\n\n(v) such inducement, threat or promise, must have re-\n\nH ference to the charge against the accused person;\n\n(vi) the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable, for •\n\n.supposing that by making it he would gain any A advantage or avoid any evil of a temporal nature in reference to the proceedings against him.\n\nIn the present case, facts (i), (iv) and (vi) have not been established.\n\nFirstly, the statement in question is not a \"confession' within the contemplation of s. 24.\n\nIt is now well-settled that a statement in order to amount to a \"confession\" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession.\n\nA statement which contains an exculpatory assertion of some fact, which if true, woulrl negative the offence\n\nallep, ed, cannot amount to a confession (see Pakala Narayana v.\n\nR, ( ) ; Plavinder Kaur v. State of Punjab; ( 2) Om Prakash v.State(').\n\nA perusal of the statement Ex, I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter.\n\nTherein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions.\n\nThe deponent claimed to be an innocent traveller in the truck when he said : \"I did not ask Mullaji (driver) what goods were being loaded in his Jorry.\n\nMullaji was only my friend and I was not aware of any of his mala fide activities\".\n\nMoreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence, To bring home an offence under s. 135 of the Customs Act, in addition to the facts admitted in Ex. I, it had to be established further that these goods were contraband goods, E\n\nFor these reasons, it could be said beyond doubt, that the statement Ex. 1 was not a \"confession\" within the meaning of s. 24, Evidence Act.\n\nSecondly, it has not been shown that the Customs Officer-thongb. a person in authority-had offered any inducement or held out any F threat or promise to the appellant.\n\nChristopher Soares, the Inspector of Cnstoms (P, W. 4) testified that no threats, coercion or inducements were used and that the statement Ex. 1 was made by the appellant, voluntarily,\n\nWhile it may be conceded that a person summoned by an Officer of Cnstoms to make a statement nnder s. 108 of the Customs Act, is G under compulsion of Jaw to state the truth, the compulsion thereunder, assuming it amounts to a threat, does not proceed \"from a person in authority\" within the contemplation of s. 24, but emanates from law.\n\nThirdly, the mere fact that the Inspector of Cnstoms had, before recording the statement, warned the deponent of the possibility of his H\n\n(I) 66 I.A. 66.\n\n(2) [1953] S.C.R. 94.\n\n(3) A.I.R. 1960 S.C. 409,\n\nA prosecution for perjury in case he did not make the statement truthfully, cannot be construed as a threat held out by the officer whicli could have reasonably caused the person making the statement to\n\nsuppose that he would . by making that statement, gain any advantage \\ or avoid any evil of a temporal nature in reference to the proceedl ings against him for smuggling.\n\nIn view of what has been said above, we have no hesitation in holding that the statement Ex. 1, was not barred under s. 24, Evidence Act.\n\nThe statement Ex. P-1 was clearly admissible under s. 21, Evidence Act as an admission of incriminating facts.\n\nC Lastly, Mr. Chaudhry tried to contend that the incnmmating facts admitted in Ex. 1 taken along with the other facts appearing in the evidence of prosecution witnesses, were insufficient to establish an offence under s. 135, Customs Act against the appellant because no notification under sub-s. (2) of s. 123, of the Customs Act had been issued in respect of the import of the goods of the o kind seized, and the aid of the statutory presumption under that section was not available to the prosecution.\n\nWe are unable to accept this contention.\n\nWhile it is true that in the absence of the requisite notification, the statutory presumption under s. 123 could not be invoked by the prosecution, the cir- E cumstances established unerringly raise an inference with regard to all the factual ingredients of an offence nuder s. 135(b) read with s. 135(ii) of the Customs Act. In Ex. l which was proved by P.W. 4, it is admitted that these packages which were later found to contain contraband goods by the Customs authorities, were surreptitiously loaded in the truck under cover of darkness at Reti Bunder (sea shore) F from the side of sea-side wall, in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck, and drove towards Sandhurst Station. It is further admitted that some Bania paid Rs. 2,000/- to the appellant which was meant to be given to the driver of the truck. Unfortunately, the truck skidded near the Dongri Police Station and came to a G stop.\n\nOn hearing the impact of the accident, the police came out, took both the accused into the Police Station and seized the truck and the goods.\n\nIn short, the appellant had clearly admitted that these packages containing the contraband goods were imported surreptitiously from Reti Bunder under cover of darkness. It was further established de-hors the statement of the appellant, that these pack- H ages, on opening by the Customs Officer, were found to contain contraband goods of foreign make.\n\nThey were brand uew articles packed.\n\nThe circumstances of the arrest of the appellant while escaping\n\nI •\n\n,,}\n\nfrom the truck, the seizure of the truck and the goods, the contraband natnre of the goods, the fact that at the time of the seizure, the goods, were in the charge of the appellant, the fact that no duty on these goods had been paid, the seizure of Rs. 2,000/· as cash from the appellant etc. were proved by evidence aliwuie rendered by P. Ws. I and 2.\n\nTo some extent, the hostile witness, P.W. 5, also, supported the prosecution.\n\nThe circumstances established unmistakably and irresistibly pointed to the conclusion that the appellant was knowingly concerned in a fraudulent attempt at evasion, if not, fraudulent evasion, of duty chargeable on those contraband goods.\n\nIn the result, the appeal fails and is dismissed.\n\nM.R.\n\nAppeal dismissed.", "total_entities": 112, "entities": [{"text": "VEERA IBRAHIM", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "VEERA IBRAHIM", "offset_not_found": false}}, {"text": "STATE OF MAHARASHTRA", "label": "RESPONDENT", "start_char": 15, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "March 18, 1976", "label": "DATE", "start_char": 36, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "VEERA IBRAHIM\n\nSTATE OF MAHARASHTRA March 18, 1976\n\n[R. S. SARKARIA AND N. L. UNTWALIA, JJ.]"}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 53, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 72, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 94, "end_char": 115, "source": "regex", "metadata": {}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 117, "end_char": 127, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S. 24", "label": "PROVISION", "start_char": 231, "end_char": 236, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S. 24", "label": "PROVISION", "start_char": 288, "end_char": 293, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "S. 108", "label": "PROVISION", "start_char": 563, "end_char": 569, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 571, "end_char": 582, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ss. 135", "label": "PROVISION", "start_char": 675, "end_char": 682, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 706, "end_char": 723, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 5", "label": "PROVISION", "start_char": 729, "end_char": 733, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "S. 135", "label": "PROVISION", "start_char": 826, "end_char": 832, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 844, "end_char": 855, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 134(1)", "label": "PROVISION", "start_char": 932, "end_char": 943, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "S. 108", "label": "PROVISION", "start_char": 1042, "end_char": 1048, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1050, "end_char": 1061, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 1120, "end_char": 1130, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "S. 124", "label": "PROVISION", "start_char": 1228, "end_char": 1234, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Bombay Police Act", "label": "STATUTE", "start_char": 1236, "end_char": 1253, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 24", "label": "PROVISION", "start_char": 1289, "end_char": 1294, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "S. 123(2)", "label": "PROVISION", "start_char": 1451, "end_char": 1460, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1462, "end_char": 1473, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 123", "label": "PROVISION", "start_char": 1507, "end_char": 1513, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "S. 135", "label": "PROVISION", "start_char": 1669, "end_char": 1675, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1677, "end_char": 1688, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 20", "label": "PROVISION", "start_char": 1834, "end_char": 1841, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "[1969] 2 S.C.R. 461", "label": "CASE_CITATION", "start_char": 2179, "end_char": 2198, "source": "regex", "metadata": {}}, {"text": "S. 24", "label": "PROVISION", "start_char": 2252, "end_char": 2257, "source": "regex", "metadata": {"linked_statute_text": "Bombay Police Act", "statute": "Bombay Police Act"}}, {"text": "K. R. Chaudhury", "label": "LAWYER", "start_char": 3789, "end_char": 3804, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhury and K. Rajendra Chaudhury for the Appellant."}}, {"text": "K. Rajendra Chaudhury", "label": "LAWYER", "start_char": 3809, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "K. R. Chaudhury and K. Rajendra Chaudhury for the Appellant."}}, {"text": "H. R. Khanna", "label": "LAWYER", "start_char": 3851, "end_char": 3863, "source": "ner", "metadata": {"in_sentence": "H. R. Khanna and M. N. Shroff for Respondent.", "canonical_name": "H. R. Khanna"}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 3868, "end_char": 3880, "source": "ner", "metadata": {"in_sentence": "H. R. Khanna and M. N. Shroff for Respondent."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 3942, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J.-Veera Ibrahim, appellant was accused No."}}, {"text": "Chief Presidency Magistrate", "label": "COURT", "start_char": 4097, "end_char": 4124, "source": "ner", "metadata": {"in_sentence": "2 in the complaint filed by Assistant Collector of Customs, Preventive Department, Bombay before the Chief Presidency Magistrate for his prosecution aJong with one Abdul Umrao Rauf, accused No."}}, {"text": "Abdul Umrao Rauf", "label": "JUDGE", "start_char": 4160, "end_char": 4176, "source": "ner", "metadata": {"in_sentence": "2 in the complaint filed by Assistant Collector of Customs, Preventive Department, Bombay before the Chief Presidency Magistrate for his prosecution aJong with one Abdul Umrao Rauf, accused No."}}, {"text": "ss. 135(a) and 135(b)", "label": "PROVISION", "start_char": 4222, "end_char": 4243, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 4251, "end_char": 4268, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4273, "end_char": 4277, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 4607, "end_char": 4624, "source": "ner", "metadata": {"in_sentence": "Against that judgment, two separate appeaJs were filed by the convicts in the Bombay High Court which acquitted both the accused of the offences under s. 5 of the Imports and Exports (Control) Act, 1947 and under s. 135 (b) of the Customs Act, but maintained their conviction ou the charge under s. 135(a) of that Act reducing the sentence to one year's rigorous imprisonment."}}, {"text": "s. 5", "label": "PROVISION", "start_char": 4680, "end_char": 4684, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 135", "label": "PROVISION", "start_char": 4742, "end_char": 4748, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 4760, "end_char": 4771, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 135(a)", "label": "PROVISION", "start_char": 4825, "end_char": 4834, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Article 134(1)", "label": "PROVISION", "start_char": 4960, "end_char": 4974, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 108", "label": "PROVISION", "start_char": 5155, "end_char": 5161, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 5169, "end_char": 5186, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 20", "label": "PROVISION", "start_char": 5231, "end_char": 5241, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Chaudhry", "label": "OTHER_PERSON", "start_char": 5272, "end_char": 5280, "source": "ner", "metadata": {"in_sentence": "But Mr. Chaudhry, appearing for the appdlant, does not press this question now before us."}}, {"text": "s. 108", "label": "PROVISION", "start_char": 5496, "end_char": 5502, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act 1962", "label": "STATUTE", "start_char": 5510, "end_char": 5526, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 20", "label": "PROVISION", "start_char": 5608, "end_char": 5618, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act 1962", "statute": "the Customs Act 1962"}}, {"text": "s. 1", "label": "PROVISION", "start_char": 5714, "end_char": 5718, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act 1962", "statute": "the Customs Act 1962"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 5736, "end_char": 5746, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 124", "label": "PROVISION", "start_char": 5916, "end_char": 5922, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act 1962", "statute": "the Customs Act 1962"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 5937, "end_char": 5947, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "H. R. Khanna", "label": "LAWYER", "start_char": 6198, "end_char": 6210, "source": "ner", "metadata": {"in_sentence": "1)\n\nOn the other hand, Mr. H. R. Khanna, appearing for the respon- .", "canonical_name": "H. R. Khanna"}}, {"text": "Art. 20", "label": "PROVISION", "start_char": 6306, "end_char": 6313, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act 1962", "statute": "the Customs Act 1962"}}, {"text": "Article 20", "label": "PROVISION", "start_char": 6737, "end_char": 6747, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "s. 171", "label": "PROVISION", "start_char": 7648, "end_char": 7654, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 7668, "end_char": 7679, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shah", "label": "JUDGE", "start_char": 8032, "end_char": 8036, "source": "ner", "metadata": {"in_sentence": "Shah J., speaking for the Court, made these apposite observa- F tions :\n\n\"Under s. 171-A of the Sea Customs Act, a Customs Officer has power in an enquiry in connection with the smuggling of goods to sµmmon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by cl. ("}}, {"text": "s. 171", "label": "PROVISION", "start_char": 8112, "end_char": 8118, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 8132, "end_char": 8143, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 20(3)", "label": "PROVISION", "start_char": 9027, "end_char": 9037, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 9162, "end_char": 9173, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 9377, "end_char": 9388, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 9621, "end_char": 9632, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 221", "label": "PROVISION", "start_char": 10397, "end_char": 10405, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 10516, "end_char": 10527, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 10677, "end_char": 10688, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 108", "label": "PROVISION", "start_char": 11070, "end_char": 11076, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 11144, "end_char": 11161, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 135(a)", "label": "PROVISION", "start_char": 11382, "end_char": 11391, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "s. 135(b)", "label": "PROVISION", "start_char": 11396, "end_char": 11405, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 11413, "end_char": 11424, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 12, 1967", "label": "DATE", "start_char": 11484, "end_char": 11501, "source": "ner", "metadata": {"in_sentence": "G True, that the appellant was arrested by the police on December 12, 1967 on suspicion of having committed an offence under s. 124, of the Bombay Police Act and a Panchnama of the packaees in the truck was also prepared."}}, {"text": "s. 124", "label": "PROVISION", "start_char": 11552, "end_char": 11558, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 11574, "end_char": 11584, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 11753, "end_char": 11764, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 124", "label": "PROVISION", "start_char": 11811, "end_char": 11817, "source": "regex", "metadata": {"linked_statute_text": "But the factual ingredients of that offence are materially different from those of an offence under the Customs Act", "statute": "But the factual ingredients of that offence are materially different from those of an offence under the Customs Act"}}, {"text": "Police Act", "label": "STATUTE", "start_char": 11832, "end_char": 11842, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Police Act", "label": "STATUTE", "start_char": 12822, "end_char": 12832, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 108", "label": "PROVISION", "start_char": 13251, "end_char": 13257, "source": "regex", "metadata": {"linked_statute_text": "They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951", "statute": "They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 13265, "end_char": 13276, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 20(3)", "label": "PROVISION", "start_char": 13577, "end_char": 13590, "source": "regex", "metadata": {"linked_statute_text": "They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951", "statute": "They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 13688, "end_char": 13693, "source": "regex", "metadata": {"linked_statute_text": "They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951", "statute": "They did c not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951"}}, {"text": "s. 24", "label": "PROVISION", "start_char": 13988, "end_char": 13993, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 14923, "end_char": 14928, "source": "regex", "metadata": {"statute": null}}, {"text": "Mullaji", "label": "OTHER_PERSON", "start_char": 15879, "end_char": 15886, "source": "ner", "metadata": {"in_sentence": "The deponent claimed to be an innocent traveller in the truck when he said : \"I did not ask Mullaji (driver) what goods were being loaded in his Jorry."}}, {"text": "s. 135", "label": "PROVISION", "start_char": 16220, "end_char": 16226, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 16234, "end_char": 16245, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24", "label": "PROVISION", "start_char": 16487, "end_char": 16492, "source": "regex", "metadata": {"statute": null}}, {"text": "Christopher Soares", "label": "WITNESS", "start_char": 16678, "end_char": 16696, "source": "ner", "metadata": {"in_sentence": "Christopher Soares, the Inspector of Cnstoms (P, W. 4) testified that no threats, coercion or inducements were used and that the statement Ex."}}, {"text": "s. 108", "label": "PROVISION", "start_char": 16963, "end_char": 16969, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 16977, "end_char": 16988, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 24", "label": "PROVISION", "start_char": 17173, "end_char": 17178, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 24", "label": "PROVISION", "start_char": 17903, "end_char": 17908, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 17976, "end_char": 17981, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135", "label": "PROVISION", "start_char": 18255, "end_char": 18261, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 18263, "end_char": 18274, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 123", "label": "PROVISION", "start_char": 18341, "end_char": 18347, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 18356, "end_char": 18367, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 123", "label": "PROVISION", "start_char": 18685, "end_char": 18691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135(b)", "label": "PROVISION", "start_char": 18860, "end_char": 18869, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 135(ii)", "label": "PROVISION", "start_char": 18880, "end_char": 18890, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 18898, "end_char": 18909, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bania", "label": "OTHER_PERSON", "start_char": 19391, "end_char": 19396, "source": "ner", "metadata": {"in_sentence": "It is further admitted that some Bania paid Rs."}}, {"text": "Dongri Police Station", "label": "ORG", "start_char": 19529, "end_char": 19550, "source": "ner", "metadata": {"in_sentence": "Unfortunately, the truck skidded near the Dongri Police Station and came to a G stop."}}, {"text": "Reti Bunder", "label": "GPE", "start_char": 19849, "end_char": 19860, "source": "ner", "metadata": {"in_sentence": "In short, the appellant had clearly admitted that these packages containing the contraband goods were imported surreptitiously from Reti Bunder under cover of darkness."}}]}
{"document_id": "1976_3_680_684_EN", "year": 1976, "text": "ESO\n\nKULCHHINDER SINGH & ORS.\n\nHARDAYAL SINGH BRAR & ORS.\n\nMarch 18, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.)\n\nConstitution of India-Article 226 and 221-Whether a contractual obligation can be enforced by writ jurisdiction.\n\nThe appellants are permanent servants of the Punjab State Co-operative Land Mortgage Bank and were working as Assistants since the year 1968.\n\nThe grievance of the appellants is that the contesting respondents were directly recruited to the higher post of In.pecting Officers, Junior Accountants and Accountants in violation of Service Rules.\n\nWhat the appellants call Service Rules is nothing but a contract arrived at as a result of the collecrive bargain-\n\n' '\n\ning with the management.\n\nThe writ petition filed by the appellants was dis missed by the learned single Judge as well as the Division Bench of High Court on the ground that no writ petition was maintainable against a Col operative Society under Article 226 of the Constitution. On appeal by special l leave the appellants contended :\n\n(I) The co-operative Bank in question is \"other authority\" within the meaning of Article 12 of the Constitution and, therefore. falls within the definition of State.\n\n(2) The Co-operative Bank is a public authority.\n\n(3) Co-operative Societies registered under the Co-operative Societies\n\nAct are subject to the jurisdiction of High Courts under Article 226 of the Constitution, since this provision is widely worded wrib: may be issued for any purpose against any person.\n\nRespcndents contended :\n\n(1) that the Co-operative Bank is not other authority or a public autho- \"\" rity and no writ can lie against it. ,.\n\n(2) The appellants are trying to enforce the contractual obligation for which no writ can lie.\n\nDismissing the appeal,\n\nHELD : ( 1) The Court did not decide the question whether a Co-operative Society is other authority or public authority because it is clear from a close perusal of the writ petition that essentially the appellants are seeking merely to ensure an agreement entered into between the employees and the Cooperative Bank. At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repel'lant is that the remedy of Art. 226 is unavailable to enforce a contract qua contract. We are aware of the wide amplitude of Article 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course without even statutory complexion can be enforced under Atricle 226. [683F--1{, 684C-D]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 747 of 1975.\n\nAppeal by Special Leave from the Judgment and Order dated the 5-12-7 4 of the Punjab and Haryana High Court in Civil Writ Petition No. 6344/74.\n\nM. K. Ramamurthi, J. Ramamurthi and Ramesh C. Pathak for the appellants. ·\n\nKULCHHINDER v. H. s. BRAR (Krishna lyer, /.) 681\n\nJ. L. Gupta, Janendra Lal and B. R. Agarwala for Respondents A Nos. 5 to 22/75.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-This Civil Appeal, by special leave under Art. 136, raises a common question of great moment, the decision of which may have a wider litigative fall-out than may appear on the surface.\n\nThe first question expressed, manu brevi, is as to whether a writ may issue, under Art. 226, agairut a Society registered under the Punjab\n\nCooperative Societies Act (Act XXV of 1961) setting aside a selection list at the instance of the aggrieved appellants who were not included therein.\n\nThe High Court (both tl:ie learned Single J udgc and the Division Bench) following an earlier judgment of that Court in Dharam Pal v. State of Punjab(') held the writ petition to be incompetent, directed as it was against a Cooperative Society.\n\nShri M. K. Ramamurthy challenges the holding of the High Court on the score that the Punjab State Cooperative Land Mortgage Bank Ltd., (State Banlc, for short) is 'other authority' within the meaning of Art. 12 of the Constitution and, therefore, falls within the definition of State.\n\nConsequently, a writ inay issue against it.\n\nSecondly, he contends that the State Bank is a public authority and, therefore, falls within the writ jurisdiction of the High Court. His third plea is much wider in its sweep, for he urges that Cooperative Societies registered under the Cooperative Societies Act are subject to the jurisdiction of High Courts under Art. 226 of the onstitution, since this provision is widely worded and writs may be issued for any purpose against any person.\n\nForemost among his three points is the first one which he expressed with force, backed by decisions of this Court spanning a period ending with the recent decision in Sukhdev Singh v.\n\nBhagatram(') According to his submission, the State Bank is more than a cerc Cooperative Society, but has statutory powers and duties, exercises sovereign functions and must be assessed in its status with reference to the Punjab Land Mortgage Bank Act, 1957 (for short, the Mortl; agc Bank Act). Chronologically we may mention that there was a Cooperative Societies Act, 1954 in the Punjab under which the present Society was registered, but that Act was repealed by the Punjab Cooperati1e Societies Act of 1961 (hereinafter referred to as the Cooperative Societies Act).\n\nThe present Society, though registered under the 1954 Act continues as a Society under the Cooperative Societies Act, J 96 ! and is a State Bank, as defined ins. 2(h) of the Mortgage Bank Ac, t. A study of the two statutes, the trappings attaching to the Society, the other features of and powers vested in the Society, have all to be studied in their totality before testing the contention of the appellant in the light of the ruling of the Court.\n\nAlthough great argument has been addressed in the soecial circumstances of the case, there is no ne_ed to investigate these questions apart from briefey adverting to them.\n\nMaybe, in a different case,\n\n\"(1) 19 rJ 2 S.L.R. 845.\n\n11-608SC!/76\n\n(2) 1975 (3) SCll.610.\n\nwhere these issues directly and inescapably arise, this Court may have to pronounce on them, but where as here, the lis lends itself to disposal on a short point, to launch on a long debate about other arguments of importance may not be appropriate.\n\nOf course, 'if you were to make little fishes talk, they would talk like whales', as Dr.\n\nJohnson put it.\n\nThe whales of legal dispute do not challenge us here since the appellant is seeking relief which, on the face of it, cannot be granted for a different 'little fish' reason.\n\nA finger-nail sketch of the facts is enough to bring out the crucial issues and the broad point on which we propose to dispose of this appeal.\n\nThe appellant is a permanent servant of the Punjab State Cooperative Land Mortgage Bank hereinafter referred as the Cooperative Bank) since 1964 and promoted in 1968 as an Assistant.\n\nAccording to him, the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957, with power to frame subordinate legislation and thereby enjoying sovereign power.\n\nSections 11, 12, 15, 22 and 40 have been invoked to substantiate this thesis.\n\nThe purpose of this branch of the appellant's submission is to make out that the Cooperative Bank is 'State' within the meaning of Art. 12 of the Constitution and, therefore, subject to ArL 16 of the Constitution and the writ jurisdiction under Art. 226.\n\nA further aq1, ument has been built on the edifice of the statutory provisions contamed in the Punjab Cooperative Societies, Act, 1961. Section 84A of this Act empowers apex societies under certain circumtances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law.. The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court uuder its extra-ordinary constitutional power.\n\nOf course, Shri M. K. Ramamurthy has contended that even apart from all these considerations, any cooperative society, in view of its constitution under statutory provisious, may be amenable to the writ jurisdiction of the High Court.\n\nHis specific grievance in the present case is that promotions to three categories of higher posts, viz., Assistant Inspecting Officers, Junior Accountants and Accountants were made by direct recruitment contrary to what he contends are service rules but, in substance, are the result of collective bargaining with the management, as the rit petition itself reveals.\n\nThese triple categories of new posts have been filled, admittedly, without reference to the quota set apart for promotees, the defence of the respondent being that these new cadres arc not covered by the agreement referred to in the writ petition. -\n\nThe High Court was approached when a real apprelfension of direct recruitment arose, praying for a writ, order or direction in the nature of mandamus requiring the respondent not to proceed with the processes resulting in filling up the posts of Accountants, Junior Accountants and Assistant Inspecting Officers in violation of the quota of 7 5 % claimed by the appellant, under the agreement alleged to be binding on the Cooperative Bank and the employees.\n\nOf Course, the recruitment went on and the new appointees are also arrayed as respondents in th• writ petition.\n\nHowever, the High Court dismissed\n\n;--\n\n....\n\nKULCHHINDER v. H. s. BRAR (Krishna Iyer.!.) 683\n\n:the writ petition on the preliminary ground that the writ was, in fact, A directed against a Cooperative Bank registered under the Cooperative Societies Act and no writ would lie against such a body in the circumstances set out in the writ petition.\n\nIndeed, the distinction between a body with a personality created by and owing its existence solely to a statute and an entity which is recognised by and is registered under a statute is real, dramatic and makes for a world of difference in jural impact.\n\nConsiderable argument was addressed before B us based on the rulings reported as Mohan/al( 1); l'ewory('), SukhdevC); and Praga Tools('}, apart from the ruling of this Court in Lakshmi Narain(').\n\nThe question as to whether a Cooperative Society is a public authority has fallen for judicial notice and Amir Jamia( 6 ) contains an elaborate discussion of the controversal topic covering decisions, C English and Indian.\n\nIt is also true that at least Madhya Pradesh (Dukhooram-1961 v. M. P. 269) and Calcutta (Madan Mohan- 1966 Cal. 23) have considered whether a writ will issue against a Cooperative Society, simpliciter, Kumkum Khanna(') deals with a private .college governed by a University Ordinance.\n\nMany other rulings have also been brought to our notice, but we do not think it necessary elaborately to investigate these issues notwithstanding the fact that Shri Gupta, appearing for the contesting respondent, challenged each one of the grounds stabilising his submissions on rulings of the Court, of the High Courts and the English Courts.\n\nThe reason why we are not inclined to add to the enormous erudition on the point already accumulated in case-law is that a close perusal of the writ petition will disclose that essentially the appellant is seeking merely to enforce an agreement entered into between the ernplo) ees and the Cooperative Bank.\n\nThere is no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority.\n\nBnt assuming, F for argument's sake, that what he urges has validity, the present case meets with its instant funeral from one fatal circumstance.\n\nThe writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all-embracing promise to give a quota to foe existing employees.\n\nAt its best, the writ petition seeks enforcement of a binding contract G but the neat and necessary repellant is that the remedy of Art. 226 is unavailable to enforce a contract qua contract.\n\nWe fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under Art. 226 in the event of a breach of a contract, hypassing the normal channels\n\n(1) [1967] 3 S.C.R. 377.\n\n\n(!) [1~76) 2 S.C.R. 1006.\n\n(6) I.LR. [1969] Delhi 202 .\n\n(7) l.L.R. 11976] 1 Delhi 31.\n\nof civil litigation.\n\nWe are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty.\n\nWhat is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority.\n\nPrivate Jaw may involve a State, a statutory body, or a public body in contractual or tortious actions.\n\nBut they cannot be siphoned off into the writ jurisdiction.\n\nThe controversy before us in substance will turn on the construction and scope of the agreement when the claim to a quota as founded cannot be decided in writ jurisdiction without going back on wellsettled guidelines and even subverting the normal processual lawexcept perhaps in extreme cases which shock the conscience of the Court or other extra-ordinary situation, an aspect we are not called upon to explore here.\n\nWe are aware of the wide amplitude of Art. 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course, without even statutory complexion, can be enforced by this short, though, wrong cut.\n\nOn this short ground the appeal must fail and be dismissed. We do so, but without costs.\n\nP.H.P.\n\nAppeal dismissed.\n\n.. '", "total_entities": 54, "entities": [{"text": "ESO\n\nKULCHHINDER SINGH & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "KULCHHINDER SINGH & ORS", "offset_not_found": false}}, {"text": "HARDAYAL SINGH BRAR & ORS", "label": "RESPONDENT", "start_char": 31, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "HARDAYAL SINGH BRAR & ORS", "offset_not_found": false}}, {"text": "March 18, 1976", "label": "DATE", "start_char": 59, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "March 18, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.)"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 76, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 124, "end_char": 145, "source": "regex", "metadata": {}}, {"text": "Article 226 and 221", "label": "PROVISION", "start_char": 146, "end_char": 165, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Junior Accountants and Accountants in violation of Service Rules", "label": "STATUTE", "start_char": 515, "end_char": 579, "source": "regex", "metadata": {}}, {"text": "What the appellants call Service Rules", "label": "STATUTE", "start_char": 582, "end_char": 620, "source": "regex", "metadata": {}}, {"text": "Article 226", "label": "PROVISION", "start_char": 949, "end_char": 960, "source": "regex", "metadata": {"linked_statute_text": "What the appellants call Service Rules", "statute": "What the appellants call Service Rules"}}, {"text": "Article 12", "label": "PROVISION", "start_char": 1120, "end_char": 1130, "source": "regex", "metadata": {"linked_statute_text": "What the appellants call Service Rules", "statute": "What the appellants call Service Rules"}}, {"text": "Act", "label": "STATUTE", "start_char": 1328, "end_char": 1331, "source": "regex", "metadata": {}}, {"text": "Article 226", "label": "PROVISION", "start_char": 1385, "end_char": 1396, "source": "regex", "metadata": {"linked_statute_text": "Co-operative Societies registered under the Co-operative Societies\n\nAct", "statute": "Co-operative Societies registered under the Co-operative Societies\n\nAct"}}, {"text": "Co-operative Bank", "label": "ORG", "start_char": 1551, "end_char": 1568, "source": "ner", "metadata": {"in_sentence": "Respcndents contended :\n\n(1) that the Co-operative Bank is not other authority or a public autho- \"\" rity and no writ can lie against it. ,."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2223, "end_char": 2231, "source": "regex", "metadata": {"linked_statute_text": "Co-operative Societies registered under the Co-operative Societies\n\nAct", "statute": "Co-operative Societies registered under the Co-operative Societies\n\nAct"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 2321, "end_char": 2332, "source": "regex", "metadata": {"linked_statute_text": "Co-operative Societies registered under the Co-operative Societies\n\nAct", "statute": "Co-operative Societies registered under the Co-operative Societies\n\nAct"}}, {"text": "M. K. Ramamurthi", "label": "JUDGE", "start_char": 2746, "end_char": 2762, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, J. Ramamurthi and Ramesh C. Pathak for the appellants. ·", "canonical_name": "M. K. Ramamurthi"}}, {"text": "J. Ramamurthi", "label": "LAWYER", "start_char": 2764, "end_char": 2777, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, J. Ramamurthi and Ramesh C. Pathak for the appellants. ·"}}, {"text": "Ramesh C. Pathak", "label": "LAWYER", "start_char": 2782, "end_char": 2798, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi, J. Ramamurthi and Ramesh C. Pathak for the appellants. ·"}}, {"text": "J. L. Gupta", "label": "OTHER_PERSON", "start_char": 2872, "end_char": 2883, "source": "ner", "metadata": {"in_sentence": "KULCHHINDER v. H. s. BRAR (Krishna lyer, /.) 681\n\nJ. L. Gupta, Janendra Lal and B. R. Agarwala for Respondents A Nos."}}, {"text": "Janendra Lal", "label": "OTHER_PERSON", "start_char": 2885, "end_char": 2897, "source": "ner", "metadata": {"in_sentence": "KULCHHINDER v. H. s. BRAR (Krishna lyer, /.) 681\n\nJ. L. Gupta, Janendra Lal and B. R. Agarwala for Respondents A Nos."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 2902, "end_char": 2916, "source": "ner", "metadata": {"in_sentence": "KULCHHINDER v. H. s. BRAR (Krishna lyer, /.) 681\n\nJ. L. Gupta, Janendra Lal and B. R. Agarwala for Respondents A Nos."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 2997, "end_char": 3009, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-This Civil Appeal, by special leave under Art."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 3056, "end_char": 3064, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 3283, "end_char": 3291, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Cooperative Societies Act", "label": "STATUTE", "start_char": 3340, "end_char": 3365, "source": "regex", "metadata": {}}, {"text": "M. K. Ramamurthy", "label": "JUDGE", "start_char": 3742, "end_char": 3758, "source": "ner", "metadata": {"in_sentence": "Shri M. K. Ramamurthy challenges the holding of the High Court on the score that the Punjab State Cooperative Land Mortgage Bank Ltd., (State Banlc, for short) is 'other authority' within the meaning of Art.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "Punjab State Cooperative Land Mortgage Bank Ltd.", "label": "ORG", "start_char": 3822, "end_char": 3870, "source": "ner", "metadata": {"in_sentence": "Shri M. K. Ramamurthy challenges the holding of the High Court on the score that the Punjab State Cooperative Land Mortgage Bank Ltd., (State Banlc, for short) is 'other authority' within the meaning of Art."}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 3940, "end_char": 3947, "source": "regex", "metadata": {"linked_statute_text": "Society registered under the Punjab\n\nCooperative Societies Act", "statute": "Society registered under the Punjab\n\nCooperative Societies Act"}}, {"text": "Cooperative Societies registered under the Cooperative Societies Act", "label": "STATUTE", "start_char": 4263, "end_char": 4331, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4385, "end_char": 4393, "source": "regex", "metadata": {"linked_statute_text": "Cooperative Societies registered under the Cooperative Societies Act", "statute": "Cooperative Societies registered under the Cooperative Societies Act"}}, {"text": "State Bank", "label": "RESPONDENT", "start_char": 4744, "end_char": 4754, "source": "ner", "metadata": {"in_sentence": "Foremost among his three points is the first one which he expressed with force, backed by decisions of this Court spanning a period ending with the recent decision in Sukhdev Singh v.\n\nBhagatram(') According to his submission, the State Bank is more than a cerc Cooperative Society, but has statutory powers and duties, exercises sovereign functions and must be assessed in its status with reference to the Punjab Land Mortgage Bank Act, 1957 (for short, the Mortl; agc Bank Act)."}}, {"text": "Punjab Land Mortgage Bank Act, 1957", "label": "STATUTE", "start_char": 4920, "end_char": 4955, "source": "regex", "metadata": {}}, {"text": "Chronologically we may mention that there was a Cooperative Societies Act, 1954", "label": "STATUTE", "start_char": 4994, "end_char": 5073, "source": "regex", "metadata": {}}, {"text": "Punjab", "label": "GPE", "start_char": 5081, "end_char": 5087, "source": "ner", "metadata": {"in_sentence": "Chronologically we may mention that there was a Cooperative Societies Act, 1954 in the Punjab under which the present Society was registered, but that Act was repealed by the Punjab Cooperati1e Societies Act of 1961 (hereinafter referred to as the Cooperative Societies Act)."}}, {"text": "Act continues as a Society under the Cooperative Societies Act", "label": "STATUTE", "start_char": 5325, "end_char": 5387, "source": "regex", "metadata": {}}, {"text": "Johnson", "label": "OTHER_PERSON", "start_char": 6328, "end_char": 6335, "source": "ner", "metadata": {"in_sentence": "Of course, 'if you were to make little fishes talk, they would talk like whales', as Dr.\n\nJohnson put it."}}, {"text": "Punjab State Cooperative Land Mortgage Bank", "label": "ORG", "start_char": 6707, "end_char": 6750, "source": "ner", "metadata": {"in_sentence": "The appellant is a permanent servant of the Punjab State Cooperative Land Mortgage Bank hereinafter referred as the Cooperative Bank) since 1964 and promoted in 1968 as an Assistant."}}, {"text": "Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957", "label": "STATUTE", "start_char": 6869, "end_char": 6966, "source": "regex", "metadata": {}}, {"text": "Sections 11, 12, 15, 22 and 40", "label": "PROVISION", "start_char": 7051, "end_char": 7081, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957", "statute": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957"}}, {"text": "Art. 12", "label": "PROVISION", "start_char": 7261, "end_char": 7268, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957", "statute": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 7375, "end_char": 7383, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957", "statute": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957"}}, {"text": "Section 84A", "label": "PROVISION", "start_char": 7522, "end_char": 7533, "source": "regex", "metadata": {"linked_statute_text": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957", "statute": "the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957"}}, {"text": "Cooperative Bank", "label": "ORG", "start_char": 7714, "end_char": 7730, "source": "ner", "metadata": {"in_sentence": "Section 84A of this Act empowers apex societies under certain circumtances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law.. The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court uuder its extra-ordinary constitutional power."}}, {"text": "Cooperative Bank registered under the Cooperative Societies Act", "label": "STATUTE", "start_char": 9490, "end_char": 9553, "source": "regex", "metadata": {}}, {"text": "Praga Tools", "label": "ORG", "start_char": 10026, "end_char": 10037, "source": "ner", "metadata": {"in_sentence": "Considerable argument was addressed before B us based on the rulings reported as Mohan/al( 1); l'ewory('), SukhdevC); and Praga Tools('}, apart from the ruling of this Court in Lakshmi Narain(')."}}, {"text": "Lakshmi Narain", "label": "OTHER_PERSON", "start_char": 10081, "end_char": 10095, "source": "ner", "metadata": {"in_sentence": "Considerable argument was addressed before B us based on the rulings reported as Mohan/al( 1); l'ewory('), SukhdevC); and Praga Tools('}, apart from the ruling of this Court in Lakshmi Narain(')."}}, {"text": "Amir Jamia", "label": "OTHER_PERSON", "start_char": 10207, "end_char": 10217, "source": "ner", "metadata": {"in_sentence": "The question as to whether a Cooperative Society is a public authority has fallen for judicial notice and Amir Jamia( 6 ) contains an elaborate discussion of the controversal topic covering decisions, C English and Indian."}}, {"text": "Gupta", "label": "OTHER_PERSON", "start_char": 10776, "end_char": 10781, "source": "ner", "metadata": {"in_sentence": "Many other rulings have also been brought to our notice, but we do not think it necessary elaborately to investigate these issues notwithstanding the fact that Shri Gupta, appearing for the contesting respondent, challenged each one of the grounds stabilising his submissions on rulings of the Court, of the High Courts and the English Courts."}}, {"text": "Ramamurthy", "label": "OTHER_PERSON", "start_char": 11329, "end_char": 11339, "source": "ner", "metadata": {"in_sentence": "There is no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 12004, "end_char": 12012, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 12204, "end_char": 12212, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "[1967] 3 S.C.R. 377", "label": "CASE_CITATION", "start_char": 12288, "end_char": 12307, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 13380, "end_char": 13388, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}]}
{"document_id": "1976_3_685_687_EN", "year": 1976, "text": "CHANAN SINGH A\n\nREGISTRAR, CO-OP. SOCIETIES, PUNJAB & ORS.\n\nMarch 18, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER. JJ.] B\n\n• Imputation of nlisconduct against bankelnployee-Enqulry by Secretary of bank-Explanation accepted and proceedings dropped-Revival of proceedings\n\nby Managing Director-No present grievance of punitive, action-Writ petition premature.\n\n' t\n\n:tvfis.conduct was imputed to the appeUant by his employer, the second res pondent. The then Secretary of the bank enquired into the allegations and, after issuing a notice to the appellant for showing cause against punishment, C accepted his explanation and dropped the proceedings. Thereafter, the Manag ing Director of the Bank opined that the said Secretary was not empowered to punish a bank employee, and therefore, the proceedings culminating in the exoneration of the appellant were invalid. The proceedings. were revived, and the appellant was suspended.\n\nHis writ petition under Arts. 226 and 227 was dismissed by the High Court.\n\nOn appeal by special leave, the appellant challenged the revival of the proceedings against him, as illegal and opposed to natural justice.\n\nDismissing the appeal, the Court,\n\nHELD : ( 1) There is no present grievance of punitive action \\Vhich can be ventilated in court.\n\nThe \\vrit petition is premature since no action has been taken finrtlly, ngain., t the appellant. [687 A] •\n\n(2) The co-operative bank has not been able to show any po\\Ver to sus pend an employee pending an enquiry. If that be so, the suspension of the E appellant is plainly v.dthout the pale of law. [687BJ\n\nCIVIL APPELLATE; JURISDICTION : Civil Appeal No. 1137 of 1976.\n\nAppeal by Special Leave from the Judgment and Order dated the 14-8-75 of the Punjab and Haryana High Court in C.W. No. 3995 of 1975.\n\nJ. Ramamurthi for the Appellants.\n\nJanendra Lal and B. R. Agarwala for Respondents 2 and 3\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThis appeal, by special leave lends itself to a quick burial in view of the brief facts set out below'.\n\nThe appellant has been an employee of the second respondent. A notice was issued to him to show cause why disciplinary action should\n\nn?t be taken against him for certain items of misconduct imputed to him.\n\nThe then Secretary of the bank, Shri Daljit Singh, enquired into the allegations.\n\nThernafter, on April 1, 1975 the Secretary issued a notice to the appellant to show cause why his next increment H should not be stopped by way of punishment; A reply was sent by the appellant. by way of explanation and the Secretary accepting the explanation dropped the proceedings by order dated April 9, 197 5\n\nSUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nA (Annexure III).\n\nThereafter, the Managing Director taking the view that Shri Daljit Singh, Secretary, had no power to irillict punishment •, on the employees of the bank and that therefore the proceedings culminating in the exoneration of the appellaot were invalid issued a fresh memorandum which concluded thus: •\n\nB \"After considering the said enquiry report along with other relavant documents, I am provisionally of the view to impose upon you a penalty of dismissal from bank services.\n\nBefore doing so, you are asked to show cause within 21 days from the receipt of this memorandum, why on account of findings of the said Enquiry Officer, into the C charges, you should not bedismissed from the bank services. In case no reply is received within the prescribed period, it will be presumed that you have np reply in this behalf and the proposed punishment will be imposed.\" .\n\nThe appellant was also suspended on the same date, viz., 7th July D 1975.\n\nThereupon, a writ petition under Arts. 226/227 was moved by the •\n\nappellant challenging the revival of the proceedings against him as •\n\nillegal and opposed to natural justice.\n\nThe first point raised in objection by the second respondent is that the writ petition. is premature . since no action has been taken finally against the appellant, the disciplinary proceedings are still pending and the explanation of the appellant is under consideration.\n\nIt is only in the event of the appellant being punished that any grievance can arise for him to be agitated in the proper forum.\n\nOther obstacles in the way of granting the .appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature.>Nci punitive action has yet been taken.\n\nIt is. difficult to state, apart from speculation, what the outcome of\n\nthe proceedings will be. In case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to. It is not for us, at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised oi whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration.\n\nWe are satisfied that, enough unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the\n\nCHANAN SINGH v. REGISTRAR CO-OP. SOCIETIES (Krishna Iyer, J.) 687\n\nview we take that there is no present grievance of punitive action. A which can be ventilated in court. After all, even the question of jurisdiction to re-open what is claimed to be a closed enquiry will, and must, be considered by the Managing Director.\n\nOn this score, we dismiss the appeal but, in the circumstances, without costs.\n\nBefore parting with this case, we would like to make it clear that B counsel for the co-operative bank has not been able to show any power to suspend an employee pending an enquiry.\n\nIf that be so, the suspension of the appellant is plainly without the pale of law and he would be entitled to his salary during the period till final orders arc passed.\n\nSince the matter has been pending long enough, we are &ssured by counsel for the respondent that final orders may be passed C within one month from to-day.\n\nM.R.\n\nAppeal dismissed.", "total_entities": 15, "entities": [{"text": "CHANAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "CHANAN SINGH", "offset_not_found": false}}, {"text": "A\n\nREGISTRAR, CO-OP. SOCIETIES, PUNJAB & ORS", "label": "RESPONDENT", "start_char": 13, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "REGISTRAR, CO-OP. SOCIETIES, PUNJAB & ORS", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 77, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 99, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Arts. 226 and 227", "label": "PROVISION", "start_char": 957, "end_char": 974, "source": "regex", "metadata": {"statute": null}}, {"text": "J. Ramamurthi", "label": "LAWYER", "start_char": 1790, "end_char": 1803, "source": "ner", "metadata": {"in_sentence": "J. Ramamurthi for the Appellants."}}, {"text": "Janendra Lal", "label": "LAWYER", "start_char": 1825, "end_char": 1837, "source": "ner", "metadata": {"in_sentence": "Janendra Lal and B. R. Agarwala for Respondents 2 and 3\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThis appeal, by special leave lends itself to a quick burial in view of the brief facts set out below'."}}, {"text": "B. R. Agarwala", "label": "LAWYER", "start_char": 1842, "end_char": 1856, "source": "ner", "metadata": {"in_sentence": "Janendra Lal and B. R. Agarwala for Respondents 2 and 3\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThis appeal, by special leave lends itself to a quick burial in view of the brief facts set out below'."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 1926, "end_char": 1938, "source": "ner", "metadata": {"in_sentence": "Janendra Lal and B. R. Agarwala for Respondents 2 and 3\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThis appeal, by special leave lends itself to a quick burial in view of the brief facts set out below'."}}, {"text": "Daljit Singh", "label": "LAWYER", "start_char": 2294, "end_char": 2306, "source": "ner", "metadata": {"in_sentence": "The then Secretary of the bank, Shri Daljit Singh, enquired into the allegations.", "canonical_name": "Daljit Singh"}}, {"text": "April 9, 197", "label": "DATE", "start_char": 2639, "end_char": 2651, "source": "ner", "metadata": {"in_sentence": "by way of explanation and the Secretary accepting the explanation dropped the proceedings by order dated April 9, 197 5\n\nSUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nA (Annexure III)."}}, {"text": "SUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nA", "label": "COURT", "start_char": 2655, "end_char": 2696, "source": "ner", "metadata": {"in_sentence": "by way of explanation and the Secretary accepting the explanation dropped the proceedings by order dated April 9, 197 5\n\nSUPREME COURT REPORTS\n\n(1976] 3 S.C.R.\n\nA (Annexure III)."}}, {"text": "Daljit Singh", "label": "LAWYER", "start_char": 2774, "end_char": 2786, "source": "ner", "metadata": {"in_sentence": "Thereafter, the Managing Director taking the view that Shri Daljit Singh, Secretary, had no power to irillict punishment •, on the employees of the bank and that therefore the proceedings culminating in the exoneration of the appellaot were invalid issued a fresh memorandum which concluded thus: •\n\nB \"After considering the said enquiry report along with other relavant documents, I am provisionally of the view to impose upon you a penalty of dismissal from bank services.", "canonical_name": "Daljit Singh"}}, {"text": "7th July D 1975", "label": "DATE", "start_char": 3637, "end_char": 3652, "source": "ner", "metadata": {"in_sentence": "7th July D 1975."}}, {"text": "Arts. 226", "label": "PROVISION", "start_char": 3688, "end_char": 3697, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_688_711_EN", "year": 1976, "text": "STATE OF HARYANA & ANR.\n\nCHANAN MAL ETC.\n\nMarch 18, 1976\n\n[A. N, RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]\n\nA1ines and Minerals (Regulation and Developn1en1) Act, 67 of 1957- • Section 16(1)(b)-Scop• of,\n\nHaryana Minerals (Vesting of Rights) Act, 1973-J/ repugnant to the prorisions of Central Act.\n\nMandamus-Issue of-Petitioner should first call upon the authority to dis- C charge legal obligation.\n\nState111e11t of Objects and Reasons-When could be used in interpretation.\n\nf'•lew qucs!ions---JVhen COt{ld be raised.\n\nOn the strength of entries in the (wajib-ul-arz) (village administration papers) of some villages the State Government considered itself to be the owner of saltpetre deposits.\n\nBy a notification it declared safipetre as a minor mineral and auctioned the mines in accordance with the Punjab ~Iinor Minerals Concessions Rules, 1964 made under the provisions of the Mines and Minerals (Regulation and Developn1ent) Act _67 of 1957. In a writ petition the High Court held that, unless the mineral deposits were specifically mentioned in the Wajib-ul-arz _Qt a village, as having vested in the State, their owneiship would still remain vested in the {ormer proprietors according to the record of rights.\n\nTo meet this situation, the State legislature passed the Haryana Minerals (Vesting of Rights) Act, 1973. Since the owners of the lands had haphazardly created lessee rights in contravention of the Punjab Rules, 1964, t\\vo notifications were issued \\Vith the object of the conservation as well as of scientific exploitation of mineral resources. By , one notification-- the State Government purported to acquire rights to saltpetre in the lands and by the second it announced that certain saltpetre bearing areas would be auctioned.\n\nIn a writ petition under J\\rt. 226, the High Court held (i) that in view of the declaration contained in s. 2 of the Central Act the field covered by the impugned Act was already fully occupied by the Central legislation so that the State Act was inoperative and void for repugnancy and quashed the two notifications; 3.nd (ii) that rights in such lands had continued to vest in the former owners of estates despite acquisitions of other parts of their estates.\n\nThe respondents in the a-Qpeals containded that the declaration in s. 2 of the Central Act that it was expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals would become unwGrkable if the provisions of the State Act \\Vere _permitted to operate.\n\nWhile the appeals were pending writ petitions were filed in this Court under Article 32.\n\nThe petitioners in the first batch of writ petitions have asserted rights as holders of mining leases granted by persons who had been entered as proprietors of estates in the record of rights and that the State under the State Act had \\\\-Tongly acquired the right to mineral deposits in their forn1er lands.\n\nIt was contended that the effect of the State Act was only to change the ownership without interfering with the regulation of leasehold or licensee rights in minerals under the- Central Act.\n\nAllowing the appeals of the State and dismissing the writ petitions,\n\nHELD: (i) The Haryana Minerals (Vesting of Rights) Act, 1973, is valid, as it is not, 1in any way, repugnant to the provisions of the Mines and\n\n' r\n\n1'.Iinerals (Regulation of Development) Act 67 of 1957. made by Parliament.\n\nA Ownership rigIJts could be and have been validly acquired by the State Government under the State Act.\n\n[710G]\n\n(ii) No rights are shown by any petitioner to have been conferred upon him under any lease or licence executed in accordance with the provisions of the Central Act, but, any petitioner, either before the Hiuh Court or in this Court, who can establish any such right governed by the~ provisions of the Central Act 67 of 1957 may take such proceedings before an appropriate court. as may still be open to him under the law, against any such action or Government notification as is alleged to infringe that right. [71 OHl\n\n(iii) Any petitioner who applied fur a' wril or unler in the natuie of J. mandamus should, in compliance with a well-known rule ofpractice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it had refused or neglected to carry it out within a reasonable time before applying to a court for such an order even \\vhere the alleged obliation is established.\n\n[71 IB)\n\n1. (a) It is difficult to sustain the respondents' contention that the provisions of the Central Act would be really unworkable by mere change of ownership of land in which mineral deposits were found.\n\nThe character of the State Act has to be judged by the substance and effect of its provisions and not n1crely by the purpose given in the Statement of Objects and Reasons. [706C]\n\n(b) The provisions of the Central Act show that subject to the overall supervision of the Central Government the State Government ha~ a sphere of its\n\nown powers and can take legally specified actions under the Central_ Act and U rules.\n\nThus, the whole field of control and regulation under the provisions of • the Central Act cannot be said to he reservecl for the Central Government.\n\n[698BJ\n\n(c) The stated objects and reasons of the State J\\ct showed that the acquisition was to be made to protect the mineral potentialities of the land and to ensure their proper development and exploitation on scientific lines. If this wa.s the actual purpose behind the Act it did not materially differ from that which could be said to lie behind the c:entral Act.\n\n[692E] E\n\n(d) The provisions contained in s. 16 ( 1) (b) show that Parliament icslf contemplated state legislation for vesting of lands containing mineral deposits\n\nin the State Government. It only required that rights to mining granted in such land should be regulated by the provisions of Act 67 of 1957 as amended in 1972. This feature could only be explained on the assumption that\n\nParliament did not intend to trench upon powers of State legislatures under entry 18 of List II read with entry 42 of List Ill. Again, s. 17 of the Central Act shows that there \\Vas no intention to interfere \\Vith vesting of lands i.n the F States by the provisions of the Central Act. t707B-C]\n\n(e) There is no force in the contention of the responderits that the vesting contemplated bys. 16(l)(b) as it no\\v stands must b~ of \"estates\" of proprietors or lands of tenureholders under some legislation for agrarian reform.\n\nArticle 31A of the Constitution is not confined to legislation for agrarian reform. Agrarian reform is only oile of the possible or alternative objects of such acauisition.\n\nTt need not be the exclusive or only purpose of State legis- G lation contemplated by s. 16 ( 1) (b) of the Central Act.\n\nPower to legislate for the acquisition of the whole of an estate or 'tenure \\Vould include the power to legislate for any part of it. [707 D-E]\n\n_..-<( Hingir-Ra1npur Coal Co. Ltd. & Ors. v. The State of Orissa & Ors., [1961) 2 S.C.R. 537; State of West Bengal v. Union of India, [19641 1 S.C.R.\n\n371; Stale of Orissa v. M. A. Tulloch & Co., [1964] (4) S.C.R. 461 & Baijnath Kedia v. The State of Bihar, [1970] 2 S.C.R. 100, held inapplicable.\n\n(2) The lessee and licensee rights governed by the Central Act or rules H are not covered by the State Act. It is clear from s. 3 (2) of the State Act that the provisions of this Act were to be read subject to the provisions made by or unde-i: the Central Act. The State Act did not and could not upso facto\n\nA tern1inate either lcsce or licensee rights which were subsisting on the date when\n\nthe State Act. came into force.\n\nOn the other hand. s. 9 of the Central Act 56 of 1972, whih amende~ s. J 6 of. the principal Act, made it imperativefor such lessee nghts as existed 1n estates (which had vested in a State Government) to be brought into conformity with the Central Act.\n\nTherefore. if the:e \\verc no lessee or licensee rights of mining in minor minerals on land \\ wh1c.h \\Vere actually regulated by the provisions of the Central Act they would\n\ncontinue.\n\n[708H1 ).\n\nIn the instant case, however, it was not shown how the notification of auctions of mining rights <i.ffected any subsisting rights of any alleged Jessee or licensee. It has not b:!cO shown that any lessee or licensee asked the State Governn1ent to carry out any statutory or contractual -6bligation before he invoked the writ jurisdiction of the High Court or this Court. The essential a\\'ermenh to dbclose subsisting rights or the locus standi of the pttitioncrs \\Vere \\\\anting in these petitions. r709Al\n\n'(3) In the second b::itch of petitions, the only dispute between the parties related to the vesting of ownershio rights in minor minerals in those plots.\n\nThe petitioners have come to this Court as lessees and not ns owners.\n\nRights of former owners have l;>een validly terminated by the State A.ct.\n\nIt is difficult to make out from these petitions how any lessee rights acquired by the petitioners theinselves under any law subsisted or were affected by the notifications.\n\n[710E-F]\n\n( 4) The statement of objects and reasons is relevant when the object or purp05e of an enactment is in .dispute or uncertain. It c_an never override the effect \\vhich follows logically from the explicit anU unmistakable language of its substantive provisions. Such effect is the best evidence of intention. A, statement of objects nd reasons is not a part of the statute, and. therefore,. it is not even relevnlt in a case in which the language of the operative parts: of the Act le11ves no reyorn. what.-; oever, to doubt what was meant by the legis.- lators. [706Dll]\n\nJn the instant case it j5 not disputed that the object and effect of thcr State Act was to acquire proprietary rights to miner.al deposts in \"la?d':.\n\nIts provisions, ho, vever, do not mention leasehold or licensee rights.\n\nThis ts so because these rights were governed by the Central Act 67 of 1957.\n\n( 5) It is not correct to say that any nc\\v question wa.s al19wed to. be raised simply because the parties were permitted to place their points of vieyt on the same auestion after taking into account the changes brought about In Ai.:t 67 of 1957 bv Act 56 of 1972 and ho\\V earlier decisions of this Court, which \\Vere given before tbe amendments came into force, could be at all helpful in dciding the questions. The Court is bound to take judicial notice of the law as it exists and not the law as it once was.\n\n[706GJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 840 to 860' of 1975.\n\nFrom the Judgments and orders dated 7-5-74, _27-8-74, 2-9~74 and 10-9-74 of the Punjab and Haryana High Court m ClVll Wnt Nos. 1133, 1118, 1180, 1208, 1225, 1226, 1231, 1238, 1277, 1251. 1352/74 and 1188, 1198, 1221/74 and L.P.As. Nos. 395 and 399' of 1974 respectively and\n\nWrit Petitions 1309-1318 and 1371-1373/75\n\n(Under Article 32 of the Constitution of India)\n\nH M. C. Bhandare, (In Cas. 844-860/75) and L. N. Singhvi (In all Writ Petitions) and R. N. Sachthey for the Appellant and Respon-- dents.\n\nS. Gopal Singh and P. Keshwa Pillai for 1he Petitioners in W.P. 1371-73/75.\n\nHorh,?11s Singh Manvah for the Petitioners in W.P. 1371-73/75.\n\n1 k K. Sen, Kapil Sibbal, S. K. Jain and S. S. Khanduja for the Respondents excepting C.As. 852, 853 and 855/75.\n\nNa:u1it Lal for the Intervener in C.A. 845/75 Ch. Dhyan Singh etc .\n\nTk J urlgmcnt or the Court was delivered by\n\nllEG, J.\n\nThe seventeen appeals before us by the State and by the Director of Industries of Harvana, after certification under Article 133 ( 1) (a) (b) of the constitution, are directed against a Judgment of the H'gh Court 01\" Pu:ijab and Haryana on Writ Petition of owners ot lands and lessees of mineral rights in land seeking reliefs in the nature of Mandamus to enforce fundamental rights conferred by Article 31(2) and to restrain the Government of Haryana from taking any action to implement two notifications void' (i) No.\n\n1217-2-1-B-II- 74/7622 dated the 20th February, 1974; and, (ii) No. GIG/SP I Aue/ 1173/3075-C, dated the 22nd February, 1974, after .declaring. the Haryana '.\\1inerals (Vesting of Rights) Act, 1973 (hercmafter referred to as 'the Haryana Act') .\n\nUnder the notification of 20th February, 1974, the State Government purported to acquire rights to Saltpetre, a minor mineral in the land described in a schedule appended to the notification issued in exercise oi' power conferred by Section 3, sub. section (i) of the E Haryana Act.\n\nBy the notification of 22nd February, 1974, the State Govcr11111..; nt •announced to the general public that certain saltpetre\n\nbearing areas in the State of Haryana, mentioned therein, would be auctioned on the dates given there.\n\nThe notifications have not been placed before us.\n\nBut, from the avcr1nents in the sta:cn1ents on behalf of the State and on behalf of some of the respondents in the affidavits supporting their respective cases in proceedings for a stay F of the operation of the High Court's judgment, it appears that the intention of the State was to acquire Saltpetre deposits in lands whose owners had granted mining leases claimed by petitioners in the High Court to be subsisting.\n\nThe auctions advertised were probably of fresh lessee rights.\n\nWhether the auctions were to be of ownership or lessee rights in lands, the result was that one owner or one lessee was to be substituted by another in each case as a result of acquisition and G sale.\n\nThe State was to get the difference between the price of acquisition and amount realised on sale of each part sold.\n\nThe apparent effect of mere change of owners or lessees was that the State of Haryana would benefit financially from the acquisitions and sales, although the object of the Haryana Act was said to include conservation as well as \"scientific exploitation\" of mineral resources.\n\nThe case of the appellant State also seemed to be that the owners of lands had \"haphazardly\" H' created lessee rights in contravention of the Puniab Minor Minerals Concession Rules, 1954, made under the provisions of the Mines and Minerals (Regulation of Development) Act 67 of 1957 (hereinafter\n\nIf)\n\n' referred to as the Central Act'). Learned Counsel for the appellant State contended that the Haryana Act was only meant to supplement and not supplant the Central Act.\n\nThe State claimed to be dealing with lessee rights under the Central Act and not under the Haryana Act at all.\n\nThe case of the petitioners in the High Court was :\n\nFirstly, that the Haryana Act was beyond the competence of the State Legislature inasmuch as the field in which this Act operated was necessarily occupied already by the provisions of the Central Act enacted under entry No. 54 of the Union List (List I) of the Seventh Schedule to the Constitution which reads as follows :\n\n\"54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is dclared by Parliament by law to be expedient in the public interest\".\n\nSecondly, that the purported acquisition under the Haryana Act offended the provisions of Article 31 (2) inasmuch as it was neither for a public purpose nor for adequate compensation, the provision for compensation in the Act being, according to the petitioners, illusory.\n\nA Division Bench of the High Court allowed the Writ Petitions and quashed the impugned notifications after declaring the Act to be ultra-vires. It also held that the Haryana Act violated Article 31 (2J.\n\nIt found the compensation provided by the Haryana Act to be grossly low and illusory, although its view was that, judging from the statement of reasons and objects of the, Haryana Act, a public purpose was made out.\n\nThe stated reasons and objec~ of the Haryana Act showed that the acquisition was to 'be made to protect the mineral potentialities of the land and to ensure their proper development and exploitation on scientific lines. If this was the actual purpose behind the Haryana Act it did not materially differ from that which could be said to lie behind the Central Act.\n\nThe real question, however, was not whether any of the purposes of the two Acts were common but whether the provisions of the Central Act so operated as necessarily to exclude, in carrying out their objects, the operation of the State Act.\n\nThe High Court had held that, in view of the declaration contained in Section 2 of the Central Act, and decisions of. this Court in the Hingir-Rampur Coal Co. Ltd. & Ors. v. The State of Orissa & Ors.(1), State of West Bengal v. Union of Jndia( 2 ), State of Orissa v. M. A. Tulloch & Co.(3), and Baijnath Kedia v. The State of Bihar('), the field covered by the impugned Act was already fully occupied by the Central Legislation so that the State Act had to be held to be inoperative and void for repugnancy.\n\nSection 2 of the Central Act lays down :\n\n\"It is hereby declared that it is expedient in the public interest that the Union should take under its control the\n\n\n(2) [1%4] 1 S.C.R. 371.\n\n\nHf, RYANA V. CHANAN MAL (Beg, J.) 693 /\n\nregulation of mines and the development of minerals to the A extent hereinafter provided\".\n\nSection 3 (a) of this Act says :\n\n' 'minerals' includes all minerals except mineral oils;\"\n\nSection 3 ( c) reads :\n\n\" 'mining lease' means a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose\";\n\nSection 3 ( d) enacts :\n\n\" 'mining operations' means any operations undertaken\n\nfor the purpose of mining any mineral;\" c\n\nSection 3 ( e) elucidates :\n\n' 'Minor minerals' means building stones, gravel ordinary clay, ordinary sand other than sand used for prescribed purposes, and any other mineral which the Central Government may, by notification in the official Gazette, declare to be a minor mineral\";\n\nSection 3 (g) indicates :\n\n\" 'prospecting licence' means a licence granted for the purpose of undertaking prospecting operations;\"\n\nSection 3 (b) enacts :\n\n\" 'prospecting operations' means any operations undertaken for the purpose of exploring locating or proving mineral deposits;\" ·\n\nSection 3 ( i) lays down :\n\n\" the expressions, 'n1ine' and 'owner', have the meanings assigned to them in the Mines Act, 1952\".\n\nSections 4 to 9 of the Central Act deal with General Restrictions on Prospecting and Mining operations.\n\nSection 4 indicates that all prospecting and mining operations will be governed by the Central Act.\n\nBut, Section 4A, introduced by Section 2 of the Central Act 56 of 1 972, lays down :\n\n\"4A(l) Where the Central Government after consultation with the State Government, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may request the State Government to make a premature termination of a mining lease in respect ot any mineral, other than a minor mineral, and, on receipt of such request, the State Government shall make an order making a premature termination of such mining lease and granting a fresh mining lease in favour of such Government\n\nompany or corporatinn owned or controlled by Government as it may think fit\" .\n\nSectioQ 5 concerns restrictions on the grant of prospecting licences or mmmg leases. It shows that these will be granted by the State Government and the Central Government was to give its approval in '\\ .certain specified cases only.\n\nSection 6 indicates areas for which a prospectmg licence or mmmg lease or more than one licence or lease may be granted in any one State.\n\nThe Central Government could make exceptmns to this rule.\n\nSection 7 limits duration of a prospecting licence, which is evidently to be granted by the State Government, to one year for mica and two years for other mmerals, subject to renewai, and, in the. case of scheduled minerals, subject to approval by Central Government for each grant or renewal.\n\nSimilarly, Section 8 provides penods of grant and renewal of leases by the State Government.\n\nSection 9 deals with Royalties in respect of mining leases.\n\nSection 9A is conc_erned with the Dead rent to be paid by the lessee to the State Government subject to the regulation of it by the Central Government.\n\nSections 10 to 12 of the Central Act contain procedure for obtain- • ing prospecting licences or mining leases in land in which mineral rights vest in the Government. It is true that it is not specified here in which Government rights to minerals in any land vest.\n\nBut, the machinery proyided for applications and for maintaining the registers of applications for prospecting licences and mining leases shows that it is the State Government which will be concerned with this matter subject to the provisions of Sections 10 to 12 of the Act.\n\nRules for regulating the grant of prospecting licences and mmmg leases are to be made by the Central Government according to the detailed provisions of Section 13 and Section 13A.\n\nSection 14, however, lays down :\n\n\"14. The provisions of Sections 4 to 13 (inclushe) shall not apply to quarry leases, mining leases, or other mineral concessions in respect of minor minerals\".\n\nSection 15 makes it clear that it is the State Government which has the power to make rules for regulating the grant of quarry leases, mining leases, or other mineral concessions in respect of ''minor minerals\" and for purposes connected therewith.\n\nSection 16(1) of the Central Act enacts : \"J 6(1 )(a) All mining leases granted before the commencement of the Mines and Minerals (Regulation and Development) Amendment Act, 1972, if in force at such commencement, shall be brought into conformity with the provisions of this Act, and the rules made thereunder, within six months from such commencement, or such further time as the Central GoYcrnment may, by general or special order, specify in this behalf.\n\n(b) Where the rights under any mining lease, granted by the proprietor of an estate or tenure before . the commencement of the Mines anrl Mtnerals (Regulation and Development) Amendment Act, 1972, have vested, on or\n\n>-- /\n\nafter the 25th day of October, 1949, in the State Government in pursuance of the provisions of any Act of any Provincial or State Legislature which provides for the acquisition of estates_' or tenures or provides for agrarian reforn1, such mining lease shall be brought into conformity with the provisions of this Act and the rules made thereunder within six months from the commencement of the Mines and Minerals (Regulation and Development) Amendment Act. 1972, or within such further time as the Central Government may, by general or special order, specify in this behalf'.\n\n~Section 16(2) provides for rules to be made by the Central Gcvern- . ment to carry out the purposes of Section 16 (!) .\n\nSpecial powers of Central Govemljlent in respect of mining opera- C tions in certain lands are provided for in Section 17.\n\nClause (!) of this Section reads :-\n\n\" 17 ( 1) The provisions of this Section shall apply in respect of land in which the minerals vest in the Government of a State or any other person\".\n\nClause (2) of Section 17 provides for undertakings by the Central D Government, in consultation with the State Government, of prospecting or mining operations \"in any area not already held under any prospectmg licence or mining lease .... \".\n\nSection 17 ( 3) makes the Central Government liable in such cases to pay the State Government\n\nprospeting fee, royalty, surface rent, or dead rent, as the case n1ay be,\n\nat the same rate at which it would have been payable under this Ac, if such prospecting or mining operations had been undertaken by a E private person under a .prospecting licence or mining lease. Section 17 ( 4) contains pov./crs of the Central Government, in consultation with the State Government, to prohibit grant of prospecting or n1ining .leases in any area spccified in a notification.\n\nSection 18, dealing with the development of minerals cnacl3 :\n\n\"18(1) It shall be the duty of the Central Governn:ent to take all such steps as may be necessary for the conservation and development of minerals in India, and for that pmpose the Central Government may, by notification in the Official Gazette, make such rnlcs as it thinks fit.\n\n(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-\n\n(a) the opening of new mines and the regulation of n1ining operations in any area;\n\n(b) the regulation of the excavation or collection of minerals from any mine;\n\n.( c) the measures to be taken by owners of mines fer tlic\n\npurpose of hencficiafon of ores, including the provision of suitable contrivances for such purpose;\n\n(d) the development of mineral resources in any area;\n\n( e) the notification of all new borings and shaft sinkings and the preservation of bore-hole records, and specimens of cores of all new bore-holes;\n\n(f) the regulation of the arrangements for the storage of minerals and the stocks thereof that may be kept by any person;\n\n(g) the submission of samples of minerals from any mine by the owner thereof and the manner in which and the authority to which such samples shall be submitted; and the taking of samples of any minerals from any mine by the State Government' or any authority specified by it in that behalf; and\n\n(h) the submission by owners of mines of such special or periodical returns and reports as may be :; pecified, _.+. and the form in which and the authority to which such returns and reports shall be submitted.\n\n(3) All rules made under this section shall be binding on the Govermnent\".\n\nIt should be noted that Section 18 set out above empowers the Central Government to make rules for the \"conservation and development of minerals in any part of India\".\n\nThe State Government is not even entitled under Central Act to be consulted about this subject, but it is bound by the rules made on it by the Central Government.\n\nThe term \"Government'', according to Section 3 (23) of the General Clauses Act, includes both the Central Government and a State Govcrnn1ent. ~\n\nSection 1 SA, sub-section ( 1) inserted by Section 11 of the Act of 56 of 1972, does, however, require consultation with the State Government on one matter.\n\nIt says :\n\n\"18.A(l) Where the Central Government is of opinion that for the conservation and development of minerals in India, it is necessary to collect as precise information as possible with regard to any mineral available in or under any land in relation to which any prospecting licence or mining lease has been granted, whether by the State Government or by any other person, the Central Government may authorise the Geological Survey of India, or such other authority or agency as it may specify in this behalf, to carry out sucjI detailed investigations for the purpose of obtaining such information as may be necessary :\n\nProvided that in the cases of prospecting licences or mining leases granted by a State Government, no such authorisation shall be made except after consultation with the State Government\". •\n\nI t\n\n...\n\nThe remaining clauses (2) to ( 6) of Section 1 SA deal with the con- A sequences of the authorisation of investigation by the Central Government and matters connected therewith.\n\nThe proviso to clause ( 6) dealing with the costs of investigation enacts :-\n\n\"Provided that where the State Government or other person in whom the minerals are vested or the holder of any prospecting licence or mining lease applies to the Central Government to furnish to it or him a copy of the report submitted under sub-section (5), that State Government or other person or the holder of a prospecting licence or mining lease, as the case may be, shall bear such reasonable part o! the costs of investigation as the Central Government may specify in this behalf and shall, on payment of such part of the costs of investigation, be entitled to receive from the Central Government a true copy of the report submitted to it under sub-section (5) \".\n\nMiscellaneous provisions are contained in Sections 19 to 33 of the Central Act. Here, Section 19 lays down:\n\n\"19. Any prospecting licence or mining lease granted, renewed or acquired in contravention of the provisions of this Act or any' rules or orders made thereunder shall be void and of no effect\".\n\nSection 20 enacts :\n\n'20. The provisions of this Act and the rules made thereunder shall apply in relation to the renewal aflcr the commencement of this Act of any prospecting licence or mining lease granted before such commencement as they apply in relation to the renewal of a prospecting licence cc n1!n!r; g lease granted after such commencement\".\n\nSection 21 provides for penalties for anyone who contravenes the provisions of Section 4( I) of the Act. Among these miscellaneous provisions is Sxtion 25 recast by Section 14 of Act 56 of 1972. ll lays down that :\n\n\"Any rent, royalty, tax, fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and conditions of any proS}Jecting Ecencc or mining lease may, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as an arrear of land revenue\".\n\nSection 25, sub-section (2) shows that these dues are to be specified either by the Act or by the Rules made thereunder or under the terms and conditions of any prospective licence or mining lease.\n\nThe control, however, is of officers appointed by the State Government.\n\nSection 26 provides for delegation of the powers . of the Central Government by notification in the official Gazette to either the State Government or any officer or authority either subordinate to the\n\n12~608SC!/76\n\nCentral Government or the State Government. Section 30 shows that the orders made by the State Government or other authority in exercise of powers by or under the Central Act are revisable by the Central Government.\n\nHence, the provisions of the Central Act show that, subject to the overall supervision of the Central Government, the State Government has a sphere of its own powers and can take legally specified actions under the Central Act and rnles made thereunder.\n\nThus, the whole field of control and regulation under the provisions of the Central Act 67 of 1957 cannot be said to be reserved for the Central Government.\n\nAs indicated above, there have been some very significant changes by the Central Act 56 of 1972. These seem to us to make it necessary to reconsider the effect of the declaration contained in Section 2 of the Central Act as interpreted by the decisions of this Court so far.\n\nBefore outlining the provisions of Haryana Act, we may indicate the position resulting from the four decisions mentioned above relied upon by Punjab & Haryana High Court.\n\nIn llingir-Rampur Coal Co's case (supra), the validity of the Orissa Mining Areas Development Fund Act, 1952, was questioned on the ground that it authorised the State of Orissa to impose a cess on the valuation of the minerals.\n\nThe State of Orissa had relied upon entries 23 and 66 of the State List (List II) of the Seventh Schedule.\n\nEntry 23 of List II is :\n\n\"Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and E development under the control of the Union\".\n\nAnd entry 66 of List II is :\n\n\"Fees in respect of any of the matters in this list, but not including fees taken in any court\".\n\nThe petitioning Coal Co. had relied on entry 84 of List I of the Seventh Schedule empowering the Parliament alone to impose excise duty on tobacco and other manufactured goods with the exception of Alcoholic liquor, opium, Indian hemp, and other narcotics.\n\nIt had also cited, in support of its case, entry 52 of List I of \"Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest\".\n\nFurthermore, the Coal Company relied on entry 54 of List I relating to Mines and mineral develop· ment, already set out above.\n\nThis Court held that the imposition of t11c ccss under the State enactment was really a fee falling within entries 23 and 66 of List II of the Seventh Schedule. It held that the State Act was neither hit by entry 54, read with Mines and Minerals Development Act 3 of 1948, nor by entry 52 of List I. The decisi0n in that case turned on an interpretation of Article 3 72 of the Constitution. It was held that a declaration in the Act of 1948 could not be equated with a declaration made by the Parliament in a post-Constitution enactment in terms of entry 54 of List I. It was, therefore, not really a decision on the effect of Section 2 of the Central Act 67 of 1957.\n\nI 1\n\nThe State of West Bengal v. Union of India (supra) was the case A of a suit filed by the State of West Bengal against the Union. It was contended, on behalf of West Bengal State, that the Coal Bearing Areas (Acquisition and Development) Act, 1957, enacted by Parliament, proposing to acquire certain coal bearing areas in the State, did not apply to areas owned by the State itself, and, in the alternative, that, even if it did so apply to areas owned by the State of West Bengal, it was beyond the legislative competence of Parliament beause B entry 42 in the Concurrent List (List Ill) did not authorise an acquisition of property already vested in the State although this entry in the Concurrent List merely reads : \"acquisition and requisitioning of property''. It was urged there that, without a constitutional amendment, Parliament could not acquire the property of the State of West Bengal under the provisions of the impugned Act. It was held there (at p. 417) : C\n\n\" ... the power of the Union to legislate in respect of property situate in the States even if the States are regarded qua the union as Sovereign, remains unrestricted, and the State property is not immune from its operation.\n\nExercising powers under the diverse entries which have been referred to earlier, the Union Parliament could legislate so as to trench upon the rights of the State in the property vested in them. If exclusion of State property from the purview of Union legislation is regarded as implicit in those entries in List I, it would be difficult if not impossible for the Union Government to carry out its obligations in respect of matters of national importance\".\n\nLearned Counsel for the appellant State before us has relied upon the case of State of West Bengal (supra) for contending that the powers of the State of Haryana to acquire land are not impaired by the declaration contained in the Central Act.\n\nHe cited the rule of construction stated there as follows (at p. 393) :\n\n\"Unless a law expressly or by necessary implication so\n\nprovides, a State is not bound thereby.\n\nThis well recognised F rule applies to the interpretation of the Constitution. Therefore, in the absence of any provision express or necessarily implying that the property of the State could be acquired by the Union, the rights claimed by the Union to legislate for acquisition of State property must be negatived.\"\n\nApplying this rule, he contends that the powers of the State Govern- G ment to acquire land are left intact by the Central Act 67 of 1957.\n\nLearned Counsel for the respondent, however, relied on another passage in the State of West Bengal's case (supra) to submit that legislative power for acquisition of minerals for their development and conservation must be deemed to be vested in Parliament now even if the mineral resources are situated in the State.\n\nHe quoted (at p. ~6):- H \"By making the requisite declarations under Entries 54 of List I, the Union Parliament assumed power to regulate\n\nmines and minerals and thereby to deny to all agencies not under the control of the Union, authority to work the mines.\n\nIt could scarcely be imagined that the Constitution makers while intending to confer an exclusive power to work mines and minerals under the control of the Union, still prevented effective exercise of that power by making it impossible compulsorily to acquire the land vested in the States containing minerals.\n\nThe effective exercise of the power would depend-if such an argument is acccptcd-noL upon the exercise of the power to undertake regulation and control by issuing a notification under Entry 54, but upon the will of the State in the territory of which mineral bearing land is situate.\n\nPower to legislate for regulation and development of mines and minerals under the control of the Union, would by necessary implication include the power to acquire mines and minerals.\n\nPower to legislate for acquisition of property vested in the States cannot therefore be denied to the Parliament if it be exercised consistently with the protection afforded by Art. 31.\"\n\nln the two cases discussed above no provision of the Central Act 67 of 1957 was under consideration by this Court.\n\nMoreover, power to acquire for purposes of development and regulation has not been exercised by Act 67 of 1957.\n\nThe existence of power of Parliament to legislate on this topic as an incident of exercise of legislative power on another subject is one thing. Its actual exercise is another. It is di!licult to see how the field of acquisition could become occupied by a Central Act in the same way as it had been in the West Bengal's case\n\n(supra) even before Parliament legislates to acquire lanci in a State.\n\nAtlcast until Parliament has so legislated as it was shewn to have done by the statute considered by this Court in the case from West Bengal. the field is free for State legislation falling under the express provisions of entry 42 of List III.\n\nJn State of Orissa v. M. A. Tulloch & Co. (supra) the provisions of the Central Act 67 of 1957 were considered by this Court directly.\n\nIn this case, the legality of certain demands as fee under the Orissa Act 27 of 1952, the validity of which had been upheld by this Court in Hingir-Rampur Coal Co.'s case (supra), came up for consideration again in the light of the provisions of the Central Act 67 of 1957.\n\nIt \\Vas contended on behalf of the StJ.te of Orissa that thl~ objects and purposes of the Orissa Act and of lhc Central Act were entirely distinct and different so that they could validly co-exist since neither trespassed into the field of the other. It was pointed out there that this Court had indicated, in the Hingir-Rampur Coal Co.'s case (supra) that, ii the declaration in the 1948 Act relied upon by the petitioner in that case had been made after our Constitution became operative) the position would have been different.\n\nReliance was placed upon the provisions of Section 18 of the Central Act to hold (at p. 477)\n\n\"Rcpugnancy arises when two enactments both within the competence of the two Legislatures collide and when the\n\nl!ARYANA V. CHANAN MAL (Beg, J.)\n\n70 I\n\nConstitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other than to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance.\n\nWhere such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions o[ the two statutes but by the mere existence of the two pieces of legislation.\n\nIn the present case, having regard to the terms of S. 18 ( 1) it appears clear to us that the intention of Parliament was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no superscssion of the State Act\".\n\nIt was also held there (at p. 4 78) :\n\n\"If by reason of the declaration by Parliament the entire subject-matter of conservation and development of minerals' has been taken over for being dealt with by Parliament. thus depriving the State of the power which it therefore possessed, it would follow that the 'matter' in the State List is to the extent of the declaration, subtracted from the scope and ambit of Entry 23 of the State List.\n\nThere would, therefore, after the Central Act of 1957 be 'no matter in the List' to which the fee could be related in order to render it . valid\".\n\nIn Baij11ath Kedia's case (supra), the proviso (2) to Section 10(2) of the Bihar Land Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965) and a sub-rule of Rule 20, added on December 10, 1964, by a notification of the Governor to the Bihar Minor Mineral Rules, 1961, came up for consideration.\n\nUnder the Bihar Land Reforms Act, 1950, the former landlords had ceased to have any interest from\n\nthe date of vesting so that their rights as lessors under the mining G leases granted by them in their \"estates\" became vested in the State of Bihar under Section 19 ( 1) of the Land Reforms Act; and, by Section 10(2) of that Act, the terms on which the lands were held on leases between the original lessors and lessees became binding on the State Government under the impugned proviso to Section 10(2), amounting to alteration of the terms of the leases executed by the original lessors, the former landlords, additional demands were made H upon lessees.\n\nThe State Government had also relied upon a sub-rule added to Rule 20 framed under Section 15 of the Central Act 67 of 1957.\n\nThis Court, after examining the relevant provisions of the\n\n702 SUPREfE COURT REPORTS (1976] 3 s.c.R.\n\nA Central Act, held, relying on Hingir-Rampur Coal Co.'s case (supra) and M.A. Tulloch Co.'s case (supra), as follows (at p. 113) :\n\n\"The declaration is contained in s. 2 of Act 67 of 1957 and speaks of the taking and the control of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself.\n\nWe have thus not to look ontside Act 67 of 1957, to determine what is left within the competence of the State Legislature but have to work it out from the terms of that Act\".\n\nAlter referring to what was decided in the earlier cases, this Court said (at p. 114) :\n\n\"These two cases bind us and apply here.\n\nSince the Bihar State Legislature amended the Land Reforms Act after the coming into force of Act 67 of 1957, the declaration in the latter Act would carve out a field to the extent provided in that Act and to that extent entry 23 would stand cut down.\n\nTo sustain the amendment the State must show that the matter is not covered by the Central Act.\n\nThe other side must, of course, show that the matter is already covered and there is no room for legislation\".\n\nIt added (at p. 114-115) :\n\n''We have already analysed Act 67 of 1957.\n\nThe Act takes over the control of regulation of mines and development of minerals to the Union; of course, to the extent provided.\n\nIt deals with minor minerals separately from the other minerals.\n\nIn respect of minor minerals it provides in s. 14 that ss. 4-13 of the Act do not apply to prospecting licences and mining leases. It goes on to state in s. 15 that the State Government may, by notification in the Official\n\nGazette, make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith, and that until rules are made, any rules made by the State Government regulating the grant of prospecting licences and mining leases in respect of minor minerals which were in force immediately before the commencement of the Act would continue in force. It is admitted that nu such rules were made by the State Government.\n\nIt follows that the subject of legislaion is covered in respect of minor minerals by the express words of s. 15 (1).\n\nParliament has undertaken legislation and laid down that regulation of the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith must be by rules made by the State Government.\n\nWhether the rules are made or not the topic is covered by Parliamentary legislation and to that extent the powers of State Legislature are wanting.\n\nTherefore, there is no room for State Legislation''.\n\nIn Baijndth Kedia's case (supra), this Court also said (at p. !Hi) A\n\n\"We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act 67 of 1957, particularly s. 15.\n\nWe have also held that entry 23 of List II was to that extent cul down by entry 54 of List J.\n\nThe whole of the topic of minor minerals became a Union subject.\n\nThe Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level.\n\nTherefore, if the old leases were to be modified a legislative enactment by Parliament on the lines of s. 16 of Act 67 of 1957 was necessary.\n\nThe place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to s. 10 of the Land Reforms Act. It will further be seen that Parliament ins. 4 of the Act 67 of 1957 created an express bar although s. 4 was not applicable to minor minerals.\n\nWhether s. 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in s. 14 of Act 67 of 1957 that the provisions of ss. 4- 13 (inclusive) do not apply.\n\nTherefore, there does not exist any prohibition such as is to be found in s. 4 (1) Proviso in respect of minor minerals.\n\nAlthough s. 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949. In regard to leases of minor minerals executed between this date and December 1964 when Rule 20(1) was enacted, there is no provision of law which enables the terms of existing leases to be altered.\n\nA mere rule is not sufficient''.\n\nAgain, referring to the earlier decisions it said (at p. 117) :\n\n\"On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withd(awn from the State Legislature.\n\nWe have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule-making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated from Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed by the second sub-rule to Rule 20 was ineffective. It could not derive sustenance from the second Proviso to s. 10( 2) of the Land Reforms Act since that proviso was not validly enacted.\"\n\nThe question which arises before us now is whether, possibly as a rcsuit o[ the decision of this Court in Baijnath Kedi<ts case (supra), the Parli1ment had not amended the law, as we find it in the present\n\nSection 16 f the Act 67 of 1957, as amended by Act 56 of 1972, so as to undo its effect. If that amendment is in response to the need pointed out in Baijnath Kedia's case (supra) would it not cover the provisions of the Haryana Act now before us ?\n\nThe preamble to the Haryana Act states that it is :\n\n\"An Act to vest the mineral rights in the State Govt. and to provide for payment of amount to the owners of minerals and for other matters connected therewith.\"\n\nThe crucial section is S. 3 of the Haryana Act which runs as follows :\n\n\"S. 3 Vesting of minerals in State Government.-( 1) The State Government may, from time to time, by notification, acquire the right to any minerals in any land and the right to the minerals specified in the notification shall, from the date of its publication; vest in the State Government.\n\n(2) Notwithstanding anything contained in any law for the time being in force, on the publication of the notification under sub-section (1), the right to the minerals in the land specified in the notification shall vest absolutely in the State Government and the State Government shall, subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957, have all the powers necessary for the proper enjoyment or disposal of such right.\n\n( 3) The right to the minerals in the land includes the right of access to land for the purpose of prospecting and working mines and for the purposes subsidiary thereto including the sinking of pits and shafts, erection of plants and machinery, construction of roads, stacking of minerals and deposits of refuse, quarrying and obtaining building and road materials, using water and taking timber and any other purpose which the State Government may declare to be subsidiary to mining.\n\n( 4) If the State Government bas assigned to any person its right over any minerals, and if for the proper enjoyment of such right, it is necessary that all or any of the powers specified in sub-section (2) and (3) should be exercised, tbe Collector may, by an order in writing subject to such conditions and reservations as he may specify, delegate such powers to the person to whom the right has been assigned\".\n\nOther provisions of the Haryana Act are not material. Section 1 merely gives the Act its title and Section 2 deals with definitions.\n\nSection 4 relates to compensation. Section 5 provides for references oi disputes about compensation to Civil Courts. Section 6 applies Civil procedure to compensation proceedings. Section 7 provides for appeals. Section 8 contains the necessary powers of the State Government to frame rules. These provisions exhaust the Act.\n\n\\ '\n\nSaltpetre was declared a minor mineral by notification No. 1 {31) 65-MII on 21st January, 1967.\n\nIts deposits are said to have been found in 63 8 villages of Haryana. It appears that the State of Haryaua\n\n1 considered itself to be the owner of these deposits on the strength of entries in the records of rights (Wajib-ul-arz) of these villages and used to auction them in accordance with the Punjab Minor Mmerals Concession Rules, 1964. But, on 25th May, 1971, the Punjab & Haryana High Court held on a Writ Petition (C.W. No. 122l of 1971), that unless the mineral deposits are specifically mentioned in the Wajib-ul-arz of a village as having vested in the State, their ownership would still remain vested in the former proprietors mentioned as owners of their lands in a Wajib-ul-arz. As a result of this decision, the right to Saltpetre deposits was found to be vested in individual proprietors of their estates and Gram Panchayats in about 600 out of 638 villages. It is stated that, in order to meet this situation., the Haryana Act No. 48 of 1973 was framed and passed. The President of India gave his assent to it on 6th December, 1973. It was thus ( a logical corollary of land reforms.\n\nApparently, there was no \\ conflict between the State and the Union Government on the policy\n\nunderlying the Act. ·\n\nThe arguments advanced on behalf of the appellant State were :\n\nFirstly, that the Central Act does not purport to cover or operate upon the power to acquire ownership in minerals which are part of\n\n\"land\". The relevant entry for exercise of legislative power to acquire property is entry 42 in the Concurrent List (List III) of the Seventh Schedule. The Central Act purports to have been made in exercise of the power under entry 54 of List I for regulation and development of mines, whereas the Haryana Act operates in the distinct and separate field of acquisition of property.\n\nSecondly, minerals being part of \"land\" in the State, within the competence of the State Legislature to legislate upon, under entry 18 of the State List (List II), legislation falling substantially under this head, read with entry 23 of the State List and entry 42 of the Concurrent List (List III), should not be invalidated unless we are compelled to do so.\n\nThirdly, entry 54 of List I, set out above would naturally cover only those parts of the field of acquisition, in accordance with rules of interpretation indicated in State of West Bengal's case (supra), which are expressly excluded from this special field by the Central Act.\n\nParticularly, as acquisition belongs to a different head in the concurrent field, on which there is neither a Central Act for acquiring ownership of mineral deposits nor any express provision for it in Act 67 of 1957, there could be no question of the exclusion of the power of the State Legislature to pass the impugned Act.\n\nThere was thus no imavoidable conflict between it and the State Act.\n\nFourthly, the impugned Act is protected from any challenge on the ground of inadequacy of compensation or the unreasonableness of the principles contained in Section 4 ( 1) of the Haryana Act, as the\n\nacquisition of parts of estates of former proprietors of land falls under Article 3 lA.\n\nOn the other hand, the learned Counsel for the respondents has urged that the cases before us are covered completely by the decisions ' of this Court discussed above, and, in particular by those in Tulloch ) Co's., case (supra) and Baijnath Kedia's case (supra). It is urged that, when acquisition is only a nieans of conservation or development of mineral resources, even this field must be held to be necessarily excluded by the declaration in Section 2 and other provisions of Central Act 67 of 1957 which will become unworkable if the provisions. of the Haryana Act were permitted to operate.\n\nIt seems difficult to sustain the cas~ that the provisions of the Central Act would be really unworkable by mere change of ownership of land in which mineral deposits are found.\n\nWe have tojudge the character of the Haryana Act by the substance and effect of its provisions and not merely by the purpose given in the statement of reasons and objects behind it. Such statements of reasons are relevant when the object or purpose of an enactment is in dispute or uncertain. They can never override the effect which follows logically from the explicit and unmistakable language of its substantive provisions.\n\nSuch effect is the best evidence of intention. A statement of objects and reasons is not a part of the statute, and, therefore, not even relevant in a case in which .the language of the operative parts of the Act leaves no room whatsoever, as it does not in the Haryana Act, to doubt what was meant by the legislators. It is not disputed here that the object and effect of the Haryana Act was to acquire proprietary right to mineral deposits' in \"land\".\n\nIts provisions, however, do not mention leasehold or licensee rights.\n\nObviously, this is so because these rights are gov- . crned by the Central Act 67 of 1957.\n\nAs we found nothing in the judgment under appeal or in the arguments advanced by either side to indicate that the effect of Act 56 of 1972 which had amended Act 67 of 1957 had been specifically noticed, we considered it necessary to hear further arguments with a view te> giving parties an opportunity of showing us how earlier decisions. when the provisions introduced by Act 56 of 1972 were not there, could be at all helpful in deciding the question now before us. One of the objections taken before us, at the further hearing given to the parties, was that we should not allow a new point to be argued. We do not think that any new question was allowed by us to be raised simply because we have permitted parties to place their points of view on the same question after taking into account some changes in the Central Act.\n\nIndeed, we are bound to take judicial notice of the law as it exists after its amendment. We can only apply the Jaw as it exists and not the Jaw as it once was.\n\nNo party could justifiably complain that it was given an additional opportunity to meet what follows from the amended law even if the effect of the amendment was not noticed earlier.\n\nWe are particularly impressed by the provisions of Sections 16 and 17 as they now stand.\n\nA glance at section 16 ( 1 )(b) shows that the ..\n\nCentral Act 67 of 1957 itself contemplates vesting of lands, which had belonged to any proprietor of an estate or tenure holder either on or after 25th October, 1949, in a State Government under a State enactment providing for the acquisition of estates or tenures in land or for agrarian reforms. The provisions lay down that mining leases granted in such land musl be brought into conformity with the amended law introduced by Act 56 of 1972. It seems to us that this clearly means that Parliament itself contemplated State legislation for vesting of lands containing mineral deposits in the State Govt. It only required that rights to mining granted in such land should be regulated by the provisions of Act 6 7 of 1957 as amended. This feature could only be explained on the assumption that Parliament did notjntend to trench upon powers of State Legislatures under entry 18 of List II, read with entry 42 d List Ill. Again, Section 17 of the Central Act 67 of !957 shows that there was no intention to interfere with vesting of lands in the States by the provisions of the Central Act.\n\nThe only answer given on behalf of the respondents to this contention is that such vesting as it contemplated by Section 16(1) (b) of the Ccmral Act, as it now stands, must be of \"estates\" of proprietors or lands of tenure holders under some legislation for agrarian reform.\n\nWe arc unable to find any force @ this contention. Article 31 A of the Constitution is not confined to legislation for agrarian reform.\n\nAgrarian reform is only one oF the possible or alternative objects of such acquisition. It need not be the exclusive or only purpose of State legislation contemplated by Section 16 (1) (b) of the Centml Act.\n\nAnd, power lo legislate for the acquisition -0f the whole of an estate or \"tenure'' would include the power to legislate for any part of it.\n\nWrit Petition Nos. 1309 to 1318 and 1371 to 1373 of 1975, directed against the provisions of this Act, have also been placed before us for arguments and appropriate orders. The petitioners in these cases assert rights as holders of mining leases granted by persons who had been entered as proprietors of estates in the records of rights in various villages.\n\nThe rights of persons so entered (in a \"Wajib-ulal'L'') to mineral deposits in their former lands have been acquired by the State under the Haryana Act.\n\nAccording to the Haryana State, the Act was passed so as to, inter-alia, change the law as declared by the Punjab & Haryana High Court in the case reported in AIR 1972 P&H p. 50. According to the view of the High Conrt, rights in such lands had continued to vest in former owners of estates despite acquisitions of other parts of their \"estate\". The effect of the Haryana Act was, it was urged, only to change the ownership without interfering with the regulation of leasehold or licensee rights in minerals under the provisions of the Central Act 67 of 1957. The Haryana Act expressly slates that it operates subject to the overriding provisions of Act 67 of1957. ·\n\nDr. L. M. Singhvi, appearing on behalf of the State of Haryana, in the Writ Petitions under Article 32, submits : Firstly, that the legislative competence of the State Legislature, under entry 23 of List II\n\nis subjected to entry No. 54 of List I only \"to the extent to which\"\n\nParliament chooses to take upon itself the regulation of mines and minerals and no more. Secondly, in arriving at a decision on the extent to which Parliament has, removed regulation and development of mines from State control, strict construction ought to be adopted so that, without a specific and clear declaration by Parliament, ousting the power of State Legislature to deal with vesting of land in the State Government, it should not be assumed that the legislative power of the State to acquire what is \"land\" had been taken away. Thirdly, Parliament having legislated specifically only in order to regulate the grant of nlining leases and concessions, irrespective of the ownership of the lands in which mining leases and concessions are granted, the clear legislative intent of Parliament, gathered from the Central Act 67 of 1957 itself, also was to exclude the topic of acquisition of ownership and other rights in land, apart from those of holders of mining leases and licences, from its purview.\n\nFourthly, the majority view in the State cf West Bengal's case (supra) should be read in the context of the particular Act considered there under which the Union Govt. had been given powers of acquiring lands belonging to the State of West Bengal. No such Central Act is before us for interpretation. Even if the power was vested in the Parliament to acquire land as an incident of regulation and development of minerals, that power not having been exercised at all by Act 67 of 1957, it was not permissible to assume any conflict between the Central Act 67 of 1957 and the Haryana Act. Fifthly, D. M. Collieries & Industries Ltd. v. Commissioner Burdwan Division('), following 66 C.W.N. P\n\n304=AIR 1960 Cal. 646, could be relied upon to urge that States had not Jost their legislative competence altogether to acquire lands in which mineral rights could be granted. Examples of such acquisitions were : section\n\n10 of the Bihar Land Reforms Act, 1950, Section 5(2) of the West Bengal Estate Acquisition Act, 1953 (as amended by Act 22 of 1964) Coal Bearing Areas (Acquisition and Development) Act, 1957 : Coaking Coal Mines (Nationalisation) Act 1972, and Coal Mines, (Nationalisation) Act, 1973. In any case, until Parliament legislates to acquire ownership of mineral. deposits in a State, this field cannot be said to be occupied merely because of the declaration in Act 67 of 1957 which contains nothing whatsoever about the ownership of minerals. Sixthly, the. provisions of Act 67 of 1957 also show that the power of granting leases and concessions in respect of mineral deposits is left largely to State Government.\n\nThere is, however, one argument advanced on behalf of holders of leases or licences of mining rights which must be upheld.\n\nIt 1s that Jessee and licensee rights, governed by the provisions of Acl 67 of 1957 or rules made thereunder, are not covered by the Haryana Act.\n\nIt is clear from Section 3 (2) of the Haryana Act itself that the provisions of this Act arc to be read subject to the provisions made by or under the Central Act..\n\nMorover, the Haryaa Act does not and cannot ipso facto termmate either Jessee or licensee\n\nrights which were subsisting on the date when the Harvana Act came into force.\n\nOn the other hand, section 9 of the Central Act\n\n(\\) 78 C.W.N. 44.\n\n.,,\n\nI •\n\n56 oi\" 1972, which amended section 16 of the Principal Act (Central\n\nAct 67 of 1957), made it imperativ.e for such lessee rights as existed in estates, (which had vested in a State Government) to be brought into conformity with the Central Act.\n\nObviously, therefore, if there arc any lessee or licensee rights of mining in minor minerals on land which were actually regulated by the provisions of the Central Act 67 of 1957, they will continue.\n\nAlthough, this is a legally correct contention, it was not shewn to us how the notification of auctions of mining rights affected any subsisting rights of any alleged lessee or licensee.\n\nThe facts of no individual case W('re placed before us.\n\nW c do not know which respondent in the appeal or which petitioner in Writ Petitions before us has any subsisting rights governed by any of the provisions of the Central Act or rules made thereunder.\n\nIt has also not been shewn to us that any lessee or licensee asked the State Government to carry out any statutory or contractual obligation before he invoked the Writ jurisdiction of the High Court or of this Court.\n\nThus, essential averments to disclose subsisting rights or the locus standi of the petitioners are wanting here.\n\nIn Writ Petitions No. 1309-1318 and 1371-1373 of 1975, the pctit; onerc; only assert that they are lessees of minor minerals holding\n\nrighh under registered leases executed by the owners of minor minerals.\n\nBut, they do not state whether their leases are governed by or have been brought into conformity with the provisions of the\n\nCentral Act\n\nAnncxure 'A' is the notification, dated 10th April, 1974, assailed by petitioner in this Court.\n\nIts purpose is stated in the follo\\ving\n\ntl'fll1\\ :\n\n\"la exercise of powers conferred by sub-section (I) o[ Section 3 of the Haryana Mineral (Vesting of Rights) Act, 1973, the Governor of Haryana hereby acquires the right to the minerals, mentioned in column 6 of the schedule\n\ngiven below in the land specified in column 5 thereof\". ~\n\nThe schedule contains a large number of khasra numbers of plots in various villages covered by the notification.\n\nAnother notification of 11th September, 1975, challenged by the p2titioncrs in this Court says :\n\n\"\"It is hereby notified for the general public that Minor Mineral quarries of Gurgaon District, as per particulars given below, will be put to auction on 11-10-1975 in the oJlice of Senior-District !ndustrics Officer, Faridabad, at iO A.M.\".\n\nThcrcaftcr, follows the names of 139 villages in Tehsil Gurgaon under the heading \"Name of Quarry\".\n\nUnder the next heading. \"Name of the Minor Mineral\", occur the words \"Road metal and stone.\"\n\nA The notification then proceeds to say :\n\n\"The terms and conditions of the auction are given below :- \\\n\n(i) Each bidder shall be required to deposit a sum of Rs.\n\n200 in cash as earnest money, with the Presiding Officer before participating in the auction.\n\n(ii) The period of contract shall commence from the date ~\n\nof execution of the agreement to the 21st March, 1977.\n\n(iii) Other terms and conditions of auction shall be the same as contained in the Punjab Minor Mineral Concession Rules, 1964, as adopted by Haryana Government.\n\n(iv) The highest bidder shall be entitled to obtain shortterm permits from the date of auction till the date of acceptance of his bid by the competent authority. Therefore, he will not have any right to revoke his officer.\n\nAny other information he had from the Senior District Industries Officer, Faridabad.\n\n(B. L. MITTAL) Director of Industries, Haryana\".\n\nSome of the numbers given in the first notification correspond with the number of plots in respect of which the petitioners llege to be lease-holders. A perusal of the petitions and the counter-affidavits filed in reply on behalf of the State of Haryana shows that the only dispute between the parties relates to the vesting of ownership rights in a minor mineral in these plots.\n\nBut, the petitioners have come before us as lessees and not as owners.\n\nRights of former owners have been validity terminated by the Haryana Act.\n\nWe arc unable to make out, from these petitions how any Jessee rights acquired by the petitioners themselves, under any law subsist or are affected by the notifications mentioned above.\n\nWe proceed to record our conclusions a:s follows :\n\n1. The Haryana Minerals (Vesting of Rights) Act, 1973, is valid, as it is not, in any way, repugnant to the provisions of the Mines and Minerals (Regulation of Development) Act 67 of 1957, G made by Parliament.\n\nOwnership r; ghts could be and have been\n\nvalidity acquired by the Haryana Govt. unecr the Haryana Act.\n\n2, No rights are shewn by any petitioner before us to have been conferred upon him under any lease or licence executed or brought in accordance with the provision of the Central Act 67 of 1957, but, any petitioner, either before the High Court or in this Court, now before us, who can establish any such right governed by the provisions of the Central Act 67 of 1957 may take such proceedings before an appropriate Court, if so advised, as may still be open to him under the Jaw, against any such action or Govt. notification as\n\nis alleged to infringe that right. We are unable to find any such right in any writ petition, as framed, now before us.\n\n3. Any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concer,1ed to discharge its legal obligation and show that it has refused or neglected to carry it out within a re!ISonable time before applying to a Court for such au order even where the alleged obligation is established . • Accordingly, subject to the observations made above, we allow Civil Appeals Nos. 844-860 of 1975, and set aside the judgment and orders of the High Court of Punjab and Haryana and dismiss the Writ petitions.\n\nWe also dismiss the Writ Petitions Nos. 1309-1318 and 1371- 1373 of 1975, subject to the observations made above, filed in this\n\n~ Court.\n\nParties will bear their own costs.\n\nP.B.R.\n\nAppeal allowed & Petitions dismissed.", "total_entities": 213, "entities": [{"text": "STATE OF HARYANA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA & ANR", "offset_not_found": false}}, {"text": "CHANAN MAL ETC", "label": "RESPONDENT", "start_char": 25, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "CHANAN MAL ETC", "offset_not_found": false}}, {"text": "March 18, 1976", "label": "DATE", "start_char": 42, "end_char": 56, "source": "ner", "metadata": {"in_sentence": "March 18, 1976\n\n[A. N, RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SHINGHAL, JJ.]"}}, {"text": "RAY, C.J.", "label": "JUDGE", "start_char": 65, "end_char": 74, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 76, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 87, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "Section 16(1)(b)", "label": "PROVISION", "start_char": 197, "end_char": 213, "source": "regex", "metadata": {"statute": null}}, {"text": "Iinor Minerals Concessions Rules, 1964", "label": "STATUTE", "start_char": 832, "end_char": 870, "source": "regex", "metadata": {}}, {"text": "s. 2", "label": "PROVISION", "start_char": 1879, "end_char": 1883, "source": "regex", "metadata": {"linked_statute_text": "Since the owners of the lands had haphazardly created lessee rights in contravention of the Punjab Rules, 1964", "statute": "Since the owners of the lands had haphazardly created lessee rights in contravention of the Punjab Rules, 1964"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 2304, "end_char": 2308, "source": "regex", "metadata": {"linked_statute_text": "Since the owners of the lands had haphazardly created lessee rights in contravention of the Punjab Rules, 1964", "statute": "Since the owners of the lands had haphazardly created lessee rights in contravention of the Punjab Rules, 1964"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 2640, "end_char": 2650, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Parliament", "label": "ORG", "start_char": 3438, "end_char": 3448, "source": "ner", "metadata": {"in_sentence": "made by Parliament."}}, {"text": "Central Government", "label": "ORG", "start_char": 4972, "end_char": 4990, "source": "ner", "metadata": {"in_sentence": "706C]\n\n(b) The provisions of the Central Act show that subject to the overall supervision of the Central Government the State Government ha~ a sphere of its\n\nown powers and can take legally specified actions under the Central_ Act and U rules."}}, {"text": "s. 16", "label": "PROVISION", "start_char": 5682, "end_char": 5687, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 17", "label": "PROVISION", "start_char": 6162, "end_char": 6167, "source": "regex", "metadata": {"statute": null}}, {"text": "States by the provisions of the Central Act", "label": "STATUTE", "start_char": 6268, "end_char": 6311, "source": "regex", "metadata": {}}, {"text": "Article 31A", "label": "PROVISION", "start_char": 6552, "end_char": 6563, "source": "regex", "metadata": {"linked_statute_text": "States by the provisions of the Central Act", "statute": "States by the provisions of the Central Act"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 6812, "end_char": 6817, "source": "regex", "metadata": {"linked_statute_text": "States by the provisions of the Central Act", "statute": "States by the provisions of the Central Act"}}, {"text": "[1961) 2 S.C.R. 537", "label": "CASE_CITATION", "start_char": 7067, "end_char": 7086, "source": "regex", "metadata": {}}, {"text": "[1970] 2 S.C.R. 100", "label": "CASE_CITATION", "start_char": 7252, "end_char": 7271, "source": "regex", "metadata": {}}, {"text": "s. 3", "label": "PROVISION", "start_char": 7418, "end_char": 7422, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 9", "label": "PROVISION", "start_char": 7739, "end_char": 7743, "source": "regex", "metadata": {"statute": null}}, {"text": "Vere actually regulated by the provisions of the Central Act", "label": "STATUTE", "start_char": 8075, "end_char": 8135, "source": "regex", "metadata": {}}, {"text": "Punjab and Haryana High Court", "label": "COURT", "start_char": 10708, "end_char": 10737, "source": "ner", "metadata": {"in_sentence": "From the Judgments and orders dated 7-5-74, _27-8-74, 2-9~74 and 10-9-74 of the Punjab and Haryana High Court m ClVll Wnt Nos."}}, {"text": "Article 32", "label": "PROVISION", "start_char": 10953, "end_char": 10963, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 10971, "end_char": 10992, "source": "regex", "metadata": {}}, {"text": "L. N. Singhvi", "label": "LAWYER", "start_char": 11038, "end_char": 11051, "source": "ner", "metadata": {"in_sentence": "844-860/75) and L. N. Singhvi (In all Writ Petitions) and R. N. Sachthey for the Appellant and Respon-- dents.", "canonical_name": "L. N. Singhvi"}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 11080, "end_char": 11094, "source": "ner", "metadata": {"in_sentence": "844-860/75) and L. N. Singhvi (In all Writ Petitions) and R. N. Sachthey for the Appellant and Respon-- dents."}}, {"text": "S. Gopal Singh", "label": "LAWYER", "start_char": 11134, "end_char": 11148, "source": "ner", "metadata": {"in_sentence": "S. Gopal Singh and P. Keshwa Pillai for 1he Petitioners in W.P. 1371-73/75."}}, {"text": "P. Keshwa Pillai", "label": "LAWYER", "start_char": 11153, "end_char": 11169, "source": "ner", "metadata": {"in_sentence": "S. Gopal Singh and P. Keshwa Pillai for 1he Petitioners in W.P. 1371-73/75."}}, {"text": "Singh Manvah", "label": "LAWYER", "start_char": 11221, "end_char": 11233, "source": "ner", "metadata": {"in_sentence": "Horh,?11s Singh Manvah for the Petitioners in W.P. 1371-73/75."}}, {"text": "k K. Sen", "label": "PETITIONER", "start_char": 11277, "end_char": 11285, "source": "ner", "metadata": {"in_sentence": "1 k K. Sen, Kapil Sibbal, S. K. Jain and S. S. Khanduja for the Respondents excepting C.As."}}, {"text": "Kapil Sibbal", "label": "LAWYER", "start_char": 11287, "end_char": 11299, "source": "ner", "metadata": {"in_sentence": "1 k K. Sen, Kapil Sibbal, S. K. Jain and S. S. Khanduja for the Respondents excepting C.As."}}, {"text": "S. K. Jain", "label": "LAWYER", "start_char": 11301, "end_char": 11311, "source": "ner", "metadata": {"in_sentence": "1 k K. Sen, Kapil Sibbal, S. K. Jain and S. S. Khanduja for the Respondents excepting C.As."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 11316, "end_char": 11330, "source": "ner", "metadata": {"in_sentence": "1 k K. Sen, Kapil Sibbal, S. K. Jain and S. S. Khanduja for the Respondents excepting C.As."}}, {"text": "u1it Lal", "label": "LAWYER", "start_char": 11392, "end_char": 11400, "source": "ner", "metadata": {"in_sentence": "Na:u1it Lal for the Intervener in C.A. 845/75 Ch."}}, {"text": "llEG", "label": "JUDGE", "start_char": 11503, "end_char": 11507, "source": "ner", "metadata": {"in_sentence": "Tk J urlgmcnt or the Court was delivered by\n\nllEG, J.\n\nThe seventeen appeals before us by the State and by the Director of Industries of Harvana, after certification under Article 133 ( 1) (a) (b) of the constitution, are directed against a Judgment of the H'gh Court 01\" Pu:ijab and Haryana on Writ Petition of owners ot lands and lessees of mineral rights in land seeking reliefs in the nature of Mandamus to enforce fundamental rights conferred by Article 31(2) and to restrain the Government of Haryana from taking any action to implement two notifications void' (i) No."}}, {"text": "Article 133", "label": "PROVISION", "start_char": 11630, "end_char": 11641, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Article 31(2)", "label": "PROVISION", "start_char": 11909, "end_char": 11922, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Government of Haryana", "label": "ORG", "start_char": 11943, "end_char": 11964, "source": "ner", "metadata": {"in_sentence": "Tk J urlgmcnt or the Court was delivered by\n\nllEG, J.\n\nThe seventeen appeals before us by the State and by the Director of Industries of Harvana, after certification under Article 133 ( 1) (a) (b) of the constitution, are directed against a Judgment of the H'gh Court 01\" Pu:ijab and Haryana on Writ Petition of owners ot lands and lessees of mineral rights in land seeking reliefs in the nature of Mandamus to enforce fundamental rights conferred by Article 31(2) and to restrain the Government of Haryana from taking any action to implement two notifications void' (i) No."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12514, "end_char": 12523, "source": "regex", "metadata": {"statute": null}}, {"text": "22nd February, 1974", "label": "DATE", "start_char": 12588, "end_char": 12607, "source": "ner", "metadata": {"in_sentence": "By the notification of 22nd February, 1974, the State Govcr11111..; nt •announced to the general public that certain saltpetre\n\nbearing areas in the State of Haryana, mentioned therein, would be auctioned on the dates given there."}}, {"text": "Haryana", "label": "GPE", "start_char": 12723, "end_char": 12730, "source": "ner", "metadata": {"in_sentence": "By the notification of 22nd February, 1974, the State Govcr11111..; nt •announced to the general public that certain saltpetre\n\nbearing areas in the State of Haryana, mentioned therein, would be auctioned on the dates given there."}}, {"text": "State of Haryana", "label": "ORG", "start_char": 13719, "end_char": 13735, "source": "ner", "metadata": {"in_sentence": "The apparent effect of mere change of owners or lessees was that the State of Haryana would benefit financially from the acquisitions and sales, although the object of the Haryana Act was said to include conservation as well as \"scientific exploitation\" of mineral resources."}}, {"text": "Puniab Minor Minerals Concession Rules, 1954", "label": "STATUTE", "start_char": 14069, "end_char": 14113, "source": "regex", "metadata": {}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 14826, "end_char": 14842, "source": "regex", "metadata": {"linked_statute_text": "Learned Counsel for the appellant State contended that the Haryana Act was only meant to supplement and not supplant the Central Act", "statute": "Learned Counsel for the appellant State contended that the Haryana Act was only meant to supplement and not supplant the Central Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 15188, "end_char": 15198, "source": "regex", "metadata": {"linked_statute_text": "Learned Counsel for the appellant State contended that the Haryana Act was only meant to supplement and not supplant the Central Act", "statute": "Learned Counsel for the appellant State contended that the Haryana Act was only meant to supplement and not supplant the Central Act"}}, {"text": "Article 31", "label": "PROVISION", "start_char": 15559, "end_char": 15569, "source": "regex", "metadata": {"linked_statute_text": "Division Bench of the High Court allowed the Writ Petitions and quashed the impugned notifications after declaring the Act", "statute": "Division Bench of the High Court allowed the Writ Petitions and quashed the impugned notifications after declaring the Act"}}, {"text": "Acts were common but whether the provisions of the Central Act", "label": "STATUTE", "start_char": 16233, "end_char": 16295, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 16469, "end_char": 16478, "source": "regex", "metadata": {"linked_statute_text": "Acts were common but whether the provisions of the Central Act", "statute": "Acts were common but whether the provisions of the Central Act"}}, {"text": "Act was already fully occupied by the Central Legislation so that the State Act", "label": "STATUTE", "start_char": 16771, "end_char": 16850, "source": "regex", "metadata": {}}, {"text": "Section 2", "label": "PROVISION", "start_char": 16910, "end_char": 16919, "source": "regex", "metadata": {"linked_statute_text": "Act was already fully occupied by the Central Legislation so that the State Act", "statute": "Act was already fully occupied by the Central Legislation so that the State Act"}}, {"text": "RYANA V. CHANAN MAL", "label": "JUDGE", "start_char": 17100, "end_char": 17119, "source": "ner", "metadata": {"in_sentence": "Hf, RYANA V. CHANAN MAL (Beg, J.) 693 /\n\nregulation of mines and the development of minerals to the A extent hereinafter provided\"."}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17229, "end_char": 17238, "source": "regex", "metadata": {"linked_statute_text": "Act was already fully occupied by the Central Legislation so that the State Act", "statute": "Act was already fully occupied by the Central Legislation so that the State Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17321, "end_char": 17330, "source": "regex", "metadata": {"linked_statute_text": "Act was already fully occupied by the Central Legislation so that the State Act", "statute": "Act was already fully occupied by the Central Legislation so that the State Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17487, "end_char": 17496, "source": "regex", "metadata": {"linked_statute_text": "Act was already fully occupied by the Central Legislation so that the State Act", "statute": "Act was already fully occupied by the Central Legislation so that the State Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17610, "end_char": 17619, "source": "regex", "metadata": {"linked_statute_text": "Act was already fully occupied by the Central Legislation so that the State Act", "statute": "Act was already fully occupied by the Central Legislation so that the State Act"}}, {"text": "Section 3", "label": "PROVISION", "start_char": 17893, "end_char": 17902, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 18025, "end_char": 18034, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 18179, "end_char": 18188, "source": "regex", "metadata": {"statute": null}}, {"text": "Mines Act, 1952", "label": "STATUTE", "start_char": 18289, "end_char": 18304, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sections 4 to 9", "label": "PROVISION", "start_char": 18308, "end_char": 18323, "source": "regex", "metadata": {"linked_statute_text": "the Mines Act, 1952", "statute": "the Mines Act, 1952"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 18413, "end_char": 18422, "source": "regex", "metadata": {"linked_statute_text": "the Mines Act, 1952", "statute": "the Mines Act, 1952"}}, {"text": "Section 4A", "label": "PROVISION", "start_char": 18519, "end_char": 18529, "source": "regex", "metadata": {"linked_statute_text": "the Mines Act, 1952", "statute": "the Mines Act, 1952"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 18545, "end_char": 18554, "source": "regex", "metadata": {"linked_statute_text": "the Mines Act, 1952", "statute": "the Mines Act, 1952"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 19436, "end_char": 19445, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 19634, "end_char": 19643, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 19940, "end_char": 19949, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9", "label": "PROVISION", "start_char": 20023, "end_char": 20032, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 9A", "label": "PROVISION", "start_char": 20084, "end_char": 20094, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 10 to 12", "label": "PROVISION", "start_char": 20237, "end_char": 20254, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 10 to 12", "label": "PROVISION", "start_char": 20749, "end_char": 20766, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13", "label": "PROVISION", "start_char": 20932, "end_char": 20942, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 13A", "label": "PROVISION", "start_char": 20947, "end_char": 20958, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 20961, "end_char": 20971, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 4 to 13", "label": "PROVISION", "start_char": 21018, "end_char": 21034, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 21156, "end_char": 21166, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 21406, "end_char": 21419, "source": "regex", "metadata": {"statute": null}}, {"text": "Amendment Act, 1972", "label": "STATUTE", "start_char": 21565, "end_char": 21584, "source": "regex", "metadata": {}}, {"text": "Amendment Act, 1972", "label": "STATUTE", "start_char": 22041, "end_char": 22060, "source": "regex", "metadata": {}}, {"text": "25th day of October, 1949", "label": "DATE", "start_char": 22099, "end_char": 22124, "source": "ner", "metadata": {"in_sentence": "the commencement of the Mines anrl Mtnerals (Regulation and Development) Amendment Act, 1972, have vested, on or\n/\n\nafter the 25th day of October, 1949, in the State Government in pursuance of the provisions of any Act of any Provincial or State Legislature which provides for the acquisition of estates_' or tenures or provides for agrarian reforn1, such mining lease shall be brought into conformity with the provisions of this Act and the rules made thereunder within six months from the commencement of the Mines and Minerals (Regulation and Development) Amendment Act."}}, {"text": "Section 16(2)", "label": "PROVISION", "start_char": 22668, "end_char": 22681, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1972", "statute": "Amendment Act, 1972"}}, {"text": "Section 16", "label": "PROVISION", "start_char": 22771, "end_char": 22781, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1972", "statute": "Amendment Act, 1972"}}, {"text": "Section 17", "label": "PROVISION", "start_char": 22900, "end_char": 22910, "source": "regex", "metadata": {"linked_statute_text": "Amendment Act, 1972", "statute": "Amendment Act, 1972"}}, {"text": "Section 17", "label": "PROVISION", "start_char": 23115, "end_char": 23125, "source": "regex", "metadata": {"statute": null}}, {"text": "Central D Government", "label": "ORG", "start_char": 23159, "end_char": 23179, "source": "ner", "metadata": {"in_sentence": "Clause (2) of Section 17 provides for undertakings by the Central D Government, in consultation with the State Government, of prospecting or mining operations \"in any area not already held under any prospectmg licence or mining lease .... \"."}}, {"text": "Section 17", "label": "PROVISION", "start_char": 23344, "end_char": 23354, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 17", "label": "PROVISION", "start_char": 23711, "end_char": 23721, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 23909, "end_char": 23919, "source": "regex", "metadata": {"statute": null}}, {"text": "India", "label": "GPE", "start_char": 24122, "end_char": 24127, "source": "ner", "metadata": {"in_sentence": "Section 18, dealing with the development of minerals cnacl3 :\n\n\"18(1) It shall be the duty of the Central Governn:ent to take all such steps as may be necessary for the conservation and development of minerals in India, and for that pmpose the Central Government may, by notification in the Official Gazette, make such rnlcs as it thinks fit."}}, {"text": "Section 18", "label": "PROVISION", "start_char": 25670, "end_char": 25680, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 26016, "end_char": 26025, "source": "regex", "metadata": {"statute": null}}, {"text": "General Clauses Act", "label": "STATUTE", "start_char": 26038, "end_char": 26057, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 1", "label": "PROVISION", "start_char": 26124, "end_char": 26133, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 11", "label": "PROVISION", "start_char": 26167, "end_char": 26177, "source": "regex", "metadata": {"statute": null}}, {"text": "Geological Survey of India", "label": "ORG", "start_char": 26705, "end_char": 26731, "source": "ner", "metadata": {"in_sentence": "It says :\n\n\"18.A(l) Where the Central Government is of opinion that for the conservation and development of minerals in India, it is necessary to collect as precise information as possible with regard to any mineral available in or under any land in relation to which any prospecting licence or mining lease has been granted, whether by the State Government or by any other person, the Central Government may authorise the Geological Survey of India, or such other authority or agency as it may specify in this behalf, to carry out sucjI detailed investigations for the purpose of obtaining such information as may be necessary :\n\nProvided that in the cases of prospecting licences or mining leases granted by a State Government, no such authorisation shall be made except after consultation with the State Government\". •"}}, {"text": "Section 1", "label": "PROVISION", "start_char": 27152, "end_char": 27161, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 19 to 33", "label": "PROVISION", "start_char": 28087, "end_char": 28104, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 19", "label": "PROVISION", "start_char": 28131, "end_char": 28141, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 28349, "end_char": 28359, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 21", "label": "PROVISION", "start_char": 28702, "end_char": 28712, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4( I)", "label": "PROVISION", "start_char": 28781, "end_char": 28794, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 14", "label": "PROVISION", "start_char": 28867, "end_char": 28877, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 25", "label": "PROVISION", "start_char": 29293, "end_char": 29303, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 26", "label": "PROVISION", "start_char": 29565, "end_char": 29575, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 29826, "end_char": 29836, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 30604, "end_char": 30613, "source": "regex", "metadata": {"statute": null}}, {"text": "Before outlining the provisions of Haryana Act", "label": "STATUTE", "start_char": 30688, "end_char": 30734, "source": "regex", "metadata": {}}, {"text": "Punjab & Haryana High Court", "label": "COURT", "start_char": 30830, "end_char": 30857, "source": "ner", "metadata": {"in_sentence": "Before outlining the provisions of Haryana Act, we may indicate the position resulting from the four decisions mentioned above relied upon by Punjab & Haryana High Court."}}, {"text": "llingir-Rampur Coal Co", "label": "ORG", "start_char": 30863, "end_char": 30885, "source": "ner", "metadata": {"in_sentence": "In llingir-Rampur Coal Co's case (supra), the validity of the Orissa Mining Areas Development Fund Act, 1952, was questioned on the ground that it authorised the State of Orissa to impose a cess on the valuation of the minerals."}}, {"text": "Orissa Mining Areas Development Fund Act, 1952", "label": "STATUTE", "start_char": 30922, "end_char": 30968, "source": "regex", "metadata": {}}, {"text": "State of Orissa", "label": "ORG", "start_char": 31022, "end_char": 31037, "source": "ner", "metadata": {"in_sentence": "In llingir-Rampur Coal Co's case (supra), the validity of the Orissa Mining Areas Development Fund Act, 1952, was questioned on the ground that it authorised the State of Orissa to impose a cess on the valuation of the minerals."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 31179, "end_char": 31195, "source": "regex", "metadata": {"linked_statute_text": "the Orissa Mining Areas Development Fund Act, 1952", "statute": "the Orissa Mining Areas Development Fund Act, 1952"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 31577, "end_char": 31593, "source": "regex", "metadata": {"linked_statute_text": "the Orissa Mining Areas Development Fund Act, 1952", "statute": "the Orissa Mining Areas Development Fund Act, 1952"}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 32228, "end_char": 32244, "source": "regex", "metadata": {"statute": null}}, {"text": "Mines and Minerals Development Act", "label": "STATUTE", "start_char": 32312, "end_char": 32346, "source": "regex", "metadata": {}}, {"text": "Article 3", "label": "PROVISION", "start_char": 32442, "end_char": 32451, "source": "regex", "metadata": {"linked_statute_text": "Mines and Minerals Development Act", "statute": "Mines and Minerals Development Act"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 32712, "end_char": 32721, "source": "regex", "metadata": {"linked_statute_text": "Mines and Minerals Development Act", "statute": "Mines and Minerals Development Act"}}, {"text": "State of West Bengal", "label": "ORG", "start_char": 32763, "end_char": 32783, "source": "ner", "metadata": {"in_sentence": "I 1\n\nThe State of West Bengal v. Union of India (supra) was the case A of a suit filed by the State of West Bengal against the Union."}}, {"text": "West Bengal", "label": "GPE", "start_char": 32919, "end_char": 32930, "source": "ner", "metadata": {"in_sentence": "It was contended, on behalf of West Bengal State, that the Coal Bearing Areas (Acquisition and Development) Act, 1957, enacted by Parliament, proposing to acquire certain coal bearing areas in the State, did not apply to areas owned by the State itself, and, in the alternative, that, even if it did so apply to areas owned by the State of West Bengal, it was beyond the legislative competence of Parliament beause B entry 42 in the Concurrent List (List Ill) did not authorise an acquisition of property already vested in the State although this entry in the Concurrent List merely reads : \"acquisition and requisitioning of property''."}}, {"text": "Coal Bearing Areas (Acquisition and Development) Act, 1957", "label": "STATUTE", "start_char": 32947, "end_char": 33005, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Art. 31", "label": "PROVISION", "start_char": 36828, "end_char": 36835, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Hingir-Rampur Coal Co.", "label": "ORG", "start_char": 37988, "end_char": 38010, "source": "ner", "metadata": {"in_sentence": "In this case, the legality of certain demands as fee under the Orissa Act 27 of 1952, the validity of which had been upheld by this Court in Hingir-Rampur Coal Co.'s case (supra), came up for consideration again in the light of the provisions of the Central Act 67 of 1957."}}, {"text": "Section 18", "label": "PROVISION", "start_char": 38697, "end_char": 38707, "source": "regex", "metadata": {"statute": null}}, {"text": "l!ARYANA V. CHANAN MAL", "label": "JUDGE", "start_char": 38860, "end_char": 38882, "source": "ner", "metadata": {"in_sentence": "Reliance was placed upon the provisions of Section 18 of the Central Act to hold (at p. 477)\n\n\"Rcpugnancy arises when two enactments both within the competence of the two Legislatures collide and when the\n\nl!ARYANA V. CHANAN MAL (Beg, J.)\n\n70 I\n\nConstitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other than to the extent of the repugnancy the one supersedes the other."}}, {"text": "S. 18", "label": "PROVISION", "start_char": 39844, "end_char": 39849, "source": "regex", "metadata": {"statute": null}}, {"text": "Baij11ath Kedia", "label": "OTHER_PERSON", "start_char": 40671, "end_char": 40686, "source": "ner", "metadata": {"in_sentence": "In Baij11ath Kedia's case (supra), the proviso (2) to Section 10(2) of the Bihar Land Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965) and a sub-rule of Rule 20, added on December 10, 1964, by a notification of the Governor to the Bihar Minor Mineral Rules, 1961, came up for consideration.", "canonical_name": "Baij11ath Kedia"}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 40722, "end_char": 40735, "source": "regex", "metadata": {"statute": null}}, {"text": "Land Reforms (Amendment) Act", "label": "STATUTE", "start_char": 40749, "end_char": 40777, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 10, 1964", "label": "DATE", "start_char": 40842, "end_char": 40859, "source": "ner", "metadata": {"in_sentence": "In Baij11ath Kedia's case (supra), the proviso (2) to Section 10(2) of the Bihar Land Reforms (Amendment) Act, 1964 (Bihar Act 4 of 1965) and a sub-rule of Rule 20, added on December 10, 1964, by a notification of the Governor to the Bihar Minor Mineral Rules, 1961, came up for consideration."}}, {"text": "Governor to the Bihar Minor Mineral Rules, 1961", "label": "STATUTE", "start_char": 40886, "end_char": 40933, "source": "regex", "metadata": {}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 40973, "end_char": 41001, "source": "regex", "metadata": {}}, {"text": "Section 19", "label": "PROVISION", "start_char": 41217, "end_char": 41227, "source": "regex", "metadata": {"linked_statute_text": "Under the Bihar Land Reforms Act, 1950", "statute": "Under the Bihar Land Reforms Act, 1950"}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 41266, "end_char": 41279, "source": "regex", "metadata": {"linked_statute_text": "Under the Bihar Land Reforms Act, 1950", "statute": "Under the Bihar Land Reforms Act, 1950"}}, {"text": "Section 10(2)", "label": "PROVISION", "start_char": 41452, "end_char": 41465, "source": "regex", "metadata": {"linked_statute_text": "Under the Bihar Land Reforms Act, 1950", "statute": "Under the Bihar Land Reforms Act, 1950"}}, {"text": "Section 15", "label": "PROVISION", "start_char": 41703, "end_char": 41713, "source": "regex", "metadata": {"linked_statute_text": "Under the Bihar Land Reforms Act, 1950", "statute": "Under the Bihar Land Reforms Act, 1950"}}, {"text": "M.A. Tulloch Co.", "label": "ORG", "start_char": 41923, "end_char": 41939, "source": "ner", "metadata": {"in_sentence": "R.\n\nA Central Act, held, relying on Hingir-Rampur Coal Co.'s case (supra) and M.A. Tulloch Co.'s case (supra), as follows (at p. 113) :\n\n\"The declaration is contained in s. 2 of Act 67 of 1957 and speaks of the taking and the control of the Central Government the regulation of mines and development of minerals to the extent provided in the Act itself."}}, {"text": "s. 2", "label": "PROVISION", "start_char": 42015, "end_char": 42019, "source": "regex", "metadata": {"statute": null}}, {"text": "Since the Bihar State Legislature amended the Land Reforms Act after the coming into force of Act", "label": "STATUTE", "start_char": 42507, "end_char": 42604, "source": "regex", "metadata": {}}, {"text": "To sustain the amendment the State must show that the matter is not covered by the Central Act", "label": "STATUTE", "start_char": 42761, "end_char": 42855, "source": "regex", "metadata": {}}, {"text": "s. 14", "label": "PROVISION", "start_char": 43284, "end_char": 43289, "source": "regex", "metadata": {"linked_statute_text": "To sustain the amendment the State must show that the matter is not covered by the Central Act", "statute": "To sustain the amendment the State must show that the matter is not covered by the Central Act"}}, {"text": "ss. 4", "label": "PROVISION", "start_char": 43295, "end_char": 43300, "source": "regex", "metadata": {"linked_statute_text": "To sustain the amendment the State must show that the matter is not covered by the Central Act", "statute": "To sustain the amendment the State must show that the matter is not covered by the Central Act"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 43394, "end_char": 43399, "source": "regex", "metadata": {"linked_statute_text": "To sustain the amendment the State must show that the matter is not covered by the Central Act", "statute": "To sustain the amendment the State must show that the matter is not covered by the Central Act"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 44048, "end_char": 44053, "source": "regex", "metadata": {"statute": null}}, {"text": "Baijndth Kedia", "label": "OTHER_PERSON", "start_char": 44503, "end_char": 44517, "source": "ner", "metadata": {"in_sentence": "In Baijndth Kedia's case (supra), this Court also said (at p. !", "canonical_name": "Baij11ath Kedia"}}, {"text": "s. 15", "label": "PROVISION", "start_char": 44730, "end_char": 44735, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "s. 16", "label": "PROVISION", "start_char": 45119, "end_char": 45124, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "s. 10", "label": "PROVISION", "start_char": 45298, "end_char": 45303, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 45430, "end_char": 45434, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 45482, "end_char": 45486, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "s. 14", "label": "PROVISION", "start_char": 45648, "end_char": 45653, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "ss. 4", "label": "PROVISION", "start_char": 45695, "end_char": 45700, "source": "regex", "metadata": {"linked_statute_text": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act", "statute": "We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with provisions of Act"}}, {"text": "s. 4", "label": "PROVISION", "start_char": 45806, "end_char": 45810, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 45863, "end_char": 45868, "source": "regex", "metadata": {"statute": null}}, {"text": "October 25, 1949", "label": "DATE", "start_char": 45956, "end_char": 45972, "source": "ner", "metadata": {"in_sentence": "Although s. 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949."}}, {"text": "s. 10( 2)", "label": "PROVISION", "start_char": 47089, "end_char": 47098, "source": "regex", "metadata": {"statute": null}}, {"text": "Baijnath Kedi", "label": "OTHER_PERSON", "start_char": 47275, "end_char": 47288, "source": "ner", "metadata": {"in_sentence": "The question which arises before us now is whether, possibly as a rcsuit o[ the decision of this Court in Baijnath Kedi<ts case (supra), the Parli1ment had not amended the law, as we find it in the present\n\nSection 16 f the Act 67 of 1957, as amended by Act 56 of 1972, so as to undo its effect.", "canonical_name": "Baij11ath Kedia"}}, {"text": "Section 16", "label": "PROVISION", "start_char": 47376, "end_char": 47386, "source": "regex", "metadata": {"statute": null}}, {"text": "Baijnath Kedia", "label": "OTHER_PERSON", "start_char": 47525, "end_char": 47539, "source": "ner", "metadata": {"in_sentence": "If that amendment is in response to the need pointed out in Baijnath Kedia's case (supra) would it not cover the provisions of the Haryana Act now before us ?", "canonical_name": "Baij11ath Kedia"}}, {"text": "S. 3", "label": "PROVISION", "start_char": 47863, "end_char": 47867, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 3", "label": "PROVISION", "start_char": 47913, "end_char": 47917, "source": "regex", "metadata": {"statute": null}}, {"text": "Other provisions of the Haryana Act", "label": "STATUTE", "start_char": 49567, "end_char": 49602, "source": "regex", "metadata": {}}, {"text": "Section 1", "label": "PROVISION", "start_char": 49621, "end_char": 49630, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 49666, "end_char": 49675, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "Section 4", "label": "PROVISION", "start_char": 49701, "end_char": 49710, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 49736, "end_char": 49745, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "Section 6", "label": "PROVISION", "start_char": 49818, "end_char": 49827, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "Section 7", "label": "PROVISION", "start_char": 49881, "end_char": 49890, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 49913, "end_char": 49922, "source": "regex", "metadata": {"linked_statute_text": "Other provisions of the Haryana Act", "statute": "Other provisions of the Haryana Act"}}, {"text": "21st January, 1967", "label": "DATE", "start_char": 50109, "end_char": 50127, "source": "ner", "metadata": {"in_sentence": "1 {31) 65-MII on 21st January, 1967."}}, {"text": "State of Haryaua", "label": "ORG", "start_char": 50220, "end_char": 50236, "source": "ner", "metadata": {"in_sentence": "It appears that the State of Haryaua\n\n1 considered itself to be the owner of these deposits on the strength of entries in the records of rights (Wajib-ul-arz) of these villages and used to auction them in accordance with the Punjab Minor Mmerals Concession Rules, 1964."}}, {"text": "Punjab Minor Mmerals Concession Rules, 1964", "label": "STATUTE", "start_char": 50425, "end_char": 50468, "source": "regex", "metadata": {}}, {"text": "25th May, 1971", "label": "DATE", "start_char": 50478, "end_char": 50492, "source": "ner", "metadata": {"in_sentence": "But, on 25th May, 1971, the Punjab & Haryana High Court held on a Writ Petition (C.W. No."}}, {"text": "6th December, 1973", "label": "DATE", "start_char": 51158, "end_char": 51176, "source": "ner", "metadata": {"in_sentence": "The President of India gave his assent to it on 6th December, 1973."}}, {"text": "Seventh Schedule", "label": "PROVISION", "start_char": 51679, "end_char": 51695, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Act for acquiring ownership of mineral deposits nor any express provision for it in Act", "label": "STATUTE", "start_char": 52677, "end_char": 52772, "source": "regex", "metadata": {}}, {"text": "was thus no imavoidable conflict between it and the State Act", "label": "STATUTE", "start_char": 52900, "end_char": 52961, "source": "regex", "metadata": {}}, {"text": "Section 4", "label": "PROVISION", "start_char": 53122, "end_char": 53131, "source": "regex", "metadata": {"linked_statute_text": "There was thus no imavoidable conflict between it and the State Act", "statute": "There was thus no imavoidable conflict between it and the State Act"}}, {"text": "Article 3", "label": "PROVISION", "start_char": 53239, "end_char": 53248, "source": "regex", "metadata": {"linked_statute_text": "There was thus no imavoidable conflict between it and the State Act", "statute": "There was thus no imavoidable conflict between it and the State Act"}}, {"text": "Tulloch ) Co", "label": "ORG", "start_char": 53452, "end_char": 53464, "source": "ner", "metadata": {"in_sentence": "Fourthly, the impugned Act is protected from any challenge on the ground of inadequacy of compensation or the unreasonableness of the principles contained in Section 4 ( 1) of the Haryana Act, as the\n\nacquisition of parts of estates of former proprietors of land falls under Article 3 lA.\n\nOn the other hand, the learned Counsel for the respondents has urged that the cases before us are covered completely by the decisions ' of this Court discussed above, and, in particular by those in Tulloch ) Co's.,"}}, {"text": "Section 2", "label": "PROVISION", "start_char": 53700, "end_char": 53709, "source": "regex", "metadata": {"linked_statute_text": "There was thus no imavoidable conflict between it and the State Act", "statute": "There was thus no imavoidable conflict between it and the State Act"}}, {"text": "have tojudge the character of the Haryana Act", "label": "STATUTE", "start_char": 54034, "end_char": 54079, "source": "regex", "metadata": {}}, {"text": "Sections 16 and 17", "label": "PROVISION", "start_char": 56302, "end_char": 56320, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 56353, "end_char": 56363, "source": "regex", "metadata": {"statute": null}}, {"text": "25th October, 1949", "label": "DATE", "start_char": 56539, "end_char": 56557, "source": "ner", "metadata": {"in_sentence": "A glance at section 16 ( 1 )(b) shows that the ..\n\nCentral Act 67 of 1957 itself contemplates vesting of lands, which had belonged to any proprietor of an estate or tenure holder either on or after 25th October, 1949, in a State Government under a State enactment providing for the acquisition of estates or tenures in land or for agrarian reforms."}}, {"text": "Section 17", "label": "PROVISION", "start_char": 57321, "end_char": 57331, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16(1)", "label": "PROVISION", "start_char": 57597, "end_char": 57610, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 31", "label": "PROVISION", "start_char": 57811, "end_char": 57821, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 16", "label": "PROVISION", "start_char": 58067, "end_char": 58077, "source": "regex", "metadata": {"statute": null}}, {"text": "Haryana State", "label": "ORG", "start_char": 58778, "end_char": 58791, "source": "ner", "metadata": {"in_sentence": "According to the Haryana State, the Act was passed so as to, inter-alia, change the law as declared by the Punjab & Haryana High Court in the case reported in AIR 1972 P&H p. 50."}}, {"text": "L. M. Singhvi", "label": "LAWYER", "start_char": 59433, "end_char": 59446, "source": "ner", "metadata": {"in_sentence": "Dr. L. M. Singhvi, appearing on behalf of the State of Haryana, in the Writ Petitions under Article 32, submits : Firstly, that the legislative competence of the State Legislature, under entry 23 of List II\n\nis subjected to entry No.", "canonical_name": "L. N. Singhvi"}}, {"text": "Article 32", "label": "PROVISION", "start_char": 59521, "end_char": 59531, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "No such Central Act", "label": "STATUTE", "start_char": 60965, "end_char": 60984, "source": "regex", "metadata": {}}, {"text": "section\n\n10", "label": "PROVISION", "start_char": 61621, "end_char": 61632, "source": "regex", "metadata": {"linked_statute_text": "No such Central Act", "statute": "No such Central Act"}}, {"text": "Bihar Land Reforms Act, 1950", "label": "STATUTE", "start_char": 61640, "end_char": 61668, "source": "regex", "metadata": {}}, {"text": "Section 5(2)", "label": "PROVISION", "start_char": 61670, "end_char": 61682, "source": "regex", "metadata": {"linked_statute_text": "the Bihar Land Reforms Act, 1950", "statute": "the Bihar Land Reforms Act, 1950"}}, {"text": "West Bengal Estate Acquisition Act, 1953", "label": "STATUTE", "start_char": 61690, "end_char": 61730, "source": "regex", "metadata": {}}, {"text": "Coal Bearing Areas (Acquisition and Development) Act, 1957", "label": "STATUTE", "start_char": 61762, "end_char": 61820, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 3", "label": "PROVISION", "start_char": 62630, "end_char": 62639, "source": "regex", "metadata": {"linked_statute_text": "the West Bengal Estate Acquisition Act, 1953", "statute": "the West Bengal Estate Acquisition Act, 1953"}}, {"text": "section 9", "label": "PROVISION", "start_char": 62969, "end_char": 62978, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 63055, "end_char": 63065, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 64803, "end_char": 64812, "source": "regex", "metadata": {"linked_statute_text": "Writ Petitions before us has any subsisting rights governed by any of the provisions of the Central Act", "statute": "Writ Petitions before us has any subsisting rights governed by any of the provisions of the Central Act"}}, {"text": "11th September, 1975", "label": "DATE", "start_char": 65170, "end_char": 65190, "source": "ner", "metadata": {"in_sentence": "Another notification of 11th September, 1975, challenged by the p2titioncrs in this Court says :\n\n\"\"It is hereby notified for the general public that Minor Mineral quarries of Gurgaon District, as per particulars given below, will be put to auction on 11-10-1975 in the oJlice of Senior-District !"}}, {"text": "Gurgaon District", "label": "GPE", "start_char": 65322, "end_char": 65338, "source": "ner", "metadata": {"in_sentence": "Another notification of 11th September, 1975, challenged by the p2titioncrs in this Court says :\n\n\"\"It is hereby notified for the general public that Minor Mineral quarries of Gurgaon District, as per particulars given below, will be put to auction on 11-10-1975 in the oJlice of Senior-District !"}}, {"text": "11-10-1975", "label": "DATE", "start_char": 65398, "end_char": 65408, "source": "ner", "metadata": {"in_sentence": "Another notification of 11th September, 1975, challenged by the p2titioncrs in this Court says :\n\n\"\"It is hereby notified for the general public that Minor Mineral quarries of Gurgaon District, as per particulars given below, will be put to auction on 11-10-1975 in the oJlice of Senior-District !"}}, {"text": "Faridabad", "label": "GPE", "start_char": 65462, "end_char": 65471, "source": "ner", "metadata": {"in_sentence": "ndustrics Officer, Faridabad, at iO A.M.\"."}}, {"text": "Gurgaon", "label": "GPE", "start_char": 65543, "end_char": 65550, "source": "ner", "metadata": {"in_sentence": "Thcrcaftcr, follows the names of 139 villages in Tehsil Gurgaon under the heading \"Name of Quarry\"."}}, {"text": "21st March, 1977", "label": "DATE", "start_char": 66039, "end_char": 66055, "source": "ner", "metadata": {"in_sentence": "(ii) The period of contract shall commence from the date ~\n\nof execution of the agreement to the 21st March, 1977."}}, {"text": "Haryana Government", "label": "ORG", "start_char": 66199, "end_char": 66217, "source": "ner", "metadata": {"in_sentence": "(iii) Other terms and conditions of auction shall be the same as contained in the Punjab Minor Mineral Concession Rules, 1964, as adopted by Haryana Government."}}, {"text": "B. L. MITTAL", "label": "OTHER_PERSON", "start_char": 66531, "end_char": 66543, "source": "ner", "metadata": {"in_sentence": "(B. L. MITTAL) Director of Industries, Haryana\"."}}, {"text": "Rights of former owners have been validity terminated by the Haryana Act", "label": "STATUTE", "start_char": 67033, "end_char": 67105, "source": "regex", "metadata": {}}, {"text": "Haryana Govt", "label": "ORG", "start_char": 67626, "end_char": 67638, "source": "ner", "metadata": {"in_sentence": "Ownership r; ghts could be and have been\n\nvalidity acquired by the Haryana Govt."}}, {"text": "High Court of Punjab and Haryana", "label": "COURT", "start_char": 68863, "end_char": 68895, "source": "ner", "metadata": {"in_sentence": "844-860 of 1975, and set aside the judgment and orders of the High Court of Punjab and Haryana and dismiss the Writ petitions."}}]}
{"document_id": "1976_3_712_716_EN", "year": 1976, "text": "HUKAM CHAND MILLS LTD. INDORE\n\nCOMMISSIONER OF INCOME TAX, BOMBAY\n\nMarch 19, 1976\n\n[H. R. KHANNA AND P. K. 9osWAMI, JJ.J\n\nI11con1e Tax Act 1922-Sales effected by a•Conzpany in erstwhile stat-;; in British Jndia-Deterntination of the quantunl of profits on the sales effected in British India and the basis of apportionment of the profits in the absence of any statutory or fixed forn1ula should be based on relevant niaterial.\n\nThe assessec appellant is a public limited company owning textile Mills at Indore and carrying on the business of manufacture and sale of textiles. During the assessment year 1942-43, it effected in British India the following categories of sales viz. (a) sales canvassed by the company's representatives amounting to l{s. 6,46,02-8, (b) sales can\\rassed through brokers and agents in British India Merchants and their brokers during their visit at Indore amounting to Rs. 2,86,224 and (iv) Sales to BritisJl Indian Merchants at the time of their own or their brokers visit at Indore amounting to Rs. 2,55,916/-.\n\nJn 1968(1) S.C.R. 47, on an appeal, by Revenue, arising out of a reference u/s 66(1) of the Income l'ax Act, this court held that the income by way of the Sales of Rs. 14,80,059/- in respect of the appellant company \\\\'as income \"accrued or c.1ose\" within British India and a proportionate part of it was assessable to Indian Incon1e Tax. This court remitted the case to the High Court to ans\\ver the reference regarding the correctness of the determination of the profits on the sale.s computed by the Tribunal by application of Ru~ 33 and also \\vhether 1/3 of the profits so determined could be said to accn1e or arise in British India, which the High Court answered in favour of the Revenue. In the appeals before this Court it was found that the High Court had not taken into account the relevant circun1st::inces for answering the reference since it was contended by both the parties that Rule 33 was not applicable to the facts of the case.\n\nAs per the directions, the Tribunal submitted a supplementary staten1ent of the case wherein it found ( 1) that in respect of the sales canvassed by the companies representatives and through brokers and agents amounting to Rs. 9,37,919 it was just and equitable to apportion 15% of th:.; profits said to have arisen and accrued in British India and (ii) that in respect of the saJes to British Indian f\\.1erchants and/or their brokers during their visit at Indore amounting to Rs. 5,42,140/-. 7! per cent of the profits could be said to have accrued and arisen in British India.\n\nAs the profits were found to represent 31.12 per cent of the turnover, the profits in respect of rhe turnovtr of- Rs. 9,37.919 were calculated at the rate of 4-! per cent (i.e. 151/(, of 31.12 per cent) which amounted to Rs. 42,200/-. Similarly the profits in respect of the turnever of 5,42,140/- @ the rate of 2!00 (7! per cent of 31.12 per cent) amounted to Rs. 12,200. The total profits for the ye8.r 1942-43 was Rs. 54,400 (Rs. 42,200+ 12,200). according to the Tribunal.\n\nG .1\\ccepting the appcah:, the Court,\n\nHELD : (i) The question as to what proportion of the profits of the sales in the four categories arose or accrued in British India is essentiallv one of fact depending upon the circumstances of the case.\n\nIn the absence of some statutory or other fixed formula; any finding on the question of proportion involves same element of guess work.\n\nThe endeavour can only-be to be approximate and there cannot in the very nature of things be great precision and exactness in the matter.\n\nAs long as the proportion fixed by the Tribunal is based upon the relevant material. it should not be disturbed. [716C-D]\n\n(ii) In the instant case, the profit which arose and accrued in British India to the assessee-appellant for the assessment year 1942-43 was Rs. 54,400. It\n\n\\ \\y\n\nI •\n\nis just and equitable to apportion 15% of the profits of sales in categories\n\n(a) and (b) and 7t per cent of the profits of sales in categories (c) and (d) as accruing or arising in British India. [716D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1062-1066 (NT) of 1970,\n\nFrom tbe Judgment and Order dated tbe 31st January/ls! February 1968 of tbe High Court of Judicature at Bombay in Income- B • Tax Reference No. 5 of 1961.\n\nS. T. Desai, A. K. Verma (Mrs), and J. B. Dadachanji for the Appellant.\n\nB. Sen ;; nd S. P. Nayar; for the Respondent.\n\nThe Judgment of the Court was delivered by KHANNA, J.-This judgment would dispose of five civil appeals No. 1062 to 1066 which arise out bf references under section 66(1) of the Indian Income-tax Act, 1922 made at the instance of the assessee-appellant.\n\nThe assessee-appellant, Hukam Chand Mills Ltd. Indore, is a public limited company. It owns a textile mill at Indore and carries on the business of manufacture and sale of textiles.\n\nThese appeals have a long history and are concerned with tbe income of the appellant during the calendar years 1941, 1942, 1944, 1945 and 1946, the releva>It assessment years for which were 1942-43, 1943-44, 1945-46, 1946-47 and 1947-48. Ia those years the assessee effected sales of textiles to merchants in the then British India. Question which arose for con!iideration was as to what part of the income arising out of tbose sale transactions accrued or arose in British India.\n\nAs the questions of law involved in each of the appeals were identical, the facts relating to the assessment year 1942-43 only were taken into consideration. According to the finding of the Income-tax Officer in that year the price of the textiles sold by the assessee in British India aggregated to Rs. 14,80,059. This amount consisted of the following four categories :\n\n(a) Sales in pursuance of business canvassed by company's representatives in British India, also described as item (3) Rs. 6,46,028\n\n(b) Sales to British Indian merchants through brokers and agents in British India, also described as item (4) Rs. 2,91,89!\n\n(c) Sales to British Indian merchants and brokers during their visit to Indore, also described as item (5) Rs. 2,86,224 {d) Sales to British Indian merchants at the time of their own or their broker's visit at Indore, aJso described as item (9) Rs. 2,55,916\n\nTOTAL Rs. 14,80,059\n\nProfits from those sales were held at 31.12 per cent to amount to Rs .. 4,60,560. Profits attributable to operations carried out in British India were held by the Appellate Assistant Commissioner to be one- H third of Rs. 4,60,560, i.e. Rs. 1,53,520. In doing so tbe Appellate Assistant Commissioner acted upon tbe analogy of rule 33 of the\n\n13-608 SCI/76\n\nA Indian Income-tax Rules, 1922. We need not set out the finding of the Income-tax Officer.\n\nThe Tribunal substantially agreed with the Appellate Assistant Commissioner.\n\nAt the instance of the assessee the following two questions were inter alia referred to the High Court :\n\n\"(2)\n\n(3)\n\nWhether on the facts and in the circumstances of the applicants' case, the Tribunal was right in holding that in respect of sales of Rs. 14,80,059/- the profit was correctly determined by application of rule 33 and one-third of the profits so determined could be said to accrue or arise in British India ?\n\nWhether on the facts and in the circumstances of the applicants' case, the Tribunal was right in holdin.llthat a proportionate part of the profits determmed on sales grouped under items 3, 4, 5 and 9 in the assessment order by the application of rule 3 3 was assessable to income-tax ?\"\n\nThe High Court answered question No. (3) in favour of the assessee.\n\nIn view of its finding on question No. (3), the High Court did not answer question No. (2). The Commissioner of Income-tax then came up in appeal to this Court, and the decision of this Court is reported in 67 I.T.R. 79 = [1968] (1)\n\nS.C.R. 47.\n\nThis Court held that the answer to question No. (3) should be in the negative as the property in goods passed to the purchaser in British India and proportionate part of the profits of these sales accrued in British India and as such was assessable to Indian income-tax.\n\nThe case was remitted to the High Court to answer question No. (2) in accordance with law.\n\nOn remand the High Court held that the profits were correctly determined by the application of rule 33 and one-third of the profits so determined could be said to arise or accrue in British India. When the matter came up in appeal before this Court, it was found that the High Court had not taken into account the relevant circumstances for answering question No. (2). It was also stated by counsel for both the parties that rule 3 3 was not applicable to the facts of the case.\n\nThis Court accordingly directed the Appellate Tribunal to submit a supplementary statement of the case to this Court. Supplementary statement of the case has now been received.\n\nThe Tribunal found that in respect of the sales in categories (ii) and (b) amounting to Rs. 9,37,919, it was just and equitable to apportion 15 per cent of the profits said to have arisen and accrued in British India. Regarding sales in categories (c) and (d) for a total amount of Rs. 5,42,140, the Tribunal held that 7t per cent of the profits could be said to have accrued and arisen in British India.\n\nAs the profits were found to represent 31.12 per cent of the turnover, the profits in respect of the turnover of Rs. 9,37,919 comprised in categories (a) and (b) were calculated at the rate of 4t per cent (i.e. 15 per cent of 31.12 per cent). The profits in British India were thus found to be Rs. 42,200. Profits accuring\n\n>-- -\n\nand arising in British India in respect of sales turnover of Rs. 5,42,140 comprised in categories (c) and (d) at the rate of 2t per cent (7! per cent of 31.12 per cent) were found 1 to be Rs. 12,200. The total profits accruing or arising in British India to the assessee company in the assessment year 1942-43 were thus worked out to be Rs. 54,400. The above finding of the Tribunal has been arrived at on consideration of the facts of the case.\n\nThe modus operandi in respect of the sales of various categories was found by the Tribunal to be as under\n\n\"(a) Sales of Rs. 6,46,028\n\n(i) The assessee's paid representatives at Bombay canvassed the sales, on behalf of the assessee, to\n\nmerchants in British India. c\n\n(ii) The orders were sent by British Indian merchants to the assessee at Indore.\n\n(iii) The assessee accepted the ord.ers at Indore, prepared the contracts and signed them at Indore and forwarded the same to customers in British India.\n\n(iv) The customers signed the contracts in British India .\n\n( v) The contracts were signed on company's forms.\n\n(vi~ The contracts bore British Indian stamps .\n\n(b) Sales of Rs. 2,91,891\n\n(i) The brokers in British India, described as freelance E brokers, transmitted the offers to the company at Indore.\n\n(ii) The offers were made to the company on the brokers' own forms.\n\n(iii) The brokers were not engaged by the assesseecompany and such orders were placed by the brokers in the normal course of their business.\n\n(iv) The customers signed the contracts in British India.\n\n(c) Sales of Rs. 2,86,224\n\n(i) These sales were made to British Indian merchants\n\nwho went to Indore to negotiate and place orders.\n\n(ii) The orders were accepted at Indore.\n\n(iii) The contracts bore British Indian stamps.\n\n(iv) The customers signed the contracts in British India .\n\n(d) Sales of Rs. 2,55,916\n\n(i) These sales were made to British Indian merchants on their or their brokers' personal visits to Indore .\n\n(ii) The offers were taken direct at Indore.\n\n(iii) Contracts for such sales were made in the same\n\nmanner as stated hereinbefore.\" '\n\nThe Tribunal also gave a finding that the assessee maintained an organisation in British India, that that organisation was interested in bringing to the notice of the British Indian merchants, brokers and consuming public the goods manufactnred by the assesseecompany and that the ground-work for sales effected in these groups was done in British India.\n\nNothing has been urged before us either on behalf of the assesseeappellant or on behalf of the revenue-respondent to assail the finding of the Tribunal in the supplementary statement of case. The question as to what proportion of the profits of the sales in categories\n\n(a) , (b) , ( c) and ( d) arose or accrued in British India is essentially one of fact depending upon the circumstances of the case. In the absence of some statutory or other fixed formula, any finding on the question of proportion involves some element of guess work. The endeavour can only be to be approximate and there cannot in the very nature of things be great precision and exactness in tlhe matter. As long as the proportion fixed _by the Tribunal is based upon the rele'l!ant material, it should not be distnrbed.\n\nWe accordingly accept the appeals, discharge the answer given to question No. (2) by the High Court and hold that the profit which arose and accrued in British India to the assessee-appe!Jant for the assessment yeai: 1942-43 was Rs. 54,400. We also hold that it is just and equitable to apportion 15 per cent of the profits of sales in categories (a) and (b) as accruing or arising in Bri, tish India and 7t per cent of the profits of sales in categories (c) and (d) as accruing or arising in British India. The parties in the circumstances shall 8ear their own costs. -\n\nS.R.\n\nAppeals allowed.", "total_entities": 25, "entities": [{"text": "HUKAM CHAND MILLS LTD. INDORE", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "HUKAM CHAND MILLS LTD. INDORE", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME TAX, BOMBAY", "label": "RESPONDENT", "start_char": 31, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME TAX, BOMBAY", "offset_not_found": false}}, {"text": "March 19, 1976", "label": "DATE", "start_char": 67, "end_char": 81, "source": "ner", "metadata": {"in_sentence": "INDORE\n\nCOMMISSIONER OF INCOME TAX, BOMBAY\n\nMarch 19, 1976\n\n[H. R. KHANNA AND P. K. 9osWAMI, JJ.J\n\nI11con1e Tax Act 1922-Sales effected by a•Conzpany in erstwhile stat-;; in British Jndia-Deterntination of the quantunl of profits on the sales effected in British India and the basis of apportionment of the profits in the absence of any statutory or fixed forn1ula should be based on relevant niaterial."}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 84, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "Tax Act 1922", "label": "STATUTE", "start_char": 131, "end_char": 143, "source": "regex", "metadata": {}}, {"text": "Indore", "label": "GPE", "start_char": 503, "end_char": 509, "source": "ner", "metadata": {"in_sentence": "The assessec appellant is a public limited company owning textile Mills at Indore and carrying on the business of manufacture and sale of textiles."}}, {"text": "s. 6", "label": "PROVISION", "start_char": 748, "end_char": 752, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1922", "statute": "Tax Act 1922"}}, {"text": "British India Merchants", "label": "ORG", "start_char": 813, "end_char": 836, "source": "ner", "metadata": {"in_sentence": "6,46,02-8, (b) sales can\\rassed through brokers and agents in British India Merchants and their brokers during their visit at Indore amounting to Rs."}}, {"text": "BritisJl Indian Merchants", "label": "ORG", "start_char": 928, "end_char": 953, "source": "ner", "metadata": {"in_sentence": "2,86,224 and (iv) Sales to BritisJl Indian Merchants at the time of their own or their brokers visit at Indore amounting to Rs."}}, {"text": "s 66(1)", "label": "PROVISION", "start_char": 1119, "end_char": 1126, "source": "regex", "metadata": {"linked_statute_text": "Tax Act 1922", "statute": "Tax Act 1922"}}, {"text": "British India", "label": "GPE", "start_char": 1666, "end_char": 1679, "source": "ner", "metadata": {"in_sentence": "This court remitted the case to the High Court to ans\\ver the reference regarding the correctness of the determination of the profits on the sale.s computed by the Tribunal by application of Ru~ 33 and also \\vhether 1/3 of the profits so determined could be said to accn1e or arise in British India, which the High Court answered in favour of the Revenue."}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4065, "end_char": 4093, "source": "ner", "metadata": {"in_sentence": "716D-E]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos."}}, {"text": "High Court of Judicature at Bombay", "label": "COURT", "start_char": 4215, "end_char": 4249, "source": "ner", "metadata": {"in_sentence": "February 1968 of tbe High Court of Judicature at Bombay in Income- B • Tax Reference No."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4295, "end_char": 4306, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma (Mrs), and J. B. Dadachanji for the Appellant."}}, {"text": "A. K. Verma", "label": "LAWYER", "start_char": 4308, "end_char": 4319, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma (Mrs), and J. B. Dadachanji for the Appellant."}}, {"text": "J. B. Dadachanji", "label": "LAWYER", "start_char": 4331, "end_char": 4347, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. K. Verma (Mrs), and J. B. Dadachanji for the Appellant."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 4368, "end_char": 4374, "source": "ner", "metadata": {"in_sentence": "B. Sen ;; nd S. P. Nayar; for the Respondent."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 4381, "end_char": 4392, "source": "ner", "metadata": {"in_sentence": "B. Sen ;; nd S. P. Nayar; for the Respondent."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 4458, "end_char": 4464, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by KHANNA, J.-This judgment would dispose of five civil appeals No."}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 4572, "end_char": 4585, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 4593, "end_char": 4620, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hukam Chand Mills Ltd. Indore", "label": "PETITIONER", "start_char": 4694, "end_char": 4723, "source": "ner", "metadata": {"in_sentence": "The assessee-appellant, Hukam Chand Mills Ltd. Indore, is a public limited company.", "canonical_name": "HUKAM CHAND MILLS LTD. INDORE"}}, {"text": "Indian Income-tax Rules, 1922", "label": "STATUTE", "start_char": 6604, "end_char": 6633, "source": "regex", "metadata": {}}, {"text": "Bombay", "label": "GPE", "start_char": 10184, "end_char": 10190, "source": "ner", "metadata": {"in_sentence": "6,46,028\n\n(i) The assessee's paid representatives at Bombay canvassed the sales, on behalf of the assessee, to\n\nmerchants in British India."}}, {"text": "India", "label": "GPE", "start_char": 12323, "end_char": 12328, "source": "ner", "metadata": {"in_sentence": "The question as to what proportion of the profits of the sales in categories\n\n(a) , (b) , ( c) and ( d) arose or accrued in British India is essentially one of fact depending upon the circumstances of the case."}}]}
{"document_id": "1976_3_717_720_EN", "year": 1976, "text": "I •\n\nG. A. GALIAKOTWALA & CO. (P) LTD., MADRAS\n\nTHE STATE OF MADRAS\n\nMarch 22 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nCentral Sales Tax Act Ss. 3, 6(2), 8(3) and 8(5)-Scope of-Goods despatched by \"S' in Bombay to \"B'' in Madras who has an agreement to purchase with \"A\" to whom Railway Receipts were sent by \"S\" as per directions and separate agreement-Transaction is an 'Inter state' sales within S. 3(b) of the C.S.T. between \"S\" and \"A\"-Exemption uls 8(5) applies only to cases where the claimant paid tax himself under , the State Act-Exemption u/s 6(2) is applicable on proof that the buyer is a aregistered dealer\".\n\nAs per the directions of the appellant and on receipt of tlie requisite licence Under the cotton Transport Act 1923, for transport of cotton, the Bombay seller despatched cotton to the ultimate buyer mills at Madurai and sent the Railway Receipts to the appellant who endorsed the same in favour of the Mills after collection of the substantial portion of the sale priCe. The sales Tax authorities treated the transaction as intra sales and assessed the Mills as the J.ast purchaser under the Madras General Sales Tax and assessea the appellant D u/s 3(b) of the Central Sales Tax Act 1956. The question is wnether in the circumstances the transaction is. one of inter state sales falling U/s 3(a) or second sales under state sales u/s 3 (b) of the Central Sales Tax Act.\n\nThe contentions of the appellant in this court were ; (1) The sale of cotton by the appellant assessee to the buyer mill fell within tlie scope of S. 3(a) of the Central Act as there was movement of goods from \"Bombay to Madras\n\nas a result of covenant in or incidental to the contract of sale and therefore u/s 9(1) of the Central Sales Tax the jurisdiction lay with Bombay state from E where the goods moved from and (ii) Since the sale being in respect of dee~ lared goods, is exempt by the terms of notification of Otder No. 3602 dated 28-12-63 issued u/s 8(5) of the C.S.T. and (ii) the turnover was exempt u/s 6(2) of C.S.T.\n\nDismissing the appeal the court,\n\nHELD : (1) The significant feature of the transaction viz. sending of tbe Railway Receipts by the Bombay seller to the appellant who thereafter endorsed the same to the mills, shows that (a.) there could not be any uncondi~ tional appropriation of the goods at Bombay towards the contract entered into between the appeliant; (b) It was an Inter state sales to the appellant and the sale by the appellant to the mills is an intra-state sales in as much as, the mere fact that the goods were consigned .by the Bombay seller to the mills in accordance with the direction will not make the transaction inter state sales.\n\n[718G-H, 719A-BJ .\n\n(ii) The State sales Tax authorities, (respondent) had jurisai'ction to assess the transaction for sale by the appellant to the mills u/s 3 (b) of the Central Act. [7!9C]\n\n(iii) The exemption u/s 8(5) applies only to cases where the claimant had paid tax himself u/s 4 of the Madras Act in respect of locaf sales preceding the inter state transactions.\n\nIn the instant case, as the appellant did not pay tax ul, s 4 of the Madras Act, he was not entitled to claim exemption under the Government order. [719 E-F]\n\n(iv) A dealer claiming exemption for subsequent sale duriiig the rriovement -0f goods from one state to another is required by s. 6(2) of tl:te Central Act • to furnish to the prescribed authority in the prescribed manner a certificate\n\nduly filled and signed by the registered dealer by whom the goods were pur~ chased containing the particulars.\n\nIn the instant case, the appellant produced the form from the Bombay seller but did not prove that his buyer was ai registered dealer in cotton which disentitled him to exemption u/s 6(2) of the Act. [720 B-C] \\\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1191 of 1973.\n\nAppeal by special leave from the Judgment and Order dated 7-11-72 of the High Court of Madras iu T.C. No. 197 of 1968.\n\nC. K. Viswanatha Iyer, Mrs. S. Gopalakrishnan for the Appellant.\n\nS. T. Desai, A. V. Rangam and Miss A. Subhashini for the respondent.\n\nc The Judgment of the Court was delivered by\n\nRAY, C. J.-This appeal by special leave is from the judgment llated 7 November, 1972 of the High Court of Madras.\n\nThe principal question in this appel is whether the sales of + cotton by the appellant to the mills at Tirunelveli and Karur were· inter-State sales under section 3(a) of the Central Sales Tax Act called the Central Act or are second sales under State Sales under section 3 (b) of the Central Act. •\n\nThe appeljant has its place of business at Coimbatore. The Mills are situated within the State of Madras.\n\nThe Mills entered into an agreement with t_he appellant for purchase of cotton. The appellant in turn placed orders ith its sellers at Bombay for purchase of cotton. The appellant directed its Bombay sellers to despatch the goods to the mills as co_nsignees.\n\nThe Bombay seller sent the consignment to the mills but the railway receipts were sent by the Bombay seller to the appellant.\n\nThe appellant then endorsed the same in favour of the mills after collection of the substantial portion of the sale price.\n\nThe appellant contended that the consignments were sent directly 'F by the Bombay seller to the mills, and, therefore, these were direct inter-State sales by the Bombay seller to the mills and that the property in the goods passed to the mills when the goods were loaded at Bombay.\n\nThe Sales Tax Authorities found that the Mills were the last purchaser and therefore these were inter-State sales between the Appellant and the Mills.\n\nA most significant feature is that the railway receipts were sent by the Bombay seller to the appellant, and the appellant thereafter endcrsed the same to the mills. It is, therefore, apparent that there could not be an unconditional, appropriation of the goods at Bombay towards the contract entered into between the appellant and the mills.\n\nThe property in tlhe goods passed only when the mills took delivery of the railway receipts from the appellant.\n\nThe Bombay seller dealt with the railway. receipts in such a way that it is proved that the intention of the appellant to part with the goods in any event is not until. substantial payment is made by the mills.\n\nThe Bombay seller ha>) no privity of contract with the Mills.\n\nThe\n\nI •\n\nG. A. GAL!AKOTWALA V. MADRAS (Ray, C. J.) 719\n\nBombay seller sold the goods to tlie appellant.\n\nThe sale by the Bombay seller to the appellant was ail inter-State sale.\n\nThe sale by the appellant to the mills cannot be said to have caused the inter- .\n\ntate movement of goods.\n\nThe mere fact that the goods were consigned by the Bombay seller to the mills in accordace with the direction of the appellant will not make the transactions inter-State\n\noles. The sale by the Bombay seller to the appellant occasioned the movement of goods.\n\nThe High Court was correct in holding that the sale by the Bombay seller to the appellant is an inter-State sale and the sale by the appellant to the mills is not an inter-State sale.\n\nTherefore, the State Sales Tax Authorities had jurisdiction to assess the tranaction for sale by the appellant to the mills under section 3 (b) of the Central Act.\n\nThe appellant raised a second contention that the appellant is entitled to the benefit of Government Order No. 3602 which exempts from sales tax declared goods sold in the course of inter-State trade\n\nor co=erce where tax has been levied or collected in respect D of sales or purchase of such declared goods under section 4 of 'the Madras General Sales Tax Act, 1959 called the Madras Act.\n\nThe Goverrunent Order No. 3602 was issued in exercise of powers conferred by section 8 ( S) of the Central Act.\n\nThe appellant contended that the mills paid the tax on their purchases of cotton and the same transaction could not be brought to charge 'in the iYands of the E appellant as inter-State sale.\n\nIf the transaction attracts levy of tax under the Central Act it is not taxable under the Madras Act.\n\nIf the mills had paid tax under the impression that their purchases are taxable under the Madras Act that will not enable the appellant to claim the benefit of the exemption.\n\nThe exemption applies only to cases where the claimant has paid tax himself under F\n\nectiou 4 of the Madras Act in respect of local sales preceding the inter-State transactions.\n\nThe appellant in the present case did not pay tax under section 4 of the Madras Act. The High Court, thereore, correctly held ihat the appellant was not entitled to claim exemption under the Government Order.\n\nThe third contention of the appellant was that the appellant was entitled to exemption in respect of turnover under section 6(2) of the Central Act.\n\nSection 6(2) of the Central Act lays down that where a sale in the course of inter-State trade or co=erce of goods of the description referred to in section 8 ( 3) of the Central\n\nAct has occasioned the movement of goods from one State to another H or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent\n\nsale to a registered dealer during such movement effected by a transfer of documents of title to such goods shall not be subject to tax under the Act.\n\nA dealer claiming exemption for subsequent sale during the movement of goods from one State to another is required by section 6(2) of the Central Act to furnish to the prescribed authority in the prescribed manner a certificate duly filled and signed by the registered dealer by whom the goods were purchased containing the particulars. In the present case, the appellant would be entitled to exemption in production of appropriate form by the Bombay seller and by showing that the buyer is I!: registered dealer.\n\nThe appellant produced the form from Bombay seller but did not prove that his buyer was a registered dealer in cotton.\n\nTherefore, the Tribunal rightly held that the appellant was not entitled to exemption under section 6(2) of the Act.\n\nThe appeal is, therefore, dismissed with costs.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 56, "entities": [{"text": "G. A. GALIAKOTWALA & CO. (P) LTD., MADRAS", "label": "PETITIONER", "start_char": 5, "end_char": 46, "source": "metadata", "metadata": {"canonical_name": "G. A. GALIAKOTWALA & CO. (P) LTD., MADRAS", "offset_not_found": false}}, {"text": "THE STATE OF MADRAS", "label": "RESPONDENT", "start_char": 48, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF MADRAS", "offset_not_found": false}}, {"text": "March 22 1976", "label": "DATE", "start_char": 69, "end_char": 82, "source": "ner", "metadata": {"in_sentence": "MADRAS\n\nTHE STATE OF MADRAS\n\nMarch 22 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 85, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 102, "end_char": 111, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 116, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 137, "end_char": 158, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ss. 3, 6(2), 8(3) and 8(5)", "label": "PROVISION", "start_char": 159, "end_char": 185, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "Madras", "label": "GPE", "start_char": 240, "end_char": 246, "source": "ner", "metadata": {"in_sentence": "3, 6(2), 8(3) and 8(5)-Scope of-Goods despatched by \"S' in Bombay to \"B'' in Madras who has an agreement to purchase with \"A\" to whom Railway Receipts were sent by \"S\" as per directions and separate agreement-Transaction is an 'Inter state' sales within S. 3(b) of the C.S.T. between \"S\" and \"A\"-Exemption uls 8(5) applies only to cases where the claimant paid tax himself under , the State Act-Exemption u/s 6(2) is applicable on proof that the buyer is a aregistered dealer\"."}}, {"text": "S. 3(b)", "label": "PROVISION", "start_char": 417, "end_char": 424, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "s 6(2)", "label": "PROVISION", "start_char": 570, "end_char": 576, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "Madurai", "label": "GPE", "start_char": 851, "end_char": 858, "source": "ner", "metadata": {"in_sentence": "As per the directions of the appellant and on receipt of tlie requisite licence Under the cotton Transport Act 1923, for transport of cotton, the Bombay seller despatched cotton to the ultimate buyer mills at Madurai and sent the Railway Receipts to the appellant who endorsed the same in favour of the Mills after collection of the substantial portion of the sale priCe."}}, {"text": "s 3(b)", "label": "PROVISION", "start_char": 1191, "end_char": 1197, "source": "regex", "metadata": {"linked_statute_text": "As per the directions of the appellant and on receipt of tlie requisite licence Under the cotton Transport Act 1923", "statute": "As per the directions of the appellant and on receipt of tlie requisite licence Under the cotton Transport Act 1923"}}, {"text": "Central Sales Tax Act 1956", "label": "STATUTE", "start_char": 1205, "end_char": 1231, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s 3(a)", "label": "PROVISION", "start_char": 1333, "end_char": 1339, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "s 3", "label": "PROVISION", "start_char": 1376, "end_char": 1379, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 1391, "end_char": 1412, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 3(a)", "label": "PROVISION", "start_char": 1562, "end_char": 1569, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "Bombay", "label": "GPE", "start_char": 1626, "end_char": 1632, "source": "ner", "metadata": {"in_sentence": "The contentions of the appellant in this court were ; (1) The sale of cotton by the appellant assessee to the buyer mill fell within tlie scope of S. 3(a) of the Central Act as there was movement of goods from \"Bombay to Madras\n\nas a result of covenant in or incidental to the contract of sale and therefore u/s 9(1) of the Central Sales Tax the jurisdiction lay with Bombay state from E where the goods moved from and (ii) Since the sale being in respect of dee~ lared goods, is exempt by the terms of notification of Otder No."}}, {"text": "s 9(1)", "label": "PROVISION", "start_char": 1725, "end_char": 1731, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "28-12-63", "label": "DATE", "start_char": 1955, "end_char": 1963, "source": "ner", "metadata": {"in_sentence": "3602 dated 28-12-63 issued u/s 8(5) of the C.S.T. and (ii) the turnover was exempt u/s 6(2) of C.S.T.\n\nDismissing the appeal the court,\n\nHELD : (1) The significant feature of the transaction viz."}}, {"text": "s 8(5)", "label": "PROVISION", "start_char": 1973, "end_char": 1979, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "s 6(2)", "label": "PROVISION", "start_char": 2029, "end_char": 2035, "source": "regex", "metadata": {"linked_statute_text": "the Central Sales Tax Act 1956", "statute": "the Central Sales Tax Act 1956"}}, {"text": "s 3", "label": "PROVISION", "start_char": 2855, "end_char": 2858, "source": "regex", "metadata": {"statute": null}}, {"text": "s 8(5)", "label": "PROVISION", "start_char": 2913, "end_char": 2919, "source": "regex", "metadata": {"statute": null}}, {"text": "s 4", "label": "PROVISION", "start_char": 2984, "end_char": 2987, "source": "regex", "metadata": {"statute": null}}, {"text": "s 4", "label": "PROVISION", "start_char": 3131, "end_char": 3134, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 3359, "end_char": 3366, "source": "regex", "metadata": {"statute": null}}, {"text": "s 6(2)", "label": "PROVISION", "start_char": 3762, "end_char": 3768, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 3794, "end_char": 3822, "source": "ner", "metadata": {"in_sentence": "720 B-C] \\\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "7-11-72", "label": "DATE", "start_char": 3915, "end_char": 3922, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the Judgment and Order dated 7-11-72 of the High Court of Madras iu T.C. No."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 3930, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "Appeal by special leave from the Judgment and Order dated 7-11-72 of the High Court of Madras iu T.C. No."}}, {"text": "C. K. Viswanatha Iyer", "label": "OTHER_PERSON", "start_char": 3977, "end_char": 3998, "source": "ner", "metadata": {"in_sentence": "C. K. Viswanatha Iyer, Mrs. S. Gopalakrishnan for the Appellant."}}, {"text": "S. Gopalakrishnan", "label": "OTHER_PERSON", "start_char": 4005, "end_char": 4022, "source": "ner", "metadata": {"in_sentence": "C. K. Viswanatha Iyer, Mrs. S. Gopalakrishnan for the Appellant."}}, {"text": "S. T. Desai", "label": "OTHER_PERSON", "start_char": 4043, "end_char": 4054, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. V. Rangam and Miss A. Subhashini for the respondent."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4056, "end_char": 4068, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. V. Rangam and Miss A. Subhashini for the respondent."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 4078, "end_char": 4091, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. V. Rangam and Miss A. Subhashini for the respondent."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4159, "end_char": 4162, "source": "ner", "metadata": {"in_sentence": "c The Judgment of the Court was delivered by\n\nRAY, C. J.-This appeal by special leave is from the judgment llated 7 November, 1972 of the High Court of Madras."}}, {"text": "7 November, 1972", "label": "DATE", "start_char": 4227, "end_char": 4243, "source": "ner", "metadata": {"in_sentence": "c The Judgment of the Court was delivered by\n\nRAY, C. J.-This appeal by special leave is from the judgment llated 7 November, 1972 of the High Court of Madras."}}, {"text": "Tirunelveli", "label": "GPE", "start_char": 4377, "end_char": 4388, "source": "ner", "metadata": {"in_sentence": "The principal question in this appel is whether the sales of + cotton by the appellant to the mills at Tirunelveli and Karur were· inter-State sales under section 3(a) of the Central Sales Tax Act called the Central Act or are second sales under State Sales under section 3 (b) of the Central Act. •"}}, {"text": "Karur", "label": "GPE", "start_char": 4393, "end_char": 4398, "source": "ner", "metadata": {"in_sentence": "The principal question in this appel is whether the sales of + cotton by the appellant to the mills at Tirunelveli and Karur were· inter-State sales under section 3(a) of the Central Sales Tax Act called the Central Act or are second sales under State Sales under section 3 (b) of the Central Act. •"}}, {"text": "section 3(a)", "label": "PROVISION", "start_char": 4429, "end_char": 4441, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 4449, "end_char": 4470, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3", "label": "PROVISION", "start_char": 4538, "end_char": 4547, "source": "regex", "metadata": {"statute": null}}, {"text": "Coimbatore", "label": "GPE", "start_char": 4618, "end_char": 4628, "source": "ner", "metadata": {"in_sentence": "The appeljant has its place of business at Coimbatore."}}, {"text": "G. A. GAL!AKOTWALA V. MADRAS", "label": "JUDGE", "start_char": 6370, "end_char": 6398, "source": "ner", "metadata": {"in_sentence": "The\n\nI •\n\nG. A. GAL!AKOTWALA V. MADRAS (Ray, C. J.) 719\n\nBombay seller sold the goods to tlie appellant."}}, {"text": "section 3", "label": "PROVISION", "start_char": 7222, "end_char": 7231, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 7571, "end_char": 7580, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras General Sales Tax Act, 1959", "label": "STATUTE", "start_char": 7589, "end_char": 7623, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 7725, "end_char": 7734, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Act, 1959", "statute": "the Madras General Sales Tax Act, 1959"}}, {"text": "section 4", "label": "PROVISION", "start_char": 8468, "end_char": 8477, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Act, 1959", "statute": "the Madras General Sales Tax Act, 1959"}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 8738, "end_char": 8750, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6(2)", "label": "PROVISION", "start_char": 8772, "end_char": 8784, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 8921, "end_char": 8930, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 9427, "end_char": 9439, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6(2)", "label": "PROVISION", "start_char": 10036, "end_char": 10048, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_721_762_EN", "year": 1976, "text": "SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS.\n\nMOHD. HANIFS (DEAD) BY L.RS. AND ORS. • March 22, 1976\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]\n\n• Mt1hommadan Law-Mosque its adjuncts and graveyard, lvhat constitutes\n\ndedication to public-Right to officiate as Imam, when recognised.\n\nMuslim Wakfs Act, 1954, s. 55(2), Scope of-Code of Civil Procedure (Act 5 of 1908) s. 11-Res judicata, scope of.\n\nThe land in dispute was originally acquired by a Muslim saint, about two hundred years ago. Some years 1ater the predecessors of therespondents, who formed the major section of the Muslims of the village, approached his successor, the ancestor of the appellants and the then owner of the land, and sought his permission for building a mosque on the land as there was no mos~ que at all in the village. The predecessors of the respondents executed an agreement in favour of the owner. It recited that, ( 1) the predecessors of the respondents were constructing a prayer hall on the raised platform belonging to the ancestor of the appellants, with his permission; (2) after completion of the mosque, the predecessors of the respondents will have no claim or right, except the right to worship therein; (3) the only right which they would claim would be the right to worship and to light lamps, while they will be responsible for the maintenance of the -mosque; ( 4) the constructfon was purely for the purpose of worship; and (5) there shall be a doorway and windows on one side so as to serve as a separate entrance to the mosque in order to constitute it as a separate entity.\n\nThe mosque was built by the ancestors of the respondents; and thereafter, in course of tin1e, additional constructions which form adjuncts to the mosque, were added. All the adjuncts were built for the purpose of offering prayers in the mosque and by way of a gift to the mos(iue.\n\nThe adjacent vacant land was used as a graveyard for the Mi.islims of the vi11age.\n\nSubsequently, the appellants constructed shops on a part of the graveyard, and the respondents, who regarded the constructions\n\nns desecration of the graveyard, filed a number of suits for the demolition -0f the shops. The appellants, however, claimed the properties as their private properties, excepting the prayer hall used as a mosque, and even there, they claimed that they had a right to manage it and lead the congregation at prayers. The result of the suits was inconclusive, and as a result of an observation in one of the suits, that the only remedy for the constant quarrels between the two sections of the Muhammadan community is a suit under s. 92, Civil Procedure Code, the respondents filed a suit under the section, in a representative capacity. after obtaining the sanction of the Advocate General.\n\nThey alleged that the 3 items of property, namely, (1) the burial ground which consisted of two parts, (2) the Dargah over the tomb of the saint who first acquired the property, and (3) the mosque and its adjuncts were an wakf properties of a public and charitable nature dedicated bv the predecessor of the appellants, that they were public trusts dedicated to God, and that the appe1lants, who were de facto managers, were guilty of acts of mismanagement and misfeasance.\n\nThe respondents prayed for the removal of the appellants and for framing a scheme for administeringthe trust vronerties.\n\nThe trial court dismissed the suit. but on appeal, the High Court, while dismissing the suit with respect to the Darrmh on the ground that it was the private orooerty of the appellants, decreed it with respect to the mosque <tnd its adiuncts, and the graveyard. and remanded the matter to the trial court for framing a scheme for the administration of those two trust properties. ·\n\nIn appeal to this Court. the apnetlant.:: contende<l that. (1) ln the previous judgment.:: between the narties the nubtic character of the properties was negativ ed and they operated as res judicata; (2) There was no ptiblic wakf of the\n\n/ F\n\nmosque which was only a private or family mosque; that there was no declaration of dedication for the purpose of a mosque, and that the prayers offered in the mosque by the respondents were only by leave and licence of the founder; (3) the graveyard was also not a public wakf but the family graveyard of the appellants wherein corpses of other Muslims were allowed to be buried on payment of pit fees and other charges. ( 4) e_ve~ if th.e mosque \"'.as a wakf of a public character the appellants had the hereditary right to administer and govern it and so the respondents had no right to dislodge them a?d ask for the framing of a scheme; (5) the suit was ba:rred by s. 55(2), Muslim Wakfs Act1 1954; and (6) section 92, Civil Procedure Code, has no application as the appellants wen~ not trustees.\n\nDismissing the appeal,\n\nHELD : (I) The judgments relied upon by the appellants do not operate as res judicata, because, the public character of the wakfs was not in issue in those cases. [738D]\n\n(a) Before a plea of res judicata can be given effect to, the following conditions must be proved :-\n\n(i) that the litigating parties are the same;\n\n(ii) that the subjectmatter of the suits is identical;\n\n(iii) that the matter was finally decided between the parties; and\n\n(iv) that the earlier suit was decided by a court of competent jurisdiction. [732A-733 BJ\n\n(b) In the present case, the 2nd condition is not satisfied, because, the public character of the mosque was never raised in any of the earlier suits, and consequently, there was no decision or finding upon the public character of the mosque. The only questions that were raised were the questio•s regarding the performance of certain religious ceremonies~ the question of the right to appoint the Imam, and as to who was to manage the affairs of the mosque.\n\nIn one suit, the appellants had put forward the claim of being hereditary owners of the mosque, but that was only in a limited sense, namely, for the purpose of its management. In another suit, there was a finding that the respondents were debarred from disputing the ownership of the appellants of the mosque, and from asserting that the respondents were anything more than licensees in respect of the mosque.\n\nBut this observation has to be understood in the light of the pleadings which show that the suit related not to the public nature of the mosque but only to the management thereof. [733B-C. E-F, 734D-E, 736G-\n\n737A, 738D-E]\n\n( c) In two suits there was in fact a finding against the appellants, that the mosque was public property and not descendible to the appcliants. In one suit, there were observations that the burial ground and other plaCes v.rere th~ exclusive. properties of the appellants; but by 'exclusive property' it was never meant that it was the private property of the appellants, but only that the respondents had no interest in it. Even otherwise, as the suit was not for any declaration that the mosque was a public one the observations would only be obiter.\n\n[734G, 735F-G. 738B-CJ\n\n(d) In a criminal revision case before the High Court. the resnondents adn1itted that they would not interfere with the rights of ;:he appellii.nts and the respc:inents were acquitte~ thereupon.\n\nA perusal of the order shows that the admission was not unqualified but only amounted to this that the respondents would not take the law into their hands, but would take recourse to legal remedies.\n\nEven if it is construed as an admission, it was in a criminal case made in terrorem and loses much of its significance. Furtlier. since the respondents filed the suit under s. 92, they had not_ acted against the admission but have availed themselves of a remedy which was open to them under the Jaw. [738G-739B]\n\n(e) The earlier judgments between the parties show tliat ft was never disputed even by the appellants that the mosque was a pu5lic mOSque where prayers were offered by the Mahomedan public. [737 A]\n\n/ •\n\nSYED MOHD. SALIE LABBAI V. MOHD. HANIFS\n\n72S\n\n(2) Since the public character of the mosque was neve! raised in any suit, the judgments relied upon by the appellants. do not estabhsh t_hat te mosque and its adjuncts were not wakfs of a public nature. A consideration of the facts, circumstances and the evidence in the pesent cas~. show~ that .the mosque and its adjuncts constituted wakf proper~1es a~ a single. unit an? ad. been used as such for a long time so as to culminate into a vahd and b1nd1ng public wakf. [7380-E, 746B, 760B]\n\n(a) To create a valid dedication of a public mosque, under the Hanafi school\n\n:O: of Mahomedan law, the following conditions must be satisfied :- [746B-C] .\n\n(i) that the founder must declare his intention to dedicae a _property for the purpose of a mosque.\n\nNo. particular form of declaration ts ncessary.\n\nThe declaration can be presumed from the conduct of the founder either express or implied.\n\nIt may be oral or in writing. [750-B, 755A-B]\n\n(ii} that the founder must divest himself 1:ompletely from the ownership c of the pro-perty, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque.\n\nEven if there is no actual delivery of possession, the mere fact that members of tlie Mahomedan public are permitted to offer prayers with azan and ikamat, shows\n\nthat the wakf is complete and irrevocable.\n\nIt is not necessury for the dedicator of a public mosque that a Muttawali or a Pesh Imam should be appointed.\n\nThat could be done later by the members of Muslim Community; and (iii) the founder must make some sort of a separate entrance to the mosque which\n\nmay be used by the public to enter the mosque. [747A, 750B-0] D-\n\n-\\ As regards the adjuncts the law is that where a mosque is built or cfedicated\n\nfor the public, if any additions or alterations, either structural or otilerwise,\n\nare made which are incidental to the offering of prayers or for other religious purposes, these constructions would be deemed to be accretions to the inosque and the mosque and such adjuncts will form one single unit so as to be a part of the mosque. [7500-E]\n\nJewan Doss Sahoo v. Shah Kubeer-ood-Deen, 2 M.I.A. 390; Adam Sheik\n\nv. Isha ,'; hcik, LC.W.N. 76; Saiyad Maher Husein v. Jaji Alimohonied 36 B.L.R. 526; Akbarally v. Maf1on1edally; I.L.R. 57 Born. 551; Miru v. Ramgopa[,\" A.I.R. 1935 All. 891; Abdul Rahin1 Khan v. Fakir Mohan1n1ad Shah, A.I.R. 1946 Nag. 401; Masjid Shahid Gani Mosque v. Shro1nani Gurdwara Prabandhak Committee, An1rihar; L.R. 67 I.A. 25J; Musaheb Khan v. l?aj Kumar Bakshi, A.LR. 1938\n\nOudh 238; Maula Baksh v. Amiruddin; I.L.R. I Lah. 317; Mohammad Shah Shah\n\nv. Fazihuddin Ansari, A.l.R. 1956 S.C. 713 referred to.\n\n(b) So1 far as the mosque and its adjuncts in the present case are concerned they consist of, (i) the main prayer hall, (ii) a covered platform, whef-e, accord~ ing to the respondents, prayers were offered by the members of the Mahomedan public when the space in the main mosque was not sufficient to accon1modate a big crowd, and (iii) a small chamber in the nature of a store room adjacent to the mosque, a thatched shed, a pond into which \"\"ater is pumped by a pump set which had been inst..tlled by the Mahomedans of the village, a latrine to the south of the burial ground, and a minaret fitted with a loud speaker. On special auspicious occasions, the entire Muslim community flocks to the moque for the purpose of prayers, because, offering prayers on such days is, according to Islamic tenets, extremely auspicious & highly efficacious. Before a Mussalman offers his prayers he has to do wazoo or wash his hands and feet in the prescribed manner and for this purpose arrangements are made in every mosque. Accordingly a tank or hauz, where water is pumped for the wazoo was provided. As a large number of Muslims assembled on special occasions, the entire space-inclu<jing the mosque, the raised platform and a corridor-was used for the purpose of offering prayers.\n\nThe store room was used for keeping the mats which were meant to be used at the time of offering prayers and the loud speaker for reciting Azan and for delivery of Khutbas or religious sermons. Thus, 1he constructions were used for religious purposes incidental to the offering of prayers and have become accretions to the mosque so as to constitute one single entity. [7540-H, 758G-:-759CI\n\n( c) In the case of a mosque, the fol, lnder's permission or the bare act of allow .. ing the members of the l\\.fahomedan public to offer prayers amol, J.nts to a compte delivery of possession. The agreement in favour of the ancestor of the appellants clearly shows the intention of_ the founder and on a proper interpretation of its terms amounts to a permanent and irrevocable dedication to God constitL_!_ting a valid 'public wakf. The owner of the land had given his tacit consent to all the terms of the agreement and in the eye of the law, he being a party to the agree~ ment he allowed\" the mosque to be constructed not for the private members of his frnily but for the worship of God by the entire Mahomedan public. The document thus unmistakably evidences the clear intention of the founder to consecrate the mosque for public worship and amounts to a declaration of a public wakf. By providing a separate entrance, the owner agreed to separate the mosque from the rest of the property namely the Dargah and the compound; and by allow:- ing the entire Mahomedan Community of the village to worship in the mosque and to perform other ceremonies, the owner of the land gave delivery of posses sion to the n1osqt1e.\n\n[756B-F]\n\n(d) The owner, being a saint himself, unequivocally and categorically dives ted himself of the entire interest in the mosque and made it a public wakf. A place may be dedicated as a mosque or masjid without there being any building.\n\nBut, since the building in the nature of a mosque was built, a clear case of ded.i cation has been made out. Once the mosque was constructed it stood dedicated to God and all the right, title and interest of the owner got completely extinguish ed about a century and a half ago and since then, the mosque had been used con\n\n,; t,1ntly for the purpose of offering prayers. [756F-H]\n\n( e) Once there was a complete dedication to the mosque as a place of pub lie worship any reservation or condition imposed by the O\"Wner would be deemed if:o be void and would have to be ignored. Therefore, it could not be contended by the appellants that under thi' agreement, the respondents had stipulated not to claim any right or interest in thel IiiO${, fUe, find herice, cannot claim the mosque as wakf property. Reading the statements in the agreement as a whole what the resrondents' ancestors meant was that the mosque would undoubtedly be a public wakf meant for the purpose of public worship and that they would not interfere with its rnanagement.\n\nBut that did not mean that if the appellants, who are the founder's descendants, indulged in mismanagement of the mosque, the respondents, as members of the Mahomedan Community~ could not take suitable action under law against them. [7 57 A-DJ •\n\n(f) Furlher, 1-1nder the 1.fuslim law once the dedication was complte. the property passed from the owner to God and it never returns to the owner and therefore, the question of the mosque being private can never arise. The very concept of a private mosque is wholly foreign to the dedication of a mosque for a public purpose under 1\\..Iuslim Law. Under that system of law. once the founder dedicates a particular property for the purpose of a public mosque, no l'vluslim can be denied the right to offer prayers in the mosque to whatever section or creed he nuly belong, and that is why the law is so strict that the moment even a single person is allowed to offer his prayers in a mosque it becomes dedicated to the public. Also, any adjuncts to a mosque, which are also used for religious purposes, become as much a part of the mosque as the mosque itself. [734E-\n\nF: 735C-D: 736A-B: 746HJ\n\n(g) There i~ not an iota of evillence lo prove the case of the appellants that the adjuncts were their private property. Where any construction is made for the purpose of the mosque or for its benefit or by way of gift to the mosque, that also becomes a public wakf. The question of Who made the construction is wholly irrelevant, because, all constructions made by any person, used for religious purposes incidental to offering of prayers in the mosque, would be deemed to be accretions to the mosque itself.\n\nEven the appellants' witnesses admitted the nature and character of the various adjuncts to the mosque. [757H: 758F; 759B- D]\n\n(h) The argument that there was no formal dedication is unsound.\n\nThe document recites that the property being built on the land of the founder was a public mosque to be used for-the public purpose of offering prayers. Even otherwise,- the act of permitting the Mahomedans of the village to 1:-uild a n1osoue, itself amounts to a compJee dedication or a declaration that the mosque is a\n\nSYED MOHD. SALIE LABBAI V. MOHD. HANIFS 72 5\n\npublic property. Ftlrther, by giving delivery of possession of the site for the purpose of building a mosque and by allowing prayers to be offered in the mosque, the founder made a complete public wakf in the shape of a mosque. [759D-F]\n\n11\\ Zafer Hussain v. Mohd. Ghias-ud-din, A.I.R. 1937 Lah. 552; lv'awab Zain\n\nYar Jung v. Tile Director of Endowments [1963] 1 S.C.R. 469 and Ja1valzarbeg\n\nv. Abdul Aziz A.LR. 1956 Nag. 257 distinguished.\n\n{3) (a) lJnder Mahomedan law graveyards may be of two kinds, namely,\n\nB'.. family or private graveyards and public graveyards. The rules for determining whether a graveyard is a public or private one are. [742E]\n\n (i) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a publlc graveyard by immemorial user, that is, where corpses of the members of the Mahomadan community have been buried in a particular graveyard for a large number of years V..'ithout any objection from the owner.\n\nThe fact that the owner permits such burials will not make any difference at all; [744B-C] C\n\n(ii) that if the graveyard is a private or family graveyard, then, it should contain only the graves of the founder, of the members of his family or of his descendants and of no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sfieds its character\n\nand becomes a public graveyard; [744C-D]\n\n(iii) that in order to prove that a graveyard is public by dedication it n1ust be shown by multiplying instances of the character, nature and extent of the Di burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community. had buried their corpses fron1 time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and once it is held to be a public graveyard it vests in the public and constitutes a wakf and it cannot be divested by non user; and [744A, El\n\n(iv) that \\Vhere a burial ground is mentioned as a public graveyard either in revenue or historical papers, that would be conclusive proof to show the public E. character of the graveyard. [744F] I Ballabh Das v. Nur Mohammad, A.I.R. 1936 P.C. 83, Imam Baksh v.\n\nMander Narsingh Puri, A.I.R. 1938 Lah. 246, Sheorai Chan1ar v. Mudeer Khan,\n\n(1934) A.I..!. 809, Qadir Baksh v. Saddullah, A.I.R. 1938 Oudh 77, and Mohammad Kassam v. Abdul Gafoor, A.I.R. 1964 M.P. 227 referred to.\n\n(b) The position regarding the graveya:rd, _in the present case, is that even some of the judgments relied upon by tbe appellants have affirmed its public character. Further, the judgments relied upon by the respondents show that the Eproperty had been dedicated as a public burial ground. These judgments operate as res-judicata against the appellats so far as the graveyard -is Concerned. All the attempts by the appellants to get a declaration from the courts that tbo graveyard was a private one failed and all the courts have consistently held that bothparts of the burial ground were a public graveyard where corpses of the Mahomadan community of the village were buried. The appellants, however, being the descendants of the founder, had established a right by usage to charge pit fees and other charges.\n\nBut the mere fact that the appellants used to realise G pit fees or other incidental charges would not detract from the nature of the dedication. The appellants themselves had filed an application before the Muni~ cipal CDuncil for registering the burial ground as a graveyard, showing that the appellants themselves treated the burial ground as a public graveyard and had it so registered with the Municipal Council. [7380; 739C---D; 742B--C; 744F- 745Bl\n\n( c) Even assuming that the judgments do not operate as res judicata, there is overwhelming oral and documentary evidence to prove that it is a public grave- R yard.\n\n[745F-G]\n\n( d) There is no legal evidence to prove that the western part, adjacent to • the Dargah, should be held to be a private burial ground belonging to the family\n\nof the appellants. Both parts constitute one single burial ground and there is nothing to show that in burying the dead any distinction had been made between the two parts. [745H] ( 4) There is overwhelming evidence on record to show that the appellants werQ guilty of grave mismanagement, and therfore a clear case for formulating a scheme under s. 92, C.P.C., has been made out by the respondents. Even the trial court found acts of mismanagement but explained away the acts of misfeasance on the ground that the respondents undertook not to interfere with the management or ask for accounts and held the appellants' negligence v,:as not actionable.\n\nBut in view of the finding that the mosque and its adjuncts and the burial ground are public wakfs, the question of negligence assumes a new complexion.\n\nApart from acts of mismanagement, the graveyard was not properly managed or nlaintained, the boundary wall was broken allowing cattle to enter and desecrate the graveyard, even the mosque was in a state of disrepair, and the appellants had constructed shops on a part of the graveyard and in spite of several decrees directing their demolition, the appellants had disobeyed the orders of the Courts. [761G-762B]\n\n(5) Section 55(2) of the Wakfs Act provides that the sµit for the reliefs in s. 55 (1) shall not be instituted without the consent of the Board. But no Board had been constituted at the time the suit was filed. Therefore, the pro' isions of s. 55 (2) are not at all attracted and were not capable of being acted upon. Hence, the noncompliance with its requirements would not bar the maintainability of the suit. [760El\n\n(6) Section 92, C.P.C., is clearly applicable to the case.\n\nSection 92 applies only when there is anyi alleged breach of any express or constructive trust created for a public charitable, or religious, purpose. It also applies where the directions of the Court are necessary for the administration of such public trust. In the instant case the appellants have been looking after the properties as de-facto managers, either as Pesh Imams or otherwise, nd have been enjoying the usufruct thereof. Therefore, they are trustees de son tort and the mere fact that they put forward their own title to the properties ~'ould not make them trespassers.\n\n[760G-H]\n\nMahonied Shirazi v. Province of Bengal, J.L.R. [1942] 1 Cal. 21 L Ra1ndas Bhagat v. Krishna Prasad, A.I.R. 1940 Pat. 425 approved.\n\nBut the scheme to be_ framed will be confined to the mosque and its adjuncts and to the burial ground and not to the Dargah, which has been held to be private property of the appellants. [762B-C] The evidence also shows that the appellants were acting as Imams, although not for a continuous period. There is no clear evidence of ailY usage or custom by which the right to act as Imain is hereditary. The question of the right to officiate in a public mosque, has to be decided according to the principles of Muslim Law and usage. Once a mosque is held to be a public mosque Muslim Law does not favour the right of a person to officiate as Imam to be hereditary in the absence of a custom or usage to the contrary. An Imam must paMess certain essential virtues before he can claim to lead the congregations at prayers.\n\nThe property having been dedicated to God, it is not open to the founder or his descendants to interfere with the performance of public prayers. But, since the appellants were the descend_ants of the founder and under the agreemeiit the respondents undertook not to claim any right in the mosque, although it would not act as an estoppel, the court may, at the time of framiilg the scheme, consider the desirability of associating some of the appellants with the framing of the scheme or even appoint one of them, if suitable, on terms, to look after the properties subject to the primary consideration of the welfare of the wakf properties. In case none of the appellants is suitable, the Court_ ma.y withhold the right from the appellants and act as it deems fit in the interests: of the , WOkf properties.\n\n[736C; 737B-C; 762C-F] CIVIL APPELLATE JURISDICTION: Civil Appeoals Nos. 1223-1224 and 2026 of 1968.\n\nFrom the Judgment and Decree dated 28-10-66 of the Madras\n\nHigh Court in Appeal Nos. 227 /60, 427/61 and 227 /60 respectively. •·\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) 727\n\nT. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos. 1223-1224/68 and for Respondents in C.A. 2026/68. A. K. Sen, A. V. Rangam and A. Subhashini for Respon- ' dents ia CAs. 1223-1224/68 and for Appellants in C.A. 2026/68.\n\nThe Judgment of the Court was delivered by\n\nFAzAL Au, J.-These appeals, by certificate granted by the High Court, arise out of a common judgment and will be dealt with by one judgment.\n\nThe appeals have had a chequered career resulting from a highly contested litigation spreading over a century and a half. A review of the historical background of the case reveals a rather sad story and an nnfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property.\n\nProperty essentialiy directed to God appears to have been used for mundane purposes which evoked loud protests from another section of the Mahomedan community who wanted to protect the public character of the trust property and this has led to several suits in various courts .\n\nThe most unfortunate part of the drama long in process is that the Courts before whom the disputes came up for decision handed down judgments which were not strictly in accorance with the shariat and the essential tenets of the Mahommadan Law which encouraged the partie' to plunge themselves into a long drawn and unnecessary litigation, nntil the High Court of Madras in one ol' the litigations had to point out that the only remedy to put an end to the disputes was to invoke the provisions of s. 92 of the Code of Civil Procedure and this is what appears to have been done in the action out of which these appeals arise.\n\nWith this pragmatic preface we now proceed to consider the facts of the case which are by no means short and simple, but present highly complicated and complex features.\n\nIt appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapnram who by his pious and saintly life attracted disciples not only belonging to he Mahomedan community but also some non-Muslims of that villag, e.\n\nThe saint was held in great respect and reverence by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext. B-1 dated May 12, 1730 which forms the starting point of the existence of the properties in suit which have been the subject-matter of such a Jong drawn litigation. Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by Thirmalai Kolandai Pillai who was a resident of village Vijayapuram.\n\nThe sale deed conferred absolute rights on the saint with powers to alienate by way of gift, exchange and sale etc. The sale deed also mentioned that there were no encumbrances in respect of the land, and if any were found, the vendor wonld discharge the\n\nsame.\n\nThe saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit.\n\nThis sale deed also appears to be in respect of the land which forms part of the disputed properties.\n\nThe sale deed was executed on May 22. 1797.\n\nThis sale deed (Ext. B-2) gives an indication that it consisted of\" lands and gardens and could be used a grave-yard also.\n\nThus the properties in dispute are situated on the lands sold to the ancestors of the Labbais by the two sale deeds referred to above.\n\nIt may be pertinent to note here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness.\n\nIn course of time the saint and the descendants were buried on the lands in dispute and a Dargah was set up which was managed by the descendants of the saint.\n\nSeveral years later, the Mahomedans of the village realised the necessity of having a mosque as no mosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthan Ali Khader Sahib for permission to build a mosque on a part of the land in dispute.\n\nThe permission having been granted, an agreement was excuted in favour of Masthan Ali Khader Sahib which is Ext. B. 4 and forms the sheet-anchor of the dedication said to have been made by Masthan Ali Khader Sahib for the purpose of a mosque.\n\nThereafter in course of time certain additional constructiolls in the shape of a platform, few rooms, a water tank, which form adjuncts to the mosque, were added obviously without any objection from the Labbais.\n\nThe vacant land appears to have been used as a graveyard where members of the Muslim community buried their dead as a matter of right on payment of certain fees or charges to the defendants or their 'ancestors. Subsequently the defendants constructed a few shops on a part of the graveyard which alienated the sympathies of the Muslims particularly the Rowther community who regarded the construction of the shops as desecration of the grave-yard and accordingly a number of suits were filed for demolition of the shops.\n\nThe defendants, however, claimed the entire properties as their private P.roperties excepting the prayer hall which was admittedly. used as a mosque.\n\nThere also the defendants claimed that they had a right to manage the same and to lead the congregation at prayers.\n\nThe present suit has been filed by the Rowtlaers who were the other section of the Muslim community and whose ancestors are alleged to have built the mosque and other constructions with the previous perrnission of the ancestors of the defendants. This suit was brought in a representative capacity under 0.1 r. 8 Code of Civil Procedure after obtaining the sanction of the Advocate General under s. 92 of the Code of Civil Procedure.\n\nAccording to the allegations made by the plaintiffs, there were three types of properties which were wakf properties of a public and charitable nature dedicated by the ancestors of the defendants.\n\nThese properties consisted of :\n\n(1) a huge vacant piece of land consisting of two parts which is popnlarly known as budal-ground.\n\nOn the western part of the gurial-ground some shops had been constructed by the defendants and all attempts made by the plaintiffs or their ancestors to get the\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) . 729\n\nthe plaintiffs or their ancestors to get the shops demolished had so far failed; A\n\n(2) towards the western portion of the grave-yard there is a tomb of the saint Syed Snltan Makhdoom Sahib over which a Dargah has been built;\n\n(3) a prayer hall adjacent to the Dargah which is known B as the mosque or Palliv<asal. There is also a covered platform, a pond and a thatched shed which appear to be adjuncts to the mosque.\n\nAccording to the plaintiffs all the three properties were public trusts dedicated to God and the defendants could not claim any right of ownership over them.\n\nThe plaintiffs alleged that thess properties were tledicated for public worship and were used for offering prayers since a very long time and had become wakfs by immemorial user. It was further alleged that property No. (I) was a public grave-yard and the defendants wrongly claimed it to be their private grave-yard by refusing permission to the plaintiffs to bury their dead.\n\nIt was also alleged that the defendants had been mismanaging the wakf properties . as a result of which the mosque had fallen in to a state of disrepair and the gtave-yard was being converted into shops and other places so as to lose its origin.\n\nLastly the plaintiffs also contended that the Dargah was also a public property dedicated to God and the defendants had no individual or personal interest in the Dargah.\n\nThe plaintiffs, therefore, filed the present suit for removing the defendants who were de facto managers and had been guilty of acts of mismanagement and misfeasance and for framing a scheme to administer the trust properties. The suit was coatested by defendants I, 2, 4 and 6 who contended, inter alia, that the entire property was acquired by their ancestor Syed Sult•an Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of Ins family.\n\nThe defendants admitted that members of the Rowther community were allowed to offer their prayers in a raised platform in front of the Dargah ov€r which a prayer hall was built by them.\n\nThe defendants, however, claimed that as the Rowthers were allowed to offer the prayers by leave and licence of the founder, the prayer hall was not a public mosque but a private property of the defendants.\n\nEven if the mosque was a public property the adjuncts thereto were the personal property of the defendants and were not used for any religious purpose.\n\nSimilarly-with respect to the grave-yard it was alleged that this was a private grave-yard and the defendants were entitled to charge pit fees and other charges from those Muslims who wanted to burv their dead.\n\nThey further contended that the shops had been buifr by the ancestors of the defendants in order to increase the revenue of the Dargah and for the proper administration thereof.\n\nLastly the defendants pleaded that the present suit by the plaintiffs was clearly barred by, res judicata in view of the previous judgments of the Courts pronouncing upon the rights of the parties against the plaintiffs.\n\nM---008 SCI /7 6\n\nThese were the facts pleaded by the parties in original suits Nos. 9 of 1956 and 71 of 1957 heard by the Court of Sub-Judge Mayuram.\n\nIt appears that one suit being 0.S. No. 9 of 1956 was filed in the Court of the Sub-Judge Mayuram, whereas suit No. 71 of 1957 was originally filed in the Court of the District Munsiff, Tiruvarur as O.S. No. 16 of 1957 but the same was transferred by the District Munsiff to the Pistrict Munsif's Court at Nagapattinam and was later transferred to the Sub-Judge, Mayuram to be tried along with O.S. No. 9 of 1956.\n\nThe Trial Court consolidated the two suits and decided them by one common. judgment. It might also be mentioned that the present action was preceded by proceedings under s. 145 of the Code of Criminal Procedure wherein the possession of the properties irt dispute was fouad to be' with the defendants.. In Suit No. 9 of 1956 which was filed in the Court of Sub-Judge, Mayuram, the Court framed the follow. ing issues :\n\n\"l. Are the Pallivasal, Durgah, the burial grounds, prayer\n\n hall etc. set out in Schedule 'A' public trusts or are they private trusts belonging to the Labbais ?\n\n2. Is the suit for framing a scheme not competent ? 2(a). If not, is it necessary or desirable to frame a scheme and if so to what trusts ?\n\n3. Is this suit barred by the decision in O.S. No. 304\n\nof 1898; District Munsif's Court, Tiruvarur, and O.S.\n\nNo. 8 of 1937, Sub Court, Tiruvarur ?\n\n4. Is this suit barred under Section 55 of the Muslim Wakf Act of 1954 ?\n\n5. Is the Imamship and Muthavalli hereditary in the family of Labbais and the defendants ?\n\n6. Is the 2nd defendant a Imam and Muthavalli ?\n\n7. To what reliefs, if any, are the parties entitled ?\"\n\nIn suit No. 71 of 1957 where substantially the same pleas were raised, the following issues were struck by the Court :\n\n\"1. Whether suit, as framed, prayed for declaration that the order in M.C. 9 of 1955 and Cr. R.P. Nos. 784/55 are void, is sustainable in law?\n\n2. Whether the suit properties are properties of public trust as claimed by the plaintiffs?\n\n3. Whether the Rowther community of Vijayapuram are entitled to be in management and possession of the suit properties as Claimed in the plaint ?\n\n4. Whether the pleas, covered by Issues 2 and 3 above\n\nare not barred by Res Judicata hy the finnin~< ; n the suits and appeals in O.S. No. 167 of 1893, O.S. , No. 304 of 1898 and O.S. No. 8 of 1937 referred to in the written statement ?\n\n, ' :~~\n\n~'\n\nSYED MOHD. SALJE LABBAI v. MOHD. HANIFS (Fazal Ali, !.) 731\n\n\"5. Whether it is open to the plaintiffs to plead that they are in possession and management in spite of orders in M.C. No. 9 of 1955 and Cr. R.P. No. 784 of 1955 and C.C. No. 120 of 1955, Sub Division Magistrate, Nagapattinam?\n\n6. Whether the suit for declaration is maintainable ?\n\n7. Whether the suit is not properly valued for the purposes of court fees and jurisdiction ?\n\n8. To what relief are the plaintiffs entitled ?\"\n\nThe Trial Court dismissed the plaintiffs' suits deciding the imain issues against the plaintiffs.\n\nThereafter the plaintiffs of both the suits filed appeals before the High Court of Madras 'and the High Court reversed the decision of the Trial Court in many respects and accepted the plaintiffs' case with respect to the mosque, its adjuncts and the graveyard but found that so far as the Dargah was concerned it was the private property of the defendants and the plaintiffs had no , cause of action with respect to the same.\n\nThe High Court accordingly decreed the plaintiffs' suits with respect to the mosqne, its adjuncts and the grave-yard and remanded the case to the Trial Court for framing a scheme for administration of the trust properties.\n\nThe suit regarding the Dargah was, however, dismissed.\n\nBoth the plaintiffs and the defendants have filed appeals by certificate to this Court.\n\nAppeal No. 2026 of 1968 is by the plaintiffs regarding the adverse decision given by the High Court in respect of the Dargah, while appeal No. 1223 of 1968 which is the main appeal is by the defendants 1, 2, 4 & 6 against whom the High Court decreed the suits with respect to the mosque, its adjuncts and the grave-yard. Civil Appeal No. 1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No. 71 of 1957.\n\nWe have heard the learned counsel for the parties.\n\nMr. Krishnamoorthy Iyer appearing for the appellants has raised the following points before ns :\n\n{1) that the history of the litigation would clearly show that the previous judgments between the parties operated as res judicata and the High Court was wrong in not giving\n\nelkct to the plea of res judicata which would have put a final seal to the disputes between the parties\n\n(2) that there is clear evidence of the manner in which the properties appear to have been dedicated and there is no clear declaration of dedication . for the purpose of the mosque and the prayers offered in the mosque were only by leave and licence of the founder, and there was no public wakf of the mosque at all which was only a private mosque or a family mosque of the defendants.\n\nThe learned counsel submitted that the High Court has completely overlooked this legal aspect of the matter;\n\n(3) that even if the mosque was wakf of a public character the defendants possessed the hereditary right to administer and govern the same and in these circumstances the plaintiffs had no right to dislodge them by asking the Court to frame a scheme.\n\nOn a parity of reasoning it was contended that the graveyard was also not a public wakf but the family grave-yard of the defendants;\n\n( 4) that the suit was clearly barred by s. 55 (2) of the Muslim Wakfs Act, 1954; and\n\n(5) that s. 92 of the Code of Civil Procedure had no application to the present case inasmuch as the defendants were not trustees within the meaning of s. 92\"0! the Code.\n\nMr. Asoke Sen appearing for the plaintiffs/respondents conceded that he would not press his claim so far as the Dargah was concerned which has rightly been held as the private property of the defendants.\n\nOn the other points, Mr. Sen repelled the arguments of Mr.\n\nIyer by submitting that the plea of res judicata was totally unfounded inasmuch as the public character of the wakf never came up for decision before the Courts which decided the previous litigation, where the question was confined only to certain rights claimed by the defendants with respect to leading the congregation and administration and management of the mosque. It was further contended that there is overwhelming evidence to show that the grave-yard was a public trust by immemorial user and the defendants had no right to construct the shops thereon.\n\nOn the question of the dedication it was argued that under the Mahomedan Law an oral dedication is enough to create a wakf and Ext. B-3 contains an intrinsic evidence of a clear dedication of the property for the purpose of the mosque along with its adjuncts, which were in fact used for the purposes connected with the performance of the prayers. Lastly it was submitted that s. 55 of the Muslim Wakfs Act had no application because at the time when the suit was brought no Board was constituted under the Act.\n\nAs regards s. 92 of the Code of Civil Procedure it was submitted that the defendants were undoubtedly trustees de son tort and would, therefore, fall within the ambit of s. 92 of the Code of Civil Procedure and as the Trial Court had itself held that the defendants were guilty of gross negligence, the provisions of s. 92 of the Code of Civil Procedure could be clearly invoked.\n\nIn the light of these arguments of the parties and the history of the case, we would now proceed to decide the points in controversy in this case. We would first deal with the question of res judicata. In support of this plea the defendants have relied on Exts. B-5 to B-9, . B-12 B-16, B-28, B-30, B-31 and B-73 in support of their case that these' judgments constitute and operate as res judicata, and particularly judgments given in those suits which wer~ ~Jrought in representative capacity under 0. 1, r. 8 of the Code of ClV!l Procedure, Before we analyse these judgments, it may be necessary to mention that before a plea of res judicata can be given effect, the following conditions must be proved-\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, !.) 733\n\n(1) that the litigating parties must be the same; A ,\n\n(2) that the subject-matter of the suit also must be; identical;\n\n(3) that the matter must be finally decided between the parties; and ,\n\n( 4) that the suit must be decided by a court of competent jurisdiction .\n\nIn the instant case according to the plaintiffs/respondents the identity of the subject-matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation.\n\nIn our opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata.\n\nUnfortunately however in this t case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment.\n\nWe would also like to note what the High Court has sald on the question of res judicata. The High Court found that although the litigation between the parties lasted for a pretty long time it was never decided whether all or any of the suit properties constituted a public trust. Both the parties appear to have taken extreme stands but even despite the fact that the previous judgments contained an incidental finding that the mosque was a public property and so was the burialground, the effect of these findings was nullified in 1939 when the High Court held that even if the properties in dispute were the exclusive properties of the Labbais, this expression was not meant to indicate that they were their private properties. This, in our opinion, clearly shows that the public charcter of the wakf or of the mosque was never in issue. The High Court on this point found as follows :\n\n\"We are, therefore, of the view, that the issue as to whether the properties constituted a public trust having been never raised and decided between the parties in any of the prior suits, O.S. No. 9 of 1956 on that question was not barred by res judicata.\n\nThe finding of the Court below in this regard is affirmed.\"\n\nThe Trial Court had also negatived the plea of res judicata taken by the defendants.\n\nWith this background we would now proceed to analyse the purport and the effect of the previous judgments relied upon by the appellants.\n\nThe first litigation between the parties started as far back\n\nas 1893 when the Labbais filed a suit against tihe defendants in the Court of the District Munsif, Tiruvarur bdng o: S. No. 167 of 1893.\n\nH This suit was decided by the judgment Ext. B-5 dated March 26, 1895.\n\nA perusal of the judgment will clearly disclose that the suit was confined to two points.\n\nIn the first place the plaintiffs claimed\n\ncertain rights for performance. of ceremonies in the properties and to a share in the income accrued to the mosque from the disciples.\n\nSecondly, so far as the grave-yard was concerned the claim was confined to receiving pit fees for he burials.\n\nThus the Court had decreed the plaintiffs' suit for injnnction holding as follows:\n\n\"The result is that tlie plai'atiffs will have a permanent injunction restraining the defendants from interfering with the plaintiffs' right of officiating at the Khutba, the daily prayers and the Janaza and in reciting Mowlud, Khattam, Koran, and Fathas and, in the absence of a Modin, and Vangu (call for prayers) and of lighting the pallivasal and doing such other duties as pertain to the Modin (it being open to the Levvai plaintiffs to do the duties of the Moden when they please), during their turn of office of four months (5th to 8th months of the Hijiri bot!h inclusive) subject of course to their conducting themselves agree- -ably to the rules regulating their conduct as Lavvais.\n\nConsidering all the circumstances ot the case, I think it only right that the plaintiffs should have their costs from the col].tending Rowther defendants in proportion to their success.\" It is, therefore, clear that the Munsif did not at all decide either the public character of the mosque or the mode and mauner or eveu the effect of the dedication of the site for the purpose of the mosque or the grave-yard.\n\nIt is true that the plaintiffs had put forward the claim of hereditary owners of Jlhe mosque but that was only in a limited sense, nemely, for the purpose of the management of the mosque.\n\nOnce the dedication was complete, the property passed from the owner to God and it never returns to the owner and, therefore, the question of the mosque being private cau never arise.\n\nIn fact we might mention that the very concept of a private mosque is wholly foreign to the dedication of a mosque for public purpose under the Mahomedan Law.\n\nIn these circumstances it is obvious, therefore, that as the public character of the wakf of the grave-yard was not in issue in that suit, the subject-matter of the judgment was not identical with that of the present suite In these circumstances, therefore, this judgment cannot operate as res judicata.\n\nExhibit B-6 dated March 16, 1897 is the judgment in appeal from the aforesaid decision where at p. 394 of the Paper Book the Subordinate Judge held that the Pallivasal or the prayer hall is public property and not descendible to the pfaintiffs of that suit. Thus if at all there was any finding regarding the mosque it was against the defendants, In these circumstances, therefore, we are satisfied that this judgment does not appear to be of any assistance to the defendants.\n\nExhibit B-7 dated December 21, 1899 is the judgment given by the District Munsif, Tiruvarur in O.S. No. 304 of 1898.\n\nThis was a suit filed by the members of the Rowther community regarding their right to offer prayers and bury the dead in the mosque compound and for managing the affairs of the mosque.\n\nIn that case also while the Dargah was fou'ad to be the private property of the Labbais i.e. the defendants, no finding was given regarding the public nature of the\n\n5YED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali,!.) 7 3 5\n\nmosque although it was held that the Rowthers had a right to make repairs and manage the mosque and to offer prayers.\n\nOn the vexed question regarding the public nature of the mosque, the Court refrained from making any observation and stated as follows :\n\n\"I therefore studiously refrain from giving any decision on that vexed question about which the Lavvais appeared to be particular. If their rights, if any, in that matter is invaded by the Rowthers, their proper remedy would be to seek CQmpensation and get their rights declared against the community once for all in a suit properly framed for that purpose.\"\n\nIn fact it seems to us that although that judgment cannot operate as res judicata, the finding given by the learned District Munsif was wrong on a point of law.\n\nOnce the founder dedicates the site for the purpose of building a mosque and prayers are offered in the mosque the site and the mosque become wakf properties and the ownership of the founder is completely extinguished.\n\nUnder lhe Mahomedan Law no Muslim can be denied the righUo offer prayers in a mosque to whatever section or creed be may belong.\n\nThus that judgment also does not appear to be of any use to the defendants.\n\nExhibit B-8 is the judgment of the DiBtrict Judge dated November 13, 1902 in appeal against the aforesaid judgment which was dism; sscd. The Appellate Court also held that the prayer hall was a public property allhough some of the rooms which formed adjuncts of the mosque belonged to the present plaintiffs i.e. the Rowthers.\n\nThe ownership of the plaintiffs was inferred merely from the fact that they held the keys of the rooms.\n\nIt is true that the grave-yard was held to belong to the defendants but there also the principles of ::Vl'ahomedan Law were completely overlooked.\n\nExhibit B-9 is the judgment of the High Court of Madras dated July 24, 1906 in second appeals Nos. 541 & 542 of 1903.\n\nThose appeals were dismissed with the modification that whereas the plaintiffs had the right to bury the corpses of the members of their community in the burial ground they had to pay fhe proper burial fees.\n\nThus to a great extent the decision of the subordinate courts was modified by the High Court and the public character of the burial ground was in a way affirmed.\n\nExhibit B-12 dated September 4, 1923 is the judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment of the Munsif in suit No. 579 of 1920.\n\nThe suit was brought by some members of the Muslim community for an injunction restraining the defendant Labbai from reciting prayers or conducting the worship in the prayer hall.\n\nThe suit was dismissed on the finding that the defendent Labbai had the right to recite prayers and lead congregation in the prayer hall.\n\nThe Subordinate Judge in appeal differed from the judgment of the learned Munsif and held that while ail in junction could be granted with respect to the prayer hall alone, the defendants were entitled to officiate at the prayers in the adjuncts of the mosque.\n\nThe decree of the Trial Court was accordingly modified.\n\nHere we might mention that the judgment suffers from\n\na serious legal infirmity arising from a complete ignorance of the essential principles of the Mahomedan Law.\n\nOnce the founder dedicates a particular property for the purpose of a public mosque, the Mahomedan Law does not permit any one from stopping the Mahomedan public from oflei; ing prayers and reciting Koran etc, Similarly the adjuncts to the mosque which are also used for religious purposes become as much a part of the mosque as the mosque itself and in these circumstances no injunction should have been granted at all by the Court.\n\nHowever, as here also the public character of the mosque was not at all involved either directly or indirectly this decision also cannot operate as res judicata.\n\nThe question of the right to officiate in a public mosque has to be decided according to the principles of the Mahomedan Law and usage and we shall deal with this aspect when we consider the contention of the appellants regarding the public character of the mosque.\n\nExhibit B-16 dated September 13, 1926 is the judgment of the High Court of Madras against the aforesaid judgment of the Subordinate Judge in Second Appeal No. 1890 of 1923.\n\nThis appeal was decided on September 13, 1926 and it upheld the judgment of the learned Subordinate Judge. This judgment is also confined only to the question whether public worship was carried on in portions marked B & C in the plan.\n\nThus the limited question which fell for consideration of the High Court was not that the \"portions marked B & C formed parts of public mosque but whet'h.er\n\nthere was right of prc:1ers in those places.\n\nExhibit B-28 dated August 31, 1937 is a judgment of the Subordinate Judge in suit No. 8 of 1937 brought by the Rowthers against the Labbais.\n\nTo begin with this suit also related not to the nature of the public mosque but only to the management thereof.\n\nThe main question which arose for decision in t'hat suit was as to who was entitled to manage the affairs of the mosque, whether the right of appointing Imam was hereditary.\n\nLearned counsel for the appellants placed greoat reliai1ce on the following observations of the Suhordinate Judge:\n\n\"My finding on Issue I, in so far as it relates to O.S. 304 of 1898, will be that the decision therein operates as res judicata as regards the ownership and physical control of the suit mosque, but not as regards the person who is to appoint as Imam.\n\nThat is to say, the plaintiffs are debarred from disputing the Labbais ownership of the mosque and burial ground as a whole and from asserting that the plaintiffs themselves are anything more than licensee in respect of the mosque.\"\n\nIt was submitted that the Court had clearly found that the question of the ownership and physical control of the mosque was finally adjudicated upon and operated \"s res judicata as held by the Court This observation made by the High Court has to be understood in the light of the oleadings of the parties.\n\nIn fact the Court was merely called upon to decide the limited question as to who was to manage the mosque.\n\nFrom a review of the previous judgments\n\nSYED MOHD. SALIF LABBAI v. MOHD. HANIFS (Fazal Ali, l.) 737\n\n. discussed above, it is absolutely clear that it was uever disputed even by the Labbais that the mosque was a public mosque where .I prayers were offered by Mahomedan public. The only question which 1 arose before the Subordinate Judge was as to who was to manage the affairs of the mosque and whether the right to appoint Imam was lfereditary.\n\nThe Court itself found towards the end of its judgment that the plaintiffs could appoint a Muttayali to look after the affairs in the suit mosque - but they could not appoint Imam, but the right to lead prayers as Imam was a hereditary right Ve6ted exclusively in the defendant's family.\n\nWe might hasten to add that once a mosque is held to be a public mosque, the Mahomedan Law does not favour the right of a person to officiate as Imam to be hereditary in the absence of a custom or usage to the contrary.\n\nAn Imam must possess certain essential virtues before he can claim to lead the congregations at the prayers.\n\nThe property having been dedicated to God, it is not open to the founder or his descendants to interfere with the performance of public prayers. In t these circumstances, therefore, we are unable to regard this judgment as barring the suit of the plaintiffs regarding the public character of the mosque.\n\nExhibit B-30 dated February 26, 1941 is a judgment of the High D Court in original Suit No. 112 of 1935 brought in the Court of the District Munsif against the Municipal Council, Tiruvarur praying for an injunction restraining the Municipal Commissioner from interfering with the plaintiff's right of access to the grave-yard.\n\nHere also the public character of the Wakf .was taken for granted and an injunction against the Municipal Council was granted by the High Court.\n\nThis judgment is of no assistance in deciding either the E question of res judicata or for that matter the question of public character of the mosque.\n\nExhibit B-31 dated November 13, 1941 is a judgment of the High Court in Second Appeal No. 252 of 1939, and appears to have been relied upon by counsel for both the parties in support of their respective cases.\n\nIn our opinion, this judgment is really important in the sense that for the first time the judgment opens up the real and the vital issue which is to be decided in this case. Here also, the appeal arose out of a suit No. 8 of 1937 brought by the Rowthers against the Labbais and the main point in dispute was the right to officiate as Imam. The suit was brought in a representative capacity and was dismissed by both the Courts holding that the right to appoint Imam lay with the defendants Labbais.\n\nThe High Court held that there was overwhelming evidence in favour of the usage relied upon by the defendants to be the Pe6h Imams.\n\nThe Court further pointed out that the only remedy for these constant quarrels and fights between the two communities was a suit under s. 92 of the Code of Civil Procedure.\n\nIn this connection Somayya, J., observed as follows :\n\n\"In this case I have found that there is overwhelming evidence in favour of the usage by which the defendants are to be the Pesh Imams. The only remedy for these constant quarrels and fights between the two communities is a suit under section 92 of the Civil Procedure Code in which the\n\nA Court might frame scheme having sole regard to the best interests of the institution.\"\n\nLearned counsel for the appellants, however, relied upon the observations of the ]earned Judge where he had mentioned that the burialgronnd and other places were the exclusive properties of the Labbais.\n\nThe learned Judge, however, was careful enough to add that by exclusive property he never meant that it was the private property of the Labbais but only that the Rowthers had no interest in the same.\n\nAs, however, the suit was not for any declaration that the mosque was a public one the observations made by the High Court were purely Obiter dicta and cannot put the present plaintiffs out of Court.\n\nThese are the judgments of the various courts in the suits filed by C one party' or the other relied upon by the appellants in order to prove-\n\n( 1) that the judgments operated as res judicata; and\n\n(2) that both the burial ground and the mosque and its adjuncts were not wakfs of a public nature.\n\nAs discussed above, the judgments do not prove any of the points relied upon by the appellants.\n\nThe question of the public character of the Wakfs in any suit filed by one party or the. other was never raised.\n\nThe only questions that were raised from time to time were the questions regarding the performance of certain 1religious ceremonies, the question of officiation of the Imam and so on. Even as regards the grave-yard it was never claimed by the de:fendants in the suits which formed the subject-matter of the aforesaid judgments that the Mahomedan community had no right at all to bury their dead in the grave-yard. All that was contended was that the grave-yard was a family grave-yard of the defendants and they allowed corpses of other Mahomedans to be buried only on charging pit fees and other amounts.\n\nAs to what is the effect of this will be considered by us when we deal with the broader question as to whether or not the burial grounds shown in the sketch map could be presumed to be public grave-yards by immemorial user.\n\nReliance was also placed on Ext. B-73 dated April 5, 1957 an order of the High Court in Crimi, nal Revision Petition No. 443 of 1956, where the Rowthers had admitted before the Court that they would not interfere with the rights of the defendants and on the basis of that admission they were acquitted.\n\nAs perusal of the order would clearly show that the admission was not unqualified, but it amounted only to this that the Rewthers would not take the Jaw into their own hands but would take recourse to legal remedies.\n\nThis is clear from the following observations of the High Court :\n\nBut that pretension is not persisted here by the learned Advocate and it is stated that by reason of this reconstruction they do not claim any right, title or interest which does not accrue to them from the various litigations and that this will not be a precedent and that they would not do in\n\n-.!_.\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali,!.) 739\n\nfuture any such interference without obtaining the orders of the appropriate authorities.\"\n\nFurther more, the admission was made in a criminal revision when the plaintiffs had been convicted and if the admission was not made their conviction would have been upheld by the High Court.\n\nThe admission, therefore, being in terrorem loses much of its significance.\n\nAt any rate, since the plaintiffs have filed the present suit under s. 92 of the Code of Civil Procedure for framing a scheme, they have not acted against the admission, because they have availed o[ a remedy which was open to them under the law.\n\nThis is all the documentary evidence produced by the appellants/defendants.\n\nAs against this the plaintiffs have produced a large number of judgments in suits, particularly relating to the public nature of the grave-yard and the attempts by the plaintiffs to get an injunction from the Courts directing the defendants to demolish the shops which they had built up in some parts of the grave-yard.\n\nThese judgments, in our opinion, clearly show that the burial ground was a public graveyard and the case of the defendants that it was their family graveyard has been completely negatived by the judgments relied upon by the plaintiffs which extend right from 1919 to 1932. We may now proceed to discuss these judgments.\n\nExhibit A-4 dated May 7, 1919 is a decision of the District Munsif, Tiruvarur in 0.S. 331 of 1915. This was a suit brought by\n\nthe Rowthers for an injunction restraining the defendants Labbais from building shops on the burial ground in question and for a man- E datory injunction directing the defendants to remove lhe shops erected on some parts of the burial-ground. The suit proceeded on the basi> that the grave-yard was a public one and the defendants who were managing the same had no right to construct shops and thereby change the nature of the grave-yard. The defendants resisted the suit on the ground that the grave-yard was their private property and was at the most a family grave-yard. It may be noted that in their defence the F defendants did not contend that no member of the public was allowed to bury the corpses and that only the members of the family of the defendants could bury their dead. It was clearly alleged that the members of the public were allowed to bury their dead on payment of burial fees.\n\nThis point is of very great legal significance in order to show the nature of the grave-yard.\n\nHowever, the Munsiff found that although the burial-ground consisted of two parts yet he found G that there was no evidence to show that there was any distinction between the first and the second part. The Court found as a fact that the property had been dedicated as a public burial ground and the defendants were merely trustees in respect of the burial ground and not absolute owners.\n\nThe Court accordingly granted the injunction as prayed for. It appears that the decree of the learned Munsiff was upheld by the Subordinate Judge and also by the High Court of H Madras in Second Appeal No. 386 of 1921.\n\nThe judgment of the High Court has not been produced, but this fact is clearly mentioned in Ext. A-6 which is the jndgment of the District Munsif, Nagapattinam in another suit wherein the observations made by the Munsiff are as follows :\n\n\"The learned Subor)linate Judge says in his judgment (copy Exhibit N-a) as follows :\n\n'As there is no doubt that the suit land on which the shops are built forms part of the graveyards the Levvais have no right to put up the shops'.\n\nAgainst this decree in A.S. 13 of 1920 there was a Second Appeal (S.A. 386 of 1921) to the High Court. But the High Court confirmed the lower Appellate Court's decree.\" It is, therefore, clear that the suit brought by the plaintiffs in 1915 and the decree granted by the Subordinate Judge was confirmed by the High Court in second appeal and this undoubtedly operates as res judicata, because the same question has been raised in the present suit by the defendants.\n\nNot being satisfied with the judgment of the Munsif which was confirmed by the High Court, the defendants Labbais appear to have filed another suit being O.S. No. 53 of 1924 in the Court of the District Munsif for a declaration that the decree in Suit No. 331 of 1915 was not binding on them and for an injunction restraining the Rowthers from seeking to demolish the shops.\n\nThe Munsif by his judgment dated November 30, 1925 which is Ext. A-5 dismissed the plaintiffs' (Labbais) suit and held that the judgment and decree in 0.S. 331 of 1915 Ext. A-4 was binding on the Labbais. Instead of obeying the decree of the civil court the Labbais seem to have made up their mind to obstruct the execution of the decree by filing suits after suits. Consequently another suit was filed by the Labbais being O.S. No. 146 of 1928 for an injunction restraining the Rowthers from demolishing the shops or using the burial ground as the grave-yard.\n\nThis suit was also dismissed by the Trial Court by virtue of its judgment dated January 14, 1939 (Ext. A-6). The Court clearly observed that the Labbais have tried to circumvent the effect of the High Court decree which could not be allowed. The Court also held that the previous judgments operated as res judicata.\n\nThus it would appear that the three attempts made by the Labbais to prevent the shops from being demolished and to assert their private right to the grave-yard resulted in grotesque failure.\n\nAs the Labbais failed to get the previous judgments set aside either on ground of fraud or otherwise, they appear to have thought of another ingenious device to get rid of the decree passed against them.\n\nThe Labbais then brought a suit being O.S. 49 of 1932 for setting aside the previous decrees, particularly the decree Ext. 4, on the ground that the grave-yard was injurious to public health and, therefore, it should not be allowed to be continued.\n\nThis suit was also dismissed with the finding that there was no question of any injury to public health and that the grave-yard was a public one. This suit was decided by the District Munsif by his judgment dated December 14, 1934 which is Ext. A-10.\n\n> (\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali,!.) 741\n\nI It may be mentioned that while the above suit was pending before A I I the District Munsiff an ad interim injunction was prayed for by the I Labbias which was refused and the Labbias then filed an appeal ( against this order to the District Judge who dismissed the appeal by\n\nt his order dated April 20, 1932 observing as follows:\n\n\"It appears to me that this is merely an attempt to get over the adverse result of the litigation, and that having fail- B\n\n~ ed in the higher courts the defendants have approached the Health authorities and got something out of them by which they hope to circumvent the decree.\"\n\nThis judgment is Ext. A-86. Having failed to obtain an ad interim injunction from the District Court, the Labbai• filed a civil revision petition No. 741 of 1932 in the High Court which was also dismissect by the High Court observing that the Labbais wanted to circumvent the decree obtained against them.\n\nThe High Court observed c\n\nthus: ' + \"The learned Judge in the court below was right when he said that the petitioners are merely trying to circumvent the decree obtained against them after contest.\n\nThe revision petition should not be used for that purpose and this D • petition must be dismissed with costs.\" This judgment is Ext. A-87 dated August 17, 1932.\n\nThe Labbais then filed an appeal against the aforesaid judgment to the District '\n\nJudge who by his order dated July 11, 1936 which is Ext. A-11, after allowing some amendments prayed for remanded the suit for fresh trial.\n\nThereafter the defendants (Rowthers) filed an appeal to the E High Court against the order of remand passed by the District Judge and the High Court in A.P.P. No. 386 of 1936 allowed the appeal, i set aside the judgment of the District Judge and restored the judgment of the Trial Court dismissing the suit.\n\nThis judgment of the High Court is dated October 7, 1938 and is Ext. A-13. The High Court clearly held that the plaint did not disclose any cause of action and it was not open to a defeated litigant to re-open the subject-matter on one excuse or the other. In this connection, the High Court observed F as follows :\n\n\"It is now argued before me in this appeal that the decision of the learned District Munsif is right viz. that neither the original nor the amended plaint discloses a cause of action.\n\nIt seems to me that that argument must be upheld.\n\nIt is obvious that there can be in general no right for a defeated litigant immediately to reopen the whole subject- G\n\nmatter of the litigation.\"\n\nThus the High Court put a stamp of finality on the frivolous suits brought by the Labbais to get out of the decree passed against them by Ext. A-4 in the suit No. 331 of 1915. A close and careful analysis of the judgments Ext. A-4 to Ext. A-87 as indicated above re- H veals two important facts :\n\n(1) that the Labbais expressly pleaded that the grave- • . yard in question was their family grave-yard and the .\n\nMahomedan public had no right to interfere with the same; and\n\n(2) that they had constructed some shops on a part of the grave-yard and had been directed by the decree of the Court to demolish them on the footing that the grave-yard was a public one and several attempts made by them to get the decree vacated or circumvented fa.iled.\n\nThese judgments, therefore, in the first place operated as res judicata so far as the grave-yard is concerned, and secondly they constituted conclusive evidence to prove that the burial ground had been used as public grave-yard fro.m time immemorial and thus became a public grave-yard by dedication.\n\nThe Labbais, however, being the descendants of the founder had established a right by usage to charge pit fees and other charges.\n\nIn these circumstances, therefore, the issue relating to the burial ground being a public grave-yard docs not present much difficulty and we would like to deal with this issue first.\n\nThe High Court has clearly held that the burial ground consisted of two parts as shown in the sketch map and has been proved to be a public grave-yard by immemorial user.\n\nThere is overwhelming oral and documentary evidence to prove this.\n\nIn fact the defendants themselves have not denied that the Mahomedan public of the village used to bury their dead in this grave-yard and they have only sougbt to protect their right to realfae pit fees and other incidental charges which has been accepted by the High Court.\n\nThe Mahomedan Law on the subject is very clear.\n\nUnder the Mahomedan Law the grave-yards may be of two kinds-a family or private grave-yard and a public grave-yard.\n\nA grave-yard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants.\n\nIn such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead.\n\nOn the other hand if any member of the public is permitted !o be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public graveyard where the Mahomedan public will have the right to bury their dead. It is also well settled that a conclusive proof of the public grave-yard is the description of the burial ground in the revenue records as a public grave-yard. In Ballabh Das v. Nur Mohammad (') the Pfivy Council observed as follows :\n\n\"If the plaintiffs had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the khasra of 1868, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit was a cemetery. x x x The entry \"qabristan\" in the Johasra of 1868 has to be taken together with the map which shows the whole of plot 108 to be a grave-yard.\"\n\n(I) A.T.R. 1936 P. C. 83.\n\nS'>'ED. MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali,!.) 7 43\n\nIn Imam Baksh v. Mandar Narsingh Puri(') a Division Bench A : of the High Court of. Lahore observed as follows :\n\n\"From the fact that the whole area now mapped as Nos. 3095 and 3096 was described as a graveyard in 1868, it is certain that the graveyard had been in existence a long time and the admitted fact that since then it has been a mabaristban is by itself presumptive evidence that the land had been set apart for use as a burial ground and that by user, if not by dedication, the land is wakf : x x x\n\nIt is still used as a Mahomedan graveyard and the right to Mahomedans so to use it is admitted.\n\nx x x x x x\n\nJn my view, once it is found that a certain definite area of land has been dedicated for use as a graveyard it must be\n\npresumed,, in the absence of any proof that the dedication was limited, that the whole of the land was set apart to be used solely for the purpose of burying the dead.\"\n\nThere is a decision of the Allahabad High Court in Sheoraj Chamar\n\nv. Mudeer Khan,(') where Sulaiman, C. J., observed as follows :\n\n\"But in cases where a graveyard has existed from time immemorial or for a very long time, there can be a presumption of a lost grant.\n\nIt is open to a Courl to infer from circumstances that a plot of land covered by graves, which has been used as a graveyard, is in fact a grave-yard and had been set apart as such by the original owners and made a consecrated ground even though a registered document is not now forthcoming.\"\n\nThis case was followed by rhe Oudh Chief Court in Qadir Baksh v.\n\nSaddullah. (')\n\nIn Mohammed Kassam v. Abdul Ga.Joor (') the High Court of F Madhya Pradesh, while trying to distinguish between a private graveyard and a public graveyard observed as follows :\n\n\"On this point suffice it to say that we are of the view that a Kabarstan cannot be a private Kabarstan unless it is used for the family members exclusively.\n\nOnce the public are allowed to bury their dead it ceases to be a private property. x. x x There was no discrimination about the user. It was being used by the predecessors of the defendants as wen as by the public.\n\nThis will indicate that it was not a private Kabarstan.\n\nUnder the Mohammadan Law if a land has been used from time immemorial for burial ground then the same may be called a Wakf although there is no express dedication.\"\n\n(I) A.LR. 1938 Lah. 246.\n\n(3) A.LR. 1938 Oudh. 77.\n\n(2) (1934) A.L.J. 809.\n\n(4) A.l.R. 1964 M. P. 227.\n\nA We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes awak:f and it cannot be divested by non-user but will always continue to be so \\ whether it is used or not. \\\n\nThe following rules in order to determine whetlher a graveyard r\n\nis a public or a private one may .be stated :\n\n{ 1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner.\n\nThe fact that the owner permits such burials will not make any difference at all;\n\n(2) that if the grave-yard is a private a family graveyard then it should coqtain the graves of only the founder, the members of his family or his descendants and no others.\n\nOnce even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public grave-yard;\n\n(3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of tlhe burials from tlmc to time.\n\nIn other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard.\n\nOnce this is proved, the Court will presume that the graveyard is a public one; and\n\n( 4) that where a burial ground is mentioned as a public graveyard in eitlher a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard.\n\nApplying these principles, therefore, to the facts of the present case it would appear from the judgments Exts. A-4 to A-87 that right from the year 1915 to 1938 the public character of the burial ground had been established by those judgments.\n\nAll attempts by the defendants who were the plaintiffs in the suits brought by them to get a declaration from the Courts that the graveyard was a private one failed and all the Courts have consistently held during the course of 22 years that both the parts of the present burial ground were a public graveyard where corpses of the Mahomedan community of the village were buried.\n\nThe mere fact that the defendants Labbais used to realise pit fees or other incidental charges would not detract from the nature of the dedication.\n\nApart from that there is a document Ext. A-8 dated March 3, 1932 which is a certified extract of the proceedings of Municipal Council, Tiruvarur which shows tha( the Labbais themselves had filed an application before the Municipat\n\nI +\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali,!.) 745\n\nCouncil for registering the burial ground as a graveyard.\n\nThis do- A cument appears at pp. 247-248 of the Paper Book. It appears from this document that Syed Muhammad Kasim Sahib and Syed Abdul Rahiman Sahib residents of Vijayapuram had applied to the Municipal Council for registering the plot in dispute as a burial ground and the Municipal Council by its resolution accepted the application and registered the plot in question as a burial ground.\n\nThis, therefore, clearly shows that as early as 1932 the Labbais themselves treated B the present burial ground as a public graveyard and got the same registered in the Municipal Council.\n\nApart from this, the oral evidence led by the parties clearly proves that the graveyard was a public one.\n\nP. W. 1 Mohamed Hanif'a who is an old man of 65 years has stated in 'his evidence that before burial the Janaza prayers are offered and after the prayer the dead body is C taken to the graveyard and buried.\n\nSimilarly P. W. 2 Hyder Ali has stated that there is no other burial ground where bodies of the Rowthers could be buried, implying that the Rowthers had been burying their dead in the burial ground in question.\n\nP. W. 3 Yehiya has also testified that the remains of the Muslims of Vijayapuram are buried in the burial ground attached to the mosque and that there is no other burial ground.\n\nThe defendants who had examined only two witnesses, D D. W. I Syed Mubarak and D. W. 2 Syed Mohamed Salia, have not denied that the Muslims of t:he village buried their dead in the burial ground.\n\nIn this state of evidence, therefore, the conclusion is inescapable that the graveyard has been used for burying the dead of all the persons belonging to the Mahomedan community ever since the land was sold to the saint-the ancestor of the defendants. lt is true that the burial ground contains the graves of the saint and the members of E his family also, but that by itself' would not show that the graveyard was a private one.\n\nOn a consideration of the oral and documentary evidence and the circumstances of the case we find ourselves in complete agreement with the finding of the High Court that the entire burial ground as shown in the sketch map is a public graveyard and the Mahomedau community have a right to bury their dead subject to payment of pit fees and other charges that may be fixed by the F defendants.\n\nIn the first place the question of the graveyard being public one is clearly barred by res judicata against the defendants in view of the previous judgments discussed above, but even assuming that there is no res-judicata there is overwhelming evidence in this case to prove that the burial ground is a public graveyard.\n\nIt was. however, faintly suggested by learned counsel for the appellants that it would appear from the sketch map that the burial ground consisted of two partsthe eastern part and the western part-and as the western part is adjacent to the Dargah it should be held to be a private burial ground belonging to the family of the defendants.\n\nThere is, however, no legal evidence on the record to prove this fact.\n\nBoth the parts constitute one single burial ground and there is uothing to show that in burying the dead any distinction has been made between the eastern part and the western nart. In fact this asnect of the matter had been referred to in one of the iud!!lJlents discussed above.\n\nIn these circurn- • , stances it is not possible for us to accept the contention raised by\n\n15-608SCI(76\n\nA learned counsel for the appellants.\n\nFor these reasons we find ourselves in complete agreement with the finding given by the High Court on this issue and we affirm the same.\n\nJ This brings us to the second question, namely, regarding the mosque and its adjuncts being public W akfs. We have already found that the judgments relied upon by the appellants did not operate as res judicata and we now proceed to decide this issue on the facts and the evidence that have been led in this case.\n\nThe parties admittedly belong to the Hanafi sect of the Mahomcdans and arc governed by the Hanafi (Sunni) School of Mahomedan Law.\n\nBefore, however, going into this question it may be necessary to enter into an exhaustive discussion of the law on the subject, particularly because we find that the Civil Courts before whom this question came up for consideration from one angle or the other have betrayed a profound ignorance of the Mahomedan Law (Hanafi School) of Wakf relating to a public mosque.\n\nThe word \"wakf' means detention or appropriation.\n\nAccording to the well recognized Hanafi School of Mahomedan Law when a Mahomedan dedicates his property for objects of charity or to God, he completely parts with the corpus which vests in God and never returns to the founder.\n\nMahomedan Law contemplates two kinds of Wakfs-a wakf which is private in nature where although the ultimate object is public charity or God, but the property vests in a set of beneficiaries chosen by the founder who appoints a Mutawalli to manage the wakf property.\n\nWe are, however, not concerned with private wakfs which are normally known as wakf-alal-aulad.\n\nWe are concerned with public wakf i.e., dedication made for the purpose of public charity e.g. an lmam-Bada, a mosque, a Serai and the like.\n\nSo far as the dedication to a mosque is concerned, it is governed by special rules and special equity in the light of which a particular dedication has to be determined.\n\nA mosque is obviously a place where the Muslims offer their prayers. It is well-known that there are certain formalities Which have to be observed by the Muslims before they observe the prayers.\n\nThese formalities are-\n\n(i) Wazoo i.e. washing of hands and feet in a manner prescribed by Shariat;\n\n(ii) the recitation of \"Azaan\" and \"Ikamat\" which is usually done by the Pesh Imam or the Muazzin;\n\n(iii) there must be a person who possesses virtuous qualities and a knowledge of Koran and other religions rites who should lead the prayers.\n\nThis is necessary in case of prayers offered in congtcgation. A single Muslim can also offer his paryers with or withnnt an Tmom hut the prayers in a congregation or a J amaat are offered only behind an Imam who leads the prayers.\n\nAs Islam is an extremely modern and liberal religion. there is no question of anv nerson being denied admission into a mosque for the purpose of offering prayers and that is why the law is so strict that the moment a person is allowed to offer his nravers in a mosane. the mosane becomes dedicated to the public. finally, it is not nec.Ssary for the dedication of a public mosane that a Muttawali or a Pesh Imam should be appointed which could ·.be\n\n...\n\nI t\n\nSl'Ell MOHD SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) 74 7\n\n<lone later by the members of the Muslim community.\n\nAll that is A necessary is that there should. be a declaration of the intention to dedicate either expressly or impliedly and a divestment of his interest in the property by the owner followed by delivery of possession.\n\nHere also the delivery of possession does not involve any ritual formality or any technical rule.\n\nFor instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to -0ffer their prayers either on the vacant land or in a mosque built for B the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete.\n\nUnfortunately the Courts which decided the previous litigation between the parties do not appear to be aware of the considerations mentioned above. \"\"'\n\nIn Baillie's Digest of Moohummudan Law, Second Edition, the C following passage occurs at p. 615 :\n\n\"If a man should make a musjid within his mansion, and permit entrance to it, and prayers to be said in it, the place becomes a musjid, in all their opinions, if a way is made to it; but not otherwise according to Aboo Huneefa.\n\nAccording to the other two, however, it becomes a musjid and the right of way follows, without any condition to that effect.\n\nAnd if a door were opened to it on the highway, it would become a musjid.\n\nIt was again observed at p. 616 :\n\n\"When an assembly of worshippers pray in a musjid with permission, that is delivery.\n\nBut it is a condition that the prayers be with izan, or the regular call, two times or more, and be public, not private. x x x x\n\nWhen a man has an unoccupied space of ground fit for building upon, and has directed a kowm, or body of persons, to assemble in it for prayers, the space becomes a musjid, if the permission were given expressly to pray in it for ever, or, in absolute terms, intending that it should be for ever; and the property does not go to his heirs at his death.\"\n\nIt is also provided by the Sha, iat that once a musiid has been established by dedication no condition can be attached by the founder and if any such condition is attached the said condition wonld be void : Vide the following observations of Baillie in his Digest of Moohummudan Law, 2nd Edn., at p. 617 :\n\n\"When a man has made his land a musjid, and stipulated for something out of it to himself, it is not valid, according to all. It is also generally agreed that if a man make a musjid on condition that he shall have an option, the wakf is lawfnl, and the condition void.\"\n\nIt was also pointed out by Baillie at p. 618; that where a person !lives money for the repairs of a musjid or its maintenance it operates\n\nA as a transfer by way of gift to the mosque and is valid. observed thus : Baillie\n\n\"A man gives money for the repairs of a musjid, and for its maintenance, and for its benefit.\n\nThis is valid; for if it cannot operate as a wakf, it operates as a transfer by way of gift to the musjid, and the establishing of property in this manner to a musjid is valid, being completed by taking possession.\"\n\nAmeer Ali in his book \"Muhammadan Law'', Vol. 1, 3rd Edn., has given several instances of a complete and irrevocable dedication made by the wakif or the founder and the consequences flowing from the same.\n\nAmeer Ali observed as follows :\n\n\"The proprietary right of the wakif in a building or ground set apart for prayers becomes extinguished either on the declaration of the wakif that he has constituted it a mosque or musalla or consecrated it for worship, or on the performance of prayers therein or thereon.\"\n\nThus the moment a building is set apart for offering paryers the proprietary right of the wakif is completely extinguished. Similarly the following observations of the author indicate the various contingencies in which a dedication can be made to a public mosque :\n\n\"So that when a person erects a building with the object of dedication it as a mosque, and permits people to offer prayers therein, without decladng that he has constituted it into a mosque, and prayers are offered there bi'ljamaat, the mosque becomes irrevocably dedicated.\n\nWhen a mosque is erected or set up inside a dwellinghouse or residence ( dar), and permission is granted to the public to come and pray, and a pathway is also made or set apart for their egress and ingress, the dedication is good by general consensus. If a pathway is not indicated, in that case, according to Abu Hanifa, the dedication is not sufficient.\n\nBut according to Abu Yusuf and Mohammed it is good, and the pathway will be implied by fhe permission to pray, and this is correct.\"\n\n\"At the same time, though the public may have no right in a private mosque,. it may constitute a good wakf so as to exclude the rights of the heirs over it.\n\nWhere prayers have been once offered, it is not necessary to prove an express dedication.\n\nThe very fact of the prayers being offered in it will imply a valid and good dedication.\"\n\n\"Similarly, as the purpose of a mosque is that people should pray there is jamaat, it is required that where there is no express dedication, prayers should have been offered there with the azan and ikamat.\"\n\n\"If prayers are offered once in a mosque it is sufficient to constitute a good dedieation.\"\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) 7 49\n\n\"According to Kazi Khan, 'the delivery of possession as regards a masjid is complete when only one person has prayed in it with azan and ikamat.' The view universally adopted is that prayers offered by one person in a mosque is sufficient to constitute it a public mosque devoted to the worship of God, for a mosque belongs to the Deity and there affixes to it a right of the Mussalmans in general, and one person can be a proxy for the establishment of the right of the Creator and the public.\"\n\n\"Therefore, if a person creates a mosque and gives permission to people to pray therein, it is an absolute wakf, and this opinion we adopt.\"\n\nThe observations of the learned author are based on Radd-11/-Muhtar C and other original religious books which contain original law on the subject.\n\nThe entire law on the subject has been explicitly and adroitly elucidated by Tyabji in his book \"Muslim Law\" 4th Edn., where at p. 609 l'he author observes thus :\n\n\"Under Hanafi law erecting or specifying a building for dedication as a masjid, does not complete and effectuate the dedication of the land and building, nor cause the private ownership therein to cease until the owner divides them off from the rest of his property, provides a way to go to the masjid, and either permits public prayers to be said therein,\n\nor delivers possession of it to a mutawalli, or to the judge, E or his deputy.\n\nx x x x\n\nFor example, delivery in the case of a cemetery, is the burial of a person, and of a masjid, that people should pray there in jamaat.\n\nIn the case of a mosque where there is F no express dedication it is necessary that prayers should have been offered with the azan or ikamat.\"\n\nIt is also pointed out by the author in s. 550 at p. 612 of his Book that a masjid cannot be consecrated for only a particular type of people or people belonging to a particular locality and if any such reservation is made it is void.\n\nIn s. 551 it is pointed out that the G site of a masjid never reverts to its original owner, or his heirs.\n\nSimilarly Saksena in his \"Muslim Law\"; 4th Edn., at p. 567 observes that under the Hanafi law a wakf for a mosque will be completed only when fhe waqif separates the land and the building from\n\nhe rest _of his proprty, so tha~ his ownership completely ceases in 1t, and either he delivers possess10n of the masjid to a mutawalli or H to the Judge, or allows public prayers to be read in it.\n\nSimilar obs_>:rvations are also found in Mulla's \"Principles of Mahomedan Law\", 17th Edn., at p. 184.\n\nA / It would thus appear that in order to create a valid dedication of a public nature, the following conditions must be satisfied :\n\n( 1) that the founder must declare his intention to dedicate a property for the purpose of a mosque.\n\nNo particular form of declaration is necessary.\n\nThe declaration can be presumed from the conduct of the founder either express or implied;\n\n(2) that the founder mnst divest himself completely from the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque.\n\nEven if there is no actual delivery of possession the mere fact that members of the Mabomedan public are permitted to offer prayers with azan and ikamat, the wakf is complete and irrevocable; and\n\n(3) that the founder must make some son of a separate entrance to the mosque which may be used by the public to enter the mosque.\n\nAs regards the adjuncts the law is that where a mosque is built or dedicated for the public if any additions or alterations, either structural or otherwise, are made which arc incidental to the offering of prayers or for other religious purposes, those constmctions would be deemed to be accretions to the mosque and the entire thing will form one single unit so as to be a part of the mosque.\n\nWe would now refer to some authorities on the points discussed ' above. '\n\nIn Jewun Doss Sahoo v. Shah Kubeer-ood-Deen(') the Judicial Committee explained the significance of the word 'dedication' and observed thus :\n\n\"According to the two disciples, Wukf' signifies the appropriation of a particular article in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures.\n\nThe two disciples therefore hold appropriation to be absolute, though differing in this, that Aboo Yoosaf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a Mutwaly, (or procurator), and, consequently, that it cannot be disposed of by gift or sale, and that inheritance also does not obtain with respect to it x x x x x 'Bestow the actual land itself in charity in such a manner that it shall no longer be saleable or inheritable.' \"\n\n(!) 2 2 Moores I.A. 390\n\ni-- 1\n\nSYID MOHD SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, J.) 751\n\nSimilarly in Adam Sheik v. Isha Shaik. ('') a Division Bench of A the Calcutta High Court pointed out that a mosque becomes consecrated for public worship either by delivery or on the decla1 a don of the wakif that he ha$ constituted it into a Musjid, or on the performance of prayers therein even by one person.\n\nIn this connection the Court observed as follows :\n\n\"According to all the authorities, a mosque becomes consecrated for public worship either by delivery lo a Mutwalli (see Baillie's Digest, page 616) or on the declaration of the wakf that he has constituted it into a mu>jid or on the performance of -prayers therein (Ruddul-Mukhtar Vol. lll, p. 571). The prayers of one individual alone would be sufficient so long as it is accornpnied by Azan.\n\nIn the Fatwa Kazi Khan the principle is thus stated :- the delivery of possession as regards a musjid is complete when only one person has prayed in it with Azan and ikamat.\n\nThe view universally adopted is that prayers offered by one person in a mosque is sufficient to constitute it a public mosque devoted to the worship of God, for a mosque be- B longs to the Deity and there affixes to it a right of the Musulmans in general, and one person can be a proxy for the establishment of the right of the Creator and the public.\"\n\n\"Therefore, if a person create a mosque and give permission to people to pray therein, it is an abwlute wakf, and this opinion we adopt. (See also Fatwa Alamgiri, Vol. VI, and Baillie's Digest p. 616).\n\nThe special purpose of a mosque is that persons should perform their devotions there-- in; and according to the accepted doctrine even where there is no evidence of an express dedication in words, if it appears that one single individual, (other than the wakif) has offered his prayers at the place after the mual summons or call to the public, the consecration is complete.\"\n\nTo the same effect is the decision of the Bombay High Court Saiyad Maher Husein v. Haji Alimahmed(2 ) where the following observations were made :\n\n\"There are special rules in the case of mosques- Wilson's Anglo-Mohamedan Law, s. 320; Ameer Ali's Muhammadan Law, Vo. I, p. 394 and Tyabji\\ Principles of Muhammadan Law, s. 514.\n\nWhen once a building has been set apart as a mosque it is enough to make it wakf if public prayers are once said there wi\\h the permission of the owner, x x x x Dedication may inferred from long user as wakf property.\n\n---------- ----\n\n(I) I C.W. N. 76.\n\n(2) 36 B.L.R. 526\n\nA In my opinion it must be presumed that the roza and the mosque have been duly dedicated and have become wakf by user, and the presumption may fairly be extended to the other buildings and the land enclosed within the compound wall which may be regarded as appurtenant to the roza.\"\n\nIn Akbarally v. Mahomedally(') the Bombay High Court pointed B out that even a vacant place may be dedicated as a mosque without having the appearance of a mosque.\n\nThe High Court observed as follows :\n\n\"The general law of Islam in regard to devotions is so broad and liberal that the mosque in question will, even if not endowed with an Amil, be capable of furnishing for any devout Muslim (at least of the Dawoodi Hohra community) a place where he may-with or without the ministrations of an Amil or authorised leader of prayers-five times every day of his life offer prayers.\n\nx x x x The books speak of an open space of building ground being consecrated as a masjid.\n\nNor is it necessary for the purpose of consecrating a place or building as a masjid that there should be an Amil or any other religious officer appointed.\"\n\nIt is also well settled that where a mosque has been in existence for a Jong time and prayers have been offered therein, the Court will infer that it is not by leave and licence but that th.e dedication is complete and the property no longer belongs to the owner. In Miru v.\n\nRamgopa/( 2 ) the High Court of Allahabad observed as follows :\n\n\"But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be a matter of inference for the Court which is the judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself had been allowed to be consecrated for the purposes of such rights being performed.\n\nWhere there is a mosque or a temple, which has been in existence for a long time, and the terms of the original grant of the land cannot now be ascertained, there would be a fair presumption that the sites on which mosques or temples stand are dedicated property.\"\n\nTo the same effect is the decision of the Nagpur High Court in Abdul Rahim Khan v. Fakir Mohammad Shah.(') The same principles are legally deducible from the decisions in Masjid Shahid Ganj Mosque\n\nv. Shrimam Gurdwara Parbandhak Cnmmittee. Amritsar; (')Musaheb Khan v. Raj Kumar Bakshi(') and Mau/a Baksh v. Amiruddin. (•)\n\n(I) l.L.R. 57 Born. 551.\n\n(3) A.LR. 1946 Nag. 401\n\n(5) A.LR. 1938 Oudh. 238.\n\n(2) A.LR. 1935 All. 891.\n\n(4) L.R. 67 l. A. 251.\n\n(6) l.L.R. I Lah. 317.\n\n'SYED MOHD. SA.LIE LABBAI v. MOHD. HANIFS (Fazed Ali,!.) 753\n\nSimilarly regarding the portions which are adjuncts to the mosque the Bombay High Court has clearly observed that the said aajllllcts wili form part of the mosque and would not be the private property of the founder.\n\nThe Nagpur High Court has also made similar observations.\n\nThese observations have already been quoted above.\n\nThis Court also in Mohammad Shav v. Fasihuddin Ansari(') observ- cd as follows :\n\n'After a careful survey of the evidence we have reached the following conclusions :\n\n(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyund the building and the site on which it stood is shown to have been wakf at that date;\n\n(2) that this property has been added to from time to time and the whole is now separately demarcated and that . the additions and accretions form a composite and separate entity as shown in the plaintiffs' map.\n\nThis is the area marked ABCD in that map;\n\n(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately , demarcated compact unit for a single purpose, namely, collective and individual worship in the mosque, it must be regarded as one unit and be treated as such.\n\nThe whole is accordingly now wakf.\n\n( 4) that the accretions were made by Guiab Shah and the defendant both of whom claimed to be Mutwallis of the E inosque;\n\n(5) that this area also includes the shop3 and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land;\n\n( G) that the urinal, water pipe and bathroom were F constructed for the use of the worshippers and so must be regarded as an adjunct of the wakf;\"\n\nHaving discussed the law on the subject, we will not examine the question as to whether or not the mosque anti the adjuncts thereof constitute a public wakf.\n\nWe have already mentioned that the entire land in dispute consisting of the mosque, its adjuncts, the burial G ground etc. was originally acquired by virtue of the documents Ext.\n\nB-1 dated May 12, 1730 and Ext. B-2 dated May 22, 1797 which -\\ haYc been referred to in an earlier part of this judgment.\n\nThe land\n\nin Ext. B-1 was acquired by the saint Syed Sultan Makhdoom Sahib who has been entombed in the land on which the Dargah has been built.\n\nA part of the site has been used continuously as a public burial ground and has become a public grave-yard as wakf as held H by us.\n\nSo far as the Dargah is concerned the Courts below have\n\n(l) A.LR. 1956 S.C. 713 .\n\nconcurrently found as a fact that it was a private Dargah of the defendants Labbais and that there was no evidence to show that it wa~ ever constituted as a public wakf. Learned counsel for the appellants. in Civil Appeal No. 2026 of 1968 has not pressed his appeai relating to the Dargah.\n\nOn a perusal of the evidence both oral and documentary we are satisfied that the Dargah has not been proved to be a public property, but is the private Dargah of the Labbais whose ancestor the original saint has been entombed therein.\n\nAs Sayed Sultan Magdoom Sahib was a great saint and was held in great respect\n\nby all the villagers and as there was no mosque in the village at all it was only natural that the Muslims of the village would think of building a mosque in the village and they could find no better place to construct a mosque than the land in diopute, a prt of which contained the Dargah of the great saint where he was entombed.\n\nThe entire land was acquired by Ext. B-1 which was executed by Thirumalai Kolanda Pillai in favour of the saint as far back as May 12, 1730.\n\nThe rest of the land was acquired by another sale deed Ext. B-2 dated May 22, 1797 executed by MalaL Kolanda Pillai in favour of Kaidbar Sahib who was a direct descen- dant of the saint. This is the origin of the lands in dispute.\n\nSo far as the mosque and its adjuncts are concerned, it would appear from, the sketch map as also from the evidence produced by the parties. that this part of the land consists of the following constructions : (I) the main prayer hall which is commonly known as the mosque or Pallivasal;\n\n(2) Mandapam or Vang Mandai as described by the witnesses which is a sort of a covered platform where according to the plaintiffs prayers are offered by the members of the Mahomedan public when the space in the main mosque is not sufficient to accommodate the big crowd,\n\n(3) There is a small chamber in the nature of a store room adjacent to the mosque and a thatched shed.\n\nThere is also a pond where water is pumped in through a pump-set which has been installed by the Mahomedans of the village, particularly the plaintifis, There is also a latrine to the south of the burial ground and east of the mosque which is used for the persons who come to offer prayers in the mosque and the /vfandapa1n.\n\nApart from these constructions the evidence shows that a few years back the whole place was electrified and a tower was also built in the nature of a minaret in the mosque ann a loud-speaker was also fitted for the purpose of reciting Azan and Khutbas etc, According to the defendants the mosoue itself was a private mosque of the saint who had merely permitted the plaintiffs' ancestors to construct the prayer hall there. but there was no formal dedication of the property as a mosque, The defendants further averred that even if the praver hall be regarded as a public mosque the other constructions which were made subsequently were the private property of the clefendants and\" did not form part of the mosque. •\n\nSYED MOHD. SAL!E LABBAI v. MOHD. HANIFS (Fazal Ali, J.)'755\n\nWe would first take up the question whether the prayer hall i.e. the Pallivasal which is shown in the sketch map towards the south of the Dargah was dedicated as a mosque.\n\nWe have already pointed out that under the Mahomedan Law a dedication may be oral or in writing and no particular form or method for oonstitnting a wakf has been prescribed by the Mahomedan Law. It is largely a question of the intention of the founder who after having made a declaration divests himself of his interest in the property and gives delivery of possession of the san1e in accordance with the manner in which it is capable oi being delivered.\n\nIn the case of a mosque his permission or the bare act of allowing the members of the Mahomedan publ4: to offer prayers amounts to a complete delivery of possession.\n\nJn the instant case fortunately there is an important document Ext. B-3 a better translation of which is Ext. B-4 which clearly shows the intention of the founder and which in our opinion, on a proper interpretatic>n of the terms thereof, amounts to a permanent and an irrevocable dedication to God constituting a valid public \\\\aH.\n\nWe would now txa1ninc the contents of this docurnent, the relevant portions of \\Vhich may be extracted thus :\n\n\"Whereas we are constructing a Pallivasal at the Durga D MEDAI (raised platform) belonging to Karrath Sultan Mahdoom Sahib with the permission of the Sahib avergal for the purpose of worship, after the completion of the said Pallivasal (mosque) by the Grace of Allah, we shall claim no right whatsoever in respect of the said Pallivasal except that we shall worship therein.\n\nAt the time of Kanduri (annual festival) we shall act according to usual practices E ( mamool).\n\nWe shall not require the income derived either trom the Sultan Mahdoom Sahib Durga or lrom the Pallivasal we now build.\n\nTn the Pallivasal we bui!J, we shall claim no other rights whatsoever except worshipping therein. we shall by lighting lamps and attending to the maintenance of the same.\n\nThere shall be a doorway and two windows affixed on the southern wall of the said Pallivasal and one F doorway on the eastern side with a wall aronnd it.\n\nTo this effect is this deerj of agreement executed with consent by ell of us living in this village in favour of Saheh Avergal.\"\n\n• Before analysing the terms of the above documrn•, the following admitted facts may be reiterated : G.\n\n( 1) that the Mahomedans of the village sought permission of Masthan Ali Khader Sahib for erecting a building for the purpose of worship on the land belonging to him;\n\n(2) that the evidence establishes that there was no mosque at all in the village of Vijayapuram which consisted of a substantial portion of the Muslim population;\n\n(3) that the idea of constructing the mosque originated from the plaintiffs' ancestors who con; titutcd the bulk of the Muslim population in the village, the defendants' ancestors being a very small family in that village.\n\nAgainst the background of these facts we might now analyse the terms and conditions of the agreement which shows the natnre of the dedication.\n\nTo begin with, the agreement recites Ii) that the Rowthers were constructing a Pallivasal at the raised platform belonging to the\n\nL~.bbai Masthan Ali Khader Sahib with his permission, (ii) that after completion of the construction which is described as a mosque in the agreement, the Rowthers will have no claim or right, except the right to worship therein; (iii) that the only rights which the Muslims would claim wonld be the right to worship, to light iamps and will also be responsible for the maintenance of the mosque; (iv) that the said construction was made purely for the purpose of worship; ( v) that there shall be a doorway and two windows affixed on the southern wall of the mosque and one doorway on the eastern side so as to serve as entrances.\n\nIn other words this important recital in the agreement clearly shows that the agreement was to make a separate entrance to the mosque in order to constitute it as a separate entity.\n\nThe owner Masthan Ali Khader Sahib had given his tacit consent to all the terms of foe agreement and in the eye of law he being a party to the agreement he allowed the mosque to be constructed not for the private members of bis family but for worship of God by the entire Mahomedan public.\n\nThe document thus unmistakably evidences the clear intention of the founder to consecrate the mosque for public worship and amounts to a declaration of a public wakf.\n\nBy providing for separate entrance through doorway and windows the owner agreed to separate the mosque from the rest of the property namely the Dargah and the compound.\n\nThirdly by allowing the entire Mahomedan community of the village to worship in the mosque and to perform other ceremonies the owner of the land gave delivery of possession to the mosque.\n\nA perusal of the terms and recitals of the document Ext. B-4, therefore, manifestly shows fuat Masthan Ali Khader Sahib being a saint himself unequivocally and categorically divested himself of the entire interest in the mosque and made it a public wakf.\n\nWe agree with the view that a place may be dedicated as a mosque or masjid without there being any building as held in\" Akbarally's case (supra).\n\nBut in the instant case since the building in the nature of a mosque was bnilt a clear case of dedication has been made out.\n\nOnce the mosque was constructed it stood dedicated to God and all the right, title and interest of the owner got comoietcly extinguished.\n\nThis happened as far back as February 16, 1829, i.e. about a century and a half ago.\n\nSince then the mosque has been used constantly for the purpose of offering prayers.\n\nThis fact has been proved ]:>y the documents which we have discussed above and also from the oral evidence led by both the parties which we will consider hereafter.\n\nIt is further contended 1!hat under the agreement. the plaintiffs\n\nclearly stipulated not to claim any right or interest in the mosque ..\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazed Ali, !.) 757\n\nand, therefore, they cannot now be heard to say that the mosque was a wakf property.\n\nThis argument appears to have found favour with the Trial Court.\n\nBut in our opinion it is based on a serious misconception of the Mahomedan Law on the subject.\n\nOnce there was a complete dedication to the mosque as a place of public worship. any reservation of condition imposed by the owner would be deemed to be void and would have to be ignored.\n\nMoreover we do not construe the so-called stipulation by the plaintiffs' ancestors at the time of erecting the prayer hall as an assertion that the mosque was not a public wakf.\n\nReading the statements made in the agreement as a whole what the plaintiffs' ancestors meant was that the mosque would be undoubtedly a public wakf meant for the purpose of public worship and that they would not interfere with !he management of the same.\n\nThis does not mean that if the founder's descendants indulged in mismanagement of the mosque the plaintiffs as members of the Mahomedan community could not take suitable action under the law against the defendants.\n\nThis argument is, therefore, negatived.\n\nAs regards the adjuncts of the mosque the details of Which have been given by us, the same were built by the Mahomedan community from time to time for the purpose of the mosque or by way of a gift to the mosque.\n\nWe would now refer to the oral evidence on the point.\n\nP. W. 1 Mohamed Hanifa who is an old man aged 65 years and is one of the Rowthers states that there are 200 houses of Rowthers and only 7 to 8 houses of the Labbais in the village.\n\nThe witness mentions the various adjuncts to the mosque, namely, the tank, pump house, installed pump set, the latrine to the east of the pump house and a plaform which he calls as Vang Madai.\n\nThe witness further goes on to state that the mats and loud-speakers are kept in the store-room.\n\nThe mats are usually used by the Mahomedans for offering their prayers and the loud-speaker is used for reciting Azans or reading Khutbas (religious sermons) which are usually done after the prayers are over.\n\nThis witness's evidence also shows that when the Muslims want to bury their dead they come to the mosque for performing Nama;;-e-Janaza (special funeral prayers).\n\nAccording to P. W. 1 the corridor which connects the thatched shed with the plaform was built by Ismail who was not a Labbai.\n\nThe Vang Medai was built by Mustapha Rowther and this was constructed about 30 to 35 years ago and so was the Verandah which is shown in the sketch map as the thatched shed.\n\nThe witness also states that so far as the doorway is concerned it is there since a long time and it actually finds mention in Ext. B-4.\n\nAccording to the witness the platform, the Vang Medai, was built when he was 10 to 12 years of age i.e. about 50 years from the date of his deposition.\n\nThese facts do not appear to have been denied by D. Ws. I and 2 who have\n\nappeared on behalf of the defendants except with respect to the persons who made these constructions.\n\nIn our view the question of the person who actually made the construction is wholly irrelevant because all the constructions made by any person used for religious purposes incidental to offering of prayers in the mosque would be deemed to be accretions to the mosque itself and there is unchallenged evidence to show that all the constructions were used by the\n\nMahomedan community for the purpose of offering their prayers in the mosque on special occasions.\n\nP. W. 2 Hyder Ali who is a Labbi admits that he acted as an Imam and that 300 to 400 of Muslims assemble for prayers and when so many persons assemble the entire space of the mosque right from the prayer hall to the corridor is fully occupied.\n\nThe witness further says that after Khutbas, Koran is read and explained.\n\nSimilar is the evidence of P. W. 3 Yehiya who also says that Muslims offer their congregational prayers When their number swells upto 400 to 500 and that mats and carpets are kept in the store room.\n\nP. W. 4 Mohamed Mesra Hussain who is aged 64 years affirms that prayers have been offered in the mosque for the last 50 years and that there is no other mosque in Vijayapuram. , He also testifies to the fact that .the mosque is administered by the Rowthers since last 30 years and the Dargah was managed by the Labbais. He also stales that on the occasion of Friday prayers about 300 persons assemble in the mosque right from the main hall to the corridor.\n\nP. W. 5 Abdul Majeed says that Vanga Mandapam and the cmridor were constructed by Abdul Rahzan some time in 1931 and the people assemble right from the mosque to the corridor.\n\nThis is all the evidence given by the plaintiffs.\n\nD. W. I Syed Mubark who is the contesting defendant admits that the Mandapam was constructed by Sayed Mohd. Hussian about 30 to 35 years ago and that the mosque was constructed by the Rowthers.\n\nHe further admits that the defendants never objected or obstructed the Rowthers from offering their prayers. He further admits that a pump set was installed to pump water into the tank. He also admits all Muslims gather and pray in the mosque.\n\nD. W. 2 Mohamed Salis admits that the Hauz and the Verandah were buiit by Abdul Rahman under the supervision of Qasim though the funds were supplied by Ismail.\n\nThus even the witness for the defendants clearly admitted the nature and character of the various adjuncts to the mosque.\n\nThe D. Ws., however, have tried to minimise the number of people who assembled during Friday prayers by saying that it would be between 40 to 50. But that is obviously wrong. It is well known that on special occasions like Fridays, Id, Ide-Milad and other auspicious occasions the entire Muslim community flock to the mosque for the purpose of offering prayers, because offering of prayers on such days is, according to the Islamic tenets, extremely auspicious and highly efficacious. It is also established from the evidence that the constructions referred to above had been made for the purpose of the mosque.\n\nBefore a Mussalman offers bis prayers he bas first to wash his bands and feet in the prescribed manner and for this purpose arranoements are made in every mosque, and Pallivasal is no exception.\n\nAccordindy a tank or a Hauz, where water was pumped in was meant for the pumnse of Wnmo i.e. for washing hands and feet which is a prerequisite for offering the prayers.\n\nSimilarly as a large number .of\n\n' .\n\n,. \"\n\nSYED MOHD. SALIE LABBAI v. MOHD. HANIFS (Fazal Ali, /.) 759\n\nMuslims assembled on special occasions as mentioned above, the entire space including the mosque, the Mandapam, and the corridor was used for the purpose of offering prayers. Thus these constructions , were used for religious purposes incidental to the offering of prayers .and have become accretions to the mosque so as to constitute one single entity. Similarly the mats are meant for the Mahomedans to be used at the time of offering prayers. Lastly the loud speaker is used for reciting Azan and delivering Khutbas i.e. religions sermons.\n\nB • Thus all the adjuncts of the mosque are meant for purely religious purposes connected with the offering of prayers in the mosque.\n\nThe case of the defendants was that these constructions were their private property, but there is not an iota of evidence to prove the same.\n\nThe law on the point is well settled that where any construction is made for the purpose of the mosque or for its benefit or by way of C gift to the mosque, the same also becomes a public wakf. The statement of the law on the subject as mentioned by Baillie in his Digest of Mohummudan Law has already been extracted by us.\n\nIn these i circumstances, therefore, the conclusion is inescapable that the mosque as also all its adjuncts referred to herein constitute one single unit and the entire thing a public wakf.\n\nMr. Krishnamoorthy Iyer appearing for the appellants submitted that although Ext. B-4 shows that a mosque in the shape of a raised platform was constructed by the Rowtbers but there is no evidence of any formal dedication or dedication to the wakf.\n\nThis argument fails to consider the essential requirements of a public wakf under the Mahomadan Law and particularly the rules which require dedication to the mosque. The act of permitting the Mahomedans to build a mosque itself amounts to a complete dedication or a declaration that the mosque is a public property. Further by giving delivery of possession of the site for the purpose of building a mosque and by allowing prayers to be offered in the mosque, the founder, namely Masthan Ali Khadar Sahib made a complete public wakf in the shape of a mosque.\n\nNothing, therefore, remained with the founder or his descendants. Mr.\n\nIyer relied on a decision in !afar Hussain v. Mohd. Ghias-ud-din.(1) This case is, however, clearly distinguishable because it was not a case of a mosque which is governed by special rules for dedication.\n\nIn that case the property used was a H aveli or a house and on the facts of that case the Court held that there was no validly constituted wakf. Reliance was also placed on a decision of this Court in Nawab Zain -Ya' Jung v. The Director of E11dow1ne11t.'l('2 ).\n\nThis also vvas not a case of a mosque and this Court, on the facts of that case, held\n\nthat the trust created was not a wakf but a secular public charitable trust.\n\nIf the instant case, however, agreement Ext. B-4 clearly recites that the property being built on the land of the founder was a public mosque to be used for public purpose of offering prayers.\n\nLatly our attention was drawn to the decision of the Nagpur High Court m lawaharbeg v. Abdul Aziz('). That case also is of no assistance to the appellants because while the Court held a part of the pro-\n\n(!) A.!.R. 1937 Lah. 852.\n\n(2) (1963) I S.C.R. 469.\n\n(3) A.l.R. 1956 Nag. 257 .\n\nperty to be a mosq.ue the other parts which had absolutely no connection to the wakf property were held to be the private property. For these reasons, therefore, the contention put forward by the appellants is over-ruled. ' \\ On a consideration, therefore, of the facts, circumstances and the .,. evidence of the present case, we are satisfied that the mosque as also B its adjuncts constituted wakf properties and had. been used as such\n\nfor a long time so as to culminate into a valid and binding public • wakf.\n\nWe have already held that as the public character of the wakf was not iu issue in the previous judgments relied upon by the appellants, the said judgments did not operate as res judicata.\n\nWe, therefore, affirm the finding of the High Court on this issue.\n\nIt was next contended by the appellants that the suit was barred by s. 55(2J of the Wakf Act, 1954, which runs thus:\n\n\"No suit to obtain any of the reliefs referred to in subsection ( 1) relating to a wakf shall be instituted by any per- \\_ son or authority other than the Board without the consent r in writing of the Board :\n\nProvided that no such consent shall be required for the institution of a suit against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules or orders made thereunder.\"\n\nThe High Court has dealt with this aspect of the matter and has pointed out that at the relevant time when the present suit was brought, no Board contemplated by the provisions of the Wak! Act had, however, been constituted and therefore the provisions of s. 55 (2) were not at all attracted, nor were those provisions capable of being acted upon.\n\nIn these circumstances, therefore, the non-compliance with the requirements of s. 55 (2) of the Wakf Act would not bar the maintainability of the present suit.\n\nLastly it was contended that even assuming everything against the appellants the conditions of s. 92 of the Code of Civil Procedure were not at all fulfilled in this case, because the defendants could not be called the trustees within the meaning of s. 92 of the Code of Civil Procedure and the Advocate-General committed an error of law in granting the sanction to file the present suit. It is true that the defendants have only been de facto managers of the properties in suit either as Pesh Tnams or otherwise but that does not make any difference so far as application of s. 92 of the Code of Civil Procedure is concerned. It is true that s. 92 of the Code applies only when there is any alleged breach of any express or constructive trust created for a public, charitable or religious purpose. It also applies where the direction of the Court is necccsary for the administration of any such public trust.\n\nIn the instant case the defendants have no doubt been looking after the properties in one capacity or the other and had been enjoying the usufruct thereof.\n\nThey are, therefore, trustees de son tort and the mere fact that they put forward their own title to the properties would not make them trespassers.\n\nIn Abdul Rahim Khan's case (supra) a Division Bench of the Nagpur High Court observed thus :\n\n~ I\n\nSYED MOHD. SAL!E LABBAl v. MOHD. HAN!FS (Fazal Ali, J.)\n\n7 6 I\n\n\"The defendants' predecessors who were parties to that suit as defendants were in law not trespassers but trustees.\n\nThey claimed to be so.\n\nThey acted as such, but had wrongly begun to assert title to which they were not entitled to and therefore the suit against them, a suit under s. 529 (equivalent to the present s. 92) of the Civil Procedure Code does lie for removal of. such de facto or constructive trustees, as has been laid down in I.L.R. [19421 1 Cal 211 at pp. 215, 219 and A.I.R. 1940 Pat. 425 The plaintiffs in their plaint never stated that the defendants were trespassers, and it is the allegations in the plaint that determine the nature of the suit and the jurisdiction. The defendants' denial in the pleadings will not in any way affect the nature of the suit under S. 92, as held in 11 Pat. 288 and 63 Cal. 7 4.\" To the same effect are the decisions in Mahomad Shirazi v. Province\n\nof Bengal(!) and Ramdas Bhagat v.\n\nKrishna Prasad(\").\n\nIn our opinion these decisions lay down the correct law on the subject. We, therefore, hold that s. 92 of the Code of Civil P\"rocedure is clearly applicable to the case.\n\nCounsel for the appellants lastly argued that there is no evidence to show that the appellants have committed any negligence in managing the trust properties. Even the Trial Court which had dismissed the plaintiffs' suit had returned a clear finding of fact that the defend- . ants were guilty of gross negligence in managing the properties.\n\nIn this connection the Trial Court found as follows :\n\n\"It was pointed out that there was mis-management.\n\nThat there is mismanagment cannot be disputed.\n\nFor one E thing, in spite of the decree of the court for removal of certain superstructures on the burial ground the Labbais evaded the Issues for a period of over twenty years.\n\nThe plai.ntiffs have proved that plaint B-schedule property has been • dedicated to the Dargah.\n\nBut this property has been alienated by the predecessors-in-interest of the defendants.\n\nIn exchange, they have obtained C, schedule pro- F perty.\n\nThe next contention was that the defendaots have not maintained accounts. It is true that the evidence docs not disclose that any accounts were maintained or being maintained by the Labbais defendants.\" . ;,, . - The learned Judge, however, tried to explain away these acts of misfeasance on the ground that as the Rowthers undertook not to .interfere with the management or ask for the account, the negligence ommitted G by the defendants, if any, was not actionable. In view of our findings, however, that the mosque, its adjuncts and the burial ground are public wakfs the question of negligence assumes a new complexion.\n\nApart from the acts of mismanagement, there is definite oral evidence of the plaintiffs to show that the graveyard is not properly managed and maintained. The boundary wall has broken and cattle enter the graveyard leading to its desecration.\n\nThe evidence of the plaintiffs H also shows that even the mosque is in a state of disrepair and no\n\n(1) l.L, R. [1942] I Cal. 211.\n\n16-608SCI/76\n\n(2) A.l.R. 1940 Pat. 425\n\nattempt is made to repair or maintain it properly. Fnrther more, the defendants have constructed shops on a part of the graveyard and in spite of several decrees of the Conrts to demolish those shops they have not yet obeyed the orders of the Court to demolish the same.\n\nIn these circumstances, therefore, there is overwhelming evidence on the record to show that the defendants were guilty of grave mismanagement, and therefore a clear case for formulating a scheme under s. 92 of the Code of Civil Procedure by a suit has been made out by the plaintiffs.\n\nThe schemes, however, will be confined only to the mosque, its adjuncts and the burial ground and not to the Dargah which has been held to be the private property of the defendants.\n\nThere is some dispute about the right to act as an Imam.\n\nWe have already pointed out that the Mahomedan Law does not favonr the hereditary right of being an Imam because an Imam must possess certain special qualities and certain special knowledge of the scriptures before he can be allowed to lead the prayers.\n\nThe evidence shows that the Labbais have undobutedly been acting as Imams, though not for a continuous period.\n\nThis, however, is a matter for the entire Muslim community to decide because an Imam is normally chosen under the Mahomadan Law by the Muslim community. There is no clear evidence of any usage or custom by which the right to act as Imam is hereditary in this case. Nevertheli:ss we would like to observe that the defendants are after all the descendants of the founder of the entire premises which had been constituted as public wakf by their ancestors.\n\nUnder the agreement Ext. B-4 the Rowthers on behalf of the Muslim community undertook not to claim any right in the mosque and although that would not act as an estoppel once the property becomes a public wakf we think that the Court at the time of framing a scheme would consider the desirability of associating some of the defendants with the framing of the scheme and may even appoint a suitable person from among the Labbais to look after the properties on imposing such terms and conditions as the Court thinks fit.\n\nBut the primary consideration should be the welfare of the wakf properties. In case the Labbais are not found suitable for being given any share in the administration of the mosque, the Conrt will be free to withhold the right.\n\nWe, therefore, affirm tire judgment of the High Court in all the appeals.\n\nThe result is that the appeals filed are dismissed, but in the peculiar circumstances of the case there will be no order as to costs G in this Court.\n\nV.P.S.\n\nAppeals dismissed.\n\n'l\"\\", "total_entities": 200, "entities": [{"text": "SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "SYED MOHD. SALIE LABBAI (DEAD) BY L.RS. AND ORS", "offset_not_found": false}}, {"text": "MOHD. HANIFS (DEAD) BY L.RS. AND ORS", "label": "RESPONDENT", "start_char": 50, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "MOHD. HANIFS (DEAD) BY L.RS. AND ORS", "offset_not_found": false}}, {"text": "P. K. 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Shah Kubeer-ood-Deen, 2 M.I.A. 390; Adam Sheik\n\nv. Isha ,'; hcik, LC.W.N. 76; Saiyad Maher Husein v. Jaji Alimohonied 36 B.L.R. 526; Akbarally v. Maf1on1edally; I.L.R. 57 Born.", "canonical_name": "Akbarally"}}, {"text": "L.R. 67 I.A. 25", "label": "CASE_CITATION", "start_char": 10484, "end_char": 10499, "source": "regex", "metadata": {}}, {"text": "Furlher", "label": "WITNESS", "start_char": 15109, "end_char": 15116, "source": "ner", "metadata": {"in_sentence": "7 57 A-DJ •\n\n(f) Furlher, 1-1nder the 1.fuslim law once the dedication was complte."}}, {"text": "[1963] 1 S.C.R. 469", "label": "CASE_CITATION", "start_char": 17426, "end_char": 17445, "source": "regex", "metadata": {}}, {"text": "s. 92", "label": "PROVISION", "start_char": 21518, "end_char": 21523, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 21525, "end_char": 21530, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 55(2)", "label": "PROVISION", "start_char": 22395, "end_char": 22408, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "s. 55", "label": "PROVISION", "start_char": 22468, "end_char": 22473, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "s. 55", "label": "PROVISION", "start_char": 22632, "end_char": 22637, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 92", "label": "PROVISION", "start_char": 22815, "end_char": 22825, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 22827, "end_char": 22832, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Section 92", "label": "PROVISION", "start_char": 22871, "end_char": 22881, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "28-10-66", "label": "DATE", "start_char": 25365, "end_char": 25373, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Decree dated 28-10-66 of the Madras\n\nHigh Court in Appeal Nos."}}, {"text": "Madras\n\nHigh Court", "label": "COURT", "start_char": 25381, "end_char": 25399, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Decree dated 28-10-66 of the Madras\n\nHigh Court in Appeal Nos."}}, {"text": "T. S. Krishnamurthy yer", "label": "LAWYER", "start_char": 25522, "end_char": 25545, "source": "ner", "metadata": {"in_sentence": "HANIFS (Fazal Ali, J.) 727\n\nT. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos."}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 25547, "end_char": 25557, "source": "ner", "metadata": {"in_sentence": "HANIFS (Fazal Ali, J.) 727\n\nT. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos."}}, {"text": "R. Chandrasekar", "label": "LAWYER", "start_char": 25562, "end_char": 25577, "source": "ner", "metadata": {"in_sentence": "HANIFS (Fazal Ali, J.) 727\n\nT. S. Krishnamurthy yer, K. Jayaram and R. Chandrasekar for Appellants in C.A. Nos."}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 25656, "end_char": 25665, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. V. Rangam and A. Subhashini for Respon- ' dents ia CAs."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 25667, "end_char": 25679, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. V. Rangam and A. Subhashini for Respon- ' dents ia CAs."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 25684, "end_char": 25697, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, A. V. Rangam and A. Subhashini for Respon- ' dents ia CAs."}}, {"text": "FAzAL Au", "label": "JUDGE", "start_char": 25820, "end_char": 25828, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nFAzAL Au, J.-These appeals, by certificate granted by the High Court, arise out of a common judgment and will be dealt with by one judgment.", "canonical_name": "Fazal Ali"}}, {"text": "Vijayapuram", "label": "GPE", "start_char": 26306, "end_char": 26317, "source": "ner", "metadata": {"in_sentence": "A review of the historical background of the case reveals a rather sad story and an nnfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property."}}, {"text": "Tiruvarur District", "label": "GPE", "start_char": 26331, "end_char": 26349, "source": "ner", "metadata": {"in_sentence": "A review of the historical background of the case reveals a rather sad story and an nnfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property."}}, {"text": "Madras", "label": "GPE", "start_char": 26366, "end_char": 26372, "source": "ner", "metadata": {"in_sentence": "A review of the historical background of the case reveals a rather sad story and an nnfortunate saga of a perpetual strife and struggle, disputes and differences between the two sections of the Muslim community of village Vijayapuram (situated in Tiruvarur District in the State of Madras) setting up diverse rights and rival claims over the property which was essentially a religious property originating from a fountain of purity flowing from the life and teachings of a celebrated saint who was the original founder of the property."}}, {"text": "High Court of Madras", "label": "COURT", "start_char": 27249, "end_char": 27269, "source": "ner", "metadata": {"in_sentence": "The most unfortunate part of the drama long in process is that the Courts before whom the disputes came up for decision handed down judgments which were not strictly in accorance with the shariat and the essential tenets of the Mahommadan Law which encouraged the partie' to plunge themselves into a long drawn and unnecessary litigation, nntil the High Court of Madras in one ol' the litigations had to point out that the only remedy to put an end to the disputes was to invoke the provisions of s. 92 of the Code of Civil Procedure and this is what appears to have been done in the action out of which these appeals arise."}}, {"text": "s. 92", "label": "PROVISION", "start_char": 27397, "end_char": 27402, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 27406, "end_char": 27433, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Syed Sultan Makhdoom Sahib", "label": "OTHER_PERSON", "start_char": 27765, "end_char": 27791, "source": "ner", "metadata": {"in_sentence": "It appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapnram who by his pious and saintly life attracted disciples not only belonging to he Mahomedan community but also some non-Muslims of that villag, e.\n\nThe saint was held in great respect and reverence by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext.", "canonical_name": "Syed Sult•an Makhdoom Sahib"}}, {"text": "Vijayapnram", "label": "GPE", "start_char": 27821, "end_char": 27832, "source": "ner", "metadata": {"in_sentence": "It appears that some time towards the beginning of the 18th Century Syed Sultan Makhdoom Sahib a Sufi saint was residing at Vijayapnram who by his pious and saintly life attracted disciples not only belonging to he Mahomedan community but also some non-Muslims of that villag, e.\n\nThe saint was held in great respect and reverence by the Hindus and Muslims alike which is evidenced by the fact of a sale deed Ext."}}, {"text": "May 12, 1730", "label": "DATE", "start_char": 28121, "end_char": 28133, "source": "ner", "metadata": {"in_sentence": "B-1 dated May 12, 1730 which forms the starting point of the existence of the properties in suit which have been the subject-matter of such a Jong drawn litigation."}}, {"text": "Syed Sultan Magdoom Sahib", "label": "OTHER_PERSON", "start_char": 28412, "end_char": 28437, "source": "ner", "metadata": {"in_sentence": "Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by Thirmalai Kolandai Pillai who was a resident of village Vijayapuram.", "canonical_name": "Syed Sult•an Makhdoom Sahib"}}, {"text": "Thirmalai Kolandai Pillai", "label": "OTHER_PERSON", "start_char": 28441, "end_char": 28466, "source": "ner", "metadata": {"in_sentence": "Exhibit B-1 shows that a part of the site where the properties in dispute are situated and which was a punja land was sold to the saint Syed Sultan Magdoom Sahib by Thirmalai Kolandai Pillai who was a resident of village Vijayapuram.", "canonical_name": "Thirmalai Kolandai Pillai"}}, {"text": "Malai Kolanda Pillai", "label": "OTHER_PERSON", "start_char": 28851, "end_char": 28871, "source": "ner", "metadata": {"in_sentence": "The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit.", "canonical_name": "Malai Kolanda Pillai"}}, {"text": "Kaidbar Sahib", "label": "OTHER_PERSON", "start_char": 28885, "end_char": 28898, "source": "ner", "metadata": {"in_sentence": "The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit."}}, {"text": "Labbais", "label": "RESPONDENT", "start_char": 28966, "end_char": 28973, "source": "ner", "metadata": {"in_sentence": "The saint died and about sixty years later another sale deed was executed by Malai Kolanda Pillai in favour of Kaidbar Sahib who appears to be a descendant of the saint and an ancestor of the Labbais who are the defendants in the present suit.", "canonical_name": "Labbais"}}, {"text": "May 22. 1797", "label": "DATE", "start_char": 29152, "end_char": 29164, "source": "ner", "metadata": {"in_sentence": "The sale deed was executed on May 22."}}, {"text": "Rowther Syed Uddin", "label": "WITNESS", "start_char": 29489, "end_char": 29507, "source": "ner", "metadata": {"in_sentence": "It may be pertinent to note here that in the second sale deed Rowther Syed Uddin who is ancestor of one of the plaintiffs was a witness."}}, {"text": "Masthan Ali Khader Sahib", "label": "OTHER_PERSON", "start_char": 29919, "end_char": 29943, "source": "ner", "metadata": {"in_sentence": "Several years later, the Mahomedans of the village realised the necessity of having a mosque as no mosque existed in the village and inspired by this laudable objective, the Rowthers approached Masthan Ali Khader Sahib for permission to build a mosque on a part of the land in dispute.", "canonical_name": "Masthan Ali Khader Sahib"}}, {"text": "Code of Civil Procedure", "label": "STATUTE", "start_char": 31572, "end_char": 31595, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 31655, "end_char": 31660, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 31664, "end_char": 31691, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Fazal Ali", "label": "JUDGE", "start_char": 32227, "end_char": 32236, "source": "ner", "metadata": {"in_sentence": "HANIFS (Fazal Ali, J.) .", "canonical_name": "Fazal Ali"}}, {"text": "Syed Snltan Makhdoom Sahib", "label": "OTHER_PERSON", "start_char": 32412, "end_char": 32438, "source": "ner", "metadata": {"in_sentence": "729\n\nthe plaintiffs or their ancestors to get the shops demolished had so far failed; A\n\n(2) towards the western portion of the grave-yard there is a tomb of the saint Syed Snltan Makhdoom Sahib over which a Dargah has been built;\n\n(3) a prayer hall adjacent to the Dargah which is known B as the mosque or Palliv<asal.", "canonical_name": "Syed Sult•an Makhdoom Sahib"}}, {"text": "Syed Sult•an Makhdoom Sahib", "label": "OTHER_PERSON", "start_char": 33986, "end_char": 34013, "source": "ner", "metadata": {"in_sentence": "The suit was coatested by defendants I, 2, 4 and 6 who contended, inter alia, that the entire property was acquired by their ancestor Syed Sult•an Makhdoom Sahib who died four years after the purchase and was buried on a part of the land along with the members of Ins family.", "canonical_name": "Syed Sult•an Makhdoom Sahib"}}, {"text": "Sub-Judge Mayuram", "label": "COURT", "start_char": 35422, "end_char": 35439, "source": "ner", "metadata": {"in_sentence": "9 of 1956 and 71 of 1957 heard by the Court of Sub-Judge Mayuram."}}, {"text": "Court of the District Munsiff, Tiruvarur", "label": "COURT", "start_char": 35597, "end_char": 35637, "source": "ner", "metadata": {"in_sentence": "71 of 1957 was originally filed in the Court of the District Munsiff, Tiruvarur as O.S. No."}}, {"text": "Pistrict Munsif's Court at Nagapattinam", "label": "COURT", "start_char": 35721, "end_char": 35760, "source": "ner", "metadata": {"in_sentence": "16 of 1957 but the same was transferred by the District Munsiff to the Pistrict Munsif's Court at Nagapattinam and was later transferred to the Sub-Judge, Mayuram to be tried along with O.S. No."}}, {"text": "Sub-Judge, Mayuram", "label": "COURT", "start_char": 35794, "end_char": 35812, "source": "ner", "metadata": {"in_sentence": "16 of 1957 but the same was transferred by the District Munsiff to the Pistrict Munsif's Court at Nagapattinam and was later transferred to the Sub-Judge, Mayuram to be tried along with O.S. No."}}, {"text": "s. 145", "label": "PROVISION", "start_char": 36027, "end_char": 36033, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 36041, "end_char": 36067, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Court of Sub-Judge, Mayuram", "label": "COURT", "start_char": 36205, "end_char": 36232, "source": "ner", "metadata": {"in_sentence": "9 of 1956 which was filed in the Court of Sub-Judge, Mayuram, the Court framed the follow."}}, {"text": "Durgah", "label": "GPE", "start_char": 36301, "end_char": 36307, "source": "ner", "metadata": {"in_sentence": "ing issues :\n\n\"l. Are the Pallivasal, Durgah, the burial grounds, prayer\n\n hall etc."}}, {"text": "Section 55", "label": "PROVISION", "start_char": 36761, "end_char": 36771, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 39539, "end_char": 39556, "source": "ner", "metadata": {"in_sentence": "1224 of 1968 has been filed against the decision of the Madras High Court which arises out of original suit No."}}, {"text": "Krishnamoorthy Iyer", "label": "OTHER_PERSON", "start_char": 39664, "end_char": 39683, "source": "ner", "metadata": {"in_sentence": "Mr. Krishnamoorthy Iyer appearing for the appellants has raised the following points before ns :\n\n{1) that the history of the litigation would clearly show that the previous judgments between the parties operated as res judicata and the High Court was wrong in not giving\n\nelkct to the plea of res judicata which would have put a final seal to the disputes between the parties\n\n(2) that there is clear evidence of the manner in which the properties appear to have been dedicated and there is no clear declaration of dedication ."}}, {"text": "s. 55", "label": "PROVISION", "start_char": 40961, "end_char": 40966, "source": "regex", "metadata": {"statute": null}}, {"text": "Muslim Wakfs Act, 1954", "label": "STATUTE", "start_char": 40978, "end_char": 41000, "source": "regex", "metadata": {}}, {"text": "s. 92", "label": "PROVISION", "start_char": 41016, "end_char": 41021, "source": "regex", "metadata": {"linked_statute_text": "the Muslim Wakfs Act, 1954", "statute": "the Muslim Wakfs Act, 1954"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 41025, "end_char": 41052, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 41159, "end_char": 41164, "source": "regex", "metadata": {"linked_statute_text": "the Muslim Wakfs Act, 1954", "statute": "the Muslim Wakfs Act, 1954"}}, {"text": "Asoke Sen", "label": "LAWYER", "start_char": 41183, "end_char": 41192, "source": "ner", "metadata": {"in_sentence": "Mr. Asoke Sen appearing for the plaintiffs/respondents conceded that he would not press his claim so far as the Dargah was concerned which has rightly been held as the private property of the defendants."}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 41409, "end_char": 41412, "source": "ner", "metadata": {"in_sentence": "On the other points, Mr. Sen repelled the arguments of Mr.\n\nIyer by submitting that the plea of res judicata was totally unfounded inasmuch as the public character of the wakf never came up for decision before the Courts which decided the previous litigation, where the question was confined only to certain rights claimed by the defendants with respect to leading the congregation and administration and management of the mosque."}}, {"text": "Iyer", "label": "OTHER_PERSON", "start_char": 41444, "end_char": 41448, "source": "ner", "metadata": {"in_sentence": "On the other points, Mr. Sen repelled the arguments of Mr.\n\nIyer by submitting that the plea of res judicata was totally unfounded inasmuch as the public character of the wakf never came up for decision before the Courts which decided the previous litigation, where the question was confined only to certain rights claimed by the defendants with respect to leading the congregation and administration and management of the mosque."}}, {"text": "s. 55", "label": "PROVISION", "start_char": 42384, "end_char": 42389, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 42531, "end_char": 42536, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 42540, "end_char": 42567, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 42690, "end_char": 42695, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 42699, "end_char": 42726, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 42837, "end_char": 42842, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 42846, "end_char": 42873, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Court of the District Munsif, Tiruvarur", "label": "COURT", "start_char": 46334, "end_char": 46373, "source": "ner", "metadata": {"in_sentence": "The first litigation between the parties started as far back\n\nas 1893 when the Labbais filed a suit against tihe defendants in the Court of the District Munsif, Tiruvarur bdng o: S. No."}}, {"text": "March 26, 1895", "label": "DATE", "start_char": 46458, "end_char": 46472, "source": "ner", "metadata": {"in_sentence": "B-5 dated March 26, 1895."}}, {"text": "March 16, 1897", "label": "DATE", "start_char": 48904, "end_char": 48918, "source": "ner", "metadata": {"in_sentence": "Exhibit B-6 dated March 16, 1897 is the judgment in appeal from the aforesaid decision where at p. 394 of the Paper Book the Subordinate Judge held that the Pallivasal or the prayer hall is public property and not descendible to the pfaintiffs of that suit."}}, {"text": "December 21, 1899", "label": "DATE", "start_char": 49382, "end_char": 49399, "source": "ner", "metadata": {"in_sentence": "Exhibit B-7 dated December 21, 1899 is the judgment given by the District Munsif, Tiruvarur in O.S. No."}}, {"text": "November 13, 1902", "label": "DATE", "start_char": 51159, "end_char": 51176, "source": "ner", "metadata": {"in_sentence": "Exhibit B-8 is the judgment of the DiBtrict Judge dated November 13, 1902 in appeal against the aforesaid judgment which was dism; sscd."}}, {"text": "July 24, 1906", "label": "DATE", "start_char": 51746, "end_char": 51759, "source": "ner", "metadata": {"in_sentence": "Exhibit B-9 is the judgment of the High Court of Madras dated July 24, 1906 in second appeals Nos."}}, {"text": "September 4, 1923", "label": "DATE", "start_char": 52194, "end_char": 52211, "source": "ner", "metadata": {"in_sentence": "Exhibit B-12 dated September 4, 1923 is the judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment of the Munsif in suit No."}}, {"text": "Subordinate Judge, Nagapattinam", "label": "COURT", "start_char": 52235, "end_char": 52266, "source": "ner", "metadata": {"in_sentence": "Exhibit B-12 dated September 4, 1923 is the judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment of the Munsif in suit No."}}, {"text": "Munsif", "label": "OTHER_PERSON", "start_char": 52306, "end_char": 52312, "source": "ner", "metadata": {"in_sentence": "Exhibit B-12 dated September 4, 1923 is the judgment of the Subordinate Judge, Nagapattinam, in appeal against the judgment of the Munsif in suit No."}}, {"text": "Labbai", "label": "RESPONDENT", "start_char": 52444, "end_char": 52450, "source": "ner", "metadata": {"in_sentence": "The suit was brought by some members of the Muslim community for an injunction restraining the defendant Labbai from reciting prayers or conducting the worship in the prayer hall.", "canonical_name": "Labbais"}}, {"text": "September 13, 1926", "label": "DATE", "start_char": 54027, "end_char": 54045, "source": "ner", "metadata": {"in_sentence": "Exhibit B-16 dated September 13, 1926 is the judgment of the High Court of Madras against the aforesaid judgment of the Subordinate Judge in Second Appeal No."}}, {"text": "August 31, 1937", "label": "DATE", "start_char": 54641, "end_char": 54656, "source": "ner", "metadata": {"in_sentence": "Exhibit B-28 dated August 31, 1937 is a judgment of the Subordinate Judge in suit No."}}, {"text": "S. 304", "label": "PROVISION", "start_char": 55221, "end_char": 55227, "source": "regex", "metadata": {"statute": null}}, {"text": "Mahomedan", "label": "OTHER_PERSON", "start_char": 56330, "end_char": 56339, "source": "ner", "metadata": {"in_sentence": "discussed above, it is absolutely clear that it was uever disputed even by the Labbais that the mosque was a public mosque where .I prayers were offered by Mahomedan public.", "canonical_name": "Mahomedan"}}, {"text": "February 26, 1941", "label": "DATE", "start_char": 57463, "end_char": 57480, "source": "ner", "metadata": {"in_sentence": "Exhibit B-30 dated February 26, 1941 is a judgment of the High D Court in original Suit No."}}, {"text": "Municipal Council, Tiruvarur", "label": "ORG", "start_char": 57604, "end_char": 57632, "source": "ner", "metadata": {"in_sentence": "112 of 1935 brought in the Court of the District Munsif against the Municipal Council, Tiruvarur praying for an injunction restraining the Municipal Commissioner from interfering with the plaintiff's right of access to the grave-yard."}}, {"text": "November 13, 1941", "label": "DATE", "start_char": 58089, "end_char": 58106, "source": "ner", "metadata": {"in_sentence": "Exhibit B-31 dated November 13, 1941 is a judgment of the High Court in Second Appeal No."}}, {"text": "Labbais", "label": "RESPONDENT", "start_char": 58548, "end_char": 58555, "source": "ner", "metadata": {"in_sentence": "8 of 1937 brought by the Rowthers against the Labbais and the main point in dispute was the right to officiate as Imam.", "canonical_name": "Labbais"}}, {"text": "s. 92", "label": "PROVISION", "start_char": 59050, "end_char": 59055, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 59059, "end_char": 59086, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Somayya", "label": "JUDGE", "start_char": 59108, "end_char": 59115, "source": "ner", "metadata": {"in_sentence": "In this connection Somayya, J., observed as follows :\n\n\"In this case I have found that there is overwhelming evidence in favour of the usage by which the defendants are to be the Pesh Imams."}}, {"text": "section 92", "label": "PROVISION", "start_char": 59379, "end_char": 59389, "source": "regex", "metadata": {"statute": null}}, {"text": "April 5, 1957", "label": "DATE", "start_char": 61514, "end_char": 61527, "source": "ner", "metadata": {"in_sentence": "B-73 dated April 5, 1957 an order of the High Court in Crimi, nal Revision Petition No."}}, {"text": "s. 92", "label": "PROVISION", "start_char": 62852, "end_char": 62857, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 62861, "end_char": 62888, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "May 7, 1919", "label": "DATE", "start_char": 63768, "end_char": 63779, "source": "ner", "metadata": {"in_sentence": "Exhibit A-4 dated May 7, 1919 is a decision of the District Munsif, Tiruvarur in 0.S. 331 of 1915."}}, {"text": "Tiruvarur", "label": "GPE", "start_char": 63818, "end_char": 63827, "source": "ner", "metadata": {"in_sentence": "Exhibit A-4 dated May 7, 1919 is a decision of the District Munsif, Tiruvarur in 0.S. 331 of 1915."}}, {"text": "S. 331", "label": "PROVISION", "start_char": 63833, "end_char": 63839, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of H Madras", "label": "COURT", "start_char": 65424, "end_char": 65446, "source": "ner", "metadata": {"in_sentence": "It appears that the decree of the learned Munsiff was upheld by the Subordinate Judge and also by the High Court of H Madras in Second Appeal No."}}, {"text": "Nagapattinam", "label": "GPE", "start_char": 65629, "end_char": 65641, "source": "ner", "metadata": {"in_sentence": "A-6 which is the jndgment of the District Munsif, Nagapattinam in another suit wherein the observations made by the Munsiff are as follows :\n\n\"The learned Subor)linate Judge says in his judgment (copy Exhibit N-a) as follows :\n\n'As there is no doubt that the suit land on which the shops are built forms part of the graveyards the Levvais have no right to put up the shops'."}}, {"text": "S. 13", "label": "PROVISION", "start_char": 65980, "end_char": 65985, "source": "regex", "metadata": {"statute": null}}, {"text": "November 30, 1925", "label": "DATE", "start_char": 66831, "end_char": 66848, "source": "ner", "metadata": {"in_sentence": "The Munsif by his judgment dated November 30, 1925 which is Ext."}}, {"text": "S. 331", "label": "PROVISION", "start_char": 66951, "end_char": 66957, "source": "regex", "metadata": {"statute": null}}, {"text": "January 14, 1939", "label": "DATE", "start_char": 67440, "end_char": 67456, "source": "ner", "metadata": {"in_sentence": "This suit was also dismissed by the Trial Court by virtue of its judgment dated January 14, 1939 (Ext."}}, {"text": "S. 49", "label": "PROVISION", "start_char": 68114, "end_char": 68119, "source": "regex", "metadata": {"statute": null}}, {"text": "December 14, 1934", "label": "DATE", "start_char": 68537, "end_char": 68554, "source": "ner", "metadata": {"in_sentence": "This suit was decided by the District Munsif by his judgment dated December 14, 1934 which is Ext."}}, {"text": "7, 1938", "label": "DATE", "start_char": 70507, "end_char": 70514, "source": "ner", "metadata": {"in_sentence": "This judgment of the High Court is dated October 7, 1938 and is Ext."}}, {"text": "High Court of. Lahore", "label": "COURT", "start_char": 74704, "end_char": 74725, "source": "ner", "metadata": {"in_sentence": "7 43\n\nIn Imam Baksh v. Mandar Narsingh Puri(') a Division Bench A : of the High Court of."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 75573, "end_char": 75593, "source": "ner", "metadata": {"in_sentence": "There is a decision of the Allahabad High Court in Sheoraj Chamar\n\nv. Mudeer Khan,(') where Sulaiman, C. J., observed as follows :\n\n\"But in cases where a graveyard has existed from time immemorial or for a very long time, there can be a presumption of a lost grant."}}, {"text": "Sulaiman", "label": "JUDGE", "start_char": 75638, "end_char": 75646, "source": "ner", "metadata": {"in_sentence": "There is a decision of the Allahabad High Court in Sheoraj Chamar\n\nv. Mudeer Khan,(') where Sulaiman, C. J., observed as follows :\n\n\"But in cases where a graveyard has existed from time immemorial or for a very long time, there can be a presumption of a lost grant."}}, {"text": "Oudh Chief Court", "label": "COURT", "start_char": 76136, "end_char": 76152, "source": "ner", "metadata": {"in_sentence": "This case was followed by rhe Oudh Chief Court in Qadir Baksh v.\n\nSaddullah. (')"}}, {"text": "High Court of F Madhya Pradesh", "label": "COURT", "start_char": 76232, "end_char": 76262, "source": "ner", "metadata": {"in_sentence": "In Mohammed Kassam v. Abdul Ga.Joor (') the High Court of F Madhya Pradesh, while trying to distinguish between a private graveyard and a public graveyard observed as follows :\n\n\"On this point suffice it to say that we are of the view that a Kabarstan cannot be a private Kabarstan unless it is used for the family members exclusively."}}, {"text": "March 3, 1932", "label": "DATE", "start_char": 79607, "end_char": 79620, "source": "ner", "metadata": {"in_sentence": "A-8 dated March 3, 1932 which is a certified extract of the proceedings of Municipal Council, Tiruvarur which shows tha( the Labbais themselves had filed an application before the Municipat\n\nI +\n\nSYED MOHD."}}, {"text": "Syed Muhammad Kasim Sahib", "label": "OTHER_PERSON", "start_char": 80007, "end_char": 80032, "source": "ner", "metadata": {"in_sentence": "It appears from this document that Syed Muhammad Kasim Sahib and Syed Abdul Rahiman Sahib residents of Vijayapuram had applied to the Municipal Council for registering the plot in dispute as a burial ground and the Municipal Council by its resolution accepted the application and registered the plot in question as a burial ground."}}, {"text": "Syed Abdul Rahiman Sahib", "label": "OTHER_PERSON", "start_char": 80037, "end_char": 80061, "source": "ner", "metadata": {"in_sentence": "It appears from this document that Syed Muhammad Kasim Sahib and Syed Abdul Rahiman Sahib residents of Vijayapuram had applied to the Municipal Council for registering the plot in dispute as a burial ground and the Municipal Council by its resolution accepted the application and registered the plot in question as a burial ground."}}, {"text": "Mohamed Hanif'a", "label": "WITNESS", "start_char": 80609, "end_char": 80624, "source": "ner", "metadata": {"in_sentence": "P. W. 1 Mohamed Hanif'a who is an old man of 65 years has stated in 'his evidence that before burial the Janaza prayers are offered and after the prayer the dead body is C taken to the graveyard and buried."}}, {"text": "Hyder Ali", "label": "WITNESS", "start_char": 80827, "end_char": 80836, "source": "ner", "metadata": {"in_sentence": "Similarly P. W. 2 Hyder Ali has stated that there is no other burial ground where bodies of the Rowthers could be buried, implying that the Rowthers had been burying their dead in the burial ground in question."}}, {"text": "Yehiya", "label": "WITNESS", "start_char": 81029, "end_char": 81035, "source": "ner", "metadata": {"in_sentence": "P. W. 3 Yehiya has also testified that the remains of the Muslims of Vijayapuram are buried in the burial ground attached to the mosque and that there is no other burial ground."}}, {"text": "Syed Mubarak", "label": "WITNESS", "start_char": 81262, "end_char": 81274, "source": "ner", "metadata": {"in_sentence": "The defendants who had examined only two witnesses, D D. W. I Syed Mubarak and D. W. 2 Syed Mohamed Salia, have not denied that the Muslims of t:he village buried their dead in the burial ground."}}, {"text": "Syed Mohamed Salia", "label": "WITNESS", "start_char": 81287, "end_char": 81305, "source": "ner", "metadata": {"in_sentence": "The defendants who had examined only two witnesses, D D. W. I Syed Mubarak and D. W. 2 Syed Mohamed Salia, have not denied that the Muslims of t:he village buried their dead in the burial ground."}}, {"text": "Shariat", "label": "OTHER_PERSON", "start_char": 85577, "end_char": 85584, "source": "ner", "metadata": {"in_sentence": "These formalities are-\n\n(i) Wazoo i.e. washing of hands and feet in a manner prescribed by Shariat;\n\n(ii) the recitation of \"Azaan\" and \"Ikamat\" which is usually done by the Pesh Imam or the Muazzin;\n\n(iii) there must be a person who possesses virtuous qualities and a knowledge of Koran and other religions rites who should lead the prayers."}}, {"text": "Aboo Huneefa", "label": "OTHER_PERSON", "start_char": 87753, "end_char": 87765, "source": "ner", "metadata": {"in_sentence": "In Baillie's Digest of Moohummudan Law, Second Edition, the C following passage occurs at p. 615 :\n\n\"If a man should make a musjid within his mansion, and permit entrance to it, and prayers to be said in it, the place becomes a musjid, in all their opinions, if a way is made to it; but not otherwise according to Aboo Huneefa."}}, {"text": "Baillie", "label": "OTHER_PERSON", "start_char": 88816, "end_char": 88823, "source": "ner", "metadata": {"in_sentence": "It is also provided by the Sha, iat that once a musiid has been established by dedication no condition can be attached by the founder and if any such condition is attached the said condition wonld be void : Vide the following observations of Baillie in his Digest of Moohummudan Law, 2nd Edn.,"}}, {"text": "Ameer Ali", "label": "OTHER_PERSON", "start_char": 89687, "end_char": 89696, "source": "ner", "metadata": {"in_sentence": "Ameer Ali in his book \"Muhammadan Law'', Vol."}}, {"text": "Abu Hanifa", "label": "OTHER_PERSON", "start_char": 91053, "end_char": 91063, "source": "ner", "metadata": {"in_sentence": "If a pathway is not indicated, in that case, according to Abu Hanifa, the dedication is not sufficient."}}, {"text": "Abu Yusuf", "label": "OTHER_PERSON", "start_char": 91117, "end_char": 91126, "source": "ner", "metadata": {"in_sentence": "But according to Abu Yusuf and Mohammed it is good, and the pathway will be implied by fhe permission to pray, and this is correct.\""}}, {"text": "Mohammed", "label": "OTHER_PERSON", "start_char": 91131, "end_char": 91139, "source": "ner", "metadata": {"in_sentence": "But according to Abu Yusuf and Mohammed it is good, and the pathway will be implied by fhe permission to pray, and this is correct.\"", "canonical_name": "Mahomedan"}}, {"text": "Kazi Khan", "label": "OTHER_PERSON", "start_char": 91951, "end_char": 91960, "source": "ner", "metadata": {"in_sentence": "HANIFS (Fazal Ali, J.) 7 49\n\n\"According to Kazi Khan, 'the delivery of possession as regards a masjid is complete when only one person has prayed in it with azan and ikamat.'"}}, {"text": "Tyabji", "label": "OTHER_PERSON", "start_char": 92802, "end_char": 92808, "source": "ner", "metadata": {"in_sentence": "The entire law on the subject has been explicitly and adroitly elucidated by Tyabji in his book \"Muslim Law\" 4th Edn.,"}}, {"text": "s. 550", "label": "PROVISION", "start_char": 93655, "end_char": 93661, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 551", "label": "PROVISION", "start_char": 93854, "end_char": 93860, "source": "regex", "metadata": {"statute": null}}, {"text": "Saksena", "label": "OTHER_PERSON", "start_char": 93969, "end_char": 93976, "source": "ner", "metadata": {"in_sentence": "Similarly Saksena in his \"Muslim Law\"; 4th Edn.,"}}, {"text": "Mulla", "label": "OTHER_PERSON", "start_char": 94392, "end_char": 94397, "source": "ner", "metadata": {"in_sentence": "Similar obs_>:rvations are also found in Mulla's \"Principles of Mahomedan Law\", 17th Edn.,"}}, {"text": "Aboo Yoosaf", "label": "OTHER_PERSON", "start_char": 96373, "end_char": 96384, "source": "ner", "metadata": {"in_sentence": "The two disciples therefore hold appropriation to be absolute, though differing in this, that Aboo Yoosaf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a Mutwaly, (or procurator), and, consequently, that it cannot be disposed of by gift or sale, and that inheritance also does not obtain with respect to it x x x x x 'Bestow the actual land itself in charity in such a manner that it shall no longer be saleable or inheritable.' \""}}, {"text": "Mahomed", "label": "OTHER_PERSON", "start_char": 96466, "end_char": 96473, "source": "ner", "metadata": {"in_sentence": "The two disciples therefore hold appropriation to be absolute, though differing in this, that Aboo Yoosaf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a Mutwaly, (or procurator), and, consequently, that it cannot be disposed of by gift or sale, and that inheritance also does not obtain with respect to it x x x x x 'Bestow the actual land itself in charity in such a manner that it shall no longer be saleable or inheritable.' \"", "canonical_name": "Mahomedan"}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 96970, "end_char": 96989, "source": "ner", "metadata": {"in_sentence": "a Division Bench of A the Calcutta High Court pointed out that a mosque becomes consecrated for public worship either by delivery or on the decla1 a don of the wakif that he ha$ constituted it into a Musjid, or on the performance of prayers therein even by one person."}}, {"text": "Azan", "label": "OTHER_PERSON", "start_char": 97655, "end_char": 97659, "source": "ner", "metadata": {"in_sentence": "The prayers of one individual alone would be sufficient so long as it is accornpnied by Azan."}}, {"text": "Fatwa Kazi Khan", "label": "OTHER_PERSON", "start_char": 97669, "end_char": 97684, "source": "ner", "metadata": {"in_sentence": "In the Fatwa Kazi Khan the principle is thus stated :- the delivery of possession as regards a musjid is complete when only one person has prayed in it with Azan and ikamat."}}, {"text": "ikamat", "label": "OTHER_PERSON", "start_char": 97828, "end_char": 97834, "source": "ner", "metadata": {"in_sentence": "In the Fatwa Kazi Khan the principle is thus stated :- the delivery of possession as regards a musjid is complete when only one person has prayed in it with Azan and ikamat."}}, {"text": "Fatwa Alamgiri", "label": "OTHER_PERSON", "start_char": 98338, "end_char": 98352, "source": "ner", "metadata": {"in_sentence": "See also Fatwa Alamgiri, Vol."}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 98813, "end_char": 98830, "source": "ner", "metadata": {"in_sentence": "To the same effect is the decision of the Bombay High Court Saiyad Maher Husein v. Haji Alimahmed(2 ) where the following observations were made :\n\n\"There are special rules in the case of mosques- Wilson's Anglo-Mohamedan Law, s. 320; Ameer Ali's Muhammadan Law, Vo."}}, {"text": "Wilson", "label": "OTHER_PERSON", "start_char": 98968, "end_char": 98974, "source": "ner", "metadata": {"in_sentence": "To the same effect is the decision of the Bombay High Court Saiyad Maher Husein v. Haji Alimahmed(2 ) where the following observations were made :\n\n\"There are special rules in the case of mosques- Wilson's Anglo-Mohamedan Law, s. 320; Ameer Ali's Muhammadan Law, Vo."}}, {"text": "s. 320", "label": "PROVISION", "start_char": 98998, "end_char": 99004, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 514", "label": "PROVISION", "start_char": 99090, "end_char": 99096, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 100781, "end_char": 100804, "source": "ner", "metadata": {"in_sentence": "In Miru v.\n\nRamgopa/( 2 ) the High Court of Allahabad observed as follows :\n\n\"But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be a matter of inference for the Court which is the judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself had been allowed to be consecrated for the purposes of such rights being performed."}}, {"text": "Nagpur High Court", "label": "COURT", "start_char": 101572, "end_char": 101589, "source": "ner", "metadata": {"in_sentence": "To the same effect is the decision of the Nagpur High Court in Abdul Rahim Khan v. Fakir Mohammad Shah.(')"}}, {"text": "Guiab Shah", "label": "OTHER_PERSON", "start_char": 103378, "end_char": 103388, "source": "ner", "metadata": {"in_sentence": "( 4) that the accretions were made by Guiab Shah and the defendant both of whom claimed to be Mutwallis of the E inosque;\n\n(5) that this area also includes the shop3 and chabutra shown to the west of the mosque in the plaint map on a triangular piece of land;\n\n( G) that the urinal, water pipe and bathroom were F constructed for the use of the worshippers and so must be regarded as an adjunct of the wakf;\"\n\nHaving discussed the law on the subject, we will not examine the question as to whether or not the mosque anti the adjuncts thereof constitute a public wakf."}}, {"text": "May 22, 1797", "label": "DATE", "start_char": 104131, "end_char": 104143, "source": "ner", "metadata": {"in_sentence": "B-2 dated May 22, 1797 which -\\ haYc been referred to in an earlier part of this judgment."}}, {"text": "Sayed Sultan Magdoom Sahib", "label": "OTHER_PERSON", "start_char": 105106, "end_char": 105132, "source": "ner", "metadata": {"in_sentence": "As Sayed Sultan Magdoom Sahib was a great saint and was held in great respect\n\nby all the villagers and as there was no mosque in the village at all it was only natural that the Muslims of the village would think of building a mosque in the village and they could find no better place to construct a mosque than the land in diopute, a prt of which contained the Dargah of the great saint where he was entombed."}}, {"text": "Thirumalai Kolanda Pillai", "label": "OTHER_PERSON", "start_char": 105578, "end_char": 105603, "source": "ner", "metadata": {"in_sentence": "B-1 which was executed by Thirumalai Kolanda Pillai in favour of the saint as far back as May 12, 1730.", "canonical_name": "Thirmalai Kolandai Pillai"}}, {"text": "MalaL Kolanda Pillai", "label": "OTHER_PERSON", "start_char": 105752, "end_char": 105772, "source": "ner", "metadata": {"in_sentence": "B-2 dated May 22, 1797 executed by MalaL Kolanda Pillai in favour of Kaidbar Sahib who was a direct descen- dant of the saint.", "canonical_name": "Malai Kolanda Pillai"}}, {"text": "Mandapam or Vang Mandai", "label": "RESPONDENT", "start_char": 106182, "end_char": 106205, "source": "ner", "metadata": {"in_sentence": "that this part of the land consists of the following constructions : (I) the main prayer hall which is commonly known as the mosque or Pallivasal;\n\n(2) Mandapam or Vang Mandai as described by the witnesses which is a sort of a covered platform where according to the plaintiffs prayers are offered by the members of the Mahomedan public when the space in the main mosque is not sufficient to accommodate the big crowd,\n\n(3) There is a small chamber in the nature of a store room adjacent to the mosque and a thatched shed."}}, {"text": "Saheh Avergal", "label": "OTHER_PERSON", "start_char": 109934, "end_char": 109947, "source": "ner", "metadata": {"in_sentence": "To this effect is this deerj of agreement executed with consent by ell of us living in this village in favour of Saheh Avergal.\""}}, {"text": "Akbarally", "label": "PETITIONER", "start_char": 112896, "end_char": 112905, "source": "ner", "metadata": {"in_sentence": "We agree with the view that a place may be dedicated as a mosque or masjid without there being any building as held in\" Akbarally's case (supra).", "canonical_name": "Akbarally"}}, {"text": "February 16, 1829", "label": "DATE", "start_char": 113217, "end_char": 113234, "source": "ner", "metadata": {"in_sentence": "This happened as far back as February 16, 1829, i.e. about a century and a half ago."}}, {"text": "Mohamed Hanifa", "label": "WITNESS", "start_char": 115130, "end_char": 115144, "source": "ner", "metadata": {"in_sentence": "P. W. 1 Mohamed Hanifa who is an old man aged 65 years and is one of the Rowthers states that there are 200 houses of Rowthers and only 7 to 8 houses of the Labbais in the village."}}, {"text": "Ismail", "label": "OTHER_PERSON", "start_char": 116067, "end_char": 116073, "source": "ner", "metadata": {"in_sentence": "According to P. W. 1 the corridor which connects the thatched shed with the plaform was built by Ismail who was not a Labbai."}}, {"text": "Mustapha Rowther", "label": "OTHER_PERSON", "start_char": 116125, "end_char": 116141, "source": "ner", "metadata": {"in_sentence": "The Vang Medai was built by Mustapha Rowther and this was constructed about 30 to 35 years ago and so was the Verandah which is shown in the sketch map as the thatched shed."}}, {"text": "Mohamed Mesra Hussain", "label": "WITNESS", "start_char": 117729, "end_char": 117750, "source": "ner", "metadata": {"in_sentence": "P. W. 4 Mohamed Mesra Hussain who is aged 64 years affirms that prayers have been offered in the mosque for the last 50 years and that there is no other mosque in Vijayapuram. ,"}}, {"text": "Abdul Majeed", "label": "WITNESS", "start_char": 118187, "end_char": 118199, "source": "ner", "metadata": {"in_sentence": "P. W. 5 Abdul Majeed says that Vanga Mandapam and the cmridor were constructed by Abdul Rahzan some time in 1931 and the people assemble right from the mosque to the corridor."}}, {"text": "Vanga Mandapam", "label": "OTHER_PERSON", "start_char": 118210, "end_char": 118224, "source": "ner", "metadata": {"in_sentence": "P. W. 5 Abdul Majeed says that Vanga Mandapam and the cmridor were constructed by Abdul Rahzan some time in 1931 and the people assemble right from the mosque to the corridor."}}, {"text": "Abdul Rahzan", "label": "OTHER_PERSON", "start_char": 118261, "end_char": 118273, "source": "ner", "metadata": {"in_sentence": "P. W. 5 Abdul Majeed says that Vanga Mandapam and the cmridor were constructed by Abdul Rahzan some time in 1931 and the people assemble right from the mosque to the corridor.", "canonical_name": "Abdul Rahim Khan"}}, {"text": "Syed Mubark", "label": "WITNESS", "start_char": 118415, "end_char": 118426, "source": "ner", "metadata": {"in_sentence": "D. W. I Syed Mubark who is the contesting defendant admits that the Mandapam was constructed by Sayed Mohd."}}, {"text": "Sayed Mohd. Hussian", "label": "OTHER_PERSON", "start_char": 118503, "end_char": 118522, "source": "ner", "metadata": {"in_sentence": "D. W. I Syed Mubark who is the contesting defendant admits that the Mandapam was constructed by Sayed Mohd."}}, {"text": "Mohamed Salis", "label": "WITNESS", "start_char": 118855, "end_char": 118868, "source": "ner", "metadata": {"in_sentence": "D. W. 2 Mohamed Salis admits that the Hauz and the Verandah were buiit by Abdul Rahman under the supervision of Qasim though the funds were supplied by Ismail."}}, {"text": "Abdul Rahman", "label": "OTHER_PERSON", "start_char": 118921, "end_char": 118933, "source": "ner", "metadata": {"in_sentence": "D. W. 2 Mohamed Salis admits that the Hauz and the Verandah were buiit by Abdul Rahman under the supervision of Qasim though the funds were supplied by Ismail.", "canonical_name": "Abdul Rahim Khan"}}, {"text": "Qasim", "label": "OTHER_PERSON", "start_char": 118959, "end_char": 118964, "source": "ner", "metadata": {"in_sentence": "D. W. 2 Mohamed Salis admits that the Hauz and the Verandah were buiit by Abdul Rahman under the supervision of Qasim though the funds were supplied by Ismail."}}, {"text": "Pallivasal", "label": "OTHER_PERSON", "start_char": 119911, "end_char": 119921, "source": "ner", "metadata": {"in_sentence": "Before a Mussalman offers bis prayers he bas first to wash his bands and feet in the prescribed manner and for this purpose arranoements are made in every mosque, and Pallivasal is no exception."}}, {"text": "Masthan Ali Khadar Sahib", "label": "OTHER_PERSON", "start_char": 122283, "end_char": 122307, "source": "ner", "metadata": {"in_sentence": "Further by giving delivery of possession of the site for the purpose of building a mosque and by allowing prayers to be offered in the mosque, the founder, namely Masthan Ali Khadar Sahib made a complete public wakf in the shape of a mosque.", "canonical_name": "Masthan Ali Khader Sahib"}}, {"text": "s. 55", "label": "PROVISION", "start_char": 125120, "end_char": 125125, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 55", "label": "PROVISION", "start_char": 125292, "end_char": 125297, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 125469, "end_char": 125474, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 125478, "end_char": 125505, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 125624, "end_char": 125629, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 125633, "end_char": 125660, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 125950, "end_char": 125955, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 125959, "end_char": 125986, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 92", "label": "PROVISION", "start_char": 126017, "end_char": 126022, "source": "regex", "metadata": {"statute": null}}, {"text": "Abdul Rahim Khan", "label": "OTHER_PERSON", "start_char": 126595, "end_char": 126611, "source": "ner", "metadata": {"in_sentence": "In Abdul Rahim Khan's case (supra) a Division Bench of the Nagpur High Court observed thus :\n\n~ I\n\nSYED MOHD.", "canonical_name": "Abdul Rahim Khan"}}, {"text": "s. 529", "label": "PROVISION", "start_char": 127039, "end_char": 127045, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 127073, "end_char": 127078, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 92", "label": "PROVISION", "start_char": 127541, "end_char": 127546, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 127810, "end_char": 127815, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 92", "label": "PROVISION", "start_char": 130322, "end_char": 130327, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 130331, "end_char": 130358, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_763_768_EN", "year": 1976, "text": "I \"\n\nUNION OF INDIA\n\nJYOTI CHIT FUND & FINANCE & ORS.\n\nMarch 22, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.J\n\nProvident Funds Act, 1925, Ss. 3 and 4-Provident fund and allied a1nounts ff/ll due, whether exclusion from attachability continues-Objection to attachnzent taken pro bono publico by Union of India, if valid-'Locus standi', scope of.\n\nThe appellant Union of India objected to the attachment of certain provid_nt fund and pension dues held by it (on behalf of the Rajya Sabha Secretariat) in trust for the fourth respondent, an exemployee of the Rajya Sabha Secretariat.\n\nThe attachment was sought in satisfaction of a moneydecree held by the first C respondent.\n\nThe High Court dismissed the appellant's Civil Revision petition upholding the decision of the executing court.\n\nIn appeal by special leave, the appellant contended before this Court that <11though a third party to the suit, the state had acted pro bono publico, by objccing to the illegality of the proposed attachment, and that it was a question of principle, afiecting a wide circle of government servants.\n\nThe respondent contended that the amounts having already fallen due, had lost the character of provident fund or pension under Ss. 3 and 4, and had become attachable, and also that the government had no (ocus standi to object to the attachmen.\n\nAllowing the appeal, the Court\n\nHELD : ( 1) So long as the amounts are Provident Fund dues then, till they are actually paid to the government servant who is entitled to it on retirement or otherwise, the nature of the dues is not altered. The government is a trustee for those sums and has an interest in maintaining the objection in court, to attachment. f767D-EJ\n\nUnion of India v. Radha Kissen Aganvalla & Anr. [1969] 3 S.C.R. 28, followed.\n\n(2) Cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken . . Any public authority interested in the matter, and not behaving as an officious busy-body may bring to the notice of the court the illegality of the steps it proposes to take. When the court's jurisdiction is so invoked, it may be exercised \\>.\"ithout insisting on some other directly affected party appearing to defend himself. [767F-GJ\n\n(3) The argument that the Rajya Sabha Secretariat is different from the Union of India, has the merit of novelty, little else. [767 G & 768HJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2179 of\n\n19m G\n\nAppeal by Special Leave from the Judgment and Order dated the 1st May, 1970 of the Delhi High Court in Civil Revision No. 26 of 1970.\n\nG. L. Sanghi, Girish Chandra a1U/ S. P. Nayar for the Appellants.\n\nK. B. Rohtagi, M. K. Garg, V. K. Jain and M .. K. Rastogi for H Respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-The moral of this case is that a short cut may often be a wrong cut-in law, as in life.\n\nThe ratio of this appeal is that technicality will not triumph in courts of law and justice, where substantial public policy is involved and it is such public policy which humanistically protects provident fund and pensionary dues of government servants from claims of judgment-creditors to attach in satisfaction of decrees.\n\nThe appellant, the Union of India, has come up in appeal, by special leave, challenging a laconic order of dismissal in Civil Revision made by the Delhi High Court, thus upholding the view of tlhe executing court over-ruling the contention of the State, objecting to the attachment of certain provident fund and pension dues held by Union of India (on behalf of the Rajya Sabha Secretariat) in trust for the judgment-debtor who had been employed in the Rajya Sabha Secretariat.\n\nThe first court had held that the Union of India had no locus standi to object to the attachment by the decree-holder on the score that an outsider to the snit without 'interest in the attached money' has standing to intervene to dispute the attachability even if the sum was clearly innnune to attachment in law.\n\nThe relevnt reasoning is in these terms :\n\n\"It is not the case of the Union of India that Union of India has any interest in the attached property so as to enc title Union of India to make an application under Order 21, r. 58 CPC.\n\nIn my opinion, if the attachment has been wrongly made it is for the judgment-debtor to make an application to the court for releasing the provident fund or the compulsory deposits from attachment.\"\n\nThe Court also expressed the view that it was premature to hbld :\n\n\"that attached money will fall within the definition oj' provident fund or compulsory deposit.\"\n\nIn fairness to the Subordinate Judge it must be said he did feel 'inclined to agree that provident fund and compulsory deposits are not liable to any attachment under any decree or order of the. civil court.\n\nThe ground which weighed with the trial court and has 'Won the approval of the High Court is that \"the Government has no interest in the attached money and therefore no standing to come to •court.\n\nThe judgment-debtor may file objections for release of the attched money.\n\nThe objections, if made, will be decided afresh on 'nwrits.\" It is apparent from this statement of facts that the courts below' took the narrow view, with an escapist flavour which led to long litigation and large expense, that only the judgment-debtor and not the Govemment could raise objections regarding non-attachability of pJ; qllident fund and pension amounts, as if Government were an officious intruder, bereft of any concern in the insultion of the amounts agairlst execution of decrees of court.\n\nThe amount involved is small, but Shri Sanghi, for the appellant, contends that the question is one of principle and affects a wid.fi circle of government servants.\n\nWe agree and indeed appreciftte the State's\n\n\\ '\n\n,.· I\n\n!'\"\n\nUNION v. JYOTI CHIT FUND (Krishna Iyer, J.) 765\n\nanxiety to fulfil the policy of the statute on behalf of the weaker- A sections by taldng up the burden on itself.\n\nMay be, it is like a test case ventilating a cause in which a large number of employees ' may be vitally involved.\n\nWe may make it clear here that the stand taken by Shri Rohatgi, counsel for the respondent, is two-fold.\n\nHe argues firstly that this amount in the hands of Govermnent is admittedly being held on behalf of the Rajya Sabha Secretariat servant who has just retired a, nd, therefore, has lost the character of provident fund or pension. The inhibition of attachment of provident fund and like amounts, even if valid, cannot apply to this class of sums which have suffered a metamorphesis.\n\nSecondly, the Govermnent has no right to move the court raising objection to the attachment since the judgment-debtor is the only appropriate person who can do so.\n\nWe disagree.\n\nProcessual law is neither petrified nor purblind but has simple mission-the promotion of justice.\n\nThe court cannot content itself with playing umpire in a technical game of legal skills but must be activist in the cause of deciding the real issues between the parties.\n\nAnd one guiding principle is not to exaggerate the efficacy of procedural defects where issues of public concern are involved and a public authority vitally interested in the correct principle alerts the attention of the court to the problem.\n\nA broadened view of locus standi loads to the futility of technical flaws where larger issnes are involved --and that is the trend of modern processual jurisprudence. These general considerations were trite, yet too often ignored, and so need reiteration.\n\nFurther, the consumers of justice can have scant respect for a procedural policy which is obsessed more with who sparks the plugs of the court system than with what the merits of the rights or wrongs of the relief are.\n\nA shift on the emphasis, away from technical legalistics, is overdue if the Juc!icature is not to aid its grave diggers.\n\nWe express the view strongly so that hopefuls may be dissuaded from taking up court time by playing up technicalities.\n\nWe may now move on to a consideration of the basic contentions\n\nand, before that, the basic facts may be briefly set down.\n\nOn March F 31, 1967 a money decree for a little over Rs. 2,000/- was passed in Suit No. 516 of 1966 in favour of respondent No. 1 and against respondents 2 to 4 (who are ex parte).\n\nA warrant or attachment of the 'funds' of respondent No. 4, in the hands of the Rajya Sabha Secretariat, was songht and ordered. It reads :\n\n\"To G\n\nThe Pay & Acounts Officer, Rajya Sabha Secretariat, New Delhi.\n\nWhereas judgment-debtor No. 3, Shri S. Krishnaswamy, an ex-reporter has failed to satisfy a decree passed against him on the 31st day of March, 1967 in suit No. 516/66 in favonr of M/s Jyoti Chit Fund and Finance P.\n\nLtd., for Rs. 2193-50. It is ordered that 11he defendant judgmentdebtor is hereby prohibited and restrained until the furthr.r\n\norder of this Court from receiving from the Pay and Accounts Officer the following property in possession of the said Pay and Accounts Officer that is to say Rs. 2193-50 to which the defendant judgment-debtor is entitled, subject to any claim of the said J. D. and the said Pay and Accounts Officer is hereby prohibited and restrained; until the further order of this court from delivering of the said property to any person.\n\nGiven under my hand and seal of the Court on 12th day of September 1968.\n\nSd/- Sub-Judge 1st Class, Delhi.\"\n\nOn service of the attachment order, objection was raised by the appellant, Union of India, on January 30, 1969 on the score that provident fund amounts and pensionary benefits were not 'liable to attachment and therefore the order may be rescinded.\n\nThe decreeholder (respondent 1) successfully contested in the trial court and on the objection being over-ruled, the appellant moved the High Court. It may be stated, at tltis stage, that the trial Court did not actually investigate the claim of the appellant as to whether the whole, or part of the amount sought to be attached, represented provident fund or pensionary benefits nor did the High Court go into the question.\n\nThis means that even if we uphold the contention of the appellant, the case will have to go back for investigation on the merits\n\nWe may formulate what has been indicated-the actual points urged before us by Shri Sanghi and vigorously controverted by Shri Rohtagi.\n\n(1) Is it permissible in law for amounts representing provident fund contributions and pensionary benefits to be attached, having due regard to ss. 3 and 4 of the Provident Funds Act, s. 11 of the Pensions Act and s. 60(1), provisos (g) and (k) of C.P.C.?\n\n(2) Is the Union of India entitled to move the Court and request it to investigate the question tl\\at the whole or part of the sum in its hands on account of the judgment-debtor as provident fund, compulsory deposits and pensionary benefits and,. therefore, not liable to be attached, or is it out of bounds for a third party to the suit, like the Union of India, even if the step be taken pro bona publico by a relevant public authority, to invoke the jurisdiction of the Court in this behalf?\n\n(3) Is the Rajya Sabha Secretariat staff so totally separated from the Union of India that the latter cannot urge, in these proceedings, the claims belonging to employees of the said Secretariat in the civil court even if the attachment of the sums involved is contrary to law? We are inclined to hold,, without hesitation that on all the points the appellant is bound to succeed.\n\nA bare reading of ss. 3 and 4 of the Provident Funds Act, 1925, read with s. 2(a) of that Act, will convince anyone that attachment of amounts bearing their description are prohibited. It will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still be ordered by a court.\n\nThe finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund\n\nUNION v. JYOTI CHIT FUND (Krishna Tyer, J.) 767\n\nand allied amounts have already fallen due and have ceased to pos- A sess the complexion of sums 'by way of provident fund under ss. 3 and 4', is fallacious.\n\nOn first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the court's power to attach.\n\nSection 2(a) of the Provident Funds Act has also to be read in this connection to remove possible doubts because this deli- B nitional clause is of wide amplitude.\n\nMoreover, s-60( I), provides\n\n(g) and (kl. leave no doubt on the point o' non-attachability.\n\nThe matter is so plain that discussion is uncalled for.\n\nWe may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee.\n\nThe reality of the protection is reduced to illusory formality if we accept the interpretation sought.\n\nWe take a contrary view which means that attachment is possible and lawful only after such amounts are recevied by the employee. If doubts may possible be entertained on this question, the decision in Union of l ndia\n\nv. Radha Kissen Agarwala & Anr.( 1) erases them. Indeed, cur case is au aforriori one, on the facts. A bare reading of Radha Kissen makes\n\nth~ proposition fool-proof that so long as the amounts are Provident Fund dues them, till they are actually paid to the government servant who is entitled to it on retirement or otherwise the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in court to attachment. We follow that ruling and over-rule the contention.\n\nlt is possible to take a broad view that cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken.\n\nAny public authority interested in the matter and not behaving partially as an officious busy-body may bring to the notice of the court the illegality of • .. the steps it proposes to take.\n\nWhen the court's jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment-dehtor in the instant case, appearing to defend himself.\n\nThe argument that the Rajya Sabha Secretariat is different from the Union of India is a new gloss which Shri Rohatgi has put upon his contention of locus standi.\n\nHe has pressed into service Articles 300 and 98 (2) of the Constitution of India, neither of which is helpful or\n\n(I) (1969) 3 SCR 28.\n\napplicable.\n\nThis point has the merit of nov\"1ty, little else. quentially, we set aside the decision of the High Court and executing court, but this is not the end of the matter.\n\nConseof the\n\nWe direct the court of the Subordinate Judge to go into the merits of the objection raised by the Union of India as to whether B the entire amount or any portion thereof held by it on behalf of the Rajya Sabha Secretariat staff, so far as the judgment-debtor in this case is concerned, represents provident fund and compulsory deposits or pensionary benefits, excluded from attachability in execution of civil decrees under the provisions already adverted to. If it is feasible to effect service of notice on the judgment-debtor, well and good, C but if it is not, the court cannot absolve itself of the duty to investigate into the merits of the claim or character of the amounts, so long as the U uion of India is ready to mak<;_ good its contention.\n\nThe appeal is allowed with costs in this Court.\n\nM.R.\n\nAppeal allowed.\n\n) ,", "total_entities": 49, "entities": [{"text": "JYOTI CHIT FUND & FINANCE & ORS", "label": "RESPONDENT", "start_char": 21, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "JYOTI CHIT FUND & FINANCE & ORS", "offset_not_found": false}}, {"text": "March 22, 1976", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "March 22, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.J\n\nProvident Funds Act, 1925, Ss."}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 72, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ", "label": "JUDGE", "start_char": 94, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Provident Funds Act, 1925", "label": "STATUTE", "start_char": 120, "end_char": 145, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ss. 3 and 4", "label": "PROVISION", "start_char": 147, "end_char": 158, "source": "regex", "metadata": {"linked_statute_text": "Provident Funds Act, 1925", "statute": "Provident Funds Act, 1925"}}, {"text": "Union of India", "label": "PETITIONER", "start_char": 369, "end_char": 383, "source": "metadata", "metadata": {"canonical_name": "Union of India", "offset_not_found": false}}, {"text": "Ss. 3 and 4", "label": "PROVISION", "start_char": 1221, "end_char": 1232, "source": "regex", "metadata": {"statute": null}}, {"text": "[1969] 3 S.C.R. 28", "label": "CASE_CITATION", "start_char": 1754, "end_char": 1772, "source": "regex", "metadata": {}}, {"text": "Rajya Sabha Secretariat", "label": "ORG", "start_char": 2312, "end_char": 2335, "source": "ner", "metadata": {"in_sentence": "767F-GJ\n\n(3) The argument that the Rajya Sabha Secretariat is different from the Union of India, has the merit of novelty, little else. ["}}, {"text": "G. L. Sanghi", "label": "OTHER_PERSON", "start_char": 2628, "end_char": 2640, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Girish Chandra a1U/ S. P. Nayar for the Appellants."}}, {"text": "Girish Chandra", "label": "OTHER_PERSON", "start_char": 2642, "end_char": 2656, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Girish Chandra a1U/ S. P. Nayar for the Appellants."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 2662, "end_char": 2673, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi, Girish Chandra a1U/ S. P. Nayar for the Appellants."}}, {"text": "K. B. Rohtagi", "label": "LAWYER", "start_char": 2695, "end_char": 2708, "source": "ner", "metadata": {"in_sentence": "K. B. Rohtagi, M. K. Garg, V. K. Jain and M .. K. Rastogi for H Respondent No."}}, {"text": "M. K. Garg", "label": "LAWYER", "start_char": 2710, "end_char": 2720, "source": "ner", "metadata": {"in_sentence": "K. B. Rohtagi, M. K. Garg, V. K. Jain and M .. K. Rastogi for H Respondent No."}}, {"text": "V. K. Jain", "label": "LAWYER", "start_char": 2722, "end_char": 2732, "source": "ner", "metadata": {"in_sentence": "K. B. Rohtagi, M. K. Garg, V. K. Jain and M .. K. Rastogi for H Respondent No."}}, {"text": "M .. K. Rastogi", "label": "LAWYER", "start_char": 2737, "end_char": 2752, "source": "ner", "metadata": {"in_sentence": "K. B. Rohtagi, M. K. Garg, V. K. Jain and M .. K. Rastogi for H Respondent No."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 2822, "end_char": 2834, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.-The moral of this case is that a short cut may often be a wrong cut-in law, as in life.", "canonical_name": "KRISHNA IYER"}}, {"text": "Union of India", "label": "PETITIONER", "start_char": 3274, "end_char": 3288, "source": "ner", "metadata": {"in_sentence": "The appellant, the Union of India, has come up in appeal, by special leave, challenging a laconic order of dismissal in Civil Revision made by the Delhi High Court, thus upholding the view of tlhe executing court over-ruling the contention of the State, objecting to the attachment of certain provident fund and pension dues held by Union of India (on behalf of the Rajya Sabha Secretariat) in trust for the judgment-debtor who had been employed in the Rajya Sabha Secretariat.", "canonical_name": "Union of India"}}, {"text": "Delhi High Court", "label": "COURT", "start_char": 3402, "end_char": 3418, "source": "ner", "metadata": {"in_sentence": "The appellant, the Union of India, has come up in appeal, by special leave, challenging a laconic order of dismissal in Civil Revision made by the Delhi High Court, thus upholding the view of tlhe executing court over-ruling the contention of the State, objecting to the attachment of certain provident fund and pension dues held by Union of India (on behalf of the Rajya Sabha Secretariat) in trust for the judgment-debtor who had been employed in the Rajya Sabha Secretariat."}}, {"text": "Union of India", "label": "ORG", "start_char": 3588, "end_char": 3602, "source": "ner", "metadata": {"in_sentence": "The appellant, the Union of India, has come up in appeal, by special leave, challenging a laconic order of dismissal in Civil Revision made by the Delhi High Court, thus upholding the view of tlhe executing court over-ruling the contention of the State, objecting to the attachment of certain provident fund and pension dues held by Union of India (on behalf of the Rajya Sabha Secretariat) in trust for the judgment-debtor who had been employed in the Rajya Sabha Secretariat."}}, {"text": "CPC", "label": "STATUTE", "start_char": 4275, "end_char": 4278, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Sanghi", "label": "OTHER_PERSON", "start_char": 5674, "end_char": 5680, "source": "ner", "metadata": {"in_sentence": "The amount involved is small, but Shri Sanghi, for the appellant, contends that the question is one of principle and affects a wid.fi circle of government servants."}}, {"text": "JYOTI CHIT FUND", "label": "RESPONDENT", "start_char": 5872, "end_char": 5887, "source": "ner", "metadata": {"in_sentence": "UNION v. JYOTI CHIT FUND (Krishna Iyer, J.) 765\n\nanxiety to fulfil the policy of the statute on behalf of the weaker- A sections by taldng up the burden on itself."}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 5889, "end_char": 5901, "source": "ner", "metadata": {"in_sentence": "UNION v. JYOTI CHIT FUND (Krishna Iyer, J.) 765\n\nanxiety to fulfil the policy of the statute on behalf of the weaker- A sections by taldng up the burden on itself.", "canonical_name": "KRISHNA IYER"}}, {"text": "Rohatgi", "label": "OTHER_PERSON", "start_char": 6199, "end_char": 6206, "source": "ner", "metadata": {"in_sentence": "We may make it clear here that the stand taken by Shri Rohatgi, counsel for the respondent, is two-fold.", "canonical_name": "Rohatgi"}}, {"text": "March F 31, 1967", "label": "DATE", "start_char": 8171, "end_char": 8187, "source": "ner", "metadata": {"in_sentence": "On March F 31, 1967 a money decree for a little over Rs."}}, {"text": "S. Krishnaswamy", "label": "RESPONDENT", "start_char": 8598, "end_char": 8613, "source": "ner", "metadata": {"in_sentence": "3, Shri S. Krishnaswamy, an ex-reporter has failed to satisfy a decree passed against him on the 31st day of March, 1967 in suit No."}}, {"text": "Jyoti Chit Fund and Finance P.\n\nLtd.", "label": "ORG", "start_char": 8747, "end_char": 8783, "source": "ner", "metadata": {"in_sentence": "516/66 in favonr of M/s Jyoti Chit Fund and Finance P.\n\nLtd., for Rs."}}, {"text": "12th day of September 1968", "label": "DATE", "start_char": 9379, "end_char": 9405, "source": "ner", "metadata": {"in_sentence": "Given under my hand and seal of the Court on 12th day of September 1968."}}, {"text": "January 30, 1969", "label": "DATE", "start_char": 9537, "end_char": 9553, "source": "ner", "metadata": {"in_sentence": "On service of the attachment order, objection was raised by the appellant, Union of India, on January 30, 1969 on the score that provident fund amounts and pensionary benefits were not 'liable to attachment and therefore the order may be rescinded."}}, {"text": "Rohtagi", "label": "OTHER_PERSON", "start_char": 10375, "end_char": 10382, "source": "ner", "metadata": {"in_sentence": "This means that even if we uphold the contention of the appellant, the case will have to go back for investigation on the merits\n\nWe may formulate what has been indicated-the actual points urged before us by Shri Sanghi and vigorously controverted by Shri Rohtagi.", "canonical_name": "Rohatgi"}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 10529, "end_char": 10540, "source": "regex", "metadata": {"statute": null}}, {"text": "Provident Funds Act", "label": "STATUTE", "start_char": 10548, "end_char": 10567, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 11", "label": "PROVISION", "start_char": 10569, "end_char": 10574, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 60(1)", "label": "PROVISION", "start_char": 10599, "end_char": 10607, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 10633, "end_char": 10638, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 11538, "end_char": 11549, "source": "regex", "metadata": {"linked_statute_text": "C.P.C", "statute": "Code of Civil Procedure"}}, {"text": "Provident Funds Act, 1925", "label": "STATUTE", "start_char": 11557, "end_char": 11582, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 2(a)", "label": "PROVISION", "start_char": 11594, "end_char": 11601, "source": "regex", "metadata": {"linked_statute_text": "the Provident Funds Act, 1925", "statute": "the Provident Funds Act, 1925"}}, {"text": "Krishna Tyer", "label": "JUDGE", "start_char": 12027, "end_char": 12039, "source": "ner", "metadata": {"in_sentence": "The finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund\n\nUNION v. JYOTI CHIT FUND (Krishna Tyer, J.) 767\n\nand allied amounts have already fallen due and have ceased to pos- A sess the complexion of sums 'by way of provident fund under ss.", "canonical_name": "KRISHNA IYER"}}, {"text": "ss. 3 and 4", "label": "PROVISION", "start_char": 12179, "end_char": 12190, "source": "regex", "metadata": {"linked_statute_text": "the Provident Funds Act, 1925", "statute": "the Provident Funds Act, 1925"}}, {"text": "Section 2(a)", "label": "PROVISION", "start_char": 12403, "end_char": 12415, "source": "regex", "metadata": {"linked_statute_text": "the Provident Funds Act, 1925", "statute": "the Provident Funds Act, 1925"}}, {"text": "Provident Funds Act", "label": "STATUTE", "start_char": 12423, "end_char": 12442, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Radha Kissen", "label": "OTHER_PERSON", "start_char": 13386, "end_char": 13398, "source": "ner", "metadata": {"in_sentence": "A bare reading of Radha Kissen makes\n\nth~ proposition fool-proof that so long as the amounts are Provident Fund dues them, till they are actually paid to the government servant who is entitled to it on retirement or otherwise the nature of the dues is not altered."}}, {"text": "Articles 300 and 98", "label": "PROVISION", "start_char": 14649, "end_char": 14668, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 14680, "end_char": 14701, "source": "regex", "metadata": {}}, {"text": "(1969) 3 SCR 28", "label": "CASE_CITATION", "start_char": 14739, "end_char": 14754, "source": "regex", "metadata": {}}, {"text": "India", "label": "GPE", "start_char": 15657, "end_char": 15662, "source": "ner", "metadata": {"in_sentence": "If it is feasible to effect service of notice on the judgment-debtor, well and good, C but if it is not, the court cannot absolve itself of the duty to investigate into the merits of the claim or character of the amounts, so long as the U uion of India is ready to mak<;_ good its contention."}}]}
{"document_id": "1976_3_769_774_EN", "year": 1976, "text": "MAHESHWAR PRASAD SRIVASTAVA & ANR.\n\nSURESH SINGH AND ORS.\n\nMarch 22, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.]\n\nDrugs (and Cosmetics) Rules 1945--Section 49-Prescribing qualifications of Inspectors-\"has at/east one Year\"s post graduate training in a laboratory tinder a Govcrn111ent Analyst appointed under the Act or a Clien1ical Exatniner-Meaning of \"Post graduate training\" occurring in Rule 49(c)-Difference between \"post {(raduate training\" and post graduate course qualification.\"\n\nThe appellants, all science fJ'aduates, with laboratory training were the successful candidates for twelve vacancies of Drug Inspectors advertised by the Bihar Public Service Commission.\n\nRespondent No. 1, a Pharmacy graduate \\Vhose application was rejected on the ground of his unsuitability for being ap pointed to the post challenged the selection by a writ on the ground that that the appellants were unqualifid under Rule 49(c) of the Drugs (arid Cosmetics) Rules 1945 in as m•ch as they did not have a systematic training in a post graduate instituion. The High Court accepted the contention and set aside the selection.\n\n, On appeal by special leave he Court,\n\nl-IELD: (1) The expression \"post graduate training\" is used in Rule 49(c) in the sense of training received by a person holding a degree in medicine or science and not in the sense that such training ought to be received in or through a post graduate institution imparting instruction or education in the particular discipline. The object of clause ( c) is to ensure that to be eligible for the ROSt\n\nof a Drugs Inspector the person concerned_ must have received training under any E of the authorities mentioned therein after graduation in medicine or science. Pre graduation training is often not as efficacious as post graduate training, for a person holding a higher educational qualifications is in a better position to imbibe the training v.:hich he receives. The expression \"post graduate training\" is used in order to signify the point of time after which the training ought to be received and not to limit the eligibility to those who have received training after enrol ment in an institution imparting post graduate training. [772D-F]\n\n(ii) Clause (c) of Rule 49 specifies that the training has to be received in a laboratory under a Government Analyst or a Chemical Examiner amongst others. It is difficult to conceive in the present educational set up that a student v:ho has enrolled himself in a post.graduate institution would receive training in a laboratory under a Government Analyst or a Chemical Examiner. A fair indi cation of the true intendment of Rule 49 ( c) is also furnished by the requirement that one year's post graduate training is enough to confer eligibility on a candidate applying for the post of a Drugs Inspector. It could not have been inten <led that it would be enough to make a candidate eligible for the post of a Drugs\n\nIn:::.pector if, after graduation in medlcine or science he enrolled himself for a post graduate course and just took one years' training as part of that course.\n\nIf enrolment in an institution imparting postgraduate instruction was the object of rule ( c), the minimum qualification prescribed would at least have been the successful completion of the post graduate course.\n\n[772F-H]\n\nRule 44(a) throws useful light on the interpretation of Rule 49. Post gra duate experience stipulated in Rule 44(a) and \"post graduate training\" cannot basically and for practical purposes identical qualifications. For both posts, what is required in addition to other qualifications mentioned in the respective rules is post graduate experience or training in the sense, namely that the experience or training has to be gained or received after obtaining graduation.\n\n(773-B~C]\n\nI11 matters involving considerations of questions. regarding adequacy or sufficiency of \"training\" the Public Service Commission having the benefit of expert opinion, is better situated to judge '.Vhether the particular candidate is qaulified for a particular post and courts should hesitate to interfere with the discretion of the appointin:~ attthority so long as it is exercised bona fide. [773 G-l-l]\n\n[Their Lordships considered that, in view of the conclusion that the appellants were duly qualified it was unnecessary to go into the question of \"Locus Standi\"\n\nof respondent No. 1 a rejected candidate on the ground of his unsuitability to file the writ petition.l\n\nCIVIL APrELLATE JURISDICTION : Civil Appeals Nos. 602 and 603 of 1975.\n\nAppeal by Special Leave from the Judgment and Order/decree dated the 30-1-1975 of the Patna High Court in C. W. J. C. No 502 c of 1973.\n\nV. S. Desai and S. N. Prasad for Appellants in C.A. 602/75.\n\nBishan Narain, S. N. Misra, S. S. Jauhar and A. K. Sinha for Appellants in C. A. 603/75.\n\nS. C. Misra and U. S. Prasad for. respondent No. 1 (In both D appeals).\n\nB. P. Singh and U. P. Singh for Respondent No. 2 (In C. A. 603) and Respondents 2 and 3 (In C. A. 602).\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-These appeals by special leave arise out of a judgment of the Patna High Court in a writ petition filed by the 1st respondent under articles 226 and 227 of the Constitution challenging the appointment of the appellants as Drugs Inspectors. Civil Appeal No. 602 of 197 5 is filed by original respondent 7 w'hile Civil Appeal 603 of 197 5 is filed by original respondents 4 to 6 to the Writ Petition.\n\nThe High Court allowed the writ petition and quashed the appointme,; ts of the appellants on the ground that they did not have the requisite qualification for appointment as Drugs Inspectors.\n\nThe Government of Bihar in its Health Department advertised through the Bihar Public Service Commission 12 vacancies of Inspectors of' Drugs.\n\nTwenty candidates applied for the posts out of whom 13, including respondent 1, were Pharmacy Graduates while 7 including the appellans, were Science Graduates.\n\nThe Public Service Commission held interviews in April, 1972 and selected the appellants amongst others.\n\nRespondent 1 was rejected on the ground that he was not suitable for the post.\n\nThe appointments of the appellants were challenged by respondent 1 on the sole ground that they were not qualified to be appointed as Drugs Inspectors.\n\nRule 49 of the Drugs (and Cosmetics) Rules, 1945 framed by the Government of India in the Ministry of Health, prescribes qualifications for the post of a Drugs Inspector. It reads as follows :-\n\n\"49. Qualifications of Inspectors.-A person who is\n\nappointed an Inspector under the Act shall be a person who-\n\n(a)\n\n(aa)\n\nhas a degree in Pharmacy or Pharmaceutical Chemistry or a post-graduate degree in Chemistry with Pharmaceutics as a speical subject of a University recognised for this purpose by the appointing authority or the associateship Diploma of the Institution of Chemists (India) obtained by passing the examination with 'Analysis of Drugs and Pharmaceuticals' as one of the subjects; or\n\nholds the Pharmaceutical Chemists Diploma granted by the Pharmaceutical Society of Great Britain; or\n\n(b) x x x\n\n(c) is a graduate in medicine or science of a University recognised for this purpose by the appointnig authority and has at least one year's post-graduate training in a laboratory under (i) a Government Analyst\n\nappointed under the Act or (ii) a Chemical Exam- D iner, or (iii) a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E), or (iv) the head of an institution specially approved for the purpose by the appoining authority;\n\nProvided that only those inspectors who have not less than three years' experience in the manufacture and testing of substances specified in Schedule C in a laboratory approved for this purpose by the licensing authority, shall be authorised to inspect the manufacture of items mentioned in Schedule C;\n\nProvided further that only Inspectors who are graduates in veterinary science or medicine or general science or pharmacy and have had not Jess than three years' experience in the manufacture or testing of biological products shall be authorised to inspect the manufacture of veterinary biological products;\n\nProvided further that for a period of four years from the date on Which Chapter IV of the Act takes effect in the States, persons whose qualifications, training and experience are regarded by the appointing authority as affording subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence may be appointed as Inspectors and authorised under the preceding proviso :\n\nProvided further that for the purposes of inspection of shops in any specified area any officer of the medical or Public Health Department who is a registered medical practitioner or a graduate in >ciencc may be appointed as an ex officio Inspector.\n\nAppellants do not fall within the class described in clause (a) above but respondent 1 who is a Pharmacy Graduate does.\n\nThe fact that respondent 1 is qualified to hold the post of a Drugs Inspector is undisputed and his application was rejected by the Public Service Commission not on the ground that he did not hold the necessary qualification for the post but on the ground that he was unsuitable for being appointed to the post.\n\nThe appellants being Science graduates fall within clause (c) of Rule 49 and there can be no doubt that in addition to being Science graduates of a recognised University, they have to possess at least \"one year's post-graduate training\" in a laboratory under the authorities mentioned in clause ( c). It is not disputed that the appellants and worked for a fairly large number of years in laboratories under one or the other authorities mentioned in clause ( c), but the question for decision is whether they had received any \"training\" and if so, the training which they had received was \"post-graduate training\" within the meaning of clause ( c).\n\nThe contention of respondent 1 which found favour with the High Court is that \"post-graduate training\" means systematic training in a post-graduate institution and since the appellants had not received such training through any post-graduate institution, they were not qualified to hold the particular post.\n\nThe High Court, in our opinion, erred in accepting this contention.\n\nThe expression 'post-graduate training\" is used in rule 49 ( c) in the sense of training received by a person holding a degree in medicine or science and not in the sense that such training ought to be received in or through a post-graduate institution imparting instruction or education in the particular discipline.\n\nThe object of clause ( c) is to ensure that to be eligible for the post of a Drugs Inspector the person concerned must have received training under any of the authorities mentioned therein after graduation in medicine or science.\n\nPre-graduation training is often not as efficacious as post-graduate training, for a person holding a higher educatoinal qualification is in a better position to imbibe the training which he receives.\n\nThus, the expression ''post-graduate training ought to be received and not to limit the elgibility to those who have received training after enrolment in an institution imparting post-graduate training.\n\nClause ( c) specifies that the training has to he received in a laboratory under a Government Analyst or a Chemical Examiner amongst others.\n\nIL is difficult to conceive in the present educational set-up that a student who has enrolled himself in a post-graduate institution would receive training in a laboratory under a Government Analyst or a Chemical Examiner.\n\nA fair indication of the true intendment of Rule 49(c) is also furnished by the requirement that one year's post-graduate training is enough to confer eligibility on a candidate applying for the post of a Drugs Inspector.\n\nPost-graduate courses normally extend over a period exceeding one year aftergraduation.\n\nIt could not have been intended that it would be enough to make a candidate eligible for the post of a Drugs Inspector if, after graduation in medicine or science he enrolled himself for a post-graduate course and just took one year's training as part of that course. If enrolment in an institution imparting post-graduate instrnction .was the object of rule (c), the minimum qualification prescribed would at least have been the successful completion of the post-graduate course.\n\n\\ )\n\n- ..,\n\nRule 44 which prescribed qualifications for the post of Govern- A ment Analyst throws useful light on the interpretation of rule 49.\n\nRule 44 provides that only those persons can be appointed as Government Analysts who are Graduates in medicine or science or pharmacy or pharmaceutical chemistry and who have had \"not less than three years' post-graduate experience\" in the analysis of drugs in a laboratory under the control of designated authorities. If a post-graduate course extends over a period of 2 years only, as it normally does, it is B odd that in order that in order to qualify for the post of a Government Analyst a graduate in the specified discipline should be required to spend 3 years as a post-graduate student.\n\nPost-graduate experience stipulated in rule 44( a) and post-graduate training stipualted in rule 49 ( c) connote basically and for practical purposes an identical qualification.\n\nFor both posts,, what is required in addition to other qualifications mentioned in fue respective rules is post-graduate expe- C rience or training in the sense described above, namely, that the experience or training has to be gained or received after obtaining graduation.\n\nMaheshwar Prasad Srivastava the appellant in Civil Appeal No. 602 of 1975, passed his B.Sc. examniation in 1960 and worked as a Demonstrator in the Pharmacy School, Patna under the Health Department, Government of Bihar from October, 1961 to December, D 1966.\n\nHe was appointed as a Senior Scientific Assistant in the Bihar Drugs Control Laboratory on December 23, 1966 where he worked under Dr. Sheo Bihari Lal, who was the Government Analyst in charge of the Bihar Drugs Control Laboratory. It appears that the Government of Bihar through the Health Department used to send science graduates for training under the Government Analyst.\n\nThe certificate issued by Dr. S. B. Lal shows that Srivastava worked under him E and had been \"trained\" for more than three years in the Bihar Drugs Control Laboratory. A letter written by Dr. Lal to the Deputy Director of the Health Services, Bihar, on December 22, 1970 shows that during his absence on leave, Srivastava was to hold charge of the Bihar Drugs Control Laboratory.\n\nThese facts make it impossible to accept the contention that the appellant had not received any sysetmatic training.\n\nIn the ultimate analysis, the usefulness of any F training depends as mnch on the ability and willingness of the student or trainee as on the academic specifications of the training itself. The appellants in Civil Appeal No. 603 of 1975 had worked as Demonstrators in Pharmacy School, Patna for a large number of years and in regard to them also it is difficult to accept the contention that the training which, they had received was not systematic.\n\nDr. J. K. P.\n\nSinha who was then ihe Deputy Director of Health Services, Bihar G and who assisted the Public Service Commission as a Technical Expert when the interviews for the particular posts were held, obviously took the view that the appellants who were science graduates satisfied the further test of post-graduate training for not less than one year.\n\nIn matters involving consideration of questions regarding adeqnacy or sufficiency of \"training\", the Public Service Commission, having the benefit of expert opinion, is better situated to judge whether the parti- H cnlar candidate is qualified for a particular post and courts should hesitated to interfere with the direction of the appointing authority, so long as it is exercised bona fide.\n\nA Learned counsel for the appellant in Civil Appeal No. 602 of 1975 contended that resopndent No. 1 had no locus standi to challenge the appointment of the appellant since he himself, as , disclosed \\ by the affidavit filed on behalf of the Public Service Commission in the High Court, was rejected on the ground that he \"was not found suitable for appointment to the post\" of Drugs Inspector.\n\nIn view of our conclusion that the appellants were duly qualified for the post, B it is unnecessary to go into this question.\n\nFor these reasons we allow the appeals, set aside the judgment of the High Court and hold that the appointments of the appellants as Drugs Inspectors were lawful and valid.\n\nThe State of Bihar will pay the costs of these appeals to the appellants.\n\nSR Appeal allowed", "total_entities": 37, "entities": [{"text": "MAHESHWAR PRASAD SRIVASTAVA & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 33, "source": "metadata", "metadata": {"canonical_name": "MAHESHWAR PRASAD SRIVASTAVA & ANR", "offset_not_found": false}}, {"text": "SURESH SINGH AND ORS", "label": "RESPONDENT", "start_char": 36, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "SURESH SINGH AND ORS", "offset_not_found": false}}, {"text": "March 22, 1976", "label": "DATE", "start_char": 59, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "March 22, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.]"}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 76, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "Section 49", "label": "PROVISION", "start_char": 158, "end_char": 168, "source": "regex", "metadata": {"statute": null}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 4679, "end_char": 4690, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and S. N. Prasad for Appellants in C.A. 602/75."}}, {"text": "S. N. Prasad", "label": "LAWYER", "start_char": 4695, "end_char": 4707, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and S. N. Prasad for Appellants in C.A. 602/75."}}, {"text": "Bishan Narain", "label": "PETITIONER", "start_char": 4740, "end_char": 4753, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, S. N. Misra, S. S. Jauhar and A. K. Sinha for Appellants in C. A. 603/75."}}, {"text": "S. N. Misra", "label": "LAWYER", "start_char": 4755, "end_char": 4766, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, S. N. Misra, S. S. Jauhar and A. K. Sinha for Appellants in C. A. 603/75.", "canonical_name": "S. N. Misra"}}, {"text": "S. S. Jauhar", "label": "LAWYER", "start_char": 4768, "end_char": 4780, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, S. N. Misra, S. S. Jauhar and A. K. Sinha for Appellants in C. A. 603/75."}}, {"text": "A. K. Sinha", "label": "LAWYER", "start_char": 4785, "end_char": 4796, "source": "ner", "metadata": {"in_sentence": "Bishan Narain, S. N. Misra, S. S. Jauhar and A. K. Sinha for Appellants in C. A. 603/75."}}, {"text": "S. C. Misra", "label": "LAWYER", "start_char": 4830, "end_char": 4841, "source": "ner", "metadata": {"in_sentence": "S. C. Misra and U. S. Prasad for.", "canonical_name": "S. N. Misra"}}, {"text": "U. S. Prasad", "label": "LAWYER", "start_char": 4846, "end_char": 4858, "source": "ner", "metadata": {"in_sentence": "S. C. Misra and U. S. Prasad for."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 4903, "end_char": 4914, "source": "ner", "metadata": {"in_sentence": "B. P. Singh and U. P. Singh for Respondent No.", "canonical_name": "B. P. Singh"}}, {"text": "U. P. Singh", "label": "LAWYER", "start_char": 4919, "end_char": 4930, "source": "ner", "metadata": {"in_sentence": "B. P. Singh and U. P. Singh for Respondent No.", "canonical_name": "B. P. Singh"}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 5052, "end_char": 5063, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-These appeals by special leave arise out of a judgment of the Patna High Court in a writ petition filed by the 1st respondent under articles 226 and 227 of the Constitution challenging the appointment of the appellants as Drugs Inspectors."}}, {"text": "articles 226 and 227", "label": "PROVISION", "start_char": 5200, "end_char": 5220, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Bihar", "label": "ORG", "start_char": 5665, "end_char": 5684, "source": "ner", "metadata": {"in_sentence": "The Government of Bihar in its Health Department advertised through the Bihar Public Service Commission 12 vacancies of Inspectors of' Drugs."}}, {"text": "Pharmaceutical Society of Great Britain", "label": "ORG", "start_char": 7062, "end_char": 7101, "source": "ner", "metadata": {"in_sentence": "Qualifications of Inspectors.-A person who is\n\nappointed an Inspector under the Act shall be a person who-\n\n(a)\n\n(aa)\n\nhas a degree in Pharmacy or Pharmaceutical Chemistry or a post-graduate degree in Chemistry with Pharmaceutics as a speical subject of a University recognised for this purpose by the appointing authority or the associateship Diploma of the Institution of Chemists (India) obtained by passing the examination with 'Analysis of Drugs and Pharmaceuticals' as one of the subjects; or\n\nholds the Pharmaceutical Chemists Diploma granted by the Pharmaceutical Society of Great Britain; or\n\n(b) x x x\n\n(c) is a graduate in medicine or science of a University recognised for this purpose by the appointnig authority and has at least one year's post-graduate training in a laboratory under (i) a Government Analyst\n\nappointed under the Act or (ii) a Chemical Exam- D iner, or (iii) a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E), or (iv) the head of an institution specially approved for the purpose by the appoining authority;\n\nProvided that only those inspectors who have not less than three years' experience in the manufacture and testing of substances specified in Schedule C in a laboratory approved for this purpose by the licensing authority, shall be authorised to inspect the manufacture of items mentioned in Schedule C;\n\nProvided further that only Inspectors who are graduates in veterinary science or medicine or general science or pharmacy and have had not Jess than three years' experience in the manufacture or testing of biological products shall be authorised to inspect the manufacture of veterinary biological products;\n\nProvided further that for a period of four years from the date on Which Chapter IV of the Act takes effect in the States, persons whose qualifications, training and experience are regarded by the appointing authority as affording subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence may be appointed as Inspectors and authorised under the preceding proviso :\n\nProvided further that for the purposes of inspection of shops in any specified area any officer of the medical or Public Health Department who is a registered medical practitioner or a graduate in >ciencc may be appointed as an ex officio Inspector."}}, {"text": "appointed under the Act", "label": "STATUTE", "start_char": 7330, "end_char": 7353, "source": "regex", "metadata": {}}, {"text": "Royal Institute of Chemistry of Great Britain (Branch", "label": "ORG", "start_char": 7412, "end_char": 7465, "source": "ner", "metadata": {"in_sentence": "Qualifications of Inspectors.-A person who is\n\nappointed an Inspector under the Act shall be a person who-\n\n(a)\n\n(aa)\n\nhas a degree in Pharmacy or Pharmaceutical Chemistry or a post-graduate degree in Chemistry with Pharmaceutics as a speical subject of a University recognised for this purpose by the appointing authority or the associateship Diploma of the Institution of Chemists (India) obtained by passing the examination with 'Analysis of Drugs and Pharmaceuticals' as one of the subjects; or\n\nholds the Pharmaceutical Chemists Diploma granted by the Pharmaceutical Society of Great Britain; or\n\n(b) x x x\n\n(c) is a graduate in medicine or science of a University recognised for this purpose by the appointnig authority and has at least one year's post-graduate training in a laboratory under (i) a Government Analyst\n\nappointed under the Act or (ii) a Chemical Exam- D iner, or (iii) a Fellow of the Royal Institute of Chemistry of Great Britain (Branch E), or (iv) the head of an institution specially approved for the purpose by the appoining authority;\n\nProvided that only those inspectors who have not less than three years' experience in the manufacture and testing of substances specified in Schedule C in a laboratory approved for this purpose by the licensing authority, shall be authorised to inspect the manufacture of items mentioned in Schedule C;\n\nProvided further that only Inspectors who are graduates in veterinary science or medicine or general science or pharmacy and have had not Jess than three years' experience in the manufacture or testing of biological products shall be authorised to inspect the manufacture of veterinary biological products;\n\nProvided further that for a period of four years from the date on Which Chapter IV of the Act takes effect in the States, persons whose qualifications, training and experience are regarded by the appointing authority as affording subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence may be appointed as Inspectors and authorised under the preceding proviso :\n\nProvided further that for the purposes of inspection of shops in any specified area any officer of the medical or Public Health Department who is a registered medical practitioner or a graduate in >ciencc may be appointed as an ex officio Inspector."}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 7710, "end_char": 7720, "source": "regex", "metadata": {"linked_statute_text": "Government Analyst\n\nappointed under the Act", "statute": "Government Analyst\n\nappointed under the Act"}}, {"text": "Schedule C", "label": "PROVISION", "start_char": 7860, "end_char": 7870, "source": "regex", "metadata": {"linked_statute_text": "Government Analyst\n\nappointed under the Act", "statute": "Government Analyst\n\nappointed under the Act"}}, {"text": "Provided further that for a period of four years from the date on Which Chapter IV of the Act", "label": "STATUTE", "start_char": 8181, "end_char": 8274, "source": "regex", "metadata": {}}, {"text": "Maheshwar Prasad Srivastava", "label": "PETITIONER", "start_char": 13649, "end_char": 13676, "source": "ner", "metadata": {"in_sentence": "Maheshwar Prasad Srivastava the appellant in Civil Appeal No.", "canonical_name": "MAHESHWAR PRASAD SRIVASTAVA & ANR"}}, {"text": "Bihar Drugs Control Laboratory", "label": "ORG", "start_char": 13967, "end_char": 13997, "source": "ner", "metadata": {"in_sentence": "He was appointed as a Senior Scientific Assistant in the Bihar Drugs Control Laboratory on December 23, 1966 where he worked under Dr. Sheo Bihari Lal, who was the Government Analyst in charge of the Bihar Drugs Control Laboratory."}}, {"text": "December 23, 1966", "label": "DATE", "start_char": 14001, "end_char": 14018, "source": "ner", "metadata": {"in_sentence": "He was appointed as a Senior Scientific Assistant in the Bihar Drugs Control Laboratory on December 23, 1966 where he worked under Dr. Sheo Bihari Lal, who was the Government Analyst in charge of the Bihar Drugs Control Laboratory."}}, {"text": "Sheo Bihari Lal", "label": "OTHER_PERSON", "start_char": 14045, "end_char": 14060, "source": "ner", "metadata": {"in_sentence": "He was appointed as a Senior Scientific Assistant in the Bihar Drugs Control Laboratory on December 23, 1966 where he worked under Dr. Sheo Bihari Lal, who was the Government Analyst in charge of the Bihar Drugs Control Laboratory."}}, {"text": "S. B. Lal", "label": "OTHER_PERSON", "start_char": 14317, "end_char": 14326, "source": "ner", "metadata": {"in_sentence": "The certificate issued by Dr. S. B. Lal shows that Srivastava worked under him E and had been \"trained\" for more than three years in the Bihar Drugs Control Laboratory."}}, {"text": "Srivastava", "label": "OTHER_PERSON", "start_char": 14338, "end_char": 14348, "source": "ner", "metadata": {"in_sentence": "The certificate issued by Dr. S. B. Lal shows that Srivastava worked under him E and had been \"trained\" for more than three years in the Bihar Drugs Control Laboratory."}}, {"text": "Lal", "label": "OTHER_PERSON", "start_char": 14480, "end_char": 14483, "source": "ner", "metadata": {"in_sentence": "A letter written by Dr. Lal to the Deputy Director of the Health Services, Bihar, on December 22, 1970 shows that during his absence on leave, Srivastava was to hold charge of the Bihar Drugs Control Laboratory."}}, {"text": "Bihar", "label": "GPE", "start_char": 14531, "end_char": 14536, "source": "ner", "metadata": {"in_sentence": "A letter written by Dr. Lal to the Deputy Director of the Health Services, Bihar, on December 22, 1970 shows that during his absence on leave, Srivastava was to hold charge of the Bihar Drugs Control Laboratory."}}, {"text": "December 22, 1970", "label": "DATE", "start_char": 14541, "end_char": 14558, "source": "ner", "metadata": {"in_sentence": "A letter written by Dr. Lal to the Deputy Director of the Health Services, Bihar, on December 22, 1970 shows that during his absence on leave, Srivastava was to hold charge of the Bihar Drugs Control Laboratory."}}, {"text": "J. K. P.\n\nSinha", "label": "OTHER_PERSON", "start_char": 15242, "end_char": 15257, "source": "ner", "metadata": {"in_sentence": "Dr. J. K. P.\n\nSinha who was then ihe Deputy Director of Health Services, Bihar G and who assisted the Public Service Commission as a Technical Expert when the interviews for the particular posts were held, obviously took the view that the appellants who were science graduates satisfied the further test of post-graduate training for not less than one year."}}, {"text": "Public Service Commission", "label": "ORG", "start_char": 15698, "end_char": 15723, "source": "ner", "metadata": {"in_sentence": "In matters involving consideration of questions regarding adeqnacy or sufficiency of \"training\", the Public Service Commission, having the benefit of expert opinion, is better situated to judge whether the parti- H cnlar candidate is qualified for a particular post and courts should hesitated to interfere with the direction of the appointing authority, so long as it is exercised bona fide."}}, {"text": "State of Bihar", "label": "ORG", "start_char": 16691, "end_char": 16705, "source": "ner", "metadata": {"in_sentence": "The State of Bihar will pay the costs of these appeals to the appellants."}}]}
{"document_id": "1976_3_775_779_EN", "year": 1976, "text": "SRI VIJA YLAKSHMI RICE MILLS, NEW CONTRACTORS A\n\nCOMPANY ETC.\n\nSTATE OF ANDHRA PRADESH\n\nMarch 22, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nRici' (Andhra Pradesh) Price Control (3rd A111e11d111e111) Order 1964, clause 2-Whether refrospecti\\ity of substitution inferred i11 (lbsence of express pral'ision.\n\nUnder s. 3 of the Essential Commodities Act 1955, the respondent passed the Andhra Pradesh Procurement (Levy) Order 1959, requiring every miller and\n\nUealer of rice (including the appellants) to sell to the respondent certain C specified varieties and quantities of rice at controlled price on requisition being served on him.\n\nClause 2(a) of the Order defined \"controlled price\" ns the maximum price fixed by the Central Government from time to time under s. 3 of the Act for the sale of rice.\n\nOn December 19, 1963, the Central Government passed the Rice (Andhra Pradesh) Price Control Order 1963, fixing the maximum price of akkulu rice at Rs. 46.89 per q;.1inta1.\n\nThe appellants sold several Quantities of akkulu rice to the respondent from January 26, 1964, to February 21, 1964, and were paid at the controlled rate.\n\nOn March 23, 1964, the Central Government issued the Rice (Andhra Pradesh) Price Control. (3rd D amendment) Order 1964, and substituted Rs. 52.28 for Rs. 46.89 3.s the maximum price per quintal, of akkulu rice.\n\nThe appellant's claim for the -benefit of the enhanced price for the earlier _sales was rejected by the Government of Andhra Pradesh. The appellants succeed_ed before the Subordinate Judge, Machilipatnam, in their suits for recovery of the difference between the two controlled prices but lost before the High Court, in appeals preferred by the State of Andhra Pradesh. It was contended before this Court that the prices fixed by the Government are for the entire season, and the appellants are entitled payment E at the amended rates, regardless of the dates when the supplies were made, and that the word .. substitute\" infers retrospective e.ffect.\n\nDismissing the appeals, the Court;\n\nHELD : Jn the absence of express words or appropriate language from \\Vhich retrospectivity may be inferred. a notification takes effect from the date it is issued and not from any prior date.\n\nStatutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of tran- F sections which were complete at the time the Amending Act came into force.\n\n[778B--C}\n\n(2) The property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled prices obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently. [778-0]\n\nK.· Ap.payya Shanbhague & Co. v. The State of Mysore and Anr. (Unreported decision S.C. dated 20-4-19~2); The Union of lndia, rpresented by !he G Secretary, Ministry of Food & ARnculture, Gov:rnn1er1t of lndta, New Dellu v.\n\nKan11ri Dan1odariah & Co. Alluri Venkatanaras1ah (1968} 1 An. W.R. 81 and Mani (; opal Mitra v. The State of Bihar (1969) 2 S.C.R. 411, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 805, 806 and 972~977 of 1~73\n\nFrom the judgment and decree dated the 8th June 1971 and 23rd H November 1971 respectively of the IJ:igh Court of Andhra Pradesh\n\nat Hyderabad in Appeal Suit Nos. 766 of 1968, 18 of 1969, 779,\n\n780, 792 to 785 of 1968 respectively .\n\nF. S. Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants.\n\nP. Ram Reddy and P. P. Rao, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.\n\nThis batch of Appeals Nos. 805, 806 and 972 to 977 of 1973 by certificate from the judf!IIlents and decrees of the High Court of Andhra Pradesh in Appeals Nos. 766 ot 1968, 18 of 1969, 779 of 1968, 780 of 1968, 782 of 1968 783 of 1971 ~84 of 1968 and 785 of 1968 raise a simple but an.futeresting ques~ hon namely, whether for the supplies of rice made by the appellants m January and February, 1964, they are to be paid price according to t!1e rate specified m the. Rice (Andhra Pradesl!) Price Control\n\n(Third Amendme.nt) Order, 1964 dated March 23, 1964 or according to the rate specified m the Rice (Andhra Pradesh) Price Control <?rder as it stood in 1963.\n\nThe question arises in the following circumstances :\n\nThe appellants are millers and carry on the business of paddy and rice in the State of Andhra Pradesh.\n\nOn July 31, 1959, the Governor of Andhra Pradesh in exercise of the powers conferred on him by section 3 of the Essential Commodities Ac\\, 19 5 5 (Central Act X of 19 5 5) hereinafter referred to as 'the Act' made an order called the Andhra Pradesh Rice Procurement (Levy) Order, 1959. clause 3 of the order required every dealer and every miller to sell to the State Government on requisition served on him by the requisitioning authority at the controlled price (a) 40 per cent of the quantity of rice held in stock by him at the commencement of the order and\n\n(b) 40 per cent of the total quantity of rice purchased by him every day beginning with the commencement of the order.\n\nClause 2(a) of the order defined \"controlled price\" as meaning the maximum price fixed under section 3 of the Act for the sale of rice by the Central Government from time to time (emphasis supplied).\n\nOn December 19, 1963, the Central Government in exercise of the pov.:er.conferred on it by section 3 of the Act made an orer called the Rice (nd?ra Pradesh) Price Control Order, 1963, which extended to the distncts of Krishna, West Godavari, East Godavari, GUJ1tur, Nizarnabad, Warangal and Nellore in the State of Andhra Pradesh.\n\nClause (2) of the order provided that the maximum prices at which the varieties of rice specified in column. \\ 1) of the Schedule f? tha'. Order were -to be s?ld in wholesale quantities would be as specified m the correspondmg entries in column (2) of the said Schedule.\n\nThe said Schedule inter alia provided that Akkulu rice would be sold at Rs. 46.89 , per quintal.\n\nJn compliance with the requisitions served on them by the requisitioning authority of the State of Andhra Pradesh, the appellants sold various quantities of that variety of rice to the Government 'of that State from January 26, 1964, to February 21, 1964, and were paid at the aforesaid rate of Rs. 46.89 per quintal. By meansof the Rice (Andhra Pradesh) Price Control (Second Amendment) .Qrder, 1964. dated March 20, 1964, the Central Government amended. sub-clause\n\n(1) of clause 2 of the Rice (Andhra Pradesh) Price Cqntrol Order, 1963 and ordained that in th¢. said. sub-clause for the )Voids \"the Schedule',· the words and figures. schedule I shall be s11b§tit].i!d. On\n\n_:; .. :,,\n\n\\ \\.\n\n~ I\n\nSRl VIJAYLAKSHMI RICE MILLS v. A.P. STATE (Jaswant Singh, 1.) 777\n\nMarch 23, 1964, the Central Government issued the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964.\n\nClause 2 of the Order ran thus :-\n\n2. In the Rice (Andhra Pradesh) Price Control Order, 1963, in Schedule I, 10r the varieties of rice and che maximum prices thereafter, the following shall be substituted namely :-\n\nVarieties or rice\n\n1. Districts other than Nellore\n\nAkulu\n\nMaximum price per quintal.\n\n52-25\n\nOn the issue of this order, the appellants made representations to the Government of Andhra Pradesh requesting that for the aforesaid supplies of Akkulu rice made by them from January 26 to February\n\n~ 21, 1964, they should also be paid at the enhanced price of Rs. 52.25 per qumtal.\n\nAs the representations made by them did not evoke a favourable response, they filed suits in the Court of the Subordinate Judge, Machilipatnam for recovery of the difference between the controlled prices specified in the Rice (Andhra Pradesh) Price Control Order, 1963, dated December 19, 1963 and Rice (Andhra Pradesh) , Price Control (Third Amendment) Order, 1964.\n\nThe suits filed by them were decreed by that Court. Aggrieved by these judgments and decrees, the State of Andhra Pradesh preferred appeals to the High Court at Hyderabad which were allowed on the ground that as the supplies ot rice were made by the appellants before the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, they were entitled only to the price specified in the Schedule to the Rice ( Anhdra Pradesh) Price Control Order, 1963. Dissatisfied with these judgments and decrees, the appellants applied for certificate under Article 133(1) (a) of the Constitution which was granted to them.\n\nThe sole question for determination in these appeals, as already indicated, is whether the appellants were to be paid price for the supplies to rice made by them from January 26, 1964, to February 21, 1964, at the rate of Rs. 46.89 per quintal-the rate specified in the Rice (Andhra Pradesh) Price Control Order, 1963, dated December\n\n19, 1963 or at the enhanced rate of Rs. 52.25 per quintal as fixed by the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, G 1964 dated March 23, 1964.\n\nMr. Narirnan appearing on behalf of the appellants has laid great emphasis on the word \"substituted\" occurring in clnase 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order. 1964 and has nrged that the claim of the appellants carrot be validity ignored.\n\nElaborating his submission. counsel has contended that as the nrices fixed by the Government are meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice ( Andhra Pradesh) Price Control (Third Amendment) Order, 1964, regardless\n\n17-608SCI/76\n\nof the dates on which the supplies were made.\n\nWe cannot accede to this contention. It is no doubt true that the literal meaning of the word \"substitute\" is \"to replace' but the question before us is trom which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amednment) Order, 1964 to indicate that it was intended to have a retrospective effect.\n\nIt is a well recognized rule of interpreation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date.\n\nThe principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. (See Mani Gopa/ Mitra v. The State of Bihar (1).\n\nThe aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Pnce Control (Third Amendment) Order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently.\n\nThis view is in consonance with the provisions of section 3 of the Act and the Andhra Pradesh Rice Procurement (Levy) Order, 1959 which clearly indicate that the price payable to the dealers and Millers for the supplies of rice made by them is the control price obtaining on the date when the sale is made. Similar view is taken in the unreported decision dated Apr;! 20, 1962 of this Court in K. Appayya Shambhague and Co. v. The State of Mysore & Anr.(') where it was laid down that the order made under section 3 (2) (f) of the Act are offers of sale which the person on whom a requisition is served has no option but to accept and that the price that has to be paid is the controlled price fixed by the Government under section 3(2) (c) of the Act on the date when he goods are ascertained or when the property in the goods passes to the buyer.\n\nThis decision was followed by the High Court of Andhra Pradesh in The Union of lndia, represented by the Secretary, Ministry of Food and Aericulture.\n\nGovernment of lndia, New Delhi v. Kanuri Damodariah & Co. Alluri Venkatanarasiah\n\n(\"J where it was held that an order nnder section 3(2) (f) am01mts to an agreement for sale and the price oavable for the quantities of rice supplied is a price payable in accordance with the price notified under the provisions of section 3 (3) of the Act.\n\nIn the instant cases, the sale having been made before the coming into force of the Rice I Andhra Pradesh) Pr're r'nntrol (Third Amendment) Order, 1964, the appellants cannot iustifiablv claim the benefit of the increased price specified in the Rice (Andhra Pradesh) Price Control (Third Amednment) Order, 1964.\n\nThe acceptance of the\n\n(1) [1969! 2 S.C.R. 411.\n\n(2) Unreported case(S.C.) dt. 20-4-1962. (J) [1968J 1 An. W.R. 81.\n\n...\n\nSHI VIJAYLAKSHMI RICE MILLS v. A.P. SIAIE (Jaswant Singh, J.)779\n\ncontention raised on behalf of the appellants will lead to i:; rave con- A sequences. It will have the effect of reopening the transactions past\n\nI and closed and would thus give rise to lots of difficulties.\n\n,.i Mr. Nariman has, in support of his contention, relied on the follow- ; ing passage occurring at p. 394 in Craies on Statute Law (Sixth Edition) :-\n\n.)'\n\n\"Explanatory and declaratory Acts retrospective\n\nWhere a Statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke J. (afterwards Baron Parke) said in R. V. Dursley (1832) 3 B. & Ad. 465, 469 \"to 'explain a former statute,\" the subsequent statute has relation back to the time when the prior Act was passed.\n\nThus in Att.-Gen v. Poughtt (1816) 2 Price 381, 392, it appeared that by a Customs Act of 1873 (53 Geo. 3, c.33) a duty was imposed upon hides of 9s. 4d., but the Act omitted to state that it was to be 9s. 4d. per cwt., and to remedy this omission another Customs Act 53 Geo. c. 105) was passed later in the same year. Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty 9s. 4d. per cwt., but Thomson C. B., in giving judgment for the Attorney-General, said : \"The duty in this instant was in fact imposed by the first Act, but the gross mistaks of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act. but that had reference to the former statute as soon as it pas, ed, and they must be taken together as if they were one and the same Act.\"\n\nWhere an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable.'\n\nThis passage has, in our opinion. no bearing on the question before us in view of the fact that the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964 is neither explanatory nor declaratory, as sought to be interpreted by the counsel.\n\nThe contention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also be accepted.\n\nThe High Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the .iudgment and decrees passed by the Subordinate Judge, Machilipatnam.\n\nJn the result, the appeal, fail and are dismissed with cost, limited to one set.\n\nM.R.\n\nAppeals dismissed .", "total_entities": 64, "entities": [{"text": "SRI VIJA YLAKSHMI RICE MILLS, NEW CONTRACTORS A\n\nCOMPANY", "label": "PETITIONER", "start_char": 0, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "SRI VIJAYLAKSHMI RICE MILLS, NEW CONTRACTORS COMPANY, ETC", "offset_not_found": false}}, {"text": "STATE OF ANDHRA PRADESH", "label": "RESPONDENT", "start_char": 63, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 105, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 122, "end_char": 131, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 136, "end_char": 154, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "clause 2", "label": "PROVISION", "start_char": 228, "end_char": 236, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 329, "end_char": 333, "source": "regex", "metadata": {"statute": null}}, {"text": "Essential Commodities Act 1955", "label": "STATUTE", "start_char": 341, "end_char": 371, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Clause 2(a)", "label": "PROVISION", "start_char": 651, "end_char": 662, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "Central Government", "label": "ORG", "start_char": 737, "end_char": 755, "source": "ner", "metadata": {"in_sentence": "Clause 2(a) of the Order defined \"controlled price\" ns the maximum price fixed by the Central Government from time to time under s. 3 of the Act for the sale of rice."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 780, "end_char": 784, "source": "regex", "metadata": {"linked_statute_text": "the Essential Commodities Act 1955", "statute": "the Essential Commodities Act 1955"}}, {"text": "December 19, 1963", "label": "DATE", "start_char": 822, "end_char": 839, "source": "ner", "metadata": {"in_sentence": "On December 19, 1963, the Central Government passed the Rice (Andhra Pradesh) Price Control Order 1963, fixing the maximum price of akkulu rice at Rs."}}, {"text": "January 26, 1964", "label": "DATE", "start_char": 1069, "end_char": 1085, "source": "ner", "metadata": {"in_sentence": "The appellants sold several Quantities of akkulu rice to the respondent from January 26, 1964, to February 21, 1964, and were paid at the controlled rate."}}, {"text": "February 21, 1964", "label": "DATE", "start_char": 1090, "end_char": 1107, "source": "ner", "metadata": {"in_sentence": "The appellants sold several Quantities of akkulu rice to the respondent from January 26, 1964, to February 21, 1964, and were paid at the controlled rate."}}, {"text": "March 23, 1964", "label": "DATE", "start_char": 1151, "end_char": 1165, "source": "ner", "metadata": {"in_sentence": "On March 23, 1964, the Central Government issued the Rice (Andhra Pradesh) Price Control. ("}}, {"text": "Government of Andhra Pradesh", "label": "ORG", "start_char": 1464, "end_char": 1492, "source": "ner", "metadata": {"in_sentence": "The appellant's claim for the -benefit of the enhanced price for the earlier sales was rejected by the Government of Andhra Pradesh."}}, {"text": "Subordinate Judge, Machilipatnam", "label": "COURT", "start_char": 1531, "end_char": 1563, "source": "ner", "metadata": {"in_sentence": "The appellants succeeded before the Subordinate Judge, Machilipatnam, in their suits for recovery of the difference between the two controlled prices but lost before the High Court, in appeals preferred by the State of Andhra Pradesh."}}, {"text": "State of Andhra Pradesh", "label": "ORG", "start_char": 1705, "end_char": 1728, "source": "ner", "metadata": {"in_sentence": "The appellants succeeded before the Subordinate Judge, Machilipatnam, in their suits for recovery of the difference between the two controlled prices but lost before the High Court, in appeals preferred by the State of Andhra Pradesh."}}, {"text": "20-4-19~2", "label": "DATE", "start_char": 2851, "end_char": 2860, "source": "ner", "metadata": {"in_sentence": "Unreported decision S.C. dated 20-4-19~2); The Union of lndia, rpresented by !"}}, {"text": "Union of lndia", "label": "RESPONDENT", "start_char": 2867, "end_char": 2881, "source": "ner", "metadata": {"in_sentence": "Unreported decision S.C. dated 20-4-19~2); The Union of lndia, rpresented by !"}}, {"text": "(1969) 2 S.C.R. 411", "label": "CASE_CITATION", "start_char": 3097, "end_char": 3116, "source": "regex", "metadata": {}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "RESPONDENT", "start_char": 3129, "end_char": 3157, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeals Nos."}}, {"text": "F. S. Nariman", "label": "JUDGE", "start_char": 3443, "end_char": 3456, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants."}}, {"text": "V. K. Gurunathan", "label": "LAWYER", "start_char": 3461, "end_char": 3477, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants."}}, {"text": "T. V. Narasimhan Murty", "label": "LAWYER", "start_char": 3479, "end_char": 3501, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants."}}, {"text": "A. Subha Rao", "label": "LAWYER", "start_char": 3506, "end_char": 3518, "source": "ner", "metadata": {"in_sentence": "F. S. Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 3541, "end_char": 3553, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and P. P. Rao, for the respondents."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 3558, "end_char": 3567, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy and P. P. Rao, for the respondents."}}, {"text": "Andhra Pradesh", "label": "GPE", "start_char": 4458, "end_char": 4472, "source": "ner", "metadata": {"in_sentence": "The question arises in the following circumstances :\n\nThe appellants are millers and carry on the business of paddy and rice in the State of Andhra Pradesh."}}, {"text": "July 31, 1959", "label": "DATE", "start_char": 4478, "end_char": 4491, "source": "ner", "metadata": {"in_sentence": "On July 31, 1959, the Governor of Andhra Pradesh in exercise of the powers conferred on him by section 3 of the Essential Commodities Ac\\, 19 5 5 (Central Act X of 19 5 5) hereinafter referred to as 'the Act' made an order called the Andhra Pradesh Rice Procurement (Levy) Order, 1959."}}, {"text": "section 3", "label": "PROVISION", "start_char": 4570, "end_char": 4579, "source": "regex", "metadata": {"statute": null}}, {"text": "clause 3", "label": "PROVISION", "start_char": 4761, "end_char": 4769, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 2(a)", "label": "PROVISION", "start_char": 5158, "end_char": 5169, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 5251, "end_char": 5260, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 5450, "end_char": 5459, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna", "label": "GPE", "start_char": 5577, "end_char": 5584, "source": "ner", "metadata": {"in_sentence": "On December 19, 1963, the Central Government in exercise of the pov.:er.conferred on it by section 3 of the Act made an orer called the Rice (nd?ra Pradesh) Price Control Order, 1963, which extended to the distncts of Krishna, West Godavari, East Godavari, GUJ1tur, Nizarnabad, Warangal and Nellore in the State of Andhra Pradesh."}}, {"text": "Godavari", "label": "GPE", "start_char": 5591, "end_char": 5599, "source": "ner", "metadata": {"in_sentence": "On December 19, 1963, the Central Government in exercise of the pov.:er.conferred on it by section 3 of the Act made an orer called the Rice (nd?ra Pradesh) Price Control Order, 1963, which extended to the distncts of Krishna, West Godavari, East Godavari, GUJ1tur, Nizarnabad, Warangal and Nellore in the State of Andhra Pradesh."}}, {"text": "Nizarnabad", "label": "GPE", "start_char": 5625, "end_char": 5635, "source": "ner", "metadata": {"in_sentence": "On December 19, 1963, the Central Government in exercise of the pov.:er.conferred on it by section 3 of the Act made an orer called the Rice (nd?ra Pradesh) Price Control Order, 1963, which extended to the distncts of Krishna, West Godavari, East Godavari, GUJ1tur, Nizarnabad, Warangal and Nellore in the State of Andhra Pradesh."}}, {"text": "Warangal", "label": "GPE", "start_char": 5637, "end_char": 5645, "source": "ner", "metadata": {"in_sentence": "On December 19, 1963, the Central Government in exercise of the pov.:er.conferred on it by section 3 of the Act made an orer called the Rice (nd?ra Pradesh) Price Control Order, 1963, which extended to the distncts of Krishna, West Godavari, East Godavari, GUJ1tur, Nizarnabad, Warangal and Nellore in the State of Andhra Pradesh."}}, {"text": "Nellore", "label": "GPE", "start_char": 5650, "end_char": 5657, "source": "ner", "metadata": {"in_sentence": "On December 19, 1963, the Central Government in exercise of the pov.:er.conferred on it by section 3 of the Act made an orer called the Rice (nd?ra Pradesh) Price Control Order, 1963, which extended to the distncts of Krishna, West Godavari, East Godavari, GUJ1tur, Nizarnabad, Warangal and Nellore in the State of Andhra Pradesh."}}, {"text": "clause 2", "label": "PROVISION", "start_char": 6536, "end_char": 6544, "source": "regex", "metadata": {"statute": null}}, {"text": "s11", "label": "PROVISION", "start_char": 6718, "end_char": 6721, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 2", "label": "PROVISION", "start_char": 6945, "end_char": 6953, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule I", "label": "PROVISION", "start_char": 7042, "end_char": 7052, "source": "regex", "metadata": {"statute": null}}, {"text": "Nellore\n\nAkulu", "label": "GPE", "start_char": 7204, "end_char": 7218, "source": "ner", "metadata": {"in_sentence": "Districts other than Nellore\n\nAkulu\n\nMaximum price per quintal."}}, {"text": "Government of Andhra Pradesh", "label": "RESPONDENT", "start_char": 7326, "end_char": 7354, "source": "ner", "metadata": {"in_sentence": "52-25\n\nOn the issue of this order, the appellants made representations to the Government of Andhra Pradesh requesting that for the aforesaid supplies of Akkulu rice made by them from January 26 to February\n\n~ 21, 1964, they should also be paid at the enhanced price of Rs."}}, {"text": "Court of the Subordinate Judge, Machilipatnam", "label": "COURT", "start_char": 7637, "end_char": 7682, "source": "ner", "metadata": {"in_sentence": "As the representations made by them did not evoke a favourable response, they filed suits in the Court of the Subordinate Judge, Machilipatnam for recovery of the difference between the controlled prices specified in the Rice (Andhra Pradesh) Price Control Order, 1963, dated December 19, 1963 and Rice (Andhra Pradesh) , Price Control (Third Amendment) Order, 1964."}}, {"text": "High Court at Hyderabad", "label": "COURT", "start_char": 8055, "end_char": 8078, "source": "ner", "metadata": {"in_sentence": "Aggrieved by these judgments and decrees, the State of Andhra Pradesh preferred appeals to the High Court at Hyderabad which were allowed on the ground that as the supplies ot rice were made by the appellants before the Rice (Andhra Pradesh) Price Control (Third Amendment) Order, 1964, they were entitled only to the price specified in the Schedule to the Rice ( Anhdra Pradesh) Price Control Order, 1963."}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 8459, "end_char": 8473, "source": "regex", "metadata": {"statute": null}}, {"text": "Narirnan", "label": "OTHER_PERSON", "start_char": 9030, "end_char": 9038, "source": "ner", "metadata": {"in_sentence": "Mr. Narirnan appearing on behalf of the appellants has laid great emphasis on the word \"substituted\" occurring in clnase 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) Order."}}, {"text": "section 3", "label": "PROVISION", "start_char": 11103, "end_char": 11112, "source": "regex", "metadata": {"statute": null}}, {"text": "Apr;! 20, 1962", "label": "DATE", "start_char": 11415, "end_char": 11429, "source": "ner", "metadata": {"in_sentence": "Similar view is taken in the unreported decision dated Apr;!"}}, {"text": "section 3", "label": "PROVISION", "start_char": 11559, "end_char": 11568, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(2)", "label": "PROVISION", "start_char": 11777, "end_char": 11789, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 11937, "end_char": 11965, "source": "ner", "metadata": {"in_sentence": "This decision was followed by the High Court of Andhra Pradesh in The Union of lndia, represented by the Secretary, Ministry of Food and Aericulture."}}, {"text": "Union of lndia", "label": "ORG", "start_char": 11973, "end_char": 11987, "source": "ner", "metadata": {"in_sentence": "This decision was followed by the High Court of Andhra Pradesh in The Union of lndia, represented by the Secretary, Ministry of Food and Aericulture."}}, {"text": "Ministry of Food and Aericulture", "label": "ORG", "start_char": 12019, "end_char": 12051, "source": "ner", "metadata": {"in_sentence": "This decision was followed by the High Court of Andhra Pradesh in The Union of lndia, represented by the Secretary, Ministry of Food and Aericulture."}}, {"text": "section 3(2)", "label": "PROVISION", "start_char": 12178, "end_char": 12190, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 12367, "end_char": 12376, "source": "regex", "metadata": {"statute": null}}, {"text": "Nariman", "label": "OTHER_PERSON", "start_char": 13113, "end_char": 13120, "source": "ner", "metadata": {"in_sentence": ",.i Mr. Nariman has, in support of his contention, relied on the follow- ; ing passage occurring at p. 394 in Craies on Statute Law (Sixth Edition) :-\n\n.)'"}}, {"text": "Parke", "label": "JUDGE", "start_char": 13414, "end_char": 13419, "source": "ner", "metadata": {"in_sentence": "\"Explanatory and declaratory Acts retrospective\n\nWhere a Statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke J. (afterwards Baron Parke) said in R. V. Dursley (1832) 3 B. & Ad.", "canonical_name": "Parke"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 13689, "end_char": 13700, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 13870, "end_char": 13881, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Thomson C. B.", "label": "OTHER_PERSON", "start_char": 14082, "end_char": 14095, "source": "ner", "metadata": {"in_sentence": "but Thomson C. B., in giving judgment for the Attorney-General, said : \"The duty in this instant was in fact imposed by the first Act, but the gross mistaks of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act."}}]}
{"document_id": "1976_3_780_785_EN", "year": 1976, "text": "• 780\n\nA. DAMODARAN & ANR. v.\n\nSTATE OF KERALA & ORS.\n\nMarch 23, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nKerala Abkari Act (1 of 1967), Ss. 18A and 28-'Grantee', who is-Right of Government to recover dues from persons who were permitted to carry on business of selling liquor even though no agreements were executed or licences granted.\n\nSection 18A(l) of the Kerala Abkari Act, 1967, shows that the exclusive or other privilege of selling liquor by retail may be granted on payment of rental in consideration of the grant. The amount af. rental may be settled by auction, ne2otiation or by any other method. Section 28 provides that all amounts due to the Government, by any grantee of a privilege may be recovered from the person primarily liable to pay as if they were arrears of land revenue.\n\nThe appellants bid at auction sales of some toddy shops. The conditions of the sales, notified in pursuance, of the statutory provisions, were : (a) It was incumbent upon the bidder to pay imm-ediately 10% of the amount due; (b) The successful bidder had to deposit 30% of the amount payable, on demand by the Assistant Commissioner, and to execute agreeme!lts before getting the necessary licences; and (c) If the contract could not be executed, the whole amount was to be forfeited and the shop itself was to be resold. The appellants deposited the necessary amounts on demand and were allowed to start business even before agreements were executed or licences were issued. But the appellants failed to pay the balance due to the State. The amounts were sought to be recovered under s. 28, and the proceedings were challenged, but the High Court held against the appellants.\n\nIn appeal to this Court, the appellants contended that as no agreement was executed between the appellants and the Government in the manner prescribed by Art. 299 of the Constitution, the appellants had not become the 'grantees' of any privilege and hence were not liable to pay the amounts sought to be recovered.\n\nDismissing the appeal, F HELD : The Government had to perform its duty of granting licences as soon as the appellants fulfilled the conditions by paying up the remainder of the amounts due. In the present case, Government had performed its part by allowing the appellants to start selling liquor even before execution of the agreements and the grant of licences. The appellants, therefore, became liable and bound to perform their corresponding obligations.\n\nThis reciprocity of obligations, quite apart from its basis in agreement, had thu~ acquired an operative force resting on statutory sanction and equity. [784G-785Bl\n\nG ( 1) It is not a condition precedent to recovery of an amount due and\n\nrecoverable under the Act that it should be due under a formally drawn up and executed contract. Under the notification. in the event of the non-execution of a contract, even if due to the unwillingness or inability of a bidder_ to pay, the whole amount due could be forfeited. [782C; 783E-F]\n\n2(a) The acquisition of the status of a grantee for the purpose of s. 18A, does not depend on the actual receipt of a licence. Section 18A(2) lays down that no grantee of any privilege under sub-s. (1) shall exercise it until he has received a licence. This provision contemplates the statutory status of a 'grantee' even before the successful bidder becomes entitled, as of right, to exercise the privileges of a grantee on receipt of a licence Even before he receives his licence he is described as a grantee. [783F-G, H-784AJ\n\n\"'\n\n' !' /\n\n(b) The word 'grantee' used ins. 28 carries this wider connotation of persons A who have been permitted by the excise authorities, in recognition of their rights to receive and in anticipation of the receipt of licences, to exercise the privileges of grantees, and not necessarily only those who have executed the written contracts nd received licences. f784A-C1\n\nMadhavan v. Assistant Excise Conunissioner, Palghat l.L.R. [1969] 2 Kerala 71, approved.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1464 of 1971.\n\nFrom the Judgment and Order dated 18-3-71 of the Kerala High Court in Writ Appeal No. 126 of 1971.\n\nK. K. Sudhakaran . and N. Sudhakaran and P. K. Pillai for the Appellants.\n\nK. T. Harindranath and K. M. K. Nair for Respondent.\n\nThe Judgment of the Court was delivered by\n\nBEG, J.-The appellants before us, by certification of the case, had filed a petition to quash revenue recovery proceedings started against them for realisation of the remainder of the amounts due on account of their bids at auction sales of some toddy shops for the period 1st April, 1967, to 31st March, 1969, by the Government of Kerala. The amounts at which the shops were knocked down were :\n\nl. Shop No. 1 = 84,000/-\n\n2. Shop No. 4 46,500 /-\n\n3. Shop No. 8 = 56,100/-\n\n4. Shop No. 11 1,50,000/-.\n\nThe notified conditions of the auction sales made it incumbent up0n the bidder to pay immediately 10% of the amount due and to provide personal security for the rest. There was no assurance or guarantee given there that prohibition will not be removed in future by the Government in any area in the State or about any other matter of future policy of the Government relating to intoxicants. According to notified conditions, the successful bidders had to deposit 30% of the total amount payable on demand by the Assistant Commissioner and also to execute agreements before getting the necessary licences. The petitioners had deposited the necessary amounts on demand.\n\nThey were also allowed to start the business of running their toddy shops .even before the licences were issued in their favour.\n\nThe petitioners' case is that, at the time of bidding, there was an understanding that the respondent State will not remove prohibition so that they expected adequate profits. As observed above, there is nothing in the notified conditions to indicate this. It appears that in April, 1967, the respondent State announced removal of prohibition from lst May. 1967. The appellants allege that they suffered heavy losses due to this policy of the State and were unable to make the remainder of the payments which were sought to be recovered under section 28 of the Abkari Act (hereinafter referred to as 'the Act'). It is difficult to see what the removal of prohibition had to do with alleged\n\nlosses to the appellants.\n\nAbandonment of Prohibition either totally or partially, should, ordinarily, not diminish sales of liquor. One should expect such a development to increase sales of liquor.\n\nThe appellants contend that, as no agreement was executed between them and the Govt. in the manner prescribed by Article 299 of the Constitution, they are not liable to pay the amounts sought to be recovered. This is their main contention.\n\nA learned Judge of the Kerala High Court who heard the petition heki that the notification in persuance of which the shops in question were auctioned provided that, if the contract could not be executed, the whole amount was to be forfeited and the shop itself was to be res0ld. Thus, non-execution of the contract due to the unwillingness or inability of a bidder to pay was not a contingency outside the notification for auction the validity of whidh is not challenged.\n\nThe notification did not lay down that, in that case, the payment of the remainder will be remitted.\n\nOn the other hand, the condition was that the whole amount due could, in such an event, be \"forfeited\".\n\nThe Kerala High Court held that, despite the absence of a contract executed in accordance with the provisions of Article 299 of the Constitution, the amounts due could be recovered under Section 28 of the Act which reads as follows :\n\n\"28 Recovery of duties.-All duties, taxes, fines and fees payable to the Government direct under any of the foregoing provisions of this Act or of any licence or permit issued under it. and all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person on account of any contract relating to the Abkari Revenue may be recovered from the person primarily liable 10 pay the same or from his surety (if any) as if they were arrears of Land Revenue, and, in case of default made by a grantee of a privilege or by a farmer the Commissioner may take grant or farm under management at the risk of the defaulter or may declare the grant or farm forfeited, and re-sell it at the risk and loss of the defaulter. When a grant or farm is under management under this section, the Commissioner may recover any moneys due to the defaulter by any lessee or assignee as if they were arrears of Land Revenue.\"\n\nThe appellants submit that they had not become \"grantee\" of any privilege withont the execution of contracts complying with the requiremeals of Article 299 of the Constitution. The learned Judge of the Kerala Hioh Court relied on Madhavan v. Assista.nt Excise Commissioner. Prilghat( 1 ), affirmed by a Division Broch in Dllrnnrloran v.\n\nState of Kerala( 2). It appears that, although the Division Bench did not specifically consider whether a bidder at an auction of the kind before us was the \"grantee\" of a privilege within the meaning of Sectio;, 26 of the Act, yet, it held that the liability to satisfv the dues arising out of a bid was enforceable under Section 28 of the Act quite\n\n·-- ~------- (!) T.L. R. [1969] (2) Kerala 71.\n\n(2) (1969) Kera la Law Times 587.\n\n' -,)\n\napart from any contractual liability. Reference was also made, in this connection, to the decision of this Court in Union of India v. A. L.\n\nRalia Ram ('), for contending that the absence of a formal contract is not fatal in all cases so as to make the whole transaction null and void ab initio.\n\nStatutory duties and liabilities may be enforced in accordance with statutory provisions.\n\nEquitable obligations may also arise and be enforced by decrees of Courts quite apart from the requirements of article 299 of the Constitution.\n\nMulamchand v. State of Madhya Pradesh(') affords an instance where on \" claim for compensation or restitution under Section 70 of the Contract Act, this Court relied upon the principle sMed. in Nelson v. Harbolt( 3 ) as follows (at p.\n\n222) :\n\n\"It is no longer appropriate to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect.\n\nNor is it necessary to canvass the niceties of the old forms of action.\n\nRemedies now depend on the substance of the right, not on whether they can be fitted into a particular framework.\n\nThe right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases .where the Court orders restitution if the justice of the case so requires\".\n\nIn the case before us, we are concerned really with the legality of proceedings under Section 28 quoted above of the Act. It is evident that these proceedings can be taken in respect of \"all amounts due to the Government by any grantee of a privilege or by any farmer under this Act or by any person on account of any contract relating to the Abkari Revenue\". It is clear that dues may also be \"recovered from the person primarily liable to pay the same or from his surety (if any)\". It is not a condition precedent to recovery of an amount due and recoverable that it should be due under a formally drawn up and execute<i contract.\n\nSection 18 of the Act shows that the exclusive or other privilege of selling liquor by retail may be granted on payment of rental in in consideration of the grant.\n\nThe appellants made all the initial payments of rent.\n\nWe do not think that acquisition of the status of a grantee, for the purposes of Section 18A, need await the actual receipt of a licence. The conditions of the grant are to he laid down by the Government.\n\nThe amount of rental \"may be settled by auction. negotiation or by any other method as may be determined by by the Government, from time to time\". The amounts due \"may be collected to the exclusion of, or in addition to, the duty or t3x leviable under Sections 17 and 18.\n\nSection 18A(2) lays down that \"no grantee of any privilege made sub-section (1) shall exercise the same until he has received a licence\n\nin that behalf from the Commissioner\".\n\nIt will be seen t1iot this nro- H vision contemplates the statutory status of a \"grantee\" even before ------------ -\n\n(1) A.l.R. [1963] S.C. 1685.\n\n(2) [1968] J S.C.R. 214.\n\n(3) [1948] 1 K.B. 30 .\n\nhe becomes entitled, as of right, to exercise the privileges of a grantee on the receipt of a licence. What is noticeable is that even before he receives his licence he is described as a \"grantee\". The successful bidders, in tl1e case before us, had been permitted by the excise authorities .. in recognition of their rights to receive and in anticipation of receipt of licences, to exercise the privileges of grantees.\n\nThey were thus treated as grantees in anticipation of execution of contracts and grants of licences. Grantees nnder Section 29 of the Act are those who have received the privilege and not necessarily only the who have received the written contracts and licences.\n\nThe word \"grantee\" used there seems to us to carry this wider connotation with it.\n\nIn Madhavan's case (supra) K. K. Mathew, J., repelled the contention that the execution of an agreement in accordance with the provisions of Article 299 of the Constitution was a condition precedent to the creation of a liability to be proceeded against under Section 28 of the Act for recovery of the balance of the rentals due.\n\nHe said (at p. 94):\n\n\"It was contended on behalf of the petitioners in some of these cases that no agreements were executed by them, and therefore, the Government are not entitled to recover any amount by way of rental.\n\nReliance was placed upon the decisions of the Supreme Court in H. P. Chowdhry v. State of M.P. (AIR 1967 SC 203) and Mulamchand v. State of M.P. (1969(1I)\n\nS.C.W.R. 397), for the proposition that unless there is an agreement executed in accordance with the provisions of Article 299 of the Constitution, the petitioners in the case where no agreements have been executed, would not be liable to pay rental.\n\nThe argument was that the liability to pay rental arises only out of the agreement, and if there is no agreement, then there is no liability to be enforced .• As I have indicated the liability to pay the rental arises not only by virtue of the agreement but also by the provisions of section 28 of the Act. The decision of the Supreme Court in H. P.\n\nChowdhry v. State of M.P. would make it clear that if there are provisions in the Act, the liability to pay the rental can be enforced.\n\nI think that even if no agreement has been executed, there was the liability under section 28 of the Act, and that the liability could be enforced under the provisions of the Revenue Recovery Act. (See Sections 6 and 62 of the T.C.Act) ''.\n\nThe appellants became entitled to get licences from the Government which had to perform its duty to execute written agreements and grant licences as soon as the appellants fulfilled required conditions by paying up the remainder of the amounts due. The Government had performed its part of the bargain and even allowed the appellants to start selling liquor.\n\nThe appellants also became liable and bound to perform their corresponding obligations under the\n\nconditions of the auctions imposed in pursuance of statutory provi- A sions.\n\nThis reciprocity of obligations, quite apart from its basis in agreement, had thus acquired an operative force resting on statutory sanction and equity.\n\nConsequently, we affirm the view of the Kerala High Court and dismiss this appeal.\n\nParties will bear their own costs throughout.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 50, "entities": [{"text": "780\n\nA. DAMODARAN & ANR", "label": "PETITIONER", "start_char": 2, "end_char": 25, "source": "metadata", "metadata": {"canonical_name": "A. DAMODARAN & ANR", "offset_not_found": false}}, {"text": "STATE OF KERALA & ORS", "label": "RESPONDENT", "start_char": 31, "end_char": 52, "source": "metadata", "metadata": {"canonical_name": "STATE OF KERALA & ORS", "offset_not_found": false}}, {"text": "March 23, 1976", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "March 23, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 72, "end_char": 87, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 89, "end_char": 98, "source": "metadata", "metadata": {"canonical_name": "M. 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Sudhakaran", "label": "LAWYER", "start_char": 4185, "end_char": 4198, "source": "ner", "metadata": {"in_sentence": "and N. Sudhakaran and P. K. Pillai for the Appellants."}}, {"text": "P. K. Pillai", "label": "LAWYER", "start_char": 4203, "end_char": 4215, "source": "ner", "metadata": {"in_sentence": "and N. Sudhakaran and P. K. Pillai for the Appellants."}}, {"text": "K. T. Harindranath", "label": "LAWYER", "start_char": 4237, "end_char": 4255, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath and K. M. K. Nair for Respondent."}}, {"text": "K. M. K. Nair", "label": "LAWYER", "start_char": 4260, "end_char": 4273, "source": "ner", "metadata": {"in_sentence": "K. T. Harindranath and K. M. K. Nair for Respondent."}}, {"text": "BEG", "label": "JUDGE", "start_char": 4335, "end_char": 4338, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.-The appellants before us, by certification of the case, had filed a petition to quash revenue recovery proceedings started against them for realisation of the remainder of the amounts due on account of their bids at auction sales of some toddy shops for the period 1st April, 1967, to 31st March, 1969, by the Government of Kerala."}}, {"text": "31st March, 1969", "label": "DATE", "start_char": 4628, "end_char": 4644, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.-The appellants before us, by certification of the case, had filed a petition to quash revenue recovery proceedings started against them for realisation of the remainder of the amounts due on account of their bids at auction sales of some toddy shops for the period 1st April, 1967, to 31st March, 1969, by the Government of Kerala."}}, {"text": "Government of Kerala", "label": "ORG", "start_char": 4653, "end_char": 4673, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J.-The appellants before us, by certification of the case, had filed a petition to quash revenue recovery proceedings started against them for realisation of the remainder of the amounts due on account of their bids at auction sales of some toddy shops for the period 1st April, 1967, to 31st March, 1969, by the Government of Kerala."}}, {"text": "section 28", "label": "PROVISION", "start_char": 6179, "end_char": 6189, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 299", "label": "PROVISION", "start_char": 6640, "end_char": 6651, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 6791, "end_char": 6808, "source": "ner", "metadata": {"in_sentence": "A learned Judge of the Kerala High Court who heard the petition heki that the notification in persuance of which the shops in question were auctioned provided that, if the contract could not be executed, the whole amount was to be forfeited and the shop itself was to be res0ld."}}, {"text": "Article 299", "label": "PROVISION", "start_char": 7561, "end_char": 7572, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 7635, "end_char": 7645, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 299", "label": "PROVISION", "start_char": 8770, "end_char": 8781, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala Hioh Court", "label": "COURT", "start_char": 8828, "end_char": 8845, "source": "ner", "metadata": {"in_sentence": "The learned Judge of the Kerala Hioh Court relied on Madhavan v. Assista.nt Excise Commissioner."}}, {"text": "Section 28", "label": "PROVISION", "start_char": 9287, "end_char": 9297, "source": "regex", "metadata": {"statute": null}}, {"text": "article 299", "label": "PROVISION", "start_char": 9905, "end_char": 9916, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 70", "label": "PROVISION", "start_char": 10055, "end_char": 10065, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 10804, "end_char": 10814, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 11352, "end_char": 11362, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18A", "label": "PROVISION", "start_char": 11653, "end_char": 11664, "source": "regex", "metadata": {"statute": null}}, {"text": "Sections 17 and 18", "label": "PROVISION", "start_char": 12030, "end_char": 12048, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18A(2)", "label": "PROVISION", "start_char": 12051, "end_char": 12065, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 12963, "end_char": 12973, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhavan", "label": "OTHER_PERSON", "start_char": 13198, "end_char": 13206, "source": "ner", "metadata": {"in_sentence": "In Madhavan's case (supra) K. K. Mathew, J., repelled the contention that the execution of an agreement in accordance with the provisions of Article 299 of the Constitution was a condition precedent to the creation of a liability to be proceeded against under Section 28 of the Act for recovery of the balance of the rentals due."}}, {"text": "K. K. Mathew", "label": "JUDGE", "start_char": 13222, "end_char": 13234, "source": "ner", "metadata": {"in_sentence": "In Madhavan's case (supra) K. K. Mathew, J., repelled the contention that the execution of an agreement in accordance with the provisions of Article 299 of the Constitution was a condition precedent to the creation of a liability to be proceeded against under Section 28 of the Act for recovery of the balance of the rentals due."}}, {"text": "Article 299", "label": "PROVISION", "start_char": 13336, "end_char": 13347, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 13455, "end_char": 13465, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 13793, "end_char": 13806, "source": "ner", "metadata": {"in_sentence": "Reliance was placed upon the decisions of the Supreme Court in H. P. Chowdhry v. State of M.P. (AIR 1967 SC 203) and Mulamchand v. State of M.P. (1969(1I)\n\nS.C.W.R. 397), for the proposition that unless there is an agreement executed in accordance with the provisions of Article 299 of the Constitution, the petitioners in the case where no agreements have been executed, would not be liable to pay rental."}}, {"text": "AIR 1967 SC 203", "label": "CASE_CITATION", "start_char": 13843, "end_char": 13858, "source": "regex", "metadata": {}}, {"text": "Article 299", "label": "PROVISION", "start_char": 14018, "end_char": 14029, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 14439, "end_char": 14449, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 14726, "end_char": 14736, "source": "regex", "metadata": {"statute": null}}, {"text": "Revenue Recovery Act", "label": "STATUTE", "start_char": 14818, "end_char": 14838, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sections 6 and 62", "label": "PROVISION", "start_char": 14845, "end_char": 14862, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_786_788_EN", "year": 1976, "text": "CHHAGANBHAI NORSH!NBHAI\n\nSONI CHANDUBHAI GORDHANBHAI & ORS.\n\nMarch 23, 1976\n\n[A. N. RAY, C.J., M. H. \"BEG AND JASWANT SINGH, JJ.J\n\nC onternpt of Courts A ct, 1971, s. 19 ( 1) (b )-Order of High Court obtained by giving express undertakings-Deliberate breach-Plea of 'consent order'- Misconducl amountin; z to contempt of court.\n\nThe defendant-aµpellant obtained an order of the High Court by giving an express undertaking to vacate the suit-premises within a month and a half of receiving a notice from the plaintiff-respondents that they required the same.\n\nThe undertakings were deliberately flouted, and the appellant did not tender an apology at any stage. The High Court convicted him under the contempt of courts Act, 1971, s. 19(1)(b) for misconduct amounting to contempt. The appellant contended before this court that there had been no breach of any undertaking, and that he had only entered into an agreement to \\vhich an order of the court had been appended.\n\nDismissing the appeal, the Court, HELO : This is a case of a perverse and deliberate flouting of undertakings given by a litigant who, evidently had no intention tO abide by them. The undertakings seem to have been taken very lightly by him as mere cloaks for obtaining an order which would not have been passed but for the undertakings.\n\n[787F-GJ\n\n(2) The case before us being a case of a deliberate violation of an undertaking to the court, the effect was the same as that of breach of an injunction.\n\n[788-CJ Halsbury's Laws of England 4th Edn. Vol. 9 page 42 (para 71) and page E 44 (para 75) Dashwood v. Dashwood (1927) (71 Sol. Jo 911) referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 88 of 1975.\n\nFrom the Judgment and Order dated the 10-1-75 of the Gujarat High Court iu N.C.A. 576/74 in C.R.A. No. 1020 of 1971.\n\nM. F. Thakkar and S. S. Khanduja for the Appellant.\n\nM. C. Shah and M. V. Goswami for Respondents.\n\nThe Judgment of the Court was delivered by\n\nBEG, J .-This is an appeal under Section 19 (I) (b) of the contempt of Conrts' Act, 1971. The defendant-appellant was convicted by the Division Bench of the High Court of Gujarat for having deliberately violated an order secured from the High Court on 22 J anuary, 1973, upon undertakings given to it.\n\nThe very first term of the order is :\n\n\"The defendant gives solemn undertaking to this Hon'blc High Court that he will vacate suit premises by banding over the key of the premises to the Court of the Civil Judge, Junior Division, Anand, in pursuance of the decree within one and a half months after receipt of the notice from the Plaintiffs that the plaintiff Dr. L C. Boni has returned from abroad and intends to start medical practice in the suit premises\".\n\nCHHAGANBHAI v. SONI CHANDUBHAI (Beg,' J.) 7 87\n\nHe also undertook to clear the arrears of mesne profits and to continue to pay them regularly as and when due.\n\nFurthermore, he undertook not to part with possession in favour of any person other than the landlord decree-holder until he received the notice contemplated ' by the first condition. It is not disputed that the appellant received -..( that notice on 10 October, 1974. There is nothing in the conditions , of the undertaking to imply that it was merely a consent order passed upon an agreement between the parties to which the order of the Court had been superadded.\n\nThe order incorporated express under- ., takings to the Court although these may have induced the plaintiff to agree to the passing of the order in the form in which it was passed instead of pressing for an order of dismissal of the revision application before the High Court after which he could have executed his decree immediately. This feature, in itself, could not convert the order actually passed upon the undertakings given into a mere consent order.\n\nIt was clearly a case of express undertakings to the court incorporated in the order.\n\nThe order passed on 22 January, 1973, ended as follows :\n\n\"In view of the respective undertakings given by the parties to this proceeding which undertakings are on record. the petitioner does not wish to proceed with this CRA and does not, therefore survive.\n\nThe application is dismissed.\n\nNo order as to costs in this circumstance of the case.\"\n\nThe defendant-appellant not only did not abide by the undertakings given to the High Court but his Counsel took up the impossible position that it was a mere agreement between the parties to which an order of the Court had been appended. On this flimsy and unsustainable ground, an argument put forward before us was thal there was no breach of any undertaking. The High Court found that express undertakings had been violated.\n\nWe have no hesitation whatsoever in holding that the High Court's finding is correct upon the recorded admissions on behalf of the defendant-appellant. It is true that the defendant appellant surrendered possession after the initiation of contempt proceedings in 1974.\n\nBut, that made no difference to the initial wrong committed.\n\nAnother feature of the case is that the appellant gave no sign of even regret at any stage not to mention an apology of any kind. Even in this Court, learned Counsel for the appellant took up the impossible position that there had been no breach of any undertaking. We agree with the High Court that this is a case of a perverse and deliberate flouting of undertakings given by a litigant who, evidently, had no intention to abide by them.\n\nThe undertakings seemed to have been taken very lightly by him as mere cloaks for obtaining an order which would not have been passed but for the undertakings. The High Court rightly observed that it had no option except to convict the appellant and to sentence him to three months imprisonment in civil jail.\n\nBefore parting with this case we may refer to Halsbury's Laws of England-Fourth Edn. ol. 9, page 42 (paragraph 71) where, after citing Dashwood v. Dashwood(1) for the proposition that, when a\n\n(I) (!927) (71 sol. Jo 911)\n\nSUPREME COURT REPORTS\n\n[1976] 3 S.C.R.\n\nparty fails to comply mereJywith the terms of a consent order, ''Lhe remedy of the injured party is to apply, not for committal, but for an order for specific performance or an in junction, and then to base pro-\" ceedings for contempt on any subsequent breach\", the observation is \\ made : \"Where, however, there is an express direction or undertaking\n\n L in the body of the order, a breach will enable an immediate applica- 'f lion for committal to be made\". In the same volume, at page 44 ' (para 75) we find the law thus stated :\n\n\"An undertaking given to the court by a person or corporation in pending proceedings, on the faith of which the court sanctions a particular course of action or inaction, has the same force as an injunction made by the court and a breach of the undertaking in misconduct amounting to contempt\".\n\nThe case before us being a case of a deliberate violation of an undertakings to the Court the effect was the same as that of breach of an injunction. •\n\nConsequently, finding ourselves in agreement with the High Court, D we affirm the judgment and order of the High Court and dismiss this appeal with costs.\n\nM.R.\n\nAppeal dismissed.", "total_entities": 20, "entities": [{"text": "CHHAGANBHAI NORSH!NBHAI", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "CHHAGANBHAI NORSHINBHAI", "offset_not_found": false}}, {"text": "SONI CHANDUBHAI GORDHANBHAI & ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "SONI CHANDUBHAI GORDHANBHAI & ORS", "offset_not_found": false}}, {"text": "March 23, 1976", "label": "DATE", "start_char": 61, "end_char": 75, "source": "ner", "metadata": {"in_sentence": "March 23, 1976\n\n[A. N. RAY, C.J., M. H. \"BEG AND JASWANT SINGH, JJ.J\n\nC onternpt of Courts A ct, 1971, s. 19 ( 1) (b )-Order of High Court obtained by giving express undertakings-Deliberate breach-Plea of 'consent order'- Misconducl amountin; z to contempt of court."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 78, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. \"BEG", "label": "JUDGE", "start_char": 95, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 110, "end_char": 127, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "s. 19", "label": "PROVISION", "start_char": 164, "end_char": 169, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court convicted him under the contempt of courts Act, 1971", "label": "STATUTE", "start_char": 665, "end_char": 728, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 19(1)(b)", "label": "PROVISION", "start_char": 730, "end_char": 741, "source": "regex", "metadata": {"linked_statute_text": "The High Court convicted him under the contempt of courts Act, 1971", "statute": "The High Court convicted him under the contempt of courts Act, 1971"}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 1627, "end_char": 1655, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Gujarat High Court iu N.C.A. 576/74", "label": "COURT", "start_char": 1741, "end_char": 1776, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated the 10-1-75 of the Gujarat High Court iu N.C.A. 576/74 in C.R.A. No."}}, {"text": "M. F. Thakkar", "label": "LAWYER", "start_char": 1806, "end_char": 1819, "source": "ner", "metadata": {"in_sentence": "M. F. Thakkar and S. S. Khanduja for the Appellant."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 1824, "end_char": 1838, "source": "ner", "metadata": {"in_sentence": "M. F. Thakkar and S. S. Khanduja for the Appellant."}}, {"text": "M. C. Shah", "label": "LAWYER", "start_char": 1859, "end_char": 1869, "source": "ner", "metadata": {"in_sentence": "M. C. Shah and M. V. Goswami for Respondents."}}, {"text": "M. V. Goswami", "label": "LAWYER", "start_char": 1874, "end_char": 1887, "source": "ner", "metadata": {"in_sentence": "M. C. Shah and M. V. Goswami for Respondents."}}, {"text": "BEG", "label": "JUDGE", "start_char": 1950, "end_char": 1953, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBEG, J .-This is an appeal under Section 19 (I) (b) of the contempt of Conrts' Act, 1971."}}, {"text": "Section 19", "label": "PROVISION", "start_char": 1983, "end_char": 1993, "source": "regex", "metadata": {"statute": null}}, {"text": "L C. Boni", "label": "PETITIONER", "start_char": 2617, "end_char": 2626, "source": "ner", "metadata": {"in_sentence": "The very first term of the order is :\n\n\"The defendant gives solemn undertaking to this Hon'blc High Court that he will vacate suit premises by banding over the key of the premises to the Court of the Civil Judge, Junior Division, Anand, in pursuance of the decree within one and a half months after receipt of the notice from the Plaintiffs that the plaintiff Dr. L C. Boni has returned from abroad and intends to start medical practice in the suit premises\"."}}, {"text": "10 October, 1974", "label": "DATE", "start_char": 3125, "end_char": 3141, "source": "ner", "metadata": {"in_sentence": "It is not disputed that the appellant received -..( that notice on 10 October, 1974."}}, {"text": "22 January, 1973", "label": "DATE", "start_char": 3909, "end_char": 3925, "source": "ner", "metadata": {"in_sentence": "The order passed on 22 January, 1973, ended as follows :\n\n\"In view of the respective undertakings given by the parties to this proceeding which undertakings are on record."}}]}
{"document_id": "1976_3_789_794_EN", "year": 1976, "text": ") .. , I\n\nl •\n\nSHAH MATHURADAS MAGANLAL & CO.\n\nNAGAPPA SHANKARAPPA MALAGE & ORS.\n\nMarch 23, 1976\n\n[A. N. RAY, C.J. AND JASWANT SINGH, JJ.)\n\nMortgage-Tenant in occupation taking a Possessory mortgage of the building '.4:ith powers to sublet w.e.f. 7-11-1953 by a Deed of mortgage Jr. May 21st. 1953-Whether the tenancy revives on redemption of mortgage-Interpretation of-The Transfer of Property Act, 1882 Ss. 62, ll(d)(e) and (/}-Doctrine of surrender and Doctrine of Merger distinguished.\n\nIn the suit, for redemption of mortgage and recovery of possession, the appellant mortgagee in possession of the suit house w.ei. 7-11-1953 by virtue of the Deed of Possessory mortgage dt. 21-5-1953 contested on the ground that, in view of the fact that he was a tenant prior to the mortgage, he was entitled to retain the possession even after the redemption. The trial court accepting the contention decreed only symbolical possession. On appeal by respondent No. 1 the mortgagor, the first appellate court reversed. the decree and ordered recovery of possession of the property on deposit of the expenses towards repairs being a \"clog on redemption''. The High Court on Second Appeal confirmed the said orders holding that the Deed of Mortgage shows that the relationship between the appellant and the respondent was that of a mortgagee and mortgagor. ·\n\nAffirmin~ the judgment of the High Court and dismissing the appeal by special leave, the court\n\nHELD : (i) Ordinarily the doctrine of merger applies to extinction of mortgage security occuring by the merger of a lower in a higher security and by the merger of a lesser estate in a greater estate. \\Vhere the capacity in which a person in posse, sion of the mortgagee's rights is something quite different from the capacity in which he is in pcssession of the equity of redemption. the mere fact that thC two capacities are united iii the same physical person cannot result in a merger. For a merger to arise it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain outside. In the case of a lease the estate that is in the lessor is the reversion. In the case of a mortgage the estate that is outstanding being the equity of redemption of the mortgagor, there cannot be a merger of lease and . mortgage in respect of the same property since neither of them is a\n\nhigher or lesser estate.\n\n[793B-D] Narayan v. Ramchandra 65 Born. L.R. p. 449 (approved)\n\n(ii) A surrender under Clauses (e) and (f) of the Transfer of PropertyAct is an yielding up of the term of the lessee's interest to him who bas the immediate reversion or the lessor's interest. Implied surrender by operation of law occurs by the creation of a new relationship or relinquishment of possession, if the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinQuishment of possession by the lessee and taking over possession by the lessor. Relinquish ment. of possession operates as an implied surrender. There must be taking of possession, not necessarily a physical taking, but something amounting to a Tirtual taking of possession. Whether this bas occurred is a question of tact.\n\n[793H, 794A-B]\n\n(iii) (a) In the inst3.nt case, on the redemptiOn of the mortgage the respondent bad a right to record possession both on the terms of the mortgago deed and u/s 62 of the Transfer of Property Act (b) The provision for subletting in the Mortgage Deed, contrary to section 15 of the Bombay, Rents, Hotel and Lodging House. Rates Control Acfy 1957 as it stood in 1953 shows that the character of tenant is lost; (c) Continuing the tenancy till 7-ll-19S3\n\nand confirming the. possession of the appellant as mortgagee w.e.f. that date is an unequiv5Jcal onduct showing that no tenancy \\'\\'as to exist from 7-11-1953, but the relatlonsh1~ was that of a mortgagor and mortgagee and {d) there\n\nwo~J~ be no questt_on . of the tenancy being kept in abeyance or the tenancy rev1v1ng on the explfabon of the period of mortgage.\n\n[792F G 793A-H &\n\n794D] ' • '\n\nCIVIL APPELATE JURISDICTION : Civil Appeal No. 450 of 1970 Appeal by Special Leave from the Judgment and Order dated the 6th February, 1970 of the Bombay High Court in Second Appeal No. 634 of 1966.\n\nS. T. Desai, K. Raj Choudhary and Veena Sharma (Mrs.) for the Appellant.\n\nC M. V. Tarkunde, V. N. Ganpule for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal by special leave is from the judgment dated 6 February, 1970 of the High Court at Bombay.\n\nThe Respondent No. 1 obtained a decree for redemption of mortgage dated 21 May, 1953 for possession of mortgaged property consisting of o shop and D house premises at Sangli.\n\nThe appellant was mortgagee in possession o! the property by a Deed of Mortgage dated 21 May, 1953. The property was mortgaged for Rs. 10,000/-. No interest was to be paid.\n\nInstead possession of the property was agreed to remain with the mortgagee. The period for redeeming the mortgage was fixed for 10 years from 7 E November, 1953.\n\nThe respondent mortgagor by notice dated 1 October, 1963 infor- \\. med the appellant that he was ready and willing to redeem the mortgage.\n\nThe appellant replied that he should be paid Rs. 30,000/- bein!( the expenses for repairs and other incidental expenses.\n\nThe appellant also claimed that even after the redemption he was entitled F to retain possession because his previous tenancy right subsisted.\n\nThe Trial Court held that the tenancy of the appellant would revive on redemption of the mortgage. The Trial Court further decreed that the respondent was entitled to get only symbolical possession from the appellant and thereafter get rent of the suit propertv from the appellant.\n\nOn appeal the District Judge came to the conclusion that under the Mortgage Deed the appellant ceased to be a tenant with effect from 7 November, 1963 possession of the appellant thereafter was only as a possessory mortgagee and not as a tenant. On redemption of the mortgage the respondent was entitled to recover possession of the propertv f0rthwith. The District Judge passed a decree for the principal mortgage amount and a sum of Rs. 4458.24 on account of'repair~ in favour of the appellant. The Ditrict Judge further gave the respondent a decree for actual possession of the property from the appellant after the respondent deposited the amount in the Court. •\n\nThe High Court on second appeal held that the Deed of Mortgage A shows that the relationship between the appellant and the respondent was that of a mortgagee and mortgagor and confirmed the decree in favour of the respondent.\n\nCounsel for the appellant contended that in case of a tenant in possession who takes a possessory mortgage the effect of such mortgage is that the tenant's rights remain in abeyance during the term of mart- B gage and the parties revert to their former position on redemption.\n\nIt was also said that the mortgagor respondent could not take possession from the appellant without actual eviction. The mortgage according to the appellant was usufructuary mortgage with the rernlt that at the end of 10 years being the period of mortgage possession the mortgagee acquires the statutory protection given to the tenants.\n\nThe mortgage Deed is described as a Possessory Mortgage Deed of the house-site and was for a sum of Rs. I0,0001-.\n\nThe r•espondent mortgagor stated, inter alia, as follows :-\n\n\"I have given you the house-site in possessory mortgage in consideration of the aforesaid amount. The said property\n\nis in your possesion as the last tenant by the date 6 Novem- D ber, 1953. The possession thenceforth is confirmed by this Deed of Possessory Mortgage. Hence you are to either use the house-site and shop premises for home (personal) purpose or let it to anybody. The income that may be received by giving the property on rent is to be appropriated by you towards the interest on the said amount.\n\nI shall not pay you any interest separately. I shall not ask for the accounts in respect of the income of the house-site from you.\n\nI am to pay all the Government dues.\n\nI am also to carry out repairs of all sorts to the house premises, and I shall do so.\n\nIf I fail to pay Government dues and if I do not defray the costs of the repairs you are to pay all the said Government dues and defray the costs of the repairs.\n\nThe afore, aid amounts which you may have to pay and spend will be paid p by me to yon together with interest at the rate of Rs. 0-12-0\n\nannas twelve per cent per month.\n\nThe above mortgaged property is charged with the liability of repaying the aforesaid amounts.\n\nThe period of this document is 1 O years from 7 November, 1953. I shall pay you the aforesaid amount within the said period and redeem the housesite from the mortgage. If I fail to do so you are to carry on the 'vahiwat' of • the housesite under the above agreement. If you do not wish to keep the amount with me beyond the abvoe period, vou are to sell the said mortgaged property through Court and recover the entire amount due and payable to you.\"\n\nThe appellant's contentions were these : First, the defendant WM a tenant of the suit building prior to the execution of the mortgage • on 21 May, 1953 and the tenancy could either exist concurrently with the usufrnctuary mortgage or be in abseyance during t11e currency of the mortgage but could never be extinguished as a result of the\n\nmongage.\n\nSecond, once the tenancy of the appellant continued after the execution of the mortgage deed then there would be no question of either express or impliea surrender of his tenancy rights during the subsJStence of the mortgage. Third, the fact of a tenant taking a mortgage from his landlord ooes not itself extinguish the tenancy and the effect of such a mortgage on the tenant's nghts is merely that they\n\nare in abeyance and when the landlord redeems the mortgage, the parties revert to their former position, and the landlord is not entitled to get actual possession.Fourth, that the existence of possessory mortgage does not necessarily terminate the tenancy.\n\nThe respondent contended as follows :- First, the conduct of the mortgagee along with the terms made it clear that the appellant mortgagee surrendered his tenancy rights at the time C of execution of Mortgage Deed. Second, on the expiry of the period of 10 years the appellants mortgagee could not insist upon retaining possession on the ground of the previous right of lessee, and the lease could not be revived on the expiration of the period of the mortgage, Third, on the terms of the Deed of Mortgage, there was an express or implied surrender of the lease.\n\nFourth, the tenancy in question was to be continued till 6 November, 1953 though the mortgage was exe- D cuted on 21 May, 1953. The possession of the mortgage was confirmed . from 7 November, 1963 amounting to unequivocable conduct showing that the relationship became that of. a mortgagor and mortgagee only.\n\nThe Deed of Mortgage shows these features indicating that there was surrender of tenancy and the appellant was only a mortgagee.\n\nThe High Court found that there was a surrender of tenancy right.\n\nNo particular form of words is essential to make a valid surrender.\n\nA surrender may be oral.\n\nA surrender may be express although delivery of possession is necessary for surrender in the facts and circumstances of a given case.\n\nIn the present case, deliwry of possession was immediately followed by a redelivery of possession of the appellant as mortgagee.\n\nThe Mortgage Deed establishes beyond doubt that the effect of the Deed was inconsistent with the continuance F or subsistence of the lease because the parties themselves stipulated that the lease was to exist only upto 6 November, 1953.\n\nOn the redemption of the mortgage the respondent had a right to recover possession both on the terms of the mortgage deed and under section 62 of the transfer of Property Act.\n\nG The second feature in the Mortgage Deed is that the appellant was given power to sub-let. Section 15 of the Bombay, Rents, Hotel 8.nd Lodging House Rates Control Act, 1947 as it stood in 1953 forbade any sub-letting. In 1959 the words 'bnt subject to any contract to the contrary' were introduced into the said section 15, with the result that in the absence of the contract to the contrary, the tenant is not to sub-let or transfer.\n\nBefore 1959 there conld be no subletting. In the Mortgage Deed, there is provision for sub-let!ing. The provision for sub-letting shows that the character of tenant is lost.\n\nThird. the mortgagor is to do repair works and is also to undertake repairs.\n\n' \\\n\nFourth, the possession was to be under the agreement.\n\nThough the Mortgage Deed was made on 21 May, 1953, the tenancy was continued till about 7 November, 1953. The possession\n\nof the appellant as mortgagee was confirmed from 7 November, 1953.\n\nThis is rightly held to be uneqmvocal conduct show.mg that no tenancy was to exist from 7 November, 1953 but the relationship was that of mortgagor and mortgagee. If the intention of the parties was to revive the tenancy there was no necessity of a term that the appellant might let out the property to any one.\n\nThe contention of the appellant was that there was no surrender and there was marger of the interest of the mortgagee and the tenant.\n\nOrdinarily, the doctrine of marger applies to extinction of mortgage security. This occurs by the marger of a lower in a higher security and by the merger of a lesser estate in greater estate.\n\nWhere the capacity in which a person in possession of the mortgagee's rights is something quite different from the capacity in which he is in possession of the equity of redemption, the mere fact that the two capacities are united in the same physical person cannot result in a marger.\n\nFor a marger to arise, it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right, and no interest in the property should remain ontside. In the case of a lease the estate that is in the lessor is a reversion. In the case of a mortgage the estate that is outstanding is the\n\nequit.v of redemption of the mortgagtor.\n\nTherefore, there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or leaser estate. than the other. The view expressed in Narayan v. Ramchandra (I) is correct.\n\nSection 111 of the Transfer of Property Act is clauses ( e) and\n\n(f) deal with surrender, and in clause (d) with merger. Clause (d) states that lease in movable properties determines in case the interest of the lessee or the lessor in the whole of the property becomes vested at the same time in one person in the same right. When a leasehold and a reversion coincide there is a merger of a lesser estate in the greater. The leasehold is the lesser estate. for it is carved out of the estate of the owner, which is the reversion.\n\nThe lesser estate is merged in the greater.\n\nThe lease determines and merges in the\n\nrevrs1n. If the lessor purchases the lessee's interest, the lease is extmgmshed, as the same man cannot be at the same time both landlord and tenant. The interests of the lessor and of the lessee must be m the whole of the property, otherwise there is no merger.\n\nThe mterest of the lessor and the. less.ee in the whole of the property should become .vested at he same time m one person in the same right. Thus a lease 1s not extmgmshed because the lessee purchases a part of the reversion.\n\nA surrender under clauses (e) and (f) of section 111 of the Transfer of roperty Act, is a~ yieldng up of the term of the lessee's mterest to him who has the immediate reversion or the lessor's (I) 65 Born. L. R. 449\n\nA interest.\n\nIt takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must ·, be to a person in whom the immediate reversion expectant on the term is vested.\n\nImplied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender '3 can also be implied from the consent of the parties or from such facts .,. as the relinquishment of possession by the lessee and taking over possession by the lessor.\n\nRelinquishment of possession operates as an implied surrender.\n\nThere must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession.\n\nWhether this has occurred is a question of fact.\n\nIn the present case if the mortgagor was not able to redeem the appellant mortgagee was to enjoy the property in accordance with the terms of the mortgage and also to sell the property for recovery of debts.\n\nThis feature shows that appellant surrendered the tenancy [rom 7 November, 1953.\n\nIn the present ca5e the terms of the deed show that the mortgagee undertook to deliver possession of the property to the mortgagor on D the expiry of a period of 10 years.\n\nThe Mortgage Deed shows that the tenancy was surrendered on 7 November, 1963 and thereafter the , A possession was only that of mortgagor.\n\nThere would be no question of the tenancy being kept in abeyance or the tenancy reviving on the expiration of the pe?od of mortgage.\n\nFor these reasons the judgment of the High Court is affirmed and the E appeal is dismissed with costs. .\n\ns. R.\n\nAppeal dismissed.", "total_entities": 30, "entities": [{"text": "SHAH MATHURADAS MAGANLAL & CO", "label": "PETITIONER", "start_char": 15, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "SHAH MATHURADAS MAGANLAL & CO", "offset_not_found": false}}, {"text": "NAGAPPA SHANKARAPPA MALAGE & ORS", "label": "RESPONDENT", "start_char": 47, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "NAGAPPA SHANKARAPPA MALAGE & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 99, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 137, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Transfer of Property Act, 1882", "label": "STATUTE", "start_char": 374, "end_char": 404, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Ss. 62", "label": "PROVISION", "start_char": 405, "end_char": 411, "source": "regex", "metadata": {"linked_statute_text": "Whether the tenancy revives on redemption of mortgage-Interpretation of-The Transfer of Property Act, 1882", "statute": "Whether the tenancy revives on redemption of mortgage-Interpretation of-The Transfer of Property Act, 1882"}}, {"text": "21-5-1953", "label": "DATE", "start_char": 680, "end_char": 689, "source": "ner", "metadata": {"in_sentence": "21-5-1953 contested on the ground that, in view of the fact that he was a tenant prior to the mortgage, he was entitled to retain the possession even after the redemption."}}, {"text": "s 62", "label": "PROVISION", "start_char": 3491, "end_char": 3495, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3503, "end_char": 3527, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 15", "label": "PROVISION", "start_char": 3595, "end_char": 3605, "source": "regex", "metadata": {"statute": null}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4380, "end_char": 4391, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, K. Raj Choudhary and Veena Sharma (Mrs.) for the Appellant."}}, {"text": "K. Raj Choudhary", "label": "LAWYER", "start_char": 4393, "end_char": 4409, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, K. Raj Choudhary and Veena Sharma (Mrs.) for the Appellant."}}, {"text": "Veena Sharma", "label": "LAWYER", "start_char": 4414, "end_char": 4426, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, K. Raj Choudhary and Veena Sharma (Mrs.) for the Appellant."}}, {"text": "M. V. Tarkunde", "label": "LAWYER", "start_char": 4456, "end_char": 4470, "source": "ner", "metadata": {"in_sentence": "C M. V. Tarkunde, V. N. Ganpule for the Respondents."}}, {"text": "V. N. Ganpule", "label": "LAWYER", "start_char": 4472, "end_char": 4485, "source": "ner", "metadata": {"in_sentence": "C M. V. Tarkunde, V. N. Ganpule for the Respondents."}}, {"text": "RAY", "label": "JUDGE", "start_char": 4552, "end_char": 4555, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.-This appeal by special leave is from the judgment dated 6 February, 1970 of the High Court at Bombay."}}, {"text": "Sangli", "label": "GPE", "start_char": 4832, "end_char": 4838, "source": "ner", "metadata": {"in_sentence": "1 obtained a decree for redemption of mortgage dated 21 May, 1953 for possession of mortgaged property consisting of o shop and D house premises at Sangli."}}, {"text": "1 October, 1963", "label": "DATE", "start_char": 5219, "end_char": 5234, "source": "ner", "metadata": {"in_sentence": "The respondent mortgagor by notice dated 1 October, 1963 infor- \\. med the appellant that he was ready and willing to redeem the mortgage."}}, {"text": "7 November, 1963", "label": "DATE", "start_char": 6001, "end_char": 6017, "source": "ner", "metadata": {"in_sentence": "On appeal the District Judge came to the conclusion that under the Mortgage Deed the appellant ceased to be a tenant with effect from 7 November, 1963 possession of the appellant thereafter was only as a possessory mortgagee and not as a tenant."}}, {"text": "7 November, 1953", "label": "DATE", "start_char": 8799, "end_char": 8815, "source": "ner", "metadata": {"in_sentence": "The period of this document is 1 O years from 7 November, 1953."}}, {"text": "21 May, 1953", "label": "DATE", "start_char": 10896, "end_char": 10908, "source": "ner", "metadata": {"in_sentence": "Fourth, the tenancy in question was to be continued till 6 November, 1953 though the mortgage was exe- D cuted on 21 May, 1953."}}, {"text": "6 November, 1953", "label": "DATE", "start_char": 11869, "end_char": 11885, "source": "ner", "metadata": {"in_sentence": "The Mortgage Deed establishes beyond doubt that the effect of the Deed was inconsistent with the continuance F or subsistence of the lease because the parties themselves stipulated that the lease was to exist only upto 6 November, 1953."}}, {"text": "section 62", "label": "PROVISION", "start_char": 12020, "end_char": 12030, "source": "regex", "metadata": {"statute": null}}, {"text": "transfer of Property Act", "label": "STATUTE", "start_char": 12038, "end_char": 12062, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 15", "label": "PROVISION", "start_char": 12157, "end_char": 12167, "source": "regex", "metadata": {"statute": null}}, {"text": "Lodging House Rates Control Act, 1947", "label": "STATUTE", "start_char": 12201, "end_char": 12238, "source": "regex", "metadata": {}}, {"text": "section 15", "label": "PROVISION", "start_char": 12378, "end_char": 12388, "source": "regex", "metadata": {"linked_statute_text": "Lodging House Rates Control Act, 1947", "statute": "Lodging House Rates Control Act, 1947"}}, {"text": "Section 111", "label": "PROVISION", "start_char": 14542, "end_char": 14553, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 14561, "end_char": 14585, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 111", "label": "PROVISION", "start_char": 15691, "end_char": 15702, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_795_800_EN", "year": 1976, "text": "' ·'! • ..\n\nSHAW WALLACE & CO. LTD. v.\n\nSTATE OF TAMIL NADU\n\nMarch 23, 1976\n\n[A. N. RAY, C.J. AND JASWANT SINGH, JJ.]\n\nTamil Nadu General Sales J; ax Act, 1959-Sec. 3-First Schedule Entry 21- Fertilizer mixture prepared by mixing manually some of cheniical fertilizers 1nentioned in Schedule whether exempted from tax-Whether same n1arketable commodity-Whether 1nanufacturing process of relevant consideration.\n\nTID.e appellant is a registered dealer under the Tamil Nadu General Sales\n\nTax Act. 1959. The appellant manufactures and deals in chemical fertilizers.\n\nC The appellant paid tax under the Act on certain cheniical fertilizers which are shown as sub items 1 to 1§ of Serial No. 21 of the First Schedule to the Act. The appellant prepared {ertilizer mixtures by dry-mixing various chemical fertilizers which had already suffered tax. The appellants claimed exemption for the turnover in respect of fertilizers mixtures on the ground that it cannot be said to be a commodity different from the ingredients composing it which had been purchased within the State and bad suffered tx under item No. 21 of the First Schedule. The Assessing Officer disallowed the exemption.\n\nOn D appeal the Appeilate Assistant Commissioner allowed the exemption on the ground that no manufacturing process was involved at the time of preparing the fertilizer mixture and that the resultant product is not a product different from the ingredients constituting it which had already suffered tax.\n\nIn an appeal, the Tribunal reversed the decision of the Appellate Assistant Commissioner and refused to grant the exemption. The Revision Application filed by the appellants to the Tamil Nadu High Court was dismissed at the stage of admission on the ground that each of the competent article and the fertilizer mixture have different chemical properties of their own and their use .also is different and that. therefore, it is not possibJe to treat the fertilizer mixture as the same article as the components themselves.\n\nThe appellants contended in appeal by special leave\n\n(I) As s. 3(2) of the Act provides for levy of sales tax in respect of\n\noods mentioned in the First Schedule at the rate and only at the point specified thereunder and as the fertilizer mixture\"! are prepared F by mixing manually by means of shovels some of the chemical fertilizers mentioned in sub items 1 to 15 in Entry 21 in the Schedule without admixture of any organic manure, they are not\n\n(2)\n\nliable to tax inside the State.\n\nEven if such fertilizer bears a specific commercial name, for the purpose of the Act, it has no identity except as a chemical fertilizer and secondly the mixing of one or more chemical fertilizers cannot but be the same article entitled to application of single point scheme in respect of its ingredients. This is the natural implication of the expression 'chemical fertilizers' followed by the expression 'that is to say'.\n\nDismissing the appeal,\n\nHELD : (I) The pr.incipal question for determination in these appeals is whether the fertilizer mixtures in question can be treated as the same article H as chemical fertilizers composing them. A plain reading of s. 3 read with item 21 of the First Schedule shows that it is only when a chemical fertilizer specified in sub items 1 to 15 of item No. 21 of the First Schedule is sold in the same condition in which it is purchased that it is not subject to a\n\nfresh levy.\n\nFertilizer mixture it would be noted is not the same article as the igredients composi1;1g it.\n\nIt is sold as a different commercial produLi. The question w~ther tere is _any manufacturing process involved in the preparation of any fert1hzer mixture is wholly irrelevant for the present purpose.\n\n[798A\n\nG-H, 799AJ '\n\n(2) The fertilizer mixture is a marketable commodity different from its components, it is put to different use and has different properties. [800-G-1\n\nState of Ta1nil Nadu v. Rallis lndia, 34 S.T.C. 532 and State of Ta1nil Nadu\n\nv. Pyarelal Malhotra [1976] 3 S.C.R. 168, relied on.\n\nAppeal by Special Leave from the Judgment and Order dated the 5-3-74 of the Madras High Court in Tax Cases Nos. 77 and 78/74.\n\nK. S. Ramamurthi and A. T. M. Sampath for the Appellant.\n\nS. T. Desai, A. V. Rangam and A. Subhashini; for Respondent.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-These appeals by special leave from the common judgment of the Madras High Court dated March 5, 1974, in Tax Cases Nos. 77 and 78 of 1974 which involve the interpretation of section 3 and item No. 21 of the First Schedule to the Tamil Nadu General Sales Tax Act, 19 59 hereinafter referred to as 'the Act', shall be disposed of by this judgment.\n\nThe appellant, Tvl. Shaw Wallace & Co. Ltd., a public limited company, is a registered dealer under the Act and is an assessee on the rolls of the Commercial Tax Officer IV, Central Assessment Circle- 23, Madras.\n\nAmongst other things, the appellant manufactures and deals in chemical fertilisers.\n\nIt also prepares fertiliser mixtures. For the assessment years 1969-70 and 1970-71, the appellant claimed exemption on a turnover of Rs. 2,35,01,129.47 and Rs. 2,07,94,490.73 respectively relating to sales of fertiliser mixtures.\n\nThe case of the appellant was that as the fertiliser mixtures were prepared by dry mix ing of various chemical fertilisers (shown as sub-items (1) to (15) of S. No. 21 of First Schedule to the Act) according tothe standard formula approved by the Director of Agriculture at its mixing works manually by means of shovels and as the resultant product could not be said to be a commodity different from the ingredients composing it which had been purchased within the State and had suffered tax under item No. 21 of the First Schedule to the Act, they could not be taxed again.\n\nThe Assessing Officer disallowed the exemption on the entire turnover for the year 1969-70.\n\nHe, however, allowed exemption on a turnover of Rs. 1,65,44,223.73 which represented the mixture sold after August 6, 1970-the date when the Tamil Nadu General Sales Tax (Third Amendment) Act (26 of 1970) amending item 21 of Schedule came into force.\n\nOn appeal, the Appellate Assistant Commissioner (CA) 1, Madras City, found that part of the ingredients which went into the production of fertiliser mixtures had suffered tax under the Act.\n\nHe, therefore, allowed exemption on the turnover which had suffered tax by following the earlier decision of the Sales Tax Appellate Tribunal dated July 27, 1972 in the case of Rallis India Ltd. T. A. 114 of 1971, Where it was held that there is no manufacture and the resultant product viz. manure mixture is not a different product than the ingredients constituting it which have already suffered tax. The\n\n., \"\n\nexemption allowed by the Appellate Assistant Commissioner for the years 1969-70 and 1970-71 amounted to Rs. 1,20,18,842.80 and Rs. 42,38,182.90 respectively.\n\nThe appellant filed further appeals for both the years under secton 36(1) of the Act before the Tamil Nadu Sales Tax Appellate Tribunal against the orders of the Appellate Assistant Commissioner.\n\nThe State of Tamil Nadt• also filed enhancement petitions.\n\nSince the earlier order of the 5des Tax Appellate Tribunal dated July 27, 1972 in T. A. No. 114 of 1971 (supra) which was the basis of the relief granted by the Appellate Assistant Commissioner was reversed by the Madras High Court vide its judgment dated September 18, 1973, in T.C. No. 18 of 1973, the Sales Tax Appellate Tribunal by its orders Nos. 1138/1139 of 1972 dated February 21, 1974 cancelled the relief granted to the appellant by the Appellate Assistant Commissioner.\n\nThe appellant thereupon took the matter in revision to the Madras High Court under section 38 of the Act but its applications were dismissed at the stage of admission by that Court on March 5, 1974 in the light of its earlier judgment dated September 18, 1973 in T. C. No. 18 of 1973 (Revision No. 6 of 1973) where it was observed :-\n\n\"Each of the component article and the manure mixture have different chemical properties of their own and their use also is different. It is not, therefore, possible to treat the manure-mixture as the same article as the components themselves ..... Whether the process adopted (in the preparation of manure mixture) is manufacture or otherwise, if the resultant product obtained by mixing the various articles of chemical fertilisers referred to in item 21 is sold as a different commercial product and for a different user, it has to be treated as a different article from the components\".\n\nIn rendering this decision, the Madras High Court relied on the . ratio of the decision of its own Court in Imperial Fertilisers and Company v. State of Madras,(') to the effect that if the mixture sold has different chemical properties and is tested as a different commodity in commerce, its sale cannot be taken to be a second sale of chemical fertiliser merely because the components have suffered ta\" at an earlier stage as chemical fertilisers.\n\nAfter failing to obtain a certificate of fitness for appeal to this Court, the appellant applied for special leave to this Court which was granted vide order dated March 15, 1974.\n\nAppearing in support of the appeals, Mr. Desai has urged that as section 3 (2) of t.he Act provides for levy of sales tax in respect of good.s ment10ned JU the FlfSt Schedule at the rate and only at the point\n\npec1fied therein and chemical fertilisers which are specified in sub- 1tems (1) to (15) of item No. 21 of the First Schedule to lhe Act are liable to tax at the point of first sale inside the State' the sales of fertiliser mixtures which are prepared by mixing manally by means of shovels, some of t:'ne aforesaid chemical fertilisers mentioned at subitems 1 t~ 15 in the Sceule without ad-mixture of any organic manure are not hble to tax. ns1de the State .. Mr. Desai has further urged that even if_ each fert1hsers bears a specified commercial name, for the\n\n(1) [1973] 31 S.T.C. 390\n\npurpose of the Act, it has no identity except as a 'chemical fertiliser' and consequently the mixture of one or more chemical fertilisers cannot but be the same article entitled to application of single point scheme in respect of its ingredients.\n\nThis, accordi!lg to Mr. Desai, is the natural implication of the expression 'chemical fertilisers' followed by the expression \"that is to say\".\n\nThe principal question for determination in these appeals is whe ther the fertiliser mixtures in question can be treated as the same article as chemical fertilisers composing them.\n\nFor a proper determination of the contention raised on behalf of the appellant, it is necessary to refer to section 3 of the Act and to item No. 21 of the First Schedule to the Act which run as under:-\n\n\"3. Levy of taxes on sales or purchases of goods :- ( 1) Every dealer (other than a casual trader or agent of a non-resident dealer) whose total turnover for a year is not less than fifteen thousand rupees and every casual trader or agent of a non-resident dealer. whatever be his turnover for the year, shall pay a tax for each year at fue rate of (three per cent) of his taxable turnover .\n\n(2) Notwithtanding anything contained in sub-section ( 1), in the case of goods mentioned in the first schedule, the tax under this Act shall be payable by a dealer, at the rate and only at the point specified therein on the turnover in a year relating to such goods whatever be the quantum of turnover in that year. \"\n\n\"Item 21 of the First Schedule: Chemical fertilisers, that is to say :-\n\n( 1) Ammonium sulphate; (2) Ammonium nitrate; .(3)\n\nUrea ( 4) Ammonium Choloride; (5) Sodium Nit rate; (6) Calcium Ammonium nitrate; (7) super phosphate single; (8) super phosphate triple; (9) Kotka phosphate (10) di-calcium phosphate; (11) Potassium chloride (nuriate of potash); (12) sulphate of potash; (13) mone ammonium phosphate;\n\n(14) di-ammonium phosphate; (15) bone meal; ( 16) any mixture of one or more of the articles mentioned in items ( 1 to 15) and one or more of the organic manures.\n\nPoint of levy is at the point of first safo in the State, rate of tax is 31 /27.\" _,\n\nA plain reading of the above mentioned provisions would show that it is only when a chemical fertiliser specifid in sub-items 1 .. to 15 of item No. 21 of the First Schedule is sold m the same cond1t1on in which it is purchased that it is not subject to .a fresh levy; Fertiser mixture it would be noted is not the same article as the mgred1ents composing it.\n\nIt is sold a; a different commercial product. It is put to a different use and has different chemical properties.\n\nAs such, it\n\n...\n\n, )\n\nhas to be treated as a different article from its component parts. The question whether there is any manufacturing process involved in the preparation of any fertiliser, mixture or whether shovel mixing of the chemical fertilisers amounts to manufactute or not is wholly irrelevant for the purpose of the determination of the question before us.\n\nThe decision of the Bombay High Court in Nilgiri Ceylon Tea Supplying Co. v. The State of Bombay,(') on which reliance is placed by counsel for the appellant in support of his contention has no bearing on the question before us as the language of the prov1So to section (8a) of the Bombay Sales Tax Act, 1953 which fell for consideration in that case is not the same as section 3 and item 21 of the First Schedule to the Act befor~ us. It has also to be borne in mind that we are not called upon in the instant appeals to consider as to whether the chemical fertilisers which had been purchased by the assessee had been processed as in the case of Nilgiri Ceylon Tea Supplying Co. (supra). The only question before us, as already indicated, is as to whether there was any mixture of one or more of the articles shown as sub-items (1) to (15) of item No. 21. It is admitted by the appellant in the statement of the case that the fertiliser mixture is prepared by mixing various chemical fertilisers and fillers like china clay, gypsom etc. by a shovel.\n\nIt cannot also be disputed that the fertiliser mixture is a marketable commodity different from its components, is put to different use and has different properties.\n\nIn the case of Imperial Fertiliser and Co. (supra) where the assessee purchased various items of chemical manure referred to in item 21 of the First Schedule to the Act and brought about a new product by mixing one or more of the said articles with one or more of the organic manure, the resultant product, it was held, could not be said to be the same chemical manure or fertiliser which the assessee had purdhased, as the mixture would have different properties of its own and it could not be said that it retained the same characteristics or properties of any of the chemical manures or organic manures which went to make up the resultant mixture.\n\nIt was further held in that case that for getting an exemption on the ground that the sale 'of an article is a second or subsequent sale, it must be established that there has been a sale of the same goods at an anterior point of time and if there is no identity between the product purchased and the product sold, it is not possible to treat the sales of the product by an assessee as second sales.\n\nIn State of Tamil Nadu v. Rallis India Ltd.(') it was held that as manure mixture prepared from one or more of the articles mentioned in sub-items (1) to (1S) of item No. 21 of the First Schedule has chemical properties different from its comoonents and its use is also different, it is not possible to treat the manure mixture as the same article as the components themselves. 'I'he following observations made in this decision .are pertinent :-\n\n\"If the product obtained by mixing the various chemical fertilisers referred to in item 21 is sold as a different commercial product and for a different user, it has to be\n\n(1) 10 S.T.C. 500.\n\n(2) 34 S.T.C. 532\n\ntreated as a different aritcle from the components, whether the process of such mixture is one of manufacture or not\".\n\nIn State of Tamil Nadu v. Mis Pyari Lal Malhotra etc.(') a bench of four judges of this Court, to which one of us, namely, My Lord the Hon'ble Chief Justice was a party, had occasion to consider the meaning of the expression \"that is to say\" and the tests to be applied in determining whether the sale of a certain class of goods is subject to the levy of single point sales tax.\n\nWith regard to the expression \"that is to say\", our learned brother, Beg, J. who spoke for the Court observed :-\n\n\"We think that the precise meaning of the words \"t!l\\at is to say''. must vary with the context.\n\nBut in the context of single point sales tax, subject to special conditions when imposed on separate categories of specified goods, the expression was apparently employed to specifically enumerate separate categories of goods on a given list.\n\nThe purpose of such specification and enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each bf ..yhich would constitute a separate class for a series of sales.\n\nOtherwise, the listing itself loses all meaing and would very naturally, be to indicate thet ypes of goods each of be without any purpose behind it\".\n\nIn regard to the test for determining the taxable events in relation to the sales tax, same learned brother observed as follows :-\n\n\"The mere fact that the substance or raw material out of which it is made has also been taxed in some other form, when it was sold as a separate \"commercial commodity, would make no difference for purposes of the law of sales tax.\n\nThe object appears to us to be to tax sales of goods of each variety and not the sale of the substance out of which they are made. . . . . As soon as separate commercial commodities change or come into existence, they become separately taxable goods or entitles for purposes of sales tax .....\n\nThe law of sales tax is also concerned with \"goods\" of various descriptions.\n\nIt, therefore, becomes necessary to determine when they cease to be goods of one taxable description and become those of a commercially different category and description\".\n\nA; s in the instant. cases, the mixtures produced by the appellant are d1erent from therr component parts, their properties and uses are\n\nalso different and thy are sold as diffrent commercial products, the\n\nappellnt was ot entitled o !J?.e exemp!ion claimed by it.\n\nThe appeals accordmgly fail and are dJS1mssed with costs.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 51, "entities": [{"text": "SHAW WALLACE & CO. LTD", "label": "PETITIONER", "start_char": 12, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "SHAW WALLACE & CO. LTD", "offset_not_found": false}}, {"text": "STATE OF TAMIL NADU", "label": "RESPONDENT", "start_char": 40, "end_char": 59, "source": "metadata", "metadata": {"canonical_name": "State of Tamil Nadt•", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 78, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 98, "end_char": 116, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Sec. 3", "label": "PROVISION", "start_char": 160, "end_char": 166, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 167, "end_char": 181, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 698, "end_char": 712, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 1114, "end_char": 1128, "source": "regex", "metadata": {"statute": null}}, {"text": "Tamil Nadu High Court", "label": "COURT", "start_char": 1664, "end_char": 1685, "source": "ner", "metadata": {"in_sentence": "The Revision Application filed by the appellants to the Tamil Nadu High Court was dismissed at the stage of admission on the ground that each of the competent article and the fertilizer mixture have different chemical properties of their own and their use .also is different and that."}}, {"text": "s. 3(2)", "label": "PROVISION", "start_char": 2066, "end_char": 2073, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 2153, "end_char": 2167, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 3156, "end_char": 3160, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 3186, "end_char": 3200, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 3303, "end_char": 3317, "source": "regex", "metadata": {"statute": null}}, {"text": "[1976] 3 S.C.R. 168", "label": "CASE_CITATION", "start_char": 3983, "end_char": 4002, "source": "regex", "metadata": {}}, {"text": "K. S. Ramamurthi", "label": "OTHER_PERSON", "start_char": 4143, "end_char": 4159, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi and A. T. M. Sampath for the Appellant."}}, {"text": "A. T. M. Sampath", "label": "LAWYER", "start_char": 4164, "end_char": 4180, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi and A. T. M. Sampath for the Appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4201, "end_char": 4212, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. V. Rangam and A. Subhashini; for Respondent."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 4214, "end_char": 4226, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. V. Rangam and A. Subhashini; for Respondent."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 4231, "end_char": 4244, "source": "ner", "metadata": {"in_sentence": "S. T. Desai, A. V. Rangam and A. Subhashini; for Respondent."}}, {"text": "section 3", "label": "PROVISION", "start_char": 4499, "end_char": 4508, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 4532, "end_char": 4546, "source": "regex", "metadata": {"statute": null}}, {"text": "Tvl. Shaw Wallace & Co. Ltd.", "label": "PETITIONER", "start_char": 4687, "end_char": 4715, "source": "ner", "metadata": {"in_sentence": "The appellant, Tvl."}}, {"text": "Madras", "label": "GPE", "start_char": 4877, "end_char": 4883, "source": "ner", "metadata": {"in_sentence": "Shaw Wallace & Co. Ltd., a public limited company, is a registered dealer under the Act and is an assessee on the rolls of the Commercial Tax Officer IV, Central Assessment Circle- 23, Madras."}}, {"text": "First Schedule to the Act", "label": "STATUTE", "start_char": 5373, "end_char": 5398, "source": "regex", "metadata": {}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 5719, "end_char": 5733, "source": "regex", "metadata": {"linked_statute_text": "First Schedule to the Act", "statute": "First Schedule to the Act"}}, {"text": "Assistant Commissioner (CA) 1, Madras City", "label": "PETITIONER", "start_char": 6148, "end_char": 6190, "source": "ner", "metadata": {"in_sentence": "On appeal, the Appellate Assistant Commissioner (CA) 1, Madras City, found that part of the ingredients which went into the production of fertiliser mixtures had suffered tax under the Act."}}, {"text": "Sales Tax Appellate Tribunal", "label": "COURT", "start_char": 6427, "end_char": 6455, "source": "ner", "metadata": {"in_sentence": "He, therefore, allowed exemption on the turnover which had suffered tax by following the earlier decision of the Sales Tax Appellate Tribunal dated July 27, 1972 in the case of Rallis India Ltd. T. A. 114 of 1971, Where it was held that there is no manufacture and the resultant product viz."}}, {"text": "27, 1972", "label": "DATE", "start_char": 6467, "end_char": 6475, "source": "ner", "metadata": {"in_sentence": "He, therefore, allowed exemption on the turnover which had suffered tax by following the earlier decision of the Sales Tax Appellate Tribunal dated July 27, 1972 in the case of Rallis India Ltd. T. A. 114 of 1971, Where it was held that there is no manufacture and the resultant product viz."}}, {"text": "Rallis India Ltd.", "label": "ORG", "start_char": 6491, "end_char": 6508, "source": "ner", "metadata": {"in_sentence": "He, therefore, allowed exemption on the turnover which had suffered tax by following the earlier decision of the Sales Tax Appellate Tribunal dated July 27, 1972 in the case of Rallis India Ltd. T. A. 114 of 1971, Where it was held that there is no manufacture and the resultant product viz."}}, {"text": "State of Tamil Nadt•", "label": "PETITIONER", "start_char": 7089, "end_char": 7109, "source": "ner", "metadata": {"in_sentence": "The State of Tamil Nadt• also filed enhancement petitions.", "canonical_name": "State of Tamil Nadt•"}}, {"text": "Madras High Court", "label": "COURT", "start_char": 7359, "end_char": 7376, "source": "ner", "metadata": {"in_sentence": "114 of 1971 (supra) which was the basis of the relief granted by the Appellate Assistant Commissioner was reversed by the Madras High Court vide its judgment dated September 18, 1973, in T.C. No."}}, {"text": "section 38", "label": "PROVISION", "start_char": 7710, "end_char": 7720, "source": "regex", "metadata": {"statute": null}}, {"text": "March 5, 1974", "label": "DATE", "start_char": 7811, "end_char": 7824, "source": "ner", "metadata": {"in_sentence": "The appellant thereupon took the matter in revision to the Madras High Court under section 38 of the Act but its applications were dismissed at the stage of admission by that Court on March 5, 1974 in the light of its earlier judgment dated September 18, 1973 in T. C. No."}}, {"text": "March 15, 1974", "label": "DATE", "start_char": 9169, "end_char": 9183, "source": "ner", "metadata": {"in_sentence": "After failing to obtain a certificate of fitness for appeal to this Court, the appellant applied for special leave to this Court which was granted vide order dated March 15, 1974."}}, {"text": "Desai", "label": "OTHER_PERSON", "start_char": 9227, "end_char": 9232, "source": "ner", "metadata": {"in_sentence": "Appearing in support of the appeals, Mr. Desai has urged that as section 3 (2) of t.he Act provides for levy of sales tax in respect of good.s ment10ned JU the FlfSt Schedule at the rate and only at the point\n\npec1fied therein and chemical fertilisers which are specified in sub- 1tems (1) to (15) of item No."}}, {"text": "section 3", "label": "PROVISION", "start_char": 9251, "end_char": 9260, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 9506, "end_char": 9520, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 10667, "end_char": 10676, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 10714, "end_char": 10728, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 11491, "end_char": 11505, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 12294, "end_char": 12308, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 13001, "end_char": 13018, "source": "ner", "metadata": {"in_sentence": "The decision of the Bombay High Court in Nilgiri Ceylon Tea Supplying Co. v. The State of Bombay,(') on which reliance is placed by counsel for the appellant in support of his contention has no bearing on the question before us as the language of the prov1So to section (8a) of the Bombay Sales Tax Act, 1953 which fell for consideration in that case is not the same as section 3 and item 21 of the First Schedule to the Act befor~ us."}}, {"text": "Bombay Sales Tax Act, 1953", "label": "STATUTE", "start_char": 13263, "end_char": 13289, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 13351, "end_char": 13360, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Sales Tax Act, 1953", "statute": "the Bombay Sales Tax Act, 1953"}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 13380, "end_char": 13394, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Sales Tax Act, 1953", "statute": "the Bombay Sales Tax Act, 1953"}}, {"text": "Nilgiri Ceylon Tea Supplying Co.", "label": "ORG", "start_char": 13629, "end_char": 13661, "source": "ner", "metadata": {"in_sentence": "It has also to be borne in mind that we are not called upon in the instant appeals to consider as to whether the chemical fertilisers which had been purchased by the assessee had been processed as in the case of Nilgiri Ceylon Tea Supplying Co. (supra)."}}, {"text": "Imperial Fertiliser and Co.", "label": "ORG", "start_char": 14216, "end_char": 14243, "source": "ner", "metadata": {"in_sentence": "In the case of Imperial Fertiliser and Co. (supra) where the assessee purchased various items of chemical manure referred to in item 21 of the First Schedule to the Act and brought about a new product by mixing one or more of the said articles with one or more of the organic manure, the resultant product, it was held, could not be said to be the same chemical manure or fertiliser which the assessee had purdhased, as the mixture would have different properties of its own and it could not be said that it retained the same characteristics or properties of any of the chemical manures or organic manures which went to make up the resultant mixture."}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 14344, "end_char": 14358, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 15435, "end_char": 15449, "source": "regex", "metadata": {"statute": null}}, {"text": "Beg", "label": "JUDGE", "start_char": 16484, "end_char": 16487, "source": "ner", "metadata": {"in_sentence": "With regard to the expression \"that is to say\", our learned brother, Beg, J. who spoke for the Court observed :-\n\n\"We think that the precise meaning of the words \"t!l\\at is to say''."}}]}
{"document_id": "1976_3_801_807_EN", "year": 1976, "text": "I }\n\nD. C. ROY\n\n80 1\n\nTHE PRESIDING OFFICER, MADHYA PRADESH INDUSTRIAL\n\nCOURT, INDORE AND OTHERS\n\nMarch 23, 1976\n\n[Y. V. CHANDRACHUD AND V. R. KRISHNA IYER, JJ.]\n\nLabour Law-Dismissal of employee after dotnestic enquiry-Enquiry found by LaboW' Court to be vitiated but order of disn1issal held justified on evidence, adduced before it-Whether order of dismissal relates back to the date of the original order of dis1nissal.\n\nThe Madhya Pradesh Industrial Employn1ent (Standing Orders) Rules, 1963, Standard Standing Order 12(b )-Major n1isconduct, what is.\n\nWhen the flying squad checked a bus of the State Road Transport Corporation, it was found that the appellant, who was a ticket-examiner of the Corporation ; ind whose duty was to check whether all the passengers had paid the fare and whether the conductor had i&sued ticket; s to the passengers, was on the bus; and that. though all the passengers in the bus had paid their fares the conductor had not issued 9t tickets.\n\nIf the appellant were so minded, he could easily have detected the conductor's misconduct. The appellant \\Vas charged with the breach of Standard Standing Order 12 (b) under the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963, which governed the matter, and he was dismissed after a domestic enquiry. On his application\n\ntnder s. 31, Madhya Pradesh Industrial Relations Act, the Labour Court held that the enquiry was defective as it infringed principles of natural justice, but C'1me to the conclusion, after considering the evidence adduced before it by the parties, that the dismissal was justified.\n\nThe appellant's revision to the industrial Court and writ petition in the High Court were dismissed.\n\nIn appeal to this Court, it was contended by the appellant that : ( 1) the charge did not amount to a 'major misconduct' under the Standing Orders; and\n\n(2) the Labour Court, having found that there \\Vas no proper domestic enquiry, should have ordered payment of \\\\'ages till the date of the decision by the Labour Court.\n\nDismissing the appeal, HELD : ( 1) Standard Standing Order 12(b) provides that \"theft. fraud or\n\ndishonesty in connection with the business or property of the undertaking\" shall F amount tO a major misconduct on the part of the employee. The appellant •Db\\1iouSly colluded with the conductor in depriving the Corporation of its legitimate earnings. The appellant, having thus acted dishonsetly in connection v..ith the business of the Corporation, was clearly guilty of a major misonduct.\n\n[803G-804CJ\n\n(2) In a case where the domestic enquiry does not suffer from any defect, so serious or fundamental as to make it non est, the award of the Labour CouJt, based on the evidente produced before it relates back to the date when G the order of dismissal was passed on the termination of the domesti-: enquiry; and so, the appellant was not entitled to any back wages.\n\n[807 B-C]\n\nP.H. Kalya11i v. Mis. Air France Calcutta (1964] S.C.R. 104, followed.\n\nThe observation in the Hotel linperial case f1960j 1 S.C.R. 476, 487, that in the Phulbari Tea Estate case [1960] 1 S.C.R. 32, it was held that in a case where the employer makes good the defects in the domestic enquiry by producing necessary evidence before the Industrial Tribunal, the employer \"will have to H pay the wages up to the date of the award of the Tribunal\" even if the award went in favour of the employer, is not correct.\n\nJn the Phulbari Tea Estate\\ case, the employers made no aUempt to make good the defect in the domestic enquiry by producing necessary evidence before the Tribunal with the result\n\nthat the Tribunal, which found that the enquiry was vitiated, had no evidence before it. to examine the legality or propriety of the order of dismissal. It was in that context that instead of ]!eing re-instated, the employee was given the alternative relief of compensation by payment of wages. [805F-806C]\n\nMis. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan [1959] 2 SCR 836 explained and distinguished. •\n\nAn enauiry blatantly and consciously violating principles of natural justice so as to amount to a pretence J]lay, however, be equated with a total absence of an enquiry so as to exclude the application of the 'relation back' doctrine. [807\n\nC-DJ\n\nClVIL APPELLATE JURISDICTION: Civil Appeal No. 466 of 1970.\n\nAppeal by Special Leave from the Judgment and Order dated the 6th March, 1968 of the Madhya Pradesh High Court in Misc. Petition No. 75 of 1968.\n\nM. K. Ramamurthi and Vineet Kumar for the Appellant.\n\nRam Punjwani and Rameshwar Nath for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nThe appellant was working as a Ticket Examiner in the Madhya Pradesh State Road Transport Corporation at its Nagpur Depot.\n\nOn March 21, 1964 a bus belonging to the Corporation was checked by the Flying Squad when nine and half passengers out of 26 were found travelling without tickets.\n\nThe appellant was on the bus in the discharge of his duties as a Ticket Examiner.\n\nThe Flying Squad prepared a Panchnama on the spot obtaining thereon the signatures of the appellant, the driver and the ticked conductor. It was found that the conductor had collected the fare from all the 26 passengers who were travelling in the bus but had not issued tickets to\n\n9t passengers.\n\nSince it was the duty of the appellant as a Ticket Examiner to check whether the conductor had collected fare from all the passengers and in token thereof had issued tickets to them, a chargesheet was served on the appellant for breach of clauses 12(b) and ( d) of the Madhya Pradesh Standard Standing Orders which govern the matter by reason of Rule 7 of the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963.\n\nA Domestic inquiry was thereafter held into the charges and the appellant having been found guilty the Corporation, through its Depot Manager, dismissed him by an order dated August 14, 1964.\n\nOn December 9, 1964 the appellant filed an application in the Labour Court, J abalpur, under section 31 of the Madhya Pradesh Industrial Relations Act challenging the validity of the inquiry on various grounds and praying that the order of dismissal bp set aside and that an order of reinstatement be passed with back wages.\n\nBy a preliminary order dated December 7, 1966 the Labour Court held that the Qomestic tribunal did not hold a proper inquiry into the charges levelled against the appellant but that it was open to the parties to lead evidence before it on the merits of the case and to satisfy it whether the appellant was guilty of the charges and further whether the conduct of the appellant was such as to call for an order of dismissal.\n\nParties thereafter led evidence before the Labour Court, on a\n\nI )\n\nconsideration of which it held by an order dated August 18, 1967 that A, the appellant was guilty of the charges levelled against him and that in the circumstances of the case the punishment of dismissal was neither harsh nor unjust.\n\nFeeling aggrieved by the aforesaid order of the Labour Court the appellant preferred a revision application to the Industrial Court, Indore, under section 66 of the Madhya Pradesh Industrial Relations B Act.\n\nThe Industrial Court confirmed the findings of fact recorded by the Labour Court and upheld the order of dismissal.\n\nAs regards back wages, the Industrial Court held that the order of the Labour Court dated August 18, 1967 would relate back to the date when the appellant was dismissed by the Corporation al\\d therefore the appellant was not entitled to back wages till the date when the Labour Court passed 1ts final order.\n\nThe appellant thereafter filed a petition in the High Court of Madhya Pradesh under articles 226 and 227 of the Constitution challenging the order of the Industrial Court. The High Court by its order dated March 6, 1968 dismissed the petition in limine, though with a speaking order.\n\nIt held that the omission of the appellant to check ticketless travellers in the bus which he had boarded as a Ticket Exa- 1)1 miner amounted to major misconduct under Standing Order 12(b).\n\nThe High Court further held that no interference was called for on the question whether the order of dismissal was justified and since the order of the Labour Court related back to the date when the order of dismissal was passed by the Corporation, the appellant was not entitled to wages until the date on which the Labour Court passed lhe judgment, The appellant has filed this appeal in forma pauperis by E special leave of this Courf.\n\nMr. M. K. Ramamurthi who appeared as an amicus for the appellant raised two points for our consideration in this appeal.\n\nHe contended in the first place that the charge made against the appeUant does not amount to a \"major misconduct\" under the Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 and secondly F that in any event, the Labour Court having found that the Domestic tribunal had failed to hold a proper inquiry, the appellant was entitled to back wages until the final decision of the Labour Court.\n\nThe Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963 provide by Rule 7, to the extent material, that the Standard Standing Orders for all undertakings to which the Madhya Pradesh G Industrial Employment (Standing Orders) Act, 26 of 1961, applies shall be those set out in the Annexures to the Rules. We are concerned in this case with Standard Standing Order 12 (b) which provides that \"theft, fraud, or dishonesty in connection with the business or property of the undertakings\" shall amount to a major misconduct on the part of an employee.\n\nThe appellant had evidently entered the\n\npadrt~t'1!iar bdJ!S intodrdehr\n\n1 t<;>tcheckh.it din his cap 1\n\nac:ty abs ahTichket Examiner K an 1 1s un 1spn e t a 1 was is uty t•) c 1ec~ w et er t e passengers travelling in the bus had paid the fare and whether tickets were issued to them by the conductor on collecting the fare from them. The bus\n\n.A was carrying a complement of 26 passengers out of whom 9J passengers did not hold tickets.\n\nThe Panchnama which was drawn on the spot shows that the conductor had collected the fare from the passengers but had not issued any tickets to them.\n\nThere cannot be the least doubt that if the appellant were so minded, he could have easily detected the misconduct of the conductor.\n\nObviously, the appellaHt had colluded with the conductor in depriving the Corporation of its B legitimate earnings.\n\nThe only explanation offered by the appellant was that he was not travelling in the bus at the relevant time and that explanation has been found to be false consistently by all the courts.\n\nThe appellant having acted dishonestly in connection with the business of the Corporation, he was clearly guilty of a major misconduct..\n\nOn the second question as to whether the appellant is entitled to\n\n C back wages from the date of dismissal until the date on which the Labour Court delivered its judgment, learned counsel for the appellant relies strongly. on the observations made by this Court in The Managen<ent oj Hotel Imperial, New Delhi & Ors. v.\n\nHotel Workers' Union (1), to the following effect :\n\n\"In Phulbari Tea Estate v. Its Workmen('), the rider laid down in the case Messrs. Sasa Musa Sugar Works (P) Ltd. ( 3) was further extended to a case of an adjudication under s. 15 of the Act and it was pointed out that if there\n\nwas. any defect in the enquiry by the employer he could make good that pefect by producing necessary evidence before the tribunal; but in that case he will have to pay the wages up to the date of the award of the tribunal, even if the award went in his favour\". (p. 487)\n\nWe will consider the impact and implication of the concluding portion of this passage but before we do so, we must draw attention to a 5-Judge Bench decision of this Court in P. fl. Kalya11i v.\n\nM /s.\n\nArr France Calcutta('), which is directly in point and concludes the question under consideration.\n\nIn that case an inquiry was held against an employee of M/s. Air France by the Station Manager, on whose findings the employee was dismissed by the Regional Representative of the Company on payment of one month's wages.\n\nThe employee challenged the order of dismissal by filing an application under section 33A of the Industrial Disputes Act, 1947 on the ground that the Station Manager was biased against him and therefore the inquiry was vitiated as being contrary to the principles of natural justice.\n\nThe Labour Court took the view that the employee's contention that the Station Manager was biased against him could not be brushed aside lightly but it went on to hold that even if there was some violation of the principles of natural justice on account of the bias of the Inquiry Officer, the Company was entitled to adduce, as it did, all the evidence before it in support of its action and therefore it was open to the Labour Court to decide on that evidence whether the action was justified and whether the approval to the order of dismissal should be granted.\n\nOn going into that evidence, the Labour Court held that the\n\nD. c. ROY v. PRESIDING OFFICER IND. ('.OURT (Chandrachud, J.) 805\n\nbreaches committed by the employee were of a serious nature and the order of dismissal passed by the employer was therefore justified.\n\nIn an appeal by special leave against the decision of the Labour Court, it was contended in this Court on behalf of the employee that smce the Domestic inquiry was found defective, the Labour Court, even if it was of the opinion that the dismissal was justified, should have ordered the dismissal from the date of its award and not from the date when the Regional Representative passed the order of dismissal.\n\nRejecting this contention, this Court held :\n\n\"The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal and whether the employer bad come to the bona fide conclusion that the employee was guilty of misconduct.\n\nThereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Conrt would also have to consider for itself on the evidence adduced before it whether the dismissal was justified.\n\nHowever, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made.\" These observations directly cover the case before us because though the Labour Court, in the instant case, found that the inquiry was defective as it infringed the principles of natural justice, it came to the conclusion after considering the evidence adduced before it, that the dismissal was justified. The award of the Labour Court must therefore relate back to the date when the order of dismissal was passed on the termination of the Domestic inquiry.\n\nThe observations extracted earlier from the judgment of a 3-Judge Bench in Hotel lmperial's case (p. 487 of the Report), on which the appellant relied strongly prima facie support the appellant's contention that if an inquiry is found to be defective, the employer can make good the defect by producing the necessary evidence before the Labour Court but that in such a case he will have to pay wages up to date of the decision of the Labour Court even if that decision went in his favour.\n\nThe particular observations purport to summarize what was decided by the same Bench a fortnight earlier in Phubari Tea Estate v. Its Workmen(').\n\nLearned counsel for the respondent took us closely through the judgment in Phulbari Tea Estate but we are unable to find anything in that judgment showing that whenever there is a defect in a Domestic inquiry, the employer would have to pay wages up to the date of the award of the Labour Court or the Industrial\n\n1. (1960) (I) S.C.R. 32 .\n\nTribunal even if the order passed in the Domestic inquiry was ultimately upheld by the Labour Court or the Tribunal.\n\nIn Phulbari Tea Estate (supra), the domestic inquiry was in gross violation of the limdamental principles of natural justice and was therefore vitiated.\n\nThe employers did not lead proper evidence before the Tribunal to justify the order of dismissal and weg content merely to produce before the Tribunal the statements which were recorded during the inquiry.\n\nThe employee therefore had no opportunity to cross-examine the witnesses before the Tribunal. Since the inquiry was bad and the Tribunal had no evidence before it to sustain the order of dismissal it set aside that order but held that in the , peculiar circumstances of the , case, the employee may be granted the alternative relief of compensa- ' tion instead of an order of reinstatement.\n\nThe Tribunal accordiugly , granted to the employee pay and allowance from the date of his suspension till payment. The award of the Tribunal was upheld is appeal by this Court.\n\nIt shall have been seen that in the case of Phulbari Tea Estate\n\n(supra) the employers made no attempt to make good the defect in the inquiry by producing necessary evidence before the Tribunal and by affording an opportunity to the employee to cross-examine their witnesses. \"This left the matters where they were'', a' observed by Wanchoo J. who spoke on behalf of the Court, with the result that the Tribunal which found that the inquiry was vitiated had no evidence before it to examine the legality and propriety of the order of dismissal.\n\nIn the instant case, the Domestic inquiry was held to be in violation of the principles of natural justice but the employer led evidence before the Labour Court in support of the order of dismissal and on a fresh appraisal of that evidence, the Labour Court found that the order of dismissal was justified.\n\nThe ratio of P. H. Kalyani's case would therefore govern the case and the judgment of the Labour Court must relate back to the date on which the order of dismissal was passed.\n\nWith great respect, the ratio of Phulbari Tea Estate is not stated correctly in the particular passage at page 487 of the Report in the case of Hotel l mperial.\n\nThat passage is partly a reproducti0n in substance of what is said in Phulbari Tea Estate at page 38 of the Report but the last clause of the passage following the semi-colon is ml addition not borne out by the judgment in Phulbari Tea Estate.\n\nCounsel for the appellant also relied on the decision of this Court in M/s. Sasa Musa Sugar Works (P) Ltd. v. Shobrati Khan & Ors.( 1) but that case is clearly distinguishable.\n\nAs pointed out by this Court in P. H. Kalyani's case, Sasa Musa was a case where an application had been made under section 33 (1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed. The case for dismissal of the employees was made out for the first time in the proceedings under section 33 ( 1) and it was for that reason that it was held that the employees were entitled to back wages until the decision of the application filed under stion 3 3. Commenting on the decision in Sasa Musa, this Court observed in P. H. Kalyani's case that the\n\nmatter would have been different if in Sasa Musa, an inquiry had been A held, the employer had come to the conclusion that the dismissal was the proper punishment and had then applied under section 33(1) for permission to dismiss the employees. \"In those circumstances the permission would have related back to the date when the employer came to the conclusion after an inquiry that dismissal was the proper punishment and had applied for removal of the bim by an application under section 33(1).\" (page 113).\n\nThe second cotention must also therefore fail.\n\nWe would, however, like to add that the decision in P. H. Kalyani's case is not to be construed as a charter for employers to dismiss employees after the pretence of an inquiry.\n\nThe inquiry in the instant case does not suffer from defects so serious or fundamental as to make it non-est.\n\nOn on appropriate occasion, it may become necessary to carve an exception c to the ratio of Kalyani's case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employee's interest like an order of dismissal.\n\nAn inquiry blatantly and consciously violating principles of natural justice may well be equated with the total absence of an inquiry so as to exclude the application of the 'relation-back' doctrine.\n\nBut we will not pursue the point beyond this D as the facts before us do not warrant a closer consideration thereof.\n\nIn the result, the appeal is dismissed but there will be no order as to costs.\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 41, "entities": [{"text": "D. C. ROY", "label": "PETITIONER", "start_char": 5, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "D. C. ROY", "offset_not_found": false}}, {"text": "1\n\nTHE PRESIDING OFFICER, MADHYA PRADESH INDUSTRIAL\n\nCOURT, INDORE AND OTHERS", "label": "RESPONDENT", "start_char": 19, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "THE PRESIDING OFFICER, MADHYA PRADESH INDUSTRIAL COURT, INDORE AND OTHERS", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 115, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 137, "end_char": 160, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "s. 31", "label": "PROVISION", "start_char": 1326, "end_char": 1331, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh Industrial Relations Act", "label": "STATUTE", "start_char": 1333, "end_char": 1372, "source": "regex", "metadata": {}}, {"text": "[1960] 1 S.C.R. 32", "label": "CASE_CITATION", "start_char": 3086, "end_char": 3104, "source": "regex", "metadata": {}}, {"text": "Phulbari Tea Estate\\", "label": "ORG", "start_char": 3425, "end_char": 3445, "source": "ner", "metadata": {"in_sentence": "Jn the Phulbari Tea Estate\\ case, the employers made no aUempt to make good the defect in the domestic enquiry by producing necessary evidence before the Tribunal with the result\n\nthat the Tribunal, which found that the enquiry was vitiated, had no evidence before it."}}, {"text": "[1959] 2 SCR 836", "label": "CASE_CITATION", "start_char": 3959, "end_char": 3975, "source": "regex", "metadata": {}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 4462, "end_char": 4478, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and Vineet Kumar for the Appellant.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "Vineet Kumar", "label": "LAWYER", "start_char": 4483, "end_char": 4495, "source": "ner", "metadata": {"in_sentence": "M. K. Ramamurthi and Vineet Kumar for the Appellant."}}, {"text": "Ram Punjwani", "label": "LAWYER", "start_char": 4516, "end_char": 4528, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani and Rameshwar Nath for the Respondents."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4533, "end_char": 4547, "source": "ner", "metadata": {"in_sentence": "Ram Punjwani and Rameshwar Nath for the Respondents."}}, {"text": "CHANDRACHUD", "label": "JUDGE", "start_char": 4614, "end_char": 4625, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANDRACHUD, J.\n\nThe appellant was working as a Ticket Examiner in the Madhya Pradesh State Road Transport Corporation at its Nagpur Depot."}}, {"text": "August 14, 1964", "label": "DATE", "start_char": 5905, "end_char": 5920, "source": "ner", "metadata": {"in_sentence": "A Domestic inquiry was thereafter held into the charges and the appellant having been found guilty the Corporation, through its Depot Manager, dismissed him by an order dated August 14, 1964."}}, {"text": "December 9, 1964", "label": "DATE", "start_char": 5926, "end_char": 5942, "source": "ner", "metadata": {"in_sentence": "On December 9, 1964 the appellant filed an application in the Labour Court, J abalpur, under section 31 of the Madhya Pradesh Industrial Relations Act challenging the validity of the inquiry on various grounds and praying that the order of dismissal bp set aside and that an order of reinstatement be passed with back wages."}}, {"text": "Labour Court, J abalpur", "label": "COURT", "start_char": 5985, "end_char": 6008, "source": "ner", "metadata": {"in_sentence": "On December 9, 1964 the appellant filed an application in the Labour Court, J abalpur, under section 31 of the Madhya Pradesh Industrial Relations Act challenging the validity of the inquiry on various grounds and praying that the order of dismissal bp set aside and that an order of reinstatement be passed with back wages."}}, {"text": "section 31", "label": "PROVISION", "start_char": 6016, "end_char": 6026, "source": "regex", "metadata": {"statute": null}}, {"text": "December 7, 1966", "label": "DATE", "start_char": 6278, "end_char": 6294, "source": "ner", "metadata": {"in_sentence": "By a preliminary order dated December 7, 1966 the Labour Court held that the Qomestic tribunal did not hold a proper inquiry into the charges levelled against the appellant but that it was open to the parties to lead evidence before it on the merits of the case and to satisfy it whether the appellant was guilty of the charges and further whether the conduct of the appellant was such as to call for an order of dismissal."}}, {"text": "August 18, 1967", "label": "DATE", "start_char": 6791, "end_char": 6806, "source": "ner", "metadata": {"in_sentence": "Parties thereafter led evidence before the Labour Court, on a\n\nI )\n\nconsideration of which it held by an order dated August 18, 1967 that A, the appellant was guilty of the charges levelled against him and that in the circumstances of the case the punishment of dismissal was neither harsh nor unjust."}}, {"text": "Industrial Court, Indore", "label": "COURT", "start_char": 7092, "end_char": 7116, "source": "ner", "metadata": {"in_sentence": "Feeling aggrieved by the aforesaid order of the Labour Court the appellant preferred a revision application to the Industrial Court, Indore, under section 66 of the Madhya Pradesh Industrial Relations B Act."}}, {"text": "section 66", "label": "PROVISION", "start_char": 7124, "end_char": 7134, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 7661, "end_char": 7689, "source": "ner", "metadata": {"in_sentence": "The appellant thereafter filed a petition in the High Court of Madhya Pradesh under articles 226 and 227 of the Constitution challenging the order of the Industrial Court."}}, {"text": "articles 226 and 227", "label": "PROVISION", "start_char": 7696, "end_char": 7716, "source": "regex", "metadata": {"statute": null}}, {"text": "March 6, 1968", "label": "DATE", "start_char": 7818, "end_char": 7831, "source": "ner", "metadata": {"in_sentence": "The High Court by its order dated March 6, 1968 dismissed the petition in limine, though with a speaking order."}}, {"text": "M. K. Ramamurthi", "label": "LAWYER", "start_char": 8532, "end_char": 8548, "source": "ner", "metadata": {"in_sentence": "Mr. M. K. Ramamurthi who appeared as an amicus for the appellant raised two points for our consideration in this appeal.", "canonical_name": "M. K. Ramamurthi"}}, {"text": "Industrial Employment (Standing Orders) Act", "label": "STATUTE", "start_char": 9256, "end_char": 9299, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sasa Musa Sugar Works (P) Ltd.", "label": "ORG", "start_char": 11247, "end_char": 11277, "source": "ner", "metadata": {"in_sentence": "v.\n\nHotel Workers' Union (1), to the following effect :\n\n\"In Phulbari Tea Estate v. Its Workmen('), the rider laid down in the case Messrs. Sasa Musa Sugar Works (P) Ltd. ( 3) was further extended to a case of an adjudication under s. 15 of the Act and it was pointed out that if there\n\nwas."}}, {"text": "s. 15", "label": "PROVISION", "start_char": 11339, "end_char": 11344, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33A", "label": "PROVISION", "start_char": 12267, "end_char": 12278, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act, 1947", "label": "STATUTE", "start_char": 12286, "end_char": 12315, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Phulbari Tea Estate", "label": "ORG", "start_char": 16064, "end_char": 16083, "source": "ner", "metadata": {"in_sentence": "Learned counsel for the respondent took us closely through the judgment in Phulbari Tea Estate but we are unable to find anything in that judgment showing that whenever there is a defect in a Domestic inquiry, the employer would have to pay wages up to the date of the award of the Labour Court or the Industrial\n\n1. ("}}, {"text": "Wanchoo", "label": "JUDGE", "start_char": 17712, "end_char": 17719, "source": "ner", "metadata": {"in_sentence": "This left the matters where they were'', a' observed by Wanchoo J. who spoke on behalf of the Court, with the result that the Tribunal which found that the inquiry was vitiated had no evidence before it to examine the legality and propriety of the order of dismissal."}}, {"text": "P. H. Kalyani", "label": "OTHER_PERSON", "start_char": 18246, "end_char": 18259, "source": "ner", "metadata": {"in_sentence": "The ratio of P. H. Kalyani's case would therefore govern the case and the judgment of the Labour Court must relate back to the date on which the order of dismissal was passed."}}, {"text": "Sasa Musa", "label": "OTHER_PERSON", "start_char": 19049, "end_char": 19058, "source": "ner", "metadata": {"in_sentence": "As pointed out by this Court in P. H. Kalyani's case, Sasa Musa was a case where an application had been made under section 33 (1) of the Industrial Disputes Act for permission to dismiss the employees and such permission was asked for, though no inquiry whatsoever was held by the employer and no decision was taken that the employees be dismissed."}}, {"text": "section 33", "label": "PROVISION", "start_char": 19111, "end_char": 19121, "source": "regex", "metadata": {"statute": null}}, {"text": "Industrial Disputes Act", "label": "STATUTE", "start_char": 19133, "end_char": 19156, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 33", "label": "PROVISION", "start_char": 19442, "end_char": 19452, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 19895, "end_char": 19908, "source": "regex", "metadata": {"statute": null}}, {"text": "section 33(1)", "label": "PROVISION", "start_char": 20187, "end_char": 20200, "source": "regex", "metadata": {"statute": null}}, {"text": "Kalyani", "label": "OTHER_PERSON", "start_char": 20646, "end_char": 20653, "source": "ner", "metadata": {"in_sentence": "On on appropriate occasion, it may become necessary to carve an exception c to the ratio of Kalyani's case so as to exclude from its operation at least that class of cases in which under the facade of a domestic inquiry, the employer passes an order gravely detrimental to the employee's interest like an order of dismissal."}}]}
{"document_id": "1976_3_808_826_EN", "year": 1976, "text": "KANHAIY ALAL v.\n\nMANNALAL & OTHERS\n\nMarch 23, 1976\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL Au, JJ.]\n\nRepresentation oj the People Act, 1950!--S~ 123(4)--Corrupt practice- Degree of proof-Election dispute not a private feud.\n\nRespondent No. 1, an elector in the constituency in his election petition alleged _that the appe:llant, the successful candidate, got printed and published and personally d1stnbuted on a large scale throughout the constituency a pamphlet containing slat'ements ih relation to the personal character or conduct of one of the candidates, reasonably calculated to prejudice the prospects of his elect_ion, and thereby committed the corrupt practice under s. 123 ( 4) of the Representation of People Act, 1950.\n\nThe High Court allowed the election petition. ·\n\nAllowing the appeal-\n\nHELD: (I) (a) The allegations mentioned in the document related to the personal character and conduct of one of the candidates and wer:e reasonably calculated to prejudice the prospects of his election.\n\nIf the distribution of the same by the appe1Iant was established and if it \\vas also established that the statements of facts therein were false and that the appe1lant eithr believed them to be false or did not believe them to be true, he would be guilty of corrupt practice uhder s. 123(4) of the r\\ct. [815 E-G]\n\n(b) The charge of electoral corrupt practice being of a quai-criminal character, the onus on an election petitioner is heavy as if in a criminal charge.\n\nThe allegations must be established beyond reasonable doubt to the , Satisfaction of the court by independent and unimpeach:abJe evidence. [817 G-H]\n\n2.(a) There is no doubt that the pamphlet \\vas in existence prior to the date of poll.\n\n[817 A-BJ\n\n(b) The High Court comn1itted a serious error in linking up the printing of the document allegedly atthe instance of the nppellant, for which there was no evidence whatsoever, with the distribution of the san1c by the appellant in the constituency. It flirther committed an error of law in not dealing with the two matters of printing and its distribuion separately and independently. [819 F-H]\n\n( c) The High Court did not adopt a uniform standard in appreciating the evidence of the witnesses of the contending parties.\n\nNor was it right in its conclusion that the charge of distribution of the pamphlet by the appellant \\Vas established against him.\n\nWhile one of the defeated candidates took care to prepare a panchnan1a for the distribution of the offending pamphlet by the\n\nagt'nts of the appetlaht, and lodged a complaint with the returning: officer, there was no documentary evidence, no con1plaint or service of hnvyers' notice or preparation of a panchnan1a in regard to the distributio~ of the pamphlet by the appellant himself. It is absurd to suppOse that the respondent\n\nwould not have moved in the matter \\Vhen the appellant had personally distributed the pamphlet.\n\nThe petitioner had not been able to establish the allegations about the distribution of the pamphlet by the appellant before the election. [820 B-F] H 3 (a) An election dispute is not a private feud between one individual and another. The \\vhole constituency is intimately involved in such a dispute.\n\nShaky and V.'avering oral testimony of a handful of \\.vitnesses cannot still the dominant voice of the majority of the electorate. f826 A-B]\n\n• ·, . )(ANHAIYALl\\L v. MANNALAL (Goswami, !.) 809\n\n( b) It is d_iffictilt to hold that a serious charge of this nature is established A on the ere oral testimony\"' of the petitioner's witnesses. [825 El_\n\nS' 1 ( c) Oral testimony \\Vil! have to be judged with the greatest care and an\n\nelectoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. [825 H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 870 of 1974.\n\nFrom the Jiidgrnent and Order dated the 7-3-74 of the Madhya Pradesh High. Court (Indore Bench) in Election Petition No. 9 of 1972.\n\nB. R. Nahata and Rameshwar Nath for the Appellant.\n\nHardayal 'Hardy and S. K. Gambhir for Respondent No. 1.\n\nS. S. Khanduja and Sushil Kumar lain for Respondent No. 4.\n\nC Lx paric; Respondent Nos. 2 and 3. The Judgment of the Court was delivered by GqsW/\\¥1, J.--Thi8 is an appeal under section 116A of the Representation of the People Act, 1951, against the judgment of the High Court of Madhya Pradesh in an election petition filed by an elector named Mannalal (respondent No. 1 in this appeal), hereinafter to be described as the. petitioner, for setting aside the election of the appellant Kanhaiyalal N agori.\n\nThe constituency was Javad Constituency of the Madhya Pradesh Legislative Assembly.\n\nThe poll took place on March 8, 1972 and\n\nthe result was declared on March 12, 1972. There were four contesting candidates.\n\nThe appellant Kanhaiyalal who was a Congress E candidate and respondent No. 1 in the election petition, obtained 25,594 votes.\n\nVirendrakumar Saklecha (for brevity Saklecha) who was a Jan Sangh candidate, being respondent No. 4 both in the election petition as well as in this appeal, obtained the second highest number of votes viz., 23,064. Ravishankar Sharma (respondent No. 2) who was a Socialist candidate, obtained 1300 votes and Jagmohan (respondent No. 3) an independent candidate obtained F 1,104 votes.\n\nThe last two candidates forfeited their security deposit ..\n\nThe appellant Kanhaiyalal was declared elected by a margin of 2,530\n\nvotes .\n\nSaklecha was being returned from this constituency since 1957 having won the election in that year and in the next two successive years 1962 and 1967. In the 1967 election wherein he won, there was G an election petition against him.\n\nThe High Court set aside the election on the ground of certain corrupt practices, but this Court set aside the judgment of the High Court in January 1972.\n\nIn the year 1968, Congress Government was defeated and Samyukat Vidhayak Dal (briefly S.V.D.) came into power in the State.\n\nSaklecha was the Deputy Chief Minister in that Government from July 1967 to March 1969. The S.V.D. Government fell in 1969.\n\nH As stated earlier the election of the appellant was challenged by an elector Mannalal by an election petition filed on April 24, 1972,\n\nalleging corrupt practices under section 123 ( 4) of the Representation of the People Act (briefly the Act) which reads as follows:-\n\n123. \"The following shall be deemed to be corrupt practices for the purposes of this Act :-\n\nx x x x\n\n( 4) The publication by a candidate or his agent or by any other person, with the consent of a candidate or bis election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.\"\n\nIt may be appropriate to describe from the election petition itself the allegations against the returned candidate, Kanhaiyalal Nagori :\n\n\"5. That the election of the returned candidate, respondent No. 1 is liable to be declared void and set aside on the following grounds :-\n\n(A) That the respondent No. l got published through Block Congress Committee, J avad, a pamphlet entitled \"Saklecha Ke Karyakal Par Ek Nazar\" and it was distributed throughout the Javad constituency by the respondent No. 1 himself and by his workers and agents with his consent.\n\nThe said pamphlet was printed in Shriman Press, Neemuch and the signatories to the said pamphlets are all members and important office bearers of the Congress party and who were actively conducting the election propaganda of the respondent No. 1. Respondent No. 1 was official Congress candidate and he was also Provincial Congress Committee member representing Block Committee Javad and President Janpad Panchayat Javad. The said pamphlet is in Malvi dialect and was distributed on a large scale throughout the constituency by the candidate himself and through his workers and agents by his consent and connivance. By the said pamphlet the respondent No. 1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch. Vijaychankar Sharma of Neemuch, Shankar.Jal Bhatevara. President of Block Congress, Javad, and Dhecrai Vyas, Secretary, Block Yuvak Congress Javad, published statements of fact which are totally false and which the respondent No. 1 and his said agents believed to be false or did not believe to be true, in relation to the personal character or conduct of the respondent No. 4, being statements reasonably calculated to prejudice the prospects of\n\nC I\n\nthe election of respondent No. 4.\n\nThe said pamphkt contained allegations against the respondent No. 4, which are totally false to the knowledge of respondent No. 1 and his said agents and other persons who distributed the said pamphlet.\n\nThe aforesaid pamphlet (an English rendering) reproduced below (sic) false allegations against the personal character and conduct of respondent No. 4 :\n\n\"Ex. P-1\"\n\nINDIRA GANDHI JINDABADIPRAKASHCHAND SETHI\n\nJINDABAD\n\nElection\n\nSymbol\n\nDear Villagers,\n\nBirds Eye View of Saklecha\"s Regime\n\nThis is the election period. In our constituency voting shall be on 8th, the Wednesday.\n\nWe have been returning the Deepakwala- Saklecha for the last 15 years and he has been sitting in the Assembly for the last 15 years.\n\nSaklecha has remained Deputy Chief Minister but did no work.\n\nHe only served his interest. You have read this news in 'Nai Dunia' newspaper that Saklech ahas devoured lakhs of rupees from dacoits. During his period of rule he has tortured people by selecting them. He troubled people indiscreetly. Saklecha\n\nhas ploughed thousands of bighas of land on the Sukkanad side, when people are not getting land.\n\nSaklecha has ploughed the grass land of Bhutiakhal of Bava! and has installed electric water pump on the Kha!, when people are starving for water for irrigation of their land.\n\nThis is a matter for consideration that what has been done by Saklecha for the villagers.\n\nHe filled his belly.\n\nYou gave him opportunity to work for 15 years, but he did nothing.\n\nArey? you think about it, that if you would have given water to a Babool tree, then it would have also given you a blessing, but Saklecha has done nothing in 15 years. On our side we have a great scarcity of water, if he would have desired, then at the time of his Govt. he would have got Tube wells prepared.\n\nBut he did not think about it as for him there is a water pump fitted at Bhutia Kha! and there is road for him to go to his home.\n\nHe has helicopter and aeroplane for his travel.\n\nHe talks only in the air.\n\nIn Saklecha's Govt. they purchased Dodge Chasis in place of Mercedez and did much bungling with (sic) which God alone knows.\n\nHe has devoured the land of one Baba of Javad area.\n\nThis is known to the whole world. Therefore you have to consider it and be not deceived this time otherwise we will lay behind for other five years.\n\nOur area is lagging behind.\n\nThis is a matter for you to remember. Therefore for the development of the area and for removal of shortage of water you have to put your seal on the Cow &\n\n812.\n\nSUPREl\\1E COURT REPORTS\n\n[1976] 3 S.C.R.\n\nCalf symbol of Kanhaiyalal N agori and make him succeed.\n\nRemember this, Our interest lies in tais. . You have .to strengthen the hands pf; Indiraji.\n\nDo not forget it. . . ' . .\n\nY o\\i have to put your seal th)s time on Cow and Calf.\n\nParasram' Agarwal, Singoli, Vice-President of Janpad Panchayat Javad, Chosarmal Sarpanch, l'anchayat, Singoli, Bhanwarlal Badolia, Sarpanch, Panchayat Kadwasa, Ghanshyam Patidar, Pleader, Neemuch (Janakpur), Vijayshankar' Sharma, Neemuch (Mahudia) Shankarlal Bhatevara, President, Block Congress Javad, Dheeraj Vyas, Secretary, Block Youth Congress,\n\n---~----~--- Best place for Printing-Shriram Printing Press, in front of Jaju Bhawan, Neemuch.\"\n\n\"5 (B). The said pamphlet was distributed by the respondent No. l and with his consent and in his presence and under his direction by his agents and workers who were accompanying him in the jeep while touring the constituency the particulars of which are given below :-\n\nName of the person who distributed\n\n'Pamphlet.\n\n1. Kanhaiyalal N aogri\n\n2. Shankarlal Bhatevara of Javad, President, Block Congress, Javad.\n\n1. Kanhaiyalal Nagori\n\n2. Dheeraj Vyas Mantri of Ratangarh, Block Yuvak Congress, Javad.\n\nPlace . Date\n\nNe wad Jawi Thadoli Lasur Daro Ii Diken\n\n2.3.72 2.3.72 2.3.72 2.3.72 2.3.72\n\nRatangarhl Carwada ~3.3.1972 Alori j Kabriya 3.3.1972 Singoli 3.3.1972\n\n5 ( C). The said pamphlet was also distributed with the consent of the respondent No. 1 by the following persons the particulars whereaf are as follows :-\n\nName of the person Place Date\n\n1. Ghanshyam Patidar\n\n2. Jagdishchandra Airen c.1\n\n3. Shivlal Rawat, r Advocate of Neemuch. •\n\n4. Parasmal s/ o Kanhaiyalal N agori l\n\nVillage 25.2.72.\n\nDhaneria and Jawi Tehsil Neemuch\n\nThe said persons were active workers and agents of the r1JSpondcnt No. 1 and the said Parasmal is his son and\n\n• r\n\n' ... ~\n\n~!'.:~:!-\n\nagent.\n\nThe said persons distributed the said pamphlet which they were carrying on for the respondent No. 1.\n\nThe statements contained in the said pamphlet are false and which the said persons and the respondent No. 1 believed to be false and did not believe to be true.\n\n5 (D). That the respondent No. 1 through the Block B Congress Committee J avad published an election bulletin dated 6.3.1972 under the caption of 'Congress Tatha Anya Dalo Kee Sachhi Hakeekat' and got it distributed free on a large scale throughout the Javad constituency. In this bulletin there is a reference to an interview with the Congress candidate respondent No. 1 in the form of questions and answers.\n\nThe questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court.\n\nIn the affidavit annexed to the election petition. the petitioner stated as follows :-\n\n\"( c) The information regarding distribution has been received as detailed below :- .. --- -·-------- Naine of the person Place of corrupt practice committed and para of the Petition: ------- -\n\n1. Modidas Bairagi, village Newad Newad\n\nS(B)\n\n2. Madanlal Sharma, village Jawi Jawi\n\nS(B) (C)\n\n3. Onkar1al Khati, village Thandoli Thandoli\n\nS(B)\n\n4. Ramniwas Patidar, village Lasoor Lasoor\n\nS(B)\n\n5. Mishrilal Tailor, village Diken Diken\n\nS(B) (D)\n\n6. Lakshminaraya.n Latha, village Ratangarh Ratangarh\n\nS(B) (D)\n\n7. Shankerlal Cheran, village Garv .... ada Aloni Garwada Aloni\n\nS(B)\n\n8. Bhanwar Singh, village Kabriya Kabriya\n\nS(B)\n\n9. Bapalal son of Bhanwarlal,_. village Singoli Singoli\n\nS(B)(D)\n\n10. Keshar Singh, village Dhaneria Dhaneria\n\n5(C)\n\n11. Khemraj MOti Jat, village Morwan Morwan\n\nS(D)\n\n12. Balooram Dhakar, village Jhatla Jhatla\n\nS(D)\"\n\nThe petition was contested only by Kanhaiyalal.\n\nHe denied the printing, publication and distribution of the aforesaid two pamphlets H either by himself or by others with his consent.\n\n2-725SCl/76\n\nOn the pleadings the following issues were raised in the trial :-\n\n\"1. Whether respondent No. 1 Kanhaiyalal through the Block Congress Committee, Javad, got published the pamphlet (Saklecha Ke Karyakal Par Ek Nazar) as reproduced in para 5 (A) of the Petition ?\n\n. 2(a) Whether respondent No. 1 Kanhaiyalal and with his consent, in his presence and under his direction his agents and workers named in paragraph 5 (B) of the petition also distributed the said phmphlet at the places and on the dates mentioned in the said paragraph ?\n\n(b) (i) Whether the said pamphlet was also distributed with consent of respondent No. 1 Kanhaiyalal by the persons at the places and on the dates mentioned in paragraph 5(C) of the petition?\n\n(ii) Whether the persons named in paragraph 5 (C) of the petition were active \\\\'.Orkers and agents of the respondent No. 1 ?\n\n3. Whether the said pamphlet contained statements of D facts which were false and/or which the respondent No. 1 and his alleged agents and workers did not believe it to be true?\n\n4(a) Whether respondent No. 1 Kanhaiyalal through the Block Congress Committee, Javad, published the bulletm as reproduced in para 5 (D) of the petition and also got it freely distributed on a large scale and on the dates mentioned in para S(d) of the petition?\n\n(b) Whether the statement of facts in the said bullcHn was false and/or which the respondent No. 1 did not believe it to be true in regard to the personal character and conduct of respondent No. 4?\n\nF ( c) Whether the said statement was calculated to pre-\n\njudice the result of the election of respondent No. 4?\n\n5. To what relief the parties are entitled to?\"\n\nThe trial jndge answered the first question in favour of the election petitioner, issue No. 2(a) also in favour of the petitioner except at the places Newad and Kabriya, Issue No. 2(b)(i), 2(b)(ii) and Issue No. 3 in favour of the petitioner, Issue No. 4(a) also in favour of the petitioner except at the places. Dadoli, Diken and Jbantia, and Issue No. 4(b) and (c) also in favour of the petitioner.\n\nThe trial judge answered Issue No. 5 holding that the petition deserved to be allowed.\n\nMr. Nahata, who appeared on behalf of the appellant, the returned candidate, has addressed us with reference to all the issues that were held against him.\n\nMr. Hardy, the learned counsel on behalf of the petitioner (respondent) , however, did not press the charges\n\nKANBAIYALAL v. MANNALAL (Goswami, !.) 8l5\n\nwith regard to the distribution of '\"Haquikat\" (Ex.P-13).\n\nH~ also did not press the charges with regard to the distribution of Ex.P-1 by agents and by workers of the returned candidate with his consent, .as alleged in the election petition, some of which have even been held in his favour by the High Court.\n\nHe, however, submits that pamphlet Ex.P-1 is a false and libellous document affecting the personal character or conduct of the respondent, Saklecha, and so far as the s;; m~ was distributed by Kanhaiyalal personally at J awi and Thadoli on 2nd March, 1972, the charges have been fully established and this Court should not interfere with the findings of the High Court in favour of the appellant.\n\nMr. Khanduja appearing vn behalf of the respondent, Saklecha, adopted the submission ot Mr.\n\nHardy in tow.\n\nBefore we proceed further we should observe that in the trial the petitioner produced evidence to prove all the allegations mentioned in the election petition by examining as many as 42 witnesses including himself and by producing relevant documents.\n\nThe appellant also gave rebuttal evidence with regard to all the charges levelled against him by examining 21 witnesses including himseif and by producing various documents.\n\nIn this appeal we are concerned with only one species of corrupt practice contemplated in section 123 ( 4) of the Act.\n\nSection 123 ( 4) consists of three types of corrupt practices, namely (I) the publication of an offending or incriminating statement by a candidate, (2) by his agent within the meaning of the Explanation ( 1) to section 123 and ( 3) by any other person with the consent of the candidate or his election agent.\n\nWe are not concerned in this appeal with the types in (2) and (3) in view of the stand taken by Mr. Hardy and Mr. Khanduja.\n\nWe may first examine whether Ex.P-1 comes within the mischief of section 123 ( 4). The allegations mentioned in Ex.P-1, if false, and believed to be so, or not believed to be true, would come within the mischief of section 123(4). We have gone through the document and we are clearly of opinion that the allegations menff tioned in the document relate to the personal character and conduct of Saklecha and are reasonably calculated to prejudice the prospects of Saklecha's election. If the distribution of the same by Kanhaiya- Jal is established and if it is also established that the statements of facts therein are false and Kanhaiyalal either believed them to be false or did not believe them to be true, he will be guilty of corrupt G practice under section 123 ( 4) of the Act.\n\nSince the pamphlet on the face of it is shown as being printed at Shriram Printing Press, Neemuch, evidence was led by the petitioner by examining Harishankar (PW 32), the proprietor of the Press, who produced the register containing the printing orders.\n\nHe stated that during the last General Elections 5000 copies of the pamphlet like Ex.P-1 were printed in his Press.\n\nHe was, however, unable H t'! state wo had come to place the order as he as indisposed and his son Shtvshankar took the order. The entry m the register also was not made by him but was made by his son, Shivshankar, who\n\nwas not examined in the case.\n\nFrom the entry in the register (Ex.\n\nP-14) it appears that on 24th February, 1972, Congress Committee Javad placed orders for printing of 5000 pamphlets with the caption \"Sak:lecha Ke Karyakal Par' Ek Nazar\".\n\nThere is an obvious interpolation in the entry showing that Ghanshyam Patidar placed the orders on behalf of the Block Congress Committee, but the witness could not say who had made this interpolation.\n\nHe could not identify the handwriting in the interpolation.\n\nThe trial judge has noted the demeanour of this witness stating that \"it appears that he did not intend to stick to any particular answer and tned to change his version as and when he found , j( convenient\". The petitioner wanted to establish that Ghanshyam Patidar, who according to him, was actively working for the Congress went to the Press for placing the orders and later on even distributed some pamphlets with the consent of Kanhaiyalal. It is in that context that this interpolation assumes significance.\n\nWe are unable to hold that on the evidence of PW 32 the fact of Ghanshyam Patidar placing the order is established. There was no attempt to examine the son who haJ personal knowledge about the placing of the order.\n\nEven so, we are satisfied that the pamphlets were printed in this Press but it is di!lieult to hold as to who placed the orders for printing.\n\nThat this pamphlet was printed in order to advance the cause of the Congress candidate and to prejudice the interests of Saklecha cannot be in doubt.\n\nApart from this tbe proprietor was prosecuted for printing this pamphlet for contravention of the provisions of section 127 A of the Representation of the People Act, and be was convicted on bis plea and sentenced to pay a fine of Rs. 50/-.\n\nWe are, therefore, satisfied that the pamphlet was printed in the Shriram Printing Press, but in the absence of the evidence of Shivshankar we are unable to agree with the High Court that Ghanshyam Patidar had anything to do with the placing of the orders or printing of Ex.P-1.\n\nWe must next consider as to when this document came into existence.\n\nThe register of the Press shows that the order for Ex. P-1 was placed on 24th February, 1972, that is to say about two weeks before the pool and the allegations of its distribution were on 25th February and on 2nd March, 1972. Having come to know of the distribution of this offending pamphlet, Saklecba complained to the Returning officer by a letter dated 26th February, 1972, by enclosing a panchnama testifying to the distribution of the pamphlet at Jawi. Although it is not specifically established that this letter was posted on 26th February, 1972, or that it was received by post by tile Returning Officer, it is clear even from the application on behalf of the respondent Kanhaiyalal for snmmoning the Returning Officer that Saklccha had personally handed over this complaint to the Returning O!licer on 5th March, 1972, which was definitely prior to the poll.\n\nThere is a further fact which has been established.\n\nUnder the instructions of Saklecha, Hiralal Mehta, Advocate (PW 1) sent out registered notices dated 27th February, 1972, to seven signatories of the pamphlet (Ex.P-1), namely, Parasram Agarwal, Chosarmal, Bbanwarlal.\n\nGhanshyam Patidar, Vijayshankar Sharma, Shankarlal Batevara and Dbeeraj Vyas.\n\nSome of the witnesses examined on behalf of the I\n\nKANHAIYALAL v. MANNALAL (Goswarni, !.) 8 17\n\nrespondent, Kanhaiyalal, (RWs 5, 6 and 8) admitted to have received the registered notices of the Advocate to which they did not send any reply.\n\nThe fact of denial by Ghanshyam Patidar (RW 1) is not of much significance.\n\nThere is, therefore, no doubt whatsoever that the pamphlet (Ex.P-1) was in existence during the election period prior to the date ol poll on 8th March, 1972.\n\nWe are satisfied that 5,000 copies of the pamphlet were printed in the Shriram Printing Press. Evidently these were printed for the purpose of distribution in order to advance the cause of the appellant and to harm the interests of Saklecha.\n\nWe are not concerned in this appeal with the distribution of the pamphlet on 25th February,\n\n1972. Since these pamphlets were alleged to be distributed on '25th February, 1972, not by the appellant himself but by other persons, the petitioner had also to establish consent of the appellant in the distribution.\n\nAlthough the High Court has heid that even consent was established, Mr. Hardy has not pressed bis case regarding the allegation of distribution of the pamphlet on 25th February, 1972.\n\nMr. Nahata submits that in view of the newspaper reports and the Assembly proceedings, in particular the statements on the floor of the Assembly on a Vote of No Confidence against the S.V.D.\n\nMinistry where particular reference had been, inter alia, made in severe terms creating a furore about the activities of Sakiecha in his capacity as the Deputy Chief Minister in-charge of the Home Department, any person reading these will have reasonable belief that the allegations in Ex.P-1 arc true and at least not false. It is also emphasised by counsel that at no time Saklecha ever publicly contradicted the allegations, nor took any action against the publishers.\n\nMr. Hardy submits that none of the correspondents of the newspapers, nor the authors of the allegations whether made through the Press or on the floor of the House, or through a regular complaint, were examined by the appellant to make out even a prima facie case for reasonable belief of the truth of the wild allegations against the personal character and crmduct of Saklecha. It is submitted by Mr.\n\nHardy that the statements made on the floor of the Assembly are privileged and they are also privileged when published in the authorised organs under the order of the Honse, but to publish these again without the authority of the House will not be protected by privilege under article 194(2) of the Constitution .\n\n.Section 123(4) is a punitive rule against character assassination G o[ candidates during the period of election.\n\nA charge of electoral corrupt practices being of a quasi-criminal character, the onus on an election petitioner is heavy as if in a criminal charge.\n\nThe allegations must be established beyond reasonable doubt to the satisfaction of the court by cogent and unimpeachable evidence. That being the position in law the petitioner will have to satisfy the court that the returned candidate had reason to believe that the allegations in H the offending pamphlet were false or not true.\n\nEven assuming this ingredient is satisfied, since the charge may fail, if it is not established that the appellant himself distributed the offending pamphlet as\n\nalleged, we will immediately address ourselves to that aspect of the matter.\n\nBefore adverting to the evidence we have to take note of certain factors.\n\nEx concessis, the allegations of the publication of the pamphlet (Ex.P-1) on 25th February, 1972, by the workers and agents with the consent of the appellant have to be held as not established.\n\nSo far as the distribntion of the pamphlet on 25th February, 1972, at Jawi and at Dhaneria, two respective panchnamas were exhibited.\n\nA complaint enclosing a copy of the panchnama regarding the distribution of the pamphlet on 25th February, 1972, was lodged before the Returning Officer and it was received by him prior to the poll although the exact date was not proved.\n\nSo far as the distribution of the pamphlet Ex.P-1 on 25th February, 1972, there was, therefore, both oral and documentary evidence.\n\nEven so, since the appellant was not associated with the distribntion, it could not be established that the distribution, even if it took place, was with his consent.\n\nThe charges relating to the 25th February, 1972, were, therefore, rightly abandoned before us.\n\nSo far as, however, the distribution of the pamphlet on 2nd March, 1972, at Jawi and Thadoli, which alone survives for consideration, the petitioner relies entirely upon oral testimony and the court will have to be cautious and circumspect in accepting the same.\n\nThis Court in Rahim Khan 'v. Khurshid Ahmed & Ors.('), dealing with the oral testimony in election cases pithily observed at page 656 as follows :-\n\n\"We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents.\n\nIt must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable and disinterested, to speak to short simple episodes such as that a small village meeting took place where the candidates accused his rival of personal vices.\n\nThere is no x-ray whereby the dishonesty of the story can be established and, if the Court were gnllible enough to gnlp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus.\n\nWe regard it as extremely unsafe, in the present climate of ki!kenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses.\n\nThe Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result. but extinguish many a man's public life\".\n\nOrdinarily this Court will be slow to interfere with the findings of the High Court regarding appreciation of evidence except for good\n\n--·-----···----~------ --\n\n\n• and sufficient reasons.\n\nHave we good and sufficient reasons to A depart from the findings of the High Court ? Onr answer is in the affirmative and we will set out the reasons :\n\n( 1) The High Court while dealing with the distribution of the pamphlet (Ex.P-1) at Jawi by Ghanshyam Patidar and others felt assured from \"the subsequent conduct on the part of Virendra-. kumar Saklecha\" in preparh1g panchnama (Ex.P-11), instructing Advocate, Hiralal (PW 1) to serve registered notices (Ex.P-17) to the distributors of the pamphlet and in making a complaint (Ex.P-18) to the Returning Officer enclosing a panchnama.\n\nThe High Court held that \"this subsequent conduct on the part of Virendrakumar Saklecha naturally lends corroboration to his statement and the statements of the petitioner's witnesses who have deposed about the publication and distribution of this pamphlet on the dates referred to by them in their statements.\n\nThus on a consideration of the petitioner's evidence I feel satisfied that 'the pamphlet Ex.P-1 was distributed by Ghanshyam Patidar, Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as alleged in the petition\".\n\nThe above approach, which is correct, particularly in an election matter, was totally lost sight of by the High Court in dealing with D the allegations of .distribution of the pamphlet (Ex.P-1) by Kanhaiyalal at Jawi and Thadoli on March 2, 1972. The High Court did not look for Or' adopt the same test with regard to the aforesaid distribution of the pamphlet (Ex.P-1).\n\n(2) The High Court arrived at a completely erroneous finding regarding the printing of the document Ex.P-1 at the instance of Ghanshyam Patidar.\n\nAs shown earlier, there was no legal evidence hefore the High Court on which it could come to the conclusion that \"the person who got this Ex.P-1 printed in the Press of PW '.l'.\\ Harishankar was none else than RW l Ghanshyam Patidar on behalf of the Javad Block Congress Committee\".\n\nIn the absence of any direct evidence from the Press the above finding cannot be sustained in law from the fact that Ghanshyam Patidar denied receipt of and did not reply to the registered notice of the Advocate and that he denied his signature in a certain tour programme Ex.P-29.\n\n( 3) The High Court committed a serious error in linking up the printing of the document Ex.P-1 by Ghanshyam Patidar at the instance of Kanhaiyalal for which there was no evidence whatsoever with the distribution of the same by Kanhaiyalal in the constituency for holding :\n\n\"If the respondent Kanhaiyalal had not in any way been associated with the printing 'and publication of this pamphfot, then he would not have been one of the persons who would have distributed this pamphlet, as alleged in paragraph S(B) of the petition\".\n\nThe High Court committed an error of law in not dealing with the H two matters of printing of the pamphlet and of its distribution separately and independently.\n\n( 4) The High Court did not adopt a uniform standard in appreciating the evidence of the witnesses of the two conteuding parties.\n\nFor example, while RW 2 was disbelieved by the High Court holding \"admittedly he was the polling agent of the respondent Kanhaiyalal and must have had sympathies for him duriug the election period\", polling ageuts of the respondent Seklecha did not come under the same hostile comment for rejecting their testimony.\n\n( 5) It is manifest that the High Court was largely influenced by its finding that the pamphlet was printed by the J avad Block Congress Committee through Ghanshyam Patidar at the instance of the appellant.\n\nWhen this finding disappears, as we have shown above, the edifice ef the judgment cracks and it is no more a matter of mere reappreciation by us of the evidence, simpliciter, but of proper appreciation of only oral evidence produced regarding distribution of the pamphlet by Kanhaiyalal at Jawi and Thadoli on March 2, 1972, which we will, next, undertake.\n\nSaklecha took care to prepare panchnamas for the distribution of the offending pamphlets at Jawi and Dhaneria on 25th February, 1972.\n\nHe instructed his lawyer to serve registered notices on the signatories of the pamphlets and registered notices bear the date 27th February,\n\n1972. Seklecha lodged a complaint dated 26th February, 1972, with the Returning Officer about the distribution of the pamphlet enclosing a copy of the panchnama prepared at Jawi on 25th February, 1972.\n\nThis was quick action indeed.\n\nAll this documentary evidence lends corroboration to the existence of the pamphlet prior to the poll and even to its circulation. On the other hand, there is no documentary evidence of any complaint or service of lawyer's notice or preparation of a panchnarna regarding distribution of the pamphlet by Kanhaiyalal Nagori on 2nd March, 1972. It is absurd to suppose that if Kanhaiyalal had actually personally distributed the pamphlet at Jawi and Thadoli the matter would not have taken air and Saklecha would not have moved in the matter. This is particularly so, since, in the case of distribution by workers and other persons, consent of Kanhaiyalal was necessary to establish the corrupt practice whereas if Kanhaiyalal had personally distributed, the charge would have been established without the requirement of proof of consent.\n\nSo far as the distribntion of the pamphlet Ex. P-1 at Jawi on 2nd March, 1972, is concerned, we have the evidence of PWs, 2, 3, 4 and 5 on behalf of the petitioner and RWs 15, 16, 17 and 21 in rebuttal on behalf of the appellant.\n\nMadanlal (PW 2), Nanalal (PW 3), Mohanlal (PW 4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex. P-1) by Kanhaiyalal and Shankarlal Bhatevara at Jawi Bazar on March 2,\n\n1972.\n\nThere is a significant revelation in the evidence of Madanlal (PW 2) which the High Court has absolutely failed to consider. According to Madanlal he did not personally know about the pamphlet being distributed on 25th of February, 1972, at Jawi. He also did not see a panchnama being prepared.\n\nHe deposed only about the distribution\n\nof the pamphlet by Kanhaiyalal and Shankarlal Bhatcvara at Jawi about five or six days before the date of poll.\n\nThis would show that he was deposing only with regard to the distribution of the pamphlet by Kanhaiyalal on 2nd March, 1972. He stated in his evidence:\n\n\"I met Saklecha the same day when I saw Ex.P-1. I had a talk with Saklecha regarding the pamphlet Ex. P-1 ''.\n\nHe further stated that-\n\n\"this pamphlet was given to me by Kanhaiyalal. ... 1 handed over the same pamphlet to Saklecha which was given to me by Kanhaiyalal''.\n\nIf the above statements are true, he met Saklecha on 2nd March, 1972.\n\nIn the way Saklecha reacted to the distribution of the pamphlet on 25th February, 1972, his utter inaction with regard to the distribution of the pamphlet by Kanhaiyalal on 2nd March, 1972, is absolutely inexplicable. The absence of any complaint to the Returning Officer against Kanhaiyalal even after receipt of the information and the pamphlet from Madanlal would go to show that the entire allegation regarding Kanhaiyalal's distribution of the pamphlet is an after-thought to reinforce the charge against the returned candidate.\n\nIn the way Saklecha was following a certain procedure of his own regruding the alleged illegal activities of the appellant's campaigners, there was no reason why a panchnama would not have been prepared at Jawi on 2nd March, 1972, when Madanlal informed him about Kanhaiyalal's distribution of the pamphlet which was even handed over to him that very evening.\n\nWe find that Madanlal (PW 2) is contradicted by Nandlal (PW\n\n'i 3). Although Madanlal, who is the informant about the distribution of the pamphlet by Kanhaiyalal at Jawi on 2nd March, 1972, denied the fact of the panchnama being prepared on 25th February, 1972, at Jawi, Nanalal (PW 3) stated:\n\n\"While the panchnama was under preparation Ram- F shankar, Madanlal Tiwari, who has been examined to-day, and two others had also come there\".\n\nIt is difficult to appreciate why Madanlal had suppressed the fact of his knowledge of the panchnama prepared on 25th February, 1972 .\n\nIt will be relevant to note here that in the affidavit annexed to the election petition, Madanlal has been shown as the informant regard- G ing the distribution of the pamphlet at Jawi on 25th February as well as on 2nd March, 1972. Madanlal, however, in his evidence disowns personal knowledge about the distribution of the pamphlet on 25th February, 1972. According to Nanalal (PW 3) after the preparation of the Panchnama on 25th February, 1972, Saklecha addressed a meeting in front of his shop by the public address system. Madanlal\n\n(PW 3) also deposed that he only saw once Saklecha addressing some H persons assembled in front of Nanalal's shop by the public address system. He further stated that he handed over the pamphlet to Sak- Jccha all that date. This falsifies his evidence regarding March 2, 1972.\n\nMadanlal's statement about distribution of the pamphlet by Kanhaiyalal to him on 2nd March, 1972, is open to grave suspicion, rather smacks of padding.\n\nMadanla! is admittedly a member of the Jan Sangh party although, according to him, he is not an active worker. Since his evidence is intrinsically unacceptable, it is not necessary to refer to the various contradictions in bis evidence. To mention one instance only, be contradicted himself in the cross-examination when he stated that \"some time before the pamphlet was given to me by Kanhaiyalal, I got another copy of the same pamphlet from some boys in the village earlier and that was given by me to Saklecha.\n\nI cannot say if the pamphlet given to me by Kanhaiyalal is or is not still with him (sic)\".\n\nNanalal (PW 3) deposed to the distribution of the pamphlet at Jawi on 25th February as well as on 2nd March, 1972. In the course of cross-examination he stated that he did not personally tell anyone that Kanhaiyalal had distributed the pamphlet in the village. He did not have any talk with Nanalal Agarwal (the petitioner) regarding the pamphlet. He further stated that when Kanhaiyalal Nagori gave the pamphlet to him he was the only person present in his shop. He admitted that on the date of poll he acted as a Polling Agent of Saklecha.\n\nIf the same standard has to be adopted which the High Court has done with regard to the appreciation of the evidence of Shivlal Rawat (RW 2) whose testimony was rejected because he acted as the Polling Agent of Kanhaiyalal, Nanalal's evidence would have to be treated in the same manner. Even by the standard adopted by the High Court the testimony of this witness cannot be accepted.\n\nMohanlal Jain (PW 4) is the second grocer examined on behalf of the petitioner. He deposed to the distribution of the pamphlet on both the dates, on 25th February and on 2nd March, 1972. He admitted that he exhibited posters and put up banner of the Jan Sangh party. He is, therefore, a highly interested witness. He also admitted that he did not tell anyone that any pamphlet had been given to him by Kanhaiyalal.\n\nHis evidence also cannot be acted upon.\n\nThe last witness examined with regard to Jawi distribution is Ramshankar (PW 5), a real brother of Madanlal (PW 2). The evidence of Madanlal about distribution in Jawi is that the offending pamphlet was distributed to all the shopkeepers and to also those who met them.\n\nIt appears that the Jawi bazar has about eight or nine shops. Yet only two shopkeepers, namely, Nanalal and Mohanlal Jain were examined Madanlal and his brother, Ramshankar are cultivators and not shopkeepers at Jawi bazar. As against this the appellant examined two shopkeepers of Jawi, namely, Ratanlal (RW 15) and Gordhanlal (RW 16), who denied the distribution of the pamphlet by Kanhaiyalal.\n\nKanhaiyalal himself also stated on oath that he did not distribute the pamphlet nor accompanied Shankarlal Bhatevara for the purpose of distribution of the pamphlet.\n\nSimilarly, Shankadal Bhatevara (PW)\n\n8) also denied the distribution. It is not even necessary to closely scrutinise the evidence of the appellant and his witnesses when we are satisfied that the petitioner has not been able to establish the allegations abont the distribution of the pamphlet by Kanhaiyalal at Jawi on\n\n2nd March, 1972. We are of opinion that the High Court is not right in its conclusion that the charge of distribution of pamphlet by Kanhai- 1 yalal at Jawi is established against the appellant.\n\nThis takes us to the distribution of the pamphlet by Kanhaiyalal on 2nd March, 1972, at Thadoli.\n\nOnkarlal Khati (PW 9) was the informant regarding the distribution at Thadoli.\n\nAccording to him about five or six days before the date of poll he was sitting with a few others by the side of the village temple when he saw Kir,1haiyalal Nagori and Shankarlal Bhatevara coming to them.\n\nAmongst others, Tulsiram (PW 7) and Bhanwarlal (PW 8) were also sitting with him.\n\nHe stated that Kanhaiyalal told them that the Jan Sangh candidate was being elected for the last fifteen years and the constituency was very much handicapped iiad that this time 'the Congress candidate should be elected. Then he distributed the pamphlet similar to Ex. P-1. The pamphlet was distributed both by Kanhaiyalal and Shankarlal Bhatevara. He further stated that about six days after the poll he met • Marmalal and talked to him about \"the incorrect statement circulated in the form of pamphlet\" which affected the result of the election. In the course of cross-examination he stated that Kanhaiyalal and Shankarlal Bhatevara were 1not accompanied by any person on that day.\n\nHe denied tha:t he was a Jan Sangh worker. He did not preserve the pamphlet which was given to him and it was destroyed after he had read it.\n\nTwo other witnesses are Tulsiram\n\n(PW 7) and Bhanwarlal (PW 8) to corroborate him about the distribution of the pamphlet by Kanhaiyalal and Sh>ankarlal Bhatevara five or six days before the date of poll.\n\nAmongst thse Tulsiram was a Polling Agent for Saklecha at Thadoli as has been admitted by Saklecha himself. This winess, however, suppressed this fact <and denied that he was a Polling Agent of Saklecha.\n\nBhanwarlal (PW 8) similarly deposed that five or six days before the date of poll when he and others were sitting in the temple precincts he saw Kanhaiyalal and Shankarlal Bhatevara coming to them and after some canvassing both of them distributed pamphlets like Ex. P-1.\n\nWe are iavited to rely on the above oral testimony to hold that Kanhaiyal•al distributed the offending pamphlet.\n\nKanhaiyalal (RW 21) and Shankarlal Bhatevara (RW 8) have\n\ndenied the allegations.\n\nThe appellant oalso examined Mangilal of G Thadoli (RW 18) to state that Tulsiram, Bhanwarlal and Onkarlal are the Jan Sangh party workers at Tb>adoli. He was admittedly a person who accompanied the distributors to the village. There is thus practically oath agai•ast oath with regard to the distribution of the pamphlet by Kanhaiyalal at Thadoli.\n\nTo summarise this part of the case, the High Court while deciding H about the truth or otherwise of the allegations of distribution of the pamphlet by Kanhaiyalal at Thadoli, as also in other p1'aces, seems to have a large degree of assurance from its finding that the offending\n\npamphlet was got prirrted by Kanhaiyalal through Ghanshyam Patidar.\n\nThat finding, as shown above, no lmger survives. We are now only left with the oral testimony of PWs 7, 8 and 9 regarding distribution of the pamphlet at Thadoli by Kanhaiyalal and SIJ'ankarlal Bhatevara.\n\nThese three witnesses are pitted against three others, Kanhaiyalal (RW 21), Shankarlal (RW 8) and Mangilal (RW 18) stating to the contrary. Mangilal was admittedly in the company of the distributors of the pamphlet when they errtered Thadoli village. Mangi)al as RW 18 denies the visit of Kanhaiyalal to Thadoli. Again PW 7 speaks with two voices regarding the day of Kanhaiyalal's visit to Thadoli for the purpose of distribution of the pamphlet. He stated at first that it was ten or twelve days before the poll mad then said about five or six days before the poll.\n\nBhanwarlal (PW 8) saw Kanhaiyalal and Shankarlal Bhatevara conting on foot and only heard the sound of vehicle coming near the village.\n\nPW 7 saw them coming in a motor vehicle. They were all sitting together and even then they are discrepa:at as to how Kanhaiyalal and Shankarlal Bhatevara came there.\n\nPW 8 makes a curious statement in cross exantination :\n\n'D \"All those who were sitting by my side had seen the\n\ndistribution of pamphlets. Besides them I did not tell anyone about the distribution of pamphlets\".\n\nIt passes one's compreheJasion why he had to tell them. He also stated that-\n\n\"besides Shankarlal and Kanhaiyalal there was no other person who accompanied them\".\n\nOn the other hand, according to PW 7 Bhanwarfal Sutar and Mangilal ): Mahajan accompanied them when they entered the village after parking the car outside.\n\nOnkarlal (PW 9) stated in examination-in-chief :\n\n\"About six days after the polling I met Mannalal in Neemuch Dhan Mandi where he enquired from me about the result of the election.\n\nI then told him as to what was the result.\n\nI also talked to him about the incorrect statement circulated in the form of pamphlet\".\n\nIn the course of cross-exantination he stated :\n\n\"The only talk that I had with Mannalal was that the false pamphlets had its effect da the election. At that time I y had no other talk with him\". (\n\nWhatever be the effect of the above statements which Mr. Hardy wanted to explain away, it is clear that PW 9 did not mention at all that he had told the petitioner, Mannalal, the names of Kanhaiyalal and Shankarfal Bhatevara as distributing the pamphlet at Thadoli. On\n\nthe other hand, he referred to the only talk which he had about the\n\neffect of the pamphlet. He also admitted that his talk with Malnnalal A\n\nI was only a casual ralk. This is not the quality of evidence we expect\n\n~ from the only informant of the publication of the pamphlet at Thadoli.\n\nWe have referred to some of the above incongruities and inconsistencies in the evidence of PWs 7, 8 and 9 in order to show how unsafe it is to rely merely Qin oral testimony which is not vouchsafed from any B other safe source.\n\nIt is true that the High Court has relied upon the oral testimony of the above witnesses but we express grave doubt if the High Court would have based its decision to upset an election merely Ql,1 their oral testimony if it had not come to conclusion that Kanhaiyalal had earlier got the offending pamphlet printed at the Press. The latter finding had obviously its decisive effect on the mlad of the leoarned trial judge . c .,\n\nWe are unable to suppose that Saklecha would not know of such illegal activities of his opponent, if true. It is alleged that the offending pamphlets had been distributed by Kanhaiyalal in a 1mmber of places in the constituency commencing from March 2 and eading on March 6, 1972; in one case, even in a bus stand, watched by the petitioner.\n\nD, It is impossible to imagine that such nefarious activities, if true, would not reach the ears of Saklecha with his network of workers and compaigners for the purpose of the clcctida. Between March 2 and March\n\n8, no complaint had bee_n made by Saklecha or by anyone regarding distribution of the offending pamphlet by Kanhaiyalal. We arc, therefore, unable to hold that a serious charge of this nature is established I\n\non the mere oral testimony of the aforesaid three witnesses.\n\nBefore concluding, we may <!aly refer to the petitioner, Mannalal's evidence to highlight how far oral testimony can go. Both Kanhaiyalal and Mannalal are residents of village Daroli. It is the evidence of Mannalal (PW 42) that Kanhaiyalal distributed the offending pamphlet Ex. P-1 on 2nd March, 1972, at Daroli to him alad to many others.\n\nAlthough we are not concerned with the distribution of the pamphlet by Kanhaiyalal at Daroli in this appeal, it is absurd that Kanhaiyalal would choose to hand over an offending pamphlet of this nature to • Mannalal who is an active worker of Jan Swagh party and keen supporter of Saklecha unless he foolishly chose to create evidence against him. It is true that the charge regarding distribution at Daroli is not pressed before us but we cannot close our eyes to the extent to which G .. the petitioner could go in levelling charges of corrupt practice against ' the appellant. ' Oral testimoay, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. The matter would have H been different if there had been an immediate written complaint to the Returning Officer against Kanhaiyalal as had been made in the case of his workers.\n\nAn election dispute is not a private feud between one individual and another. '.fhe whole COlilstituency is intimately involved in such ' \\ a dispute.\n\nShaky and wavering oral testimony of a handful of wiV- nesses cannot still the dominant voice of the majority of an electorate.\n\nWe are, therefore, clearly of opinion that the distribution of the pamphlet (Ex. P-1) by Kanhaiyalal at Jawi and Thadoli has not been satisfactorily established on the oral testimony of the witnesses.\n\nIt is, therefore, not necessary to deal with the submission of Mr.\n\nNahata as to whether Kanhaiyalal had reason to believe that the statements of facts in Ex. P-1 were not false or that they were not untrue.\n\nIn the result the appeal is allowed with costs in this Court as well as in the High Court. The judgment of the High Court is set aside and the election petition stands dismissed.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 195, "entities": [{"text": "KANHAIY ALAL", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "Kanhaiyalal, Nanalal", "offset_not_found": false}}, {"text": "MANNALAL & OTHERS", "label": "RESPONDENT", "start_char": 17, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "MANNALAL & OTHERS", "offset_not_found": false}}, {"text": "March 23, 1976", "label": "DATE", "start_char": 36, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "KANHAIY ALAL v.\n\nMANNALAL & OTHERS\n\nMarch 23, 1976\n\n[P. K. GOSWAMI AND S. MURTAZA FAZAL Au, JJ.]"}}, {"text": "P. K. GOSWAMI", "label": "JUDGE", "start_char": 53, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI*", "offset_not_found": false}}, {"text": "Representation oj the People Act, 1950", "label": "STATUTE", "start_char": 98, "end_char": 136, "source": "regex", "metadata": {}}, {"text": "s. 123", "label": "PROVISION", "start_char": 674, "end_char": 680, "source": "regex", "metadata": {"linked_statute_text": "Representation oj the People Act, 1950", "statute": "Representation oj the People Act, 1950"}}, {"text": "Representation of People Act, 1950", "label": "STATUTE", "start_char": 693, "end_char": 727, "source": "regex", "metadata": {}}, {"text": "s. 123(4)", "label": "PROVISION", "start_char": 1286, "end_char": 1295, "source": "regex", "metadata": {"linked_statute_text": "the Representation of People Act, 1950", "statute": "the Representation of People Act, 1950"}}, {"text": "B. R. Nahata", "label": "LAWYER", "start_char": 4006, "end_char": 4018, "source": "ner", "metadata": {"in_sentence": "B. R. Nahata and Rameshwar Nath for the Appellant."}}, {"text": "Rameshwar Nath", "label": "LAWYER", "start_char": 4023, "end_char": 4037, "source": "ner", "metadata": {"in_sentence": "B. R. Nahata and Rameshwar Nath for the Appellant."}}, {"text": "Hardayal 'Hardy", "label": "LAWYER", "start_char": 4058, "end_char": 4073, "source": "ner", "metadata": {"in_sentence": "Hardayal 'Hardy and S. K. Gambhir for Respondent No."}}, {"text": "S. K. Gambhir", "label": "LAWYER", "start_char": 4078, "end_char": 4091, "source": "ner", "metadata": {"in_sentence": "Hardayal 'Hardy and S. K. Gambhir for Respondent No."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 4115, "end_char": 4129, "source": "ner", "metadata": {"in_sentence": "S. S. Khanduja and Sushil Kumar lain for Respondent No."}}, {"text": "Sushil Kumar lain", "label": "LAWYER", "start_char": 4134, "end_char": 4151, "source": "ner", "metadata": {"in_sentence": "S. S. Khanduja and Sushil Kumar lain for Respondent No."}}, {"text": "section 116A", "label": "PROVISION", "start_char": 4293, "end_char": 4305, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act, 1951", "label": "STATUTE", "start_char": 4313, "end_char": 4351, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "High Court of Madhya Pradesh", "label": "COURT", "start_char": 4381, "end_char": 4409, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GqsW/\\¥1, J.--Thi8 is an appeal under section 116A of the Representation of the People Act, 1951, against the judgment of the High Court of Madhya Pradesh in an election petition filed by an elector named Mannalal (respondent No."}}, {"text": "Mannalal", "label": "PETITIONER", "start_char": 4460, "end_char": 4468, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by GqsW/\\¥1, J.--Thi8 is an appeal under section 116A of the Representation of the People Act, 1951, against the judgment of the High Court of Madhya Pradesh in an election petition filed by an elector named Mannalal (respondent No.", "canonical_name": "Mannalal"}}, {"text": "Kanhaiyalal N agori", "label": "PETITIONER", "start_char": 4600, "end_char": 4619, "source": "ner", "metadata": {"in_sentence": "petitioner, for setting aside the election of the appellant Kanhaiyalal N agori.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "March 12, 1972", "label": "DATE", "start_char": 4776, "end_char": 4790, "source": "ner", "metadata": {"in_sentence": "The poll took place on March 8, 1972 and\n\nthe result was declared on March 12, 1972."}}, {"text": "Kanhaiyalal", "label": "PETITIONER", "start_char": 4846, "end_char": 4857, "source": "ner", "metadata": {"in_sentence": "The appellant Kanhaiyalal who was a Congress E candidate and respondent No.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Virendrakumar Saklecha", "label": "RESPONDENT", "start_char": 4960, "end_char": 4982, "source": "ner", "metadata": {"in_sentence": "Virendrakumar Saklecha (for brevity Saklecha) who was a Jan Sangh candidate, being respondent No.", "canonical_name": "Virendra-. kumar Saklecha"}}, {"text": "Ravishankar Sharma", "label": "RESPONDENT", "start_char": 5175, "end_char": 5193, "source": "ner", "metadata": {"in_sentence": "Ravishankar Sharma (respondent No.", "canonical_name": "Vijayshankar' Sharma"}}, {"text": "Jagmohan", "label": "RESPONDENT", "start_char": 5268, "end_char": 5276, "source": "ner", "metadata": {"in_sentence": "2) who was a Socialist candidate, obtained 1300 votes and Jagmohan (respondent No."}}, {"text": "Saklecha", "label": "PETITIONER", "start_char": 5485, "end_char": 5493, "source": "ner", "metadata": {"in_sentence": "Saklecha was being returned from this constituency since 1957 having won the election in that year and in the next two successive years 1962 and 1967.", "canonical_name": "Sak- Jccha"}}, {"text": "Congress Government", "label": "ORG", "start_char": 5894, "end_char": 5913, "source": "ner", "metadata": {"in_sentence": "In the year 1968, Congress Government was defeated and Samyukat Vidhayak Dal (briefly S.V.D.) came into power in the State."}}, {"text": "Samyukat Vidhayak Dal", "label": "OTHER_PERSON", "start_char": 5931, "end_char": 5952, "source": "ner", "metadata": {"in_sentence": "In the year 1968, Congress Government was defeated and Samyukat Vidhayak Dal (briefly S.V.D.) came into power in the State."}}, {"text": "Saklecha", "label": "PETITIONER", "start_char": 6001, "end_char": 6009, "source": "ner", "metadata": {"in_sentence": "Saklecha was the Deputy Chief Minister in that Government from July 1967 to March 1969.", "canonical_name": "Sak- Jccha"}}, {"text": "S.V.D. Government", "label": "ORG", "start_char": 6093, "end_char": 6110, "source": "ner", "metadata": {"in_sentence": "The S.V.D. Government fell in 1969."}}, {"text": "Mannalal", "label": "PETITIONER", "start_char": 6205, "end_char": 6213, "source": "ner", "metadata": {"in_sentence": "H As stated earlier the election of the appellant was challenged by an elector Mannalal by an election petition filed on April 24, 1972,\n\nalleging corrupt practices under section 123 ( 4) of the Representation of the People Act (briefly the Act) which reads as follows:-\n\n123. \"", "canonical_name": "Mannalal"}}, {"text": "section 123", "label": "PROVISION", "start_char": 6297, "end_char": 6308, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 6321, "end_char": 6353, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kanhaiyalal Nagori", "label": "PETITIONER", "start_char": 7092, "end_char": 7110, "source": "ner", "metadata": {"in_sentence": "It may be appropriate to describe from the election petition itself the allegations against the returned candidate, Kanhaiyalal Nagori :\n\n\"5.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Saklecha Ke Karyakal Par Ek Nazar", "label": "ORG", "start_char": 7360, "end_char": 7393, "source": "ner", "metadata": {"in_sentence": "l got published through Block Congress Committee, J avad, a pamphlet entitled \"Saklecha Ke Karyakal Par Ek Nazar\" and it was distributed throughout the Javad constituency by the respondent No."}}, {"text": "Shriman Press, Neemuch", "label": "ORG", "start_char": 7566, "end_char": 7588, "source": "ner", "metadata": {"in_sentence": "The said pamphlet was printed in Shriman Press, Neemuch and the signatories to the said pamphlets are all members and important office bearers of the Congress party and who were actively conducting the election propaganda of the respondent No."}}, {"text": "Janpad Panchayat Javad", "label": "ORG", "start_char": 7931, "end_char": 7953, "source": "ner", "metadata": {"in_sentence": "1 was official Congress candidate and he was also Provincial Congress Committee member representing Block Committee Javad and President Janpad Panchayat Javad."}}, {"text": "Parasram Agarwal", "label": "OTHER_PERSON", "start_char": 8210, "end_char": 8226, "source": "ner", "metadata": {"in_sentence": "1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch."}}, {"text": "Singoli", "label": "GPE", "start_char": 8254, "end_char": 8261, "source": "ner", "metadata": {"in_sentence": "1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch."}}, {"text": "Bhanwarlal Badolia", "label": "OTHER_PERSON", "start_char": 8263, "end_char": 8281, "source": "ner", "metadata": {"in_sentence": "1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch.", "canonical_name": "Bhanwarlal Badolia"}}, {"text": "Kadwasa", "label": "GPE", "start_char": 8285, "end_char": 8292, "source": "ner", "metadata": {"in_sentence": "1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch."}}, {"text": "Ghanshyam Patidar", "label": "RESPONDENT", "start_char": 8294, "end_char": 8311, "source": "ner", "metadata": {"in_sentence": "1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch.", "canonical_name": "Ghanshyam Patidar"}}, {"text": "Neemuch", "label": "GPE", "start_char": 8315, "end_char": 8322, "source": "ner", "metadata": {"in_sentence": "1 throngh his agents Parasram Agarwal of Singo!i, Chosarmalji of Singoli, Bhanwarlal Badolia of Kadwasa, Ghanshyam Patidar of Neemuch."}}, {"text": "Vijaychankar Sharma", "label": "RESPONDENT", "start_char": 8324, "end_char": 8343, "source": "ner", "metadata": {"in_sentence": "Vijaychankar Sharma of Neemuch, Shankar.", "canonical_name": "Vijayshankar' Sharma"}}, {"text": "Shankar.Jal Bhatevara", "label": "LAWYER", "start_char": 8356, "end_char": 8377, "source": "ner", "metadata": {"in_sentence": "Vijaychankar Sharma of Neemuch, Shankar.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Dhecrai Vyas", "label": "LAWYER", "start_char": 8419, "end_char": 8431, "source": "ner", "metadata": {"in_sentence": "President of Block Congress, Javad, and Dhecrai Vyas, Secretary, Block Yuvak Congress Javad, published statements of fact which are totally false and which the respondent No.", "canonical_name": "Dheeraj Vyas Mantri"}}, {"text": "Block Yuvak Congress Javad", "label": "ORG", "start_char": 8444, "end_char": 8470, "source": "ner", "metadata": {"in_sentence": "President of Block Congress, Javad, and Dhecrai Vyas, Secretary, Block Yuvak Congress Javad, published statements of fact which are totally false and which the respondent No."}}, {"text": "INDIRA GANDHI JINDABADIPRAKASHCHAND SETHI\n\nJINDABAD", "label": "RESPONDENT", "start_char": 9180, "end_char": 9231, "source": "ner", "metadata": {"in_sentence": "P-1\"\n\nINDIRA GANDHI JINDABADIPRAKASHCHAND SETHI\n\nJINDABAD\n\nElection\n\nSymbol\n\nDear Villagers,\n\nBirds Eye View of Saklecha\"s Regime\n\nThis is the election period."}}, {"text": "Deepakwala- Saklecha", "label": "OTHER_PERSON", "start_char": 9421, "end_char": 9441, "source": "ner", "metadata": {"in_sentence": "We have been returning the Deepakwala- Saklecha for the last 15 years and he has been sitting in the Assembly for the last 15 years."}}, {"text": "Nai Dunia", "label": "OTHER_PERSON", "start_char": 9647, "end_char": 9656, "source": "ner", "metadata": {"in_sentence": "You have read this news in 'Nai Dunia' newspaper that Saklech ahas devoured lakhs of rupees from dacoits."}}, {"text": "Saklech", "label": "PETITIONER", "start_char": 9673, "end_char": 9680, "source": "ner", "metadata": {"in_sentence": "You have read this news in 'Nai Dunia' newspaper that Saklech ahas devoured lakhs of rupees from dacoits.", "canonical_name": "Sak- Jccha"}}, {"text": "Bhutiakhal", "label": "OTHER_PERSON", "start_char": 9974, "end_char": 9984, "source": "ner", "metadata": {"in_sentence": "Saklecha has ploughed the grass land of Bhutiakhal of Bava!"}}, {"text": "Bava", "label": "GPE", "start_char": 9988, "end_char": 9992, "source": "ner", "metadata": {"in_sentence": "Saklecha has ploughed the grass land of Bhutiakhal of Bava!"}}, {"text": "Mercedez", "label": "OTHER_PERSON", "start_char": 10870, "end_char": 10878, "source": "ner", "metadata": {"in_sentence": "they purchased Dodge Chasis in place of Mercedez and did much bungling with (sic) which God alone knows."}}, {"text": "Kanhaiyalal N agori", "label": "PETITIONER", "start_char": 11388, "end_char": 11407, "source": "ner", "metadata": {"in_sentence": "SUPREl\\1E COURT REPORTS\n\n[1976] 3 S.C.R.\n\nCalf symbol of Kanhaiyalal N agori and make him succeed.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Vijayshankar' Sharma", "label": "LAWYER", "start_char": 11817, "end_char": 11837, "source": "ner", "metadata": {"in_sentence": "Parasram' Agarwal, Singoli, Vice-President of Janpad Panchayat Javad, Chosarmal Sarpanch, l'anchayat, Singoli, Bhanwarlal Badolia, Sarpanch, Panchayat Kadwasa, Ghanshyam Patidar, Pleader, Neemuch (Janakpur), Vijayshankar' Sharma, Neemuch (Mahudia) Shankarlal Bhatevara, President, Block Congress Javad, Dheeraj Vyas, Secretary, Block Youth Congress,\n~----~--- Best place for Printing-Shriram Printing Press, in front of Jaju Bhawan, Neemuch.\"", "canonical_name": "Vijayshankar' Sharma"}}, {"text": "Shankarlal Bhatevara", "label": "LAWYER", "start_char": 11857, "end_char": 11877, "source": "ner", "metadata": {"in_sentence": "Parasram' Agarwal, Singoli, Vice-President of Janpad Panchayat Javad, Chosarmal Sarpanch, l'anchayat, Singoli, Bhanwarlal Badolia, Sarpanch, Panchayat Kadwasa, Ghanshyam Patidar, Pleader, Neemuch (Janakpur), Vijayshankar' Sharma, Neemuch (Mahudia) Shankarlal Bhatevara, President, Block Congress Javad, Dheeraj Vyas, Secretary, Block Youth Congress,\n~----~--- Best place for Printing-Shriram Printing Press, in front of Jaju Bhawan, Neemuch.\"", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Dheeraj Vyas", "label": "LAWYER", "start_char": 11912, "end_char": 11924, "source": "ner", "metadata": {"in_sentence": "Parasram' Agarwal, Singoli, Vice-President of Janpad Panchayat Javad, Chosarmal Sarpanch, l'anchayat, Singoli, Bhanwarlal Badolia, Sarpanch, Panchayat Kadwasa, Ghanshyam Patidar, Pleader, Neemuch (Janakpur), Vijayshankar' Sharma, Neemuch (Mahudia) Shankarlal Bhatevara, President, Block Congress Javad, Dheeraj Vyas, Secretary, Block Youth Congress,\n~----~--- Best place for Printing-Shriram Printing Press, in front of Jaju Bhawan, Neemuch.\"", "canonical_name": "Dheeraj Vyas Mantri"}}, {"text": "Kanhaiyalal N aogri", "label": "RESPONDENT", "start_char": 12379, "end_char": 12398, "source": "ner", "metadata": {"in_sentence": "Kanhaiyalal N aogri\n\n2.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Shankarlal Bhatevara", "label": "RESPONDENT", "start_char": 12403, "end_char": 12423, "source": "ner", "metadata": {"in_sentence": "Shankarlal Bhatevara of Javad, President, Block Congress, Javad.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Kanhaiyalal Nagori", "label": "RESPONDENT", "start_char": 12472, "end_char": 12490, "source": "ner", "metadata": {"in_sentence": "Kanhaiyalal Nagori\n\n2.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Dheeraj Vyas Mantri", "label": "RESPONDENT", "start_char": 12495, "end_char": 12514, "source": "ner", "metadata": {"in_sentence": "Dheeraj Vyas Mantri of Ratangarh, Block Yuvak Congress, Javad.", "canonical_name": "Dheeraj Vyas Mantri"}}, {"text": "Ratangarhl Carwada", "label": "RESPONDENT", "start_char": 12650, "end_char": 12668, "source": "ner", "metadata": {"in_sentence": "Date\n\nNe wad Jawi Thadoli Lasur Daro Ii Diken\n\n2.3.72 2.3.72 2.3.72 2.3.72 2.3.72\n\nRatangarhl Carwada ~3.3.1972 Alori j Kabriya 3.3.1972 Singoli 3.3.1972\n\n5 ( C)."}}, {"text": "Ghanshyam Patidar", "label": "RESPONDENT", "start_char": 12912, "end_char": 12929, "source": "ner", "metadata": {"in_sentence": "Ghanshyam Patidar\n\n2.", "canonical_name": "Ghanshyam Patidar"}}, {"text": "Jagdishchandra Airen", "label": "RESPONDENT", "start_char": 12934, "end_char": 12954, "source": "ner", "metadata": {"in_sentence": "Jagdishchandra Airen c.1\n\n3.", "canonical_name": "Jagdishchandra Airen"}}, {"text": "Shivlal Rawat", "label": "RESPONDENT", "start_char": 12963, "end_char": 12976, "source": "ner", "metadata": {"in_sentence": "Shivlal Rawat, r Advocate of Neemuch. •", "canonical_name": "Shivlal Rawat"}}, {"text": "Parasmal", "label": "RESPONDENT", "start_char": 13007, "end_char": 13015, "source": "ner", "metadata": {"in_sentence": "Parasmal s/ o Kanhaiyalal N agori l\n\nVillage 25.2.72.", "canonical_name": "Parasmal"}}, {"text": "Dhaneria", "label": "RESPONDENT", "start_char": 13062, "end_char": 13070, "source": "ner", "metadata": {"in_sentence": "Dhaneria and Jawi Tehsil Neemuch\n\nThe said persons were active workers and agents of the r1JSpondcnt No."}}, {"text": "Javad constituency", "label": "GPE", "start_char": 13757, "end_char": 13775, "source": "ner", "metadata": {"in_sentence": "1 through the Block B Congress Committee J avad published an election bulletin dated 6.3.1972 under the caption of 'Congress Tatha Anya Dalo Kee Sachhi Hakeekat' and got it distributed free on a large scale throughout the Javad constituency."}}, {"text": "Kanhayalal", "label": "PETITIONER", "start_char": 14143, "end_char": 14153, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "6th March, 1972", "label": "DATE", "start_char": 14157, "end_char": 14172, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Morwan", "label": "GPE", "start_char": 14200, "end_char": 14206, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Daroli", "label": "GPE", "start_char": 14208, "end_char": 14214, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Diken", "label": "GPE", "start_char": 14216, "end_char": 14221, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Ratangarh", "label": "GPE", "start_char": 14223, "end_char": 14232, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Jhantla", "label": "GPE", "start_char": 14246, "end_char": 14253, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Hardy", "label": "OTHER_PERSON", "start_char": 14283, "end_char": 14288, "source": "ner", "metadata": {"in_sentence": "The questions put to him and answers given by C him included the following question-answers\" : It is not necessary to reproduce what was published in the \"Haquikat\" particularly because the charge of distribution of the same by Kanhayalal on 6th March, 1972, in various places such as Morwan, Daroli, Diken, Ratangarh, Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the D trial court."}}, {"text": "Modidas Bairagi", "label": "RESPONDENT", "start_char": 14639, "end_char": 14654, "source": "ner", "metadata": {"in_sentence": "Modidas Bairagi, village Newad Newad\n\nS(B)\n\n2."}}, {"text": "Madanlal Sharma", "label": "RESPONDENT", "start_char": 14686, "end_char": 14701, "source": "ner", "metadata": {"in_sentence": "Madanlal Sharma, village Jawi Jawi\n\nS(B) (C)\n\n3.", "canonical_name": "Madanlal Sharma"}}, {"text": "Onkar1al Khati", "label": "RESPONDENT", "start_char": 14735, "end_char": 14749, "source": "ner", "metadata": {"in_sentence": "Onkar1al Khati, village Thandoli Thandoli\n\nS(B)\n\n4."}}, {"text": "Ramniwas Patidar", "label": "RESPONDENT", "start_char": 14787, "end_char": 14803, "source": "ner", "metadata": {"in_sentence": "Ramniwas Patidar, village Lasoor Lasoor\n\nS(B)\n\n5."}}, {"text": "Mishrilal Tailor", "label": "RESPONDENT", "start_char": 14837, "end_char": 14853, "source": "ner", "metadata": {"in_sentence": "Mishrilal Tailor, village Diken Diken\n\nS(B) (D)\n\n6."}}, {"text": "Lakshminaraya.n Latha", "label": "RESPONDENT", "start_char": 14889, "end_char": 14910, "source": "ner", "metadata": {"in_sentence": "Lakshminaraya.n Latha, village Ratangarh Ratangarh\n\nS(B) (D)\n\n7."}}, {"text": "Shankerlal Cheran", "label": "RESPONDENT", "start_char": 14954, "end_char": 14971, "source": "ner", "metadata": {"in_sentence": "Shankerlal Cheran, village Garv .... ada Aloni Garwada Aloni\n\nS(B)\n\n8."}}, {"text": "Bhanwar Singh", "label": "RESPONDENT", "start_char": 15025, "end_char": 15038, "source": "ner", "metadata": {"in_sentence": "Bhanwar Singh, village Kabriya Kabriya\n\nS(B)\n\n9."}}, {"text": "Bapalal", "label": "RESPONDENT", "start_char": 15074, "end_char": 15081, "source": "ner", "metadata": {"in_sentence": "Bapalal son of Bhanwarlal,_."}}, {"text": "Keshar Singh", "label": "RESPONDENT", "start_char": 15141, "end_char": 15153, "source": "ner", "metadata": {"in_sentence": "Keshar Singh, village Dhaneria Dhaneria\n\n5(C)\n\n11."}}, {"text": "Khemraj MOti Jat", "label": "RESPONDENT", "start_char": 15192, "end_char": 15208, "source": "ner", "metadata": {"in_sentence": "Khemraj MOti Jat, village Morwan Morwan\n\nS(D)\n\n12."}}, {"text": "Balooram Dhakar", "label": "RESPONDENT", "start_char": 15243, "end_char": 15258, "source": "ner", "metadata": {"in_sentence": "Balooram Dhakar, village Jhatla Jhatla\n\nS(D)\"\n\nThe petition was contested only by Kanhaiyalal."}}, {"text": "Kanhaiyalal", "label": "PETITIONER", "start_char": 15325, "end_char": 15336, "source": "ner", "metadata": {"in_sentence": "Balooram Dhakar, village Jhatla Jhatla\n\nS(D)\"\n\nThe petition was contested only by Kanhaiyalal.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Kanhaiyalal", "label": "RESPONDENT", "start_char": 15584, "end_char": 15595, "source": "ner", "metadata": {"in_sentence": "1 Kanhaiyalal through the Block Congress Committee, Javad, got published the pamphlet (Saklecha Ke Karyakal Par Ek Nazar) as reproduced in para 5 (A) of the Petition ?", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Dadoli", "label": "OTHER_PERSON", "start_char": 17458, "end_char": 17464, "source": "ner", "metadata": {"in_sentence": "Dadoli, Diken and Jbantia, and Issue No."}}, {"text": "Diken", "label": "OTHER_PERSON", "start_char": 17466, "end_char": 17471, "source": "ner", "metadata": {"in_sentence": "Dadoli, Diken and Jbantia, and Issue No."}}, {"text": "Jbantia", "label": "OTHER_PERSON", "start_char": 17476, "end_char": 17483, "source": "ner", "metadata": {"in_sentence": "Dadoli, Diken and Jbantia, and Issue No."}}, {"text": "Nahata", "label": "OTHER_PERSON", "start_char": 17639, "end_char": 17645, "source": "ner", "metadata": {"in_sentence": "Mr. Nahata, who appeared on behalf of the appellant, the returned candidate, has addressed us with reference to all the issues that were held against him."}}, {"text": "Khanduja", "label": "OTHER_PERSON", "start_char": 18656, "end_char": 18664, "source": "ner", "metadata": {"in_sentence": "Mr. Khanduja appearing vn behalf of the respondent, Saklecha, adopted the submission ot Mr.\n\nHardy in tow."}}, {"text": "Saklecha", "label": "RESPONDENT", "start_char": 18704, "end_char": 18712, "source": "ner", "metadata": {"in_sentence": "Mr. Khanduja appearing vn behalf of the respondent, Saklecha, adopted the submission ot Mr.\n\nHardy in tow.", "canonical_name": "Sak- Jccha"}}, {"text": "himseif", "label": "WITNESS", "start_char": 19142, "end_char": 19149, "source": "ner", "metadata": {"in_sentence": "The appellant also gave rebuttal evidence with regard to all the charges levelled against him by examining 21 witnesses including himseif and by producing various documents."}}, {"text": "section 123", "label": "PROVISION", "start_char": 19277, "end_char": 19288, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 123", "label": "PROVISION", "start_char": 19307, "end_char": 19318, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 19519, "end_char": 19530, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 19808, "end_char": 19819, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123(4)", "label": "PROVISION", "start_char": 19958, "end_char": 19972, "source": "regex", "metadata": {"statute": null}}, {"text": "Kanhaiya- Jal", "label": "PETITIONER", "start_char": 20261, "end_char": 20274, "source": "ner", "metadata": {"in_sentence": "If the distribution of the same by Kanhaiya- Jal is established and if it is also established that the statements of facts therein are false and Kanhaiyalal either believed them to be false or did not believe them to be true, he will be guilty of corrupt G practice under section 123 ( 4) of the Act.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "section 123", "label": "PROVISION", "start_char": 20498, "end_char": 20509, "source": "regex", "metadata": {"statute": null}}, {"text": "Shriram Printing Press, Neemuch", "label": "ORG", "start_char": 20594, "end_char": 20625, "source": "ner", "metadata": {"in_sentence": "Since the pamphlet on the face of it is shown as being printed at Shriram Printing Press, Neemuch, evidence was led by the petitioner by examining Harishankar (PW 32), the proprietor of the Press, who produced the register containing the printing orders."}}, {"text": "Harishankar", "label": "WITNESS", "start_char": 20675, "end_char": 20686, "source": "ner", "metadata": {"in_sentence": "Since the pamphlet on the face of it is shown as being printed at Shriram Printing Press, Neemuch, evidence was led by the petitioner by examining Harishankar (PW 32), the proprietor of the Press, who produced the register containing the printing orders."}}, {"text": "Shtvshankar", "label": "OTHER_PERSON", "start_char": 21000, "end_char": 21011, "source": "ner", "metadata": {"in_sentence": "state wo had come to place the order as he as indisposed and his son Shtvshankar took the order.", "canonical_name": "Shtvshankar"}}, {"text": "Shivshankar", "label": "OTHER_PERSON", "start_char": 21103, "end_char": 21114, "source": "ner", "metadata": {"in_sentence": "The entry m the register also was not made by him but was made by his son, Shivshankar, who\n\nwas not examined in the case.", "canonical_name": "Shtvshankar"}}, {"text": "24th February, 1972", "label": "DATE", "start_char": 21214, "end_char": 21233, "source": "ner", "metadata": {"in_sentence": "P-14) it appears that on 24th February, 1972, Congress Committee Javad placed orders for printing of 5000 pamphlets with the caption \"Sak:lecha Ke Karyakal Par' Ek Nazar\"."}}, {"text": "Ghanshyam Patidar", "label": "WITNESS", "start_char": 22205, "end_char": 22222, "source": "ner", "metadata": {"in_sentence": "We are unable to hold that on the evidence of PW 32 the fact of Ghanshyam Patidar placing the order is established."}}, {"text": "section 127", "label": "PROVISION", "start_char": 22763, "end_char": 22774, "source": "regex", "metadata": {"statute": null}}, {"text": "Representation of the People Act", "label": "STATUTE", "start_char": 22784, "end_char": 22816, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shriram Printing Press", "label": "ORG", "start_char": 22959, "end_char": 22981, "source": "ner", "metadata": {"in_sentence": "We are, therefore, satisfied that the pamphlet was printed in the Shriram Printing Press, but in the absence of the evidence of Shivshankar we are unable to agree with the High Court that Ghanshyam Patidar had anything to do with the placing of the orders or printing of Ex."}}, {"text": "Saklecba", "label": "PETITIONER", "start_char": 23537, "end_char": 23545, "source": "ner", "metadata": {"in_sentence": "Having come to know of the distribution of this offending pamphlet, Saklecba complained to the Returning officer by a letter dated 26th February, 1972, by enclosing a panchnama testifying to the distribution of the pamphlet at Jawi.", "canonical_name": "Sak- Jccha"}}, {"text": "Jawi", "label": "GPE", "start_char": 23696, "end_char": 23700, "source": "ner", "metadata": {"in_sentence": "Having come to know of the distribution of this offending pamphlet, Saklecba complained to the Returning officer by a letter dated 26th February, 1972, by enclosing a panchnama testifying to the distribution of the pamphlet at Jawi."}}, {"text": "26th February, 1972", "label": "DATE", "start_char": 23777, "end_char": 23796, "source": "ner", "metadata": {"in_sentence": "Although it is not specifically established that this letter was posted on 26th February, 1972, or that it was received by post by tile Returning Officer, it is clear even from the application on behalf of the respondent Kanhaiyalal for snmmoning the Returning Officer that Saklccha had personally handed over this complaint to the Returning O!licer on 5th March, 1972, which was definitely prior to the poll."}}, {"text": "Saklccha", "label": "PETITIONER", "start_char": 23976, "end_char": 23984, "source": "ner", "metadata": {"in_sentence": "Although it is not specifically established that this letter was posted on 26th February, 1972, or that it was received by post by tile Returning Officer, it is clear even from the application on behalf of the respondent Kanhaiyalal for snmmoning the Returning Officer that Saklccha had personally handed over this complaint to the Returning O!licer on 5th March, 1972, which was definitely prior to the poll.", "canonical_name": "Sak- Jccha"}}, {"text": "5th March, 1972", "label": "DATE", "start_char": 24055, "end_char": 24070, "source": "ner", "metadata": {"in_sentence": "Although it is not specifically established that this letter was posted on 26th February, 1972, or that it was received by post by tile Returning Officer, it is clear even from the application on behalf of the respondent Kanhaiyalal for snmmoning the Returning Officer that Saklccha had personally handed over this complaint to the Returning O!licer on 5th March, 1972, which was definitely prior to the poll."}}, {"text": "Hiralal Mehta", "label": "OTHER_PERSON", "start_char": 24202, "end_char": 24215, "source": "ner", "metadata": {"in_sentence": "Under the instructions of Saklecha, Hiralal Mehta, Advocate (PW 1) sent out registered notices dated 27th February, 1972, to seven signatories of the pamphlet (Ex."}}, {"text": "Chosarmal", "label": "GPE", "start_char": 24361, "end_char": 24370, "source": "ner", "metadata": {"in_sentence": "P-1), namely, Parasram Agarwal, Chosarmal, Bbanwarlal."}}, {"text": "Bbanwarlal", "label": "GPE", "start_char": 24372, "end_char": 24382, "source": "ner", "metadata": {"in_sentence": "P-1), namely, Parasram Agarwal, Chosarmal, Bbanwarlal."}}, {"text": "Vijayshankar Sharma", "label": "RESPONDENT", "start_char": 24404, "end_char": 24423, "source": "ner", "metadata": {"in_sentence": "Ghanshyam Patidar, Vijayshankar Sharma, Shankarlal Batevara and Dbeeraj Vyas.", "canonical_name": "Vijayshankar' Sharma"}}, {"text": "Shankarlal Batevara", "label": "LAWYER", "start_char": 24425, "end_char": 24444, "source": "ner", "metadata": {"in_sentence": "Ghanshyam Patidar, Vijayshankar Sharma, Shankarlal Batevara and Dbeeraj Vyas.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Dbeeraj Vyas", "label": "LAWYER", "start_char": 24449, "end_char": 24461, "source": "ner", "metadata": {"in_sentence": "Ghanshyam Patidar, Vijayshankar Sharma, Shankarlal Batevara and Dbeeraj Vyas.", "canonical_name": "Dheeraj Vyas Mantri"}}, {"text": "25th February, 1972", "label": "DATE", "start_char": 25660, "end_char": 25679, "source": "ner", "metadata": {"in_sentence": "Although the High Court has heid that even consent was established, Mr. Hardy has not pressed bis case regarding the allegation of distribution of the pamphlet on 25th February, 1972."}}, {"text": "S.V.D.\n\nMinistry", "label": "ORG", "start_char": 25866, "end_char": 25882, "source": "ner", "metadata": {"in_sentence": "Mr. Nahata submits that in view of the newspaper reports and the Assembly proceedings, in particular the statements on the floor of the Assembly on a Vote of No Confidence against the S.V.D.\n\nMinistry where particular reference had been, inter alia, made in severe terms creating a furore about the activities of Sakiecha in his capacity as the Deputy Chief Minister in-charge of the Home Department, any person reading these will have reasonable belief that the allegations in Ex."}}, {"text": "Sakiecha", "label": "PETITIONER", "start_char": 25995, "end_char": 26003, "source": "ner", "metadata": {"in_sentence": "Mr. Nahata submits that in view of the newspaper reports and the Assembly proceedings, in particular the statements on the floor of the Assembly on a Vote of No Confidence against the S.V.D.\n\nMinistry where particular reference had been, inter alia, made in severe terms creating a furore about the activities of Sakiecha in his capacity as the Deputy Chief Minister in-charge of the Home Department, any person reading these will have reasonable belief that the allegations in Ex.", "canonical_name": "Sak- Jccha"}}, {"text": "article 194(2)", "label": "PROVISION", "start_char": 27027, "end_char": 27041, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 123(4)", "label": "PROVISION", "start_char": 27066, "end_char": 27080, "source": "regex", "metadata": {"statute": null}}, {"text": "Dhaneria", "label": "GPE", "start_char": 28254, "end_char": 28262, "source": "ner", "metadata": {"in_sentence": "So far as the distribntion of the pamphlet on 25th February, 1972, at Jawi and at Dhaneria, two respective panchnamas were exhibited."}}, {"text": "2nd March, 1972", "label": "DATE", "start_char": 28999, "end_char": 29014, "source": "ner", "metadata": {"in_sentence": "So far as, however, the distribution of the pamphlet on 2nd March, 1972, at Jawi and Thadoli, which alone survives for consideration, the petitioner relies entirely upon oral testimony and the court will have to be cautious and circumspect in accepting the same."}}, {"text": "Virendra-. kumar Saklecha", "label": "RESPONDENT", "start_char": 31102, "end_char": 31127, "source": "ner", "metadata": {"in_sentence": "P-1) at Jawi by Ghanshyam Patidar and others felt assured from \"the subsequent conduct on the part of Virendra-.", "canonical_name": "Virendra-. kumar Saklecha"}}, {"text": "Hiralal", "label": "WITNESS", "start_char": 31185, "end_char": 31192, "source": "ner", "metadata": {"in_sentence": "P-11), instructing Advocate, Hiralal (PW 1) to serve registered notices (Ex."}}, {"text": "Virendrakumar Saklecha", "label": "RESPONDENT", "start_char": 31424, "end_char": 31446, "source": "ner", "metadata": {"in_sentence": "The High Court held that \"this subsequent conduct on the part of Virendrakumar Saklecha naturally lends corroboration to his statement and the statements of the petitioner's witnesses who have deposed about the publication and distribution of this pamphlet on the dates referred to by them in their statements.", "canonical_name": "Virendra-. kumar Saklecha"}}, {"text": "Jagdishchandra Airen", "label": "RESPONDENT", "start_char": 31805, "end_char": 31825, "source": "ner", "metadata": {"in_sentence": "P-1 was distributed by Ghanshyam Patidar, Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as alleged in the petition\".", "canonical_name": "Jagdishchandra Airen"}}, {"text": "Shivlal Rawat", "label": "RESPONDENT", "start_char": 31827, "end_char": 31840, "source": "ner", "metadata": {"in_sentence": "P-1 was distributed by Ghanshyam Patidar, Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as alleged in the petition\".", "canonical_name": "Shivlal Rawat"}}, {"text": "Parsamal", "label": "RESPONDENT", "start_char": 31845, "end_char": 31853, "source": "ner", "metadata": {"in_sentence": "P-1 was distributed by Ghanshyam Patidar, Jagdishchandra Airen, Shivlal Rawat and Parsamal in Jawi and Dhaneria as alleged in the petition\".", "canonical_name": "Parasmal"}}, {"text": "Thadoli", "label": "GPE", "start_char": 32126, "end_char": 32133, "source": "ner", "metadata": {"in_sentence": "P-1) by Kanhaiyalal at Jawi and Thadoli on March 2, 1972."}}, {"text": "March 2, 1972", "label": "DATE", "start_char": 32137, "end_char": 32150, "source": "ner", "metadata": {"in_sentence": "P-1) by Kanhaiyalal at Jawi and Thadoli on March 2, 1972."}}, {"text": "Javad Block Congress Committee", "label": "ORG", "start_char": 32674, "end_char": 32704, "source": "ner", "metadata": {"in_sentence": "P-1 printed in the Press of PW '.l'.\\ Harishankar was none else than RW l Ghanshyam Patidar on behalf of the Javad Block Congress Committee\"."}}, {"text": "Seklecha", "label": "RESPONDENT", "start_char": 34047, "end_char": 34055, "source": "ner", "metadata": {"in_sentence": "For example, while RW 2 was disbelieved by the High Court holding \"admittedly he was the polling agent of the respondent Kanhaiyalal and must have had sympathies for him duriug the election period\", polling ageuts of the respondent Seklecha did not come under the same hostile comment for rejecting their testimony.", "canonical_name": "Seklecha"}}, {"text": "Seklecha", "label": "RESPONDENT", "start_char": 34981, "end_char": 34989, "source": "ner", "metadata": {"in_sentence": "Seklecha lodged a complaint dated 26th February, 1972, with the Returning Officer about the distribution of the pamphlet enclosing a copy of the panchnama prepared at Jawi on 25th February, 1972.", "canonical_name": "Seklecha"}}, {"text": "Madanlal", "label": "WITNESS", "start_char": 36276, "end_char": 36284, "source": "ner", "metadata": {"in_sentence": "Madanlal (PW 2), Nanalal (PW 3), Mohanlal (PW 4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex."}}, {"text": "Nanalal", "label": "WITNESS", "start_char": 36293, "end_char": 36300, "source": "ner", "metadata": {"in_sentence": "Madanlal (PW 2), Nanalal (PW 3), Mohanlal (PW 4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex."}}, {"text": "Mohanlal", "label": "WITNESS", "start_char": 36309, "end_char": 36317, "source": "ner", "metadata": {"in_sentence": "Madanlal (PW 2), Nanalal (PW 3), Mohanlal (PW 4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex."}}, {"text": "Ramshankar", "label": "WITNESS", "start_char": 36329, "end_char": 36339, "source": "ner", "metadata": {"in_sentence": "Madanlal (PW 2), Nanalal (PW 3), Mohanlal (PW 4) and Ramshankar (PW 5) stated about distribution of the pamphlet (Ex."}}, {"text": "Shankarlal Bhatevara", "label": "LAWYER", "start_char": 36418, "end_char": 36438, "source": "ner", "metadata": {"in_sentence": "P-1) by Kanhaiyalal and Shankarlal Bhatevara at Jawi Bazar on March 2,\n\n1972.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "March 2,\n\n1972", "label": "DATE", "start_char": 36456, "end_char": 36470, "source": "ner", "metadata": {"in_sentence": "P-1) by Kanhaiyalal and Shankarlal Bhatevara at Jawi Bazar on March 2,\n\n1972."}}, {"text": "Madanlal", "label": "RESPONDENT", "start_char": 36611, "end_char": 36619, "source": "ner", "metadata": {"in_sentence": "According to Madanlal he did not personally know about the pamphlet being distributed on 25th of February, 1972, at Jawi.", "canonical_name": "Madanlal Sharma"}}, {"text": "25th of February, 1972", "label": "DATE", "start_char": 36687, "end_char": 36709, "source": "ner", "metadata": {"in_sentence": "According to Madanlal he did not personally know about the pamphlet being distributed on 25th of February, 1972, at Jawi."}}, {"text": "Shankarlal Bhatcvara", "label": "LAWYER", "start_char": 36844, "end_char": 36864, "source": "ner", "metadata": {"in_sentence": "He deposed only about the distribution\n\nof the pamphlet by Kanhaiyalal and Shankarlal Bhatcvara at Jawi about five or six days before the date of poll.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Nandlal", "label": "WITNESS", "start_char": 38362, "end_char": 38369, "source": "ner", "metadata": {"in_sentence": "We find that Madanlal (PW 2) is contradicted by Nandlal (PW\n\n'i 3)."}}, {"text": "Nanalal", "label": "GPE", "start_char": 38585, "end_char": 38592, "source": "ner", "metadata": {"in_sentence": "Although Madanlal, who is the informant about the distribution of the pamphlet by Kanhaiyalal at Jawi on 2nd March, 1972, denied the fact of the panchnama being prepared on 25th February, 1972, at Jawi, Nanalal (PW 3) stated:\n\n\"While the panchnama was under preparation Ram- F shankar, Madanlal Tiwari, who has been examined to-day, and two others had also come there\"."}}, {"text": "Ram- F shankar", "label": "WITNESS", "start_char": 38652, "end_char": 38666, "source": "ner", "metadata": {"in_sentence": "Although Madanlal, who is the informant about the distribution of the pamphlet by Kanhaiyalal at Jawi on 2nd March, 1972, denied the fact of the panchnama being prepared on 25th February, 1972, at Jawi, Nanalal (PW 3) stated:\n\n\"While the panchnama was under preparation Ram- F shankar, Madanlal Tiwari, who has been examined to-day, and two others had also come there\"."}}, {"text": "Madanlal Tiwari", "label": "RESPONDENT", "start_char": 38668, "end_char": 38683, "source": "ner", "metadata": {"in_sentence": "Although Madanlal, who is the informant about the distribution of the pamphlet by Kanhaiyalal at Jawi on 2nd March, 1972, denied the fact of the panchnama being prepared on 25th February, 1972, at Jawi, Nanalal (PW 3) stated:\n\n\"While the panchnama was under preparation Ram- F shankar, Madanlal Tiwari, who has been examined to-day, and two others had also come there\".", "canonical_name": "Madanlal Sharma"}}, {"text": "Saklecha", "label": "WITNESS", "start_char": 39338, "end_char": 39346, "source": "ner", "metadata": {"in_sentence": "According to Nanalal (PW 3) after the preparation of the Panchnama on 25th February, 1972, Saklecha addressed a meeting in front of his shop by the public address system."}}, {"text": "Nanalal", "label": "PETITIONER", "start_char": 39527, "end_char": 39534, "source": "ner", "metadata": {"in_sentence": "Madanlal\n\n(PW 3) also deposed that he only saw once Saklecha addressing some H persons assembled in front of Nanalal's shop by the public address system.", "canonical_name": "Mannalal"}}, {"text": "Sak- Jccha", "label": "PETITIONER", "start_char": 39626, "end_char": 39636, "source": "ner", "metadata": {"in_sentence": "He further stated that he handed over the pamphlet to Sak- Jccha all that date.", "canonical_name": "Sak- Jccha"}}, {"text": "Madanla", "label": "PETITIONER", "start_char": 39859, "end_char": 39866, "source": "ner", "metadata": {"in_sentence": "Madanla!", "canonical_name": "Madanlal Sharma"}}, {"text": "Jan Sangh party", "label": "ORG", "start_char": 39898, "end_char": 39913, "source": "ner", "metadata": {"in_sentence": "is admittedly a member of the Jan Sangh party although, according to him, he is not an active worker."}}, {"text": "Nanalal Agarwal", "label": "OTHER_PERSON", "start_char": 40759, "end_char": 40774, "source": "ner", "metadata": {"in_sentence": "He did not have any talk with Nanalal Agarwal (the petitioner) regarding the pamphlet."}}, {"text": "Shivlal Rawat", "label": "WITNESS", "start_char": 41131, "end_char": 41144, "source": "ner", "metadata": {"in_sentence": "If the same standard has to be adopted which the High Court has done with regard to the appreciation of the evidence of Shivlal Rawat (RW 2) whose testimony was rejected because he acted as the Polling Agent of Kanhaiyalal, Nanalal's evidence would have to be treated in the same manner."}}, {"text": "Kanhaiyalal, Nanalal", "label": "PETITIONER", "start_char": 41222, "end_char": 41242, "source": "ner", "metadata": {"in_sentence": "If the same standard has to be adopted which the High Court has done with regard to the appreciation of the evidence of Shivlal Rawat (RW 2) whose testimony was rejected because he acted as the Polling Agent of Kanhaiyalal, Nanalal's evidence would have to be treated in the same manner.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Mohanlal Jain", "label": "WITNESS", "start_char": 41397, "end_char": 41410, "source": "ner", "metadata": {"in_sentence": "Mohanlal Jain (PW 4) is the second grocer examined on behalf of the petitioner."}}, {"text": "Ramshankar", "label": "OTHER_PERSON", "start_char": 42287, "end_char": 42297, "source": "ner", "metadata": {"in_sentence": "Yet only two shopkeepers, namely, Nanalal and Mohanlal Jain were examined Madanlal and his brother, Ramshankar are cultivators and not shopkeepers at Jawi bazar."}}, {"text": "Ratanlal", "label": "WITNESS", "start_char": 42421, "end_char": 42429, "source": "ner", "metadata": {"in_sentence": "As against this the appellant examined two shopkeepers of Jawi, namely, Ratanlal (RW 15) and Gordhanlal (RW 16), who denied the distribution of the pamphlet by Kanhaiyalal."}}, {"text": "Gordhanlal", "label": "WITNESS", "start_char": 42442, "end_char": 42452, "source": "ner", "metadata": {"in_sentence": "As against this the appellant examined two shopkeepers of Jawi, namely, Ratanlal (RW 15) and Gordhanlal (RW 16), who denied the distribution of the pamphlet by Kanhaiyalal."}}, {"text": "Shankadal Bhatevara", "label": "WITNESS", "start_char": 42701, "end_char": 42720, "source": "ner", "metadata": {"in_sentence": "Similarly, Shankadal Bhatevara (PW)\n\n8) also denied the distribution."}}, {"text": "Onkarlal Khati", "label": "WITNESS", "start_char": 43304, "end_char": 43318, "source": "ner", "metadata": {"in_sentence": "Onkarlal Khati (PW 9) was the informant regarding the distribution at Thadoli."}}, {"text": "Kir,1haiyalal Nagori", "label": "WITNESS", "start_char": 43527, "end_char": 43547, "source": "ner", "metadata": {"in_sentence": "According to him about five or six days before the date of poll he was sitting with a few others by the side of the village temple when he saw Kir,1haiyalal Nagori and Shankarlal Bhatevara coming to them."}}, {"text": "Shankarlal Bhatevara", "label": "WITNESS", "start_char": 43552, "end_char": 43572, "source": "ner", "metadata": {"in_sentence": "According to him about five or six days before the date of poll he was sitting with a few others by the side of the village temple when he saw Kir,1haiyalal Nagori and Shankarlal Bhatevara coming to them."}}, {"text": "Tulsiram", "label": "WITNESS", "start_char": 43606, "end_char": 43614, "source": "ner", "metadata": {"in_sentence": "Amongst others, Tulsiram (PW 7) and Bhanwarlal (PW 8) were also sitting with him."}}, {"text": "Bhanwarlal", "label": "WITNESS", "start_char": 43626, "end_char": 43636, "source": "ner", "metadata": {"in_sentence": "Amongst others, Tulsiram (PW 7) and Bhanwarlal (PW 8) were also sitting with him."}}, {"text": "Marmalal", "label": "OTHER_PERSON", "start_char": 44084, "end_char": 44092, "source": "ner", "metadata": {"in_sentence": "He further stated that about six days after the poll he met • Marmalal and talked to him about \"the incorrect statement circulated in the form of pamphlet\" which affected the result of the election."}}, {"text": "ankarlal Bhatevara", "label": "LAWYER", "start_char": 44644, "end_char": 44662, "source": "ner", "metadata": {"in_sentence": "Two other witnesses are Tulsiram\n\n(PW 7) and Bhanwarlal (PW 8) to corroborate him about the distribution of the pamphlet by Kanhaiyalal and Sh>ankarlal Bhatevara five or six days before the date of poll.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Kanhaiyal•al", "label": "PETITIONER", "start_char": 45248, "end_char": 45260, "source": "ner", "metadata": {"in_sentence": "We are iavited to rely on the above oral testimony to hold that Kanhaiyal•al distributed the offending pamphlet.", "canonical_name": "Kanhaiyalal, Nanalal"}}, {"text": "Kanhaiyalal", "label": "WITNESS", "start_char": 45298, "end_char": 45309, "source": "ner", "metadata": {"in_sentence": "Kanhaiyalal (RW 21) and Shankarlal Bhatevara (RW 8) have\n\ndenied the allegations."}}, {"text": "Mangilal of G Thadoli", "label": "WITNESS", "start_char": 45410, "end_char": 45431, "source": "ner", "metadata": {"in_sentence": "The appellant oalso examined Mangilal of G Thadoli (RW 18) to state that Tulsiram, Bhanwarlal and Onkarlal are the Jan Sangh party workers at Tb>adoli."}}, {"text": "Tulsiram", "label": "OTHER_PERSON", "start_char": 45454, "end_char": 45462, "source": "ner", "metadata": {"in_sentence": "The appellant oalso examined Mangilal of G Thadoli (RW 18) to state that Tulsiram, Bhanwarlal and Onkarlal are the Jan Sangh party workers at Tb>adoli."}}, {"text": "Bhanwarlal", "label": "OTHER_PERSON", "start_char": 45464, "end_char": 45474, "source": "ner", "metadata": {"in_sentence": "The appellant oalso examined Mangilal of G Thadoli (RW 18) to state that Tulsiram, Bhanwarlal and Onkarlal are the Jan Sangh party workers at Tb>adoli.", "canonical_name": "Bhanwarlal Badolia"}}, {"text": "Onkarlal", "label": "OTHER_PERSON", "start_char": 45479, "end_char": 45487, "source": "ner", "metadata": {"in_sentence": "The appellant oalso examined Mangilal of G Thadoli (RW 18) to state that Tulsiram, Bhanwarlal and Onkarlal are the Jan Sangh party workers at Tb>adoli."}}, {"text": "SIJ'ankarlal Bhatevara", "label": "WITNESS", "start_char": 46260, "end_char": 46282, "source": "ner", "metadata": {"in_sentence": "We are now only left with the oral testimony of PWs 7, 8 and 9 regarding distribution of the pamphlet at Thadoli by Kanhaiyalal and SIJ'ankarlal Bhatevara."}}, {"text": "Shankarlal", "label": "WITNESS", "start_char": 46361, "end_char": 46371, "source": "ner", "metadata": {"in_sentence": "These three witnesses are pitted against three others, Kanhaiyalal (RW 21), Shankarlal (RW 8) and Mangilal (RW 18) stating to the contrary."}}, {"text": "Mangilal", "label": "WITNESS", "start_char": 46383, "end_char": 46391, "source": "ner", "metadata": {"in_sentence": "These three witnesses are pitted against three others, Kanhaiyalal (RW 21), Shankarlal (RW 8) and Mangilal (RW 18) stating to the contrary."}}, {"text": "Mangi)al", "label": "WITNESS", "start_char": 46536, "end_char": 46544, "source": "ner", "metadata": {"in_sentence": "Mangi)al as RW 18 denies the visit of Kanhaiyalal to Thadoli."}}, {"text": "Shankarlal", "label": "LAWYER", "start_char": 47458, "end_char": 47468, "source": "ner", "metadata": {"in_sentence": "He also stated that-\n\n\"besides Shankarlal and Kanhaiyalal there was no other person who accompanied them\".", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Bhanwarfal Sutar", "label": "WITNESS", "start_char": 47572, "end_char": 47588, "source": "ner", "metadata": {"in_sentence": "On the other hand, according to PW 7 Bhanwarfal Sutar and Mangilal ): Mahajan accompanied them when they entered the village after parking the car outside."}}, {"text": "Mahajan", "label": "WITNESS", "start_char": 47605, "end_char": 47612, "source": "ner", "metadata": {"in_sentence": "On the other hand, according to PW 7 Bhanwarfal Sutar and Mangilal ): Mahajan accompanied them when they entered the village after parking the car outside."}}, {"text": "Onkarlal", "label": "WITNESS", "start_char": 47692, "end_char": 47700, "source": "ner", "metadata": {"in_sentence": "Onkarlal (PW 9) stated in examination-in-chief :\n\n\"About six days after the polling I met Mannalal in Neemuch Dhan Mandi where he enquired from me about the result of the election."}}, {"text": "Neemuch Dhan Mandi", "label": "OTHER_PERSON", "start_char": 47794, "end_char": 47812, "source": "ner", "metadata": {"in_sentence": "Onkarlal (PW 9) stated in examination-in-chief :\n\n\"About six days after the polling I met Mannalal in Neemuch Dhan Mandi where he enquired from me about the result of the election."}}, {"text": "Shankarfal Bhatevara", "label": "LAWYER", "start_char": 48410, "end_char": 48430, "source": "ner", "metadata": {"in_sentence": "Whatever be the effect of the above statements which Mr. Hardy wanted to explain away, it is clear that PW 9 did not mention at all that he had told the petitioner, Mannalal, the names of Kanhaiyalal and Shankarfal Bhatevara as distributing the pamphlet at Thadoli.", "canonical_name": "Shankar.Jal Bhatevara"}}, {"text": "Malnnalal", "label": "OTHER_PERSON", "start_char": 48605, "end_char": 48614, "source": "ner", "metadata": {"in_sentence": "He also admitted that his talk with Malnnalal A\n\nI was only a casual ralk."}}, {"text": "March 6, 1972", "label": "DATE", "start_char": 49690, "end_char": 49703, "source": "ner", "metadata": {"in_sentence": "It is alleged that the offending pamphlets had been distributed by Kanhaiyalal in a 1mmber of places in the constituency commencing from March 2 and eading on March 6, 1972; in one case, even in a bus stand, watched by the petitioner."}}, {"text": "Mannalal", "label": "WITNESS", "start_char": 50309, "end_char": 50317, "source": "ner", "metadata": {"in_sentence": "aly refer to the petitioner, Mannalal's evidence to highlight how far oral testimony can go."}}, {"text": "Jan Swagh party", "label": "OTHER_PERSON", "start_char": 50837, "end_char": 50852, "source": "ner", "metadata": {"in_sentence": "Although we are not concerned with the distribution of the pamphlet by Kanhaiyalal at Daroli in this appeal, it is absurd that Kanhaiyalal would choose to hand over an offending pamphlet of this nature to • Mannalal who is an active worker of Jan Swagh party and keen supporter of Saklecha unless he foolishly chose to create evidence against him."}}]}
{"document_id": "1976_3_832_855_EN", "year": 1976, "text": "MADHUKER G. E. PANKAKAR\n\n1'.\n\nJASWANT CHOBBILDAS RAJAN! & ORS.\n\nMarch 23, 1976\n\n[V. R, KRISHNA !YER AND N. L. UNTWALIA, JJ.]\n\nMaharashtra Municipalities Act, !965-S. !6(1)(g)-Holding office of profit-Meaning of-Private medical practitioner on the panel of doctors under Employees State Insurance Scheme-If holding office of profit.\n\nTo provide medical facilities to the workers in factories a statutory body called the Employees State Insurance Co; rIJoration has been establishd by an Act of Parliament. Under the Act financial resources of the Corporation come from contributions and other monies specified in the Act and an Employees State Insurance Fund had been created. The State Government, to which an obligation to provide medical treatment for insured persons had been entrusted, may employ private medical practitioners who run clinics as doctors uQder the scheme. For inclusion of a name in the medical list of insurance medical practitioners a doctor has to apply to the Administrative Medical Officer.\n\nHis application is considered by an allocation committee which recommends his name to the Director, Employees State Insurance Scheme and ultimately on approval by the Surgeon General, his name is included in the medical list. The doctor whose name is included in the medical list has to abide by the duties and conditions prescribed, is under the control of the Medical Services Com~ mittee and may even be removed or resign from the panel.\n\nThe appellant, who was a private medical practitioner and whose name was included in the panel of doctors maintained by the Corporation and the respondent, were contestants in an election for the presidentship of a municipal council. At the time of scrutiny of the nomination papers no objection was raised to the appellant's nomination and in the election that ensued the appellant was declared elected.\n\nThe respondent challenged the election on the ground that the appellant was disqualified under s. 16(1 )(g) of the Maharashtra Municipalities Act, 1965 which debars a person who holds an office of profit under Government from becoming a councillor, because on the date of nomination he was holding an office of profit under the Government by reason of his being a panel doctor under the Employees State Insurance Scheme. Between the date of nomination and the date of election. however, the appellant had resigned from the scheme. The election tribunal allowed the respondent's petition and declared the appellants' election void. At the same time the respondent was declared as the President.\n\nOn appeal it was contended that a doctor on the medical list prepared by the Surgeon General of the State does not hold an office of profit within the meaning of s. !6(!)(g) of the Act.\n\nAllov.ing the appeal, HELD : (!) The legislative end for disqualifying holders of office of profit under Government from seeking elective offices is to avoid the conflict between duty and interest, to cut out the misuse of official position, to advance private benefit and to avert the likelihood of influencing Government to promote personal advantage. At the same time the Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving technical persons, welfare workers and lay people on a massive scale so that participatory government may prove a progressive reality.\n\nTherefore experts may have to be invited into local bodies, legislatures and the like pnlitical and administrative organs based on elections. [842 E-G]\n\n(2) , a) The appellant suffered no disqualification on the score of holding an office of profit under Government. The legal provisions under the Act and the rules make of an insurance medical practitioner a category different from one who runs a private clinic and enters into contractual terms for treatment of patien'ts sent by Government, nor is he a full fledged government servant.\n\n' ./\n\nMADHUKER v. J. c. RAJAN! (Krishna lyer, !.) 833\n\nHe is a tertium quid. [842-A]\n\n(b) The doctor under the scheme has obligations of a statutory saour. He is appointed on his application which is processed by the appropnate body, removed if found wanting obliged to discharge duties, make some reports and subject himself to certain discipline while on the panel. [844 F-G]\n\n(3) (a) For holding an office of profit under Goverimwnt . one need not be in the service of Government and there need be no relattonshtp of master and B servant. One has to look at the substance, not the form.\n\n[851 D-E]\n\nGurugobinda [1964] 4 SCR 311 refeued to.\n\n(b) Jn the present case the capitation fee is the remuneration the doctor is paid and this came not from Government direct but_ from a complex of sources. The power to appoint, direct and remove, to regulate and discipline, may be good indicia but not decisive. Government had partly direct and partly indirect control but the conclusion is not inevitable because: the doctor C is put in the list not by Government directly but through a prescnbed process where the Surgeon General has a presiding place. How proximate or remote is the subjection of the doctor to the control of the Government to bring him under Government is the true issue. The appellant was not a servant of Government, but a private practitioner, was not appointed directly by Government but by an officer of Government on the recommendation of a Committee, was paid not necessarily out of Government revenue and the control over him in the scheme was vested not in Government but in an administrative medical officer and director whose position is not qua Government servant but D creatures of statutory rules.\n\nThe ultimate vower to remove him did lie in Government even as he enjoyed the power to withdraw from the panel. The mode of medical treatment was beyond Government's control and the clinic was a private one. The insurance medical practitioner is not a free-lancer but subject to duties obligations, control and rates of remuneration under the overall supervision and powers of Government. [851 F-G; 852 A-C]\n\nDeorao v. Keshav, AIR 1958 Born. 314 p. 318, para 12 and Manipopal v.\n\nE State AIR 1970 Cal. 1, 5 para 20 referred to.\n\n(c) The appellantis not functioning under the Government i!l the plenary sense implied in electoral disqualification. The ban on candidature must have a substantial link with the end viz : the possible misuse of position as Insurance Medical Practitioner in doing his duties as Municipal President. [852 D]\n\n(4)(a) The first step is to enquire whether a permanent, substantive position which had an existence independent from the person who filled it can be postulated in the case of insurance medical practitioner or is the post an ephemeral, ad hoc, provisional incumbency created, not independently but as a List or Panel distinguished from a thing that survives. The distinction, though delicate. is real. An office of insurance medical practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office.\n\nThe post of insurance medical practitioner cannot be equated with the post of a peon or a security gunman who too has duties to perform. Viewed from this point Kanta and Mahadeo are reconcilable in the former an ad hoc Assistant Government Pleader with diities and remuneration was held to fall outside office of profit in the latter a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted an office Of profit. [852 G.H; 853 AJ\n\n(b) Had there been a fixed oanel of doctors with special duties and discipline, a different complexion could be discerned.\n\nNo rigid number of insurance medical practitioners is required by the rules or otherwise. If an insurance medical practitioner withdraws there was no office sticking out even thereafter called office of Insurance Medical Practitioner. The critical test of independent existence of the position irrespective of the occupant is just not satisfied.\n\nLikewise it is not possible to conclude that these doctors though subject to responsibilities, eligible to remuneration and liable to removal cannot squarely fall under the expression holding under Government.\n\nEnveloped though the\n\ninsurance medical officer is by governmental influence and working within the official orbit it is not possible to hold that there is an office of profit held by him and that he is under Government.\n\n[853 C-E]\n\n[Obiter: On a clooo stlldy of ss. 21 and 44 and in the light of the ruling of this court in 1953 SCR 1154 the election petition under s. 2·1 is all inClusive and not under-inclusive, even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive.\n\nAll grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21.\n\nThe language of the provision is wide enough.\n\nIt is not correct to say that s. 44 cuts back on the width of the specific section devoted to calling in question an election of a councillor (including the Presideht). [854 DFl\n\nIf the appellant's election were invalid there was only a single survivor left n te field.\n\nNat_ura1ly in any constituency where there was only one vaHd C nomination that nominee gets elected for want of a contest.]\n\nCIVIL APPELLATE JURISDICTION : Civil Appea:ls Nos. 1270, 1315- 1316 of 1975.\n\nAppeals by Special Leave from the Judgment and Order dated the 26-8-75 of the Joint Judge at Thain in Election Petitions Nos. 3 and 4 of 1974. ·\n\nR. P. Bhat (In CAs.\n\n1315-1316/75, K.\n\nChaudhury, K.\n\nRajendra Chaudhury and Mrs. Veena Khanna for the Appellants in CAs. 1315-1316/75 and in C.A. 1270/75.\n\nD. V. Patel (In CAs. 1315-16/75, V. N. Ganpule for respondent No. 1 in all the appeals.\n\nE D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent\n\nNo. 2 in CAs. 1315-1316/75.\n\nM. N. Shroff for respondents 4 and 5 in CAs. 1315-1316/75.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThe first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President of the Basscfo Council (and the third raises virtually the same point but refers to the Bhibendi MuJaicipal Council) under the Maharashtra Municipalities Act, 1965 (the Municipal Act, for short) has led to Jong and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and illumining which, by interpretative effort, has drained ns of onr faith in the blessings of simplicity, certainty and consistency in Indian codified law. We may pardonably, but hopefully, permit ourselves by way of constructive criticism of perfunctory codification-a proliferating source of lltigation-that it was once thought,\n\n\"With a Code, all onr troubles and cares would ma, gi- C'ally va'aish. The law, codified, would become stable, predictable and certain. The rules of law, pnrified, would be accessible to, and understood by, not only the legal establishment of bench and bar but the people as well.\"\n\nMADHUKER v. J. c. RAJAN! (Krishna lyer, !.) 835\n\nProfessor Grent E. Gilmore comments :\n\n\"The law, codified, has proved to be quite as unstable, unpredictable, and uncertain-quite as mulishly unruly----11s the common law, !Tu1codified, had ever been.\n\nThe rules of law, purifie~, have remained the exclusive preserve of the lawyers; the people are still very much in our toils and clutches as they ever were-if not more so.\"\n\n(Quoted by H. R. Hahlo in Codifying the Common Law : Protracted Gestation-Mod. Law. Rev. January 1975, p. 23, 29-30).\n\nElection Jaw has necessiµily to be Statutory, but a code can be clear iu its scheme and must be such that litigation-proof elections C should become the rule. Legislative nemesis, in the shape of ambiguity -induced litigation is a serious political misfortune in the area of elec-\n\n~ tions where lay men go to the polls and people's verdicts get bogged down in court disputes, attended with desperate delays. Some intelligent care at the drafting stage, some vision of the whole scheme in the framers, will reduce resort to legal quarrels and appellate spirals so that the time consumed in this Court in resolving conflicts of construe- D tion in comP'aratively less important legislations can be spared for more substantial issues of general public importance.\n\nCivil Appeals Nos. 1315 and 1316 of 1975\n\nOne Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri SamaJat, a voter in tha:t municipal mea, made common cause and filed two election petitions challenging the E declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes.\n\nThe. resume of relevant facts sufficient to appreciate the cd,1tentions may straightway be set out. We are confining, as suggested by counsel, to the twin appeals relating to Bassein since the fate of Bhibandi must follow suit.\n\nThree candidates, including the two already mentioned, had filed nominatiol,1 papers on October 21, 197 4 for the presidential election of the Municipal Council. At the time of the scrutiny which took place two days later, no objection was raised to the nomination of Dr. Parulekar by anyone and, on the withdrawal of the third candidate within time, there was a straight fight between the appeil'ilat and the first respondent.\n\nThe poll battle which took place on 17-11-74 found the appellant victor and he was so declared. The frustrated first respondent and his supporter, 2nd respondent, challenged the return of the appellant by separate election petitidas under s. 21 of the Municipal Act. The sole ground on which the petitioners were founded was that Dr. Parulekar, the returned candidate, was disqualified under s. 16(1) (g) of the Municipal Act, the lethal vice alleged ag!l, jnst him being that on the date of nomination he was holding an office of profit 1Tu1der the Government, as he was then, admittedly, working as a panel doctor appointed under the Employees' State Insurance Scheme\n\n( acronomically, the ESI scheme), a beneficial project contemplated by\n\nthe ESI Act, 1948. Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11, 1974.\n\nThus, before the actual polling took place, but ter the nomination, he had ceased to be on the ESI palnel. Another crrcumstance which may have some significance in the overall assessment of the justice of the case, although of marginal consequence on the law bearing upon the issues debated. at the bar, is. that the appellant has \"been a councillor of the aforesaid municipality since 1962 and he has also been a doctor on the ESI panel throughout the same span of years and no one has chosen to raise the question of disqualification on this score up ti11 the 1st respondent fell to his rival and had no other tenable grou'ild of attack. Necessity is the mother of invention and the respondents, aided by the cute legal ingenuity, may be, dug up the disqualification of 'office of profit' and, indeed, wholly succeeded befor!) the Election Tribunal, the Joint Judge of Thana. The Trial Judge not merely voided the appellant's election but declared the 1st respondent President since he was the sole surviving candidate. This order of the Joi!nt Judge has been assailed before 'us in the two appeals, after securing leave under Art. 136.\n\nThree main contentions have been urged before us by Shri Bhatt, counsel for the appellant, which we will formulate and deal with one by one, although on the merits the most formidable issue is as ta whether figuring in the medical list under the ESI scheme amounts to holding aln office of profit under Government. With a view to get a hang of the major plea, it is necessary to study the scheme of the ESI Act, even as to get a satisfactory solution of the other two points we have to gather the ensemble of provisions dealing with disqualification of candidates and the triple remedies provided in that behalf by the Municipal Act.\n\nThe discussion, to be put in proper focus, requires formulation of the submissions of cou'ilsel, the foremost in importance and intricacy being .whether a doctor on the Medical List made by the Surgeon-General of the State holds an 'office of profit' within the meaning of s. 16(1) (g) of the Municipal Act. Next in the order of priority is the question whether a petition for setting aside an election of President on the ground of disqualification for being a councillor is permissible under s. 21 o~ the Municipal Act in view of the special provision in s. 44 of the said Act .and the rules regarding objections to 11ominations and appeal therefrom framed under that Act. The last question which, in a sense, is interlinked with the earlier one is as to whether, assuming the appellant to be disqualified, the first respondent can be declared the returned candidate or President, by-passing the necessity for a fresh poll-getting elected, as it were, through the judicial constituency of discretionary power.\n\nIt is plain democrat!c sense that the electoral process should ordi~ narily receive no judicial jolt except where pollution of purity or contravention of legal mandates invite the court's jurisdiction to review the result and restore legality, legitimacy and respect for norms. The frequency of forensic overturing of poll verdicts injects instability into the electoral system, kindles hopes in worsted candidates and induces postmortem discoveries of 'disqualifications' as a desperate gamble In\n\n' J.\n\n\\ /\n\n) I\n\nMADHUKER v. J. c. RAJAN! (Krishna lyer, !.) 83 7\n\nthe system of fluctuating litigative fortunes.\n\nThis is a caveat against overuse of the court as an antidote for a poll defeat. Of course, where a clear breach is made out, the guns of law shall go into action, 'alld not retreat from the Rule of Law.\n\nWe will proceed to take a close-up of the t)uee lines of attai; k ot l.il,1ed above, and if interference with the election must follow, 1t will; otherwise not.\n\nThe appellant is a doctor in Maharashtr.a where the municiplties are organised, based on popular franchise, m terms of e Mumc1pal Act. It is a heartening omen that this local body, Bessem, has electorally attracted professional men, not mere politicians, into its administrative circle; for the appellant is a 'medic' while respondent 1 is an 'advocate'. By a margin of over. a thousand votes the former won bnt the lawyer rival has invoked the law to nndo the election on the gronnd of disqualification based m s. 1()(1) (g) of the Municipal Act. The ban is on one who holds an office of profit under govermnent and the public policy behind the provision is obvious and wholesome. We may read the relevant part of the section :\n\n\"16(l)(g) : No person shall be qualified to become a Councillor whether by election, co-option or nomination, who is a subordinate officer or servant of Government or any local authority or holds an office of profit under Govermnent or any local authority;\"\n\nThe short question then is whether the appellant 'is qnalified to be a Councillor (which expression is rightly deemed to iaclude President, vide s. 2(7). The disqualifying stain is stated to be that he held an office of profit under the State Government. He did resign before the date of poll but after the date of filing nomination. The nomination was vitiated and subsequent resignation did not confer moksha and the election thus became void. Assuming that if a candidature is tigmatis ed by a fatal blot at the time of nomination the election also suffers invalidity, despite intervening removal of the disqualification, did the doctor incur the penalty by being on the medical patael of the ESI scheme?\n\nThe critical question, apparently simple and limpid, has, when saturated with precedential erudition and lexicographic inundation,\n\nbecome so learnedly obscnre and confiictively turbid that were we governed by a radic&lly streamlined methodology of legislation and liberality of interpr?tation, as obtains in other systems of jurisprudence, much of .the frenstc .wok could haye been obiated. This is a problem of dtsturbmg social import outside the orbit of these appeals with which alone we are currently engaged. . he magnificent conceJ?t of judicial review is at its best when kept w1thm the beanl!ful trelhs of broad principles of public policy and tested by the intentionability of the statute. With this predisposition calculated to make judge-power functionally meaningful, we proceed I? fix the contextnal s.emantics of 'office of profit' as a disqualificalionary factor for runnmg for municipal president. To begin with the\n\nvery beginning; what is an office ?-too simplistic to answer with ease that it is derived from 'officium' and bears the same sense. Indeed, in Latin and English, this word has protea:.1 connotations and judicial choice reaches the high point of frustration when the highest courts here and abroad have differed, dependent on varying situations, or statutory schemes, the mischief sought to be suppressed and the surrounding social realities. Then we come to the second question : what is alil 'office of profit'? And, thirdly, to the question : when is an 'office of profit' under Government ?\n\nThe context-purpose signification of expressions of varying imports leaves room for judicial selection. Illustratively, we may refer to two decisions which throw some light but turn on the statutory setting of those cases. For instance, in Ramachandran (AIR 1961 Madras 450, 458) it has beeJ,1 observed :\n\n\" .. We find, in Bacon's Abridgment at Vol. 6, p. 2, the article headed 'of the nature of an officer, and the several kinds of officers', commencing thus : 'It is said that the word 'officium' principally implies a duty, and, in the next pface, the charge of such duty; and that it is a rule that where one man hath to do with another's affairs agailast his will, and without his leave, that this is an office, and he who is in it is an officer'.\n\nAnd the next paragraph goes on to say : 'There is a difference between an office and an employment, every office being ail employment; but there are employmeiats which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, etc; which differ widely from that of steward of a manor, etc.\n\nThe first . of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers, or who is appointed to represent the State in its re1'ations to individual subjects. This is the central idea; and applying it to the clause which we have to construe, we think that the word 'officer' there mell'ilS some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government.\n\nHe is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of someone who is so armed.\" In Statesma11 v. Deb ( 1) it is said :\n\n\"An office means ~10 more than a position to which certain G duties are attached.\n\nAccording to Earl Jowitt's Dictionary a public office is one which entitles a man to act 'in the •affairs of others without their appointment or permission.\"\n\nBoth these decisions may perhaps be generally relevant but not precisely to the point.\n\nWe were taken through the panorama of cae-law a'nd statute-law 'H relating to corporations, companies, autonomous bodies and other creatures of statute, to bring out the content of 'office of profit under\n\n(i} [1968) S.C.R. 6J0,620.\n\n' A\n\n' I\n\n• I\n\nMADHUKER v. J. c. RAJAN! (Krishna Iyer, !.) 839\n\ngovernment' as ditinguished from offices under the control of government. J1adeed, even the Constitution of India disqualifies a person for being chosen as Member, if he holds any office of profit under the Government. The question may well arise whether the ESI Corporation is under the control of government and can be equated with State so that holding any office thereunder may 'attract the proscriptiota of s. 16(l)(g). We are relieved from this industrious adventure by the stand taken by counsel for the respondents, Shri Patel, that he stakes this part of his case on the sole ground that the appellant doctor is holding an office of profit under the Maharashtra government, as such.\n\nHe has no case therefore that the doctor is under the control of the ESI Corporation, an institution controlled by the Union government and hence is disqualified. The short issue, therefore, is whether, under the scheme of the ESI Act and the rules framed thereunder, the appellant squarely falls within the description of holder of office of profit under the State Government. This branch of enquiry takes us to au analysis of the provisions bearing on the scheme of the medical project under the ESI Act and the role of the State government therein. We have some assistance from rulings of this Court in resolving the dispute and we may mention even ip advance that a seeml, ig disharmony between two decisions of this Court also has to be dissolved. Apparent judiciru dissonam:e may give place to real consonance, if a dissection of the facts and discernment of the reasoning, l, i the light of which the decisions of this Court are rendered, is undertaken.\n\nThe ESI Act provides medical facilities for the working class, the primary responsibility for executing the project being shouldered by a statutory corporation created by s. 3 of the Act and the infra-structure for implementation is orga!.1ised by the other provisions of Chapter II.\n\nA Standing Committee administers the affairs of the Corporation. A: Medical Benefit Council is constituted by the Central Government to help in the discharge of the duties of the Corporation which involve expertise. The financial resources come from contributions a!ad other moneys specified in the Act itself and an Employees' State Insurance Fund has been brought into existence in this behalf. The Corporation, although has a separate legal personality, is under the cdatrol of the Central Government. But that is not the pertinent issue before us.\n\nThe fatal sin is not that the appellant is a doctor under the ESI Corporation but that he is holding an 'office of profit' under 'the State Governm.ent. We may ig,1ore provisions relatinK to the powers of the\n\nCorporat~n and ~rn to the role of Government vis a vis private medical pracllt10ners lEe the appellant. He is not a full-time employee of\n\n~vernment. . On the other hand, he runs his own clinic. Even so, It IS argued wrth force that s. 58 aJ,1d a fasciculus of rules framed by the State Govermnent under s. 96, viewed as a mini-scheme creates offices of profit which are filled by private doctors like the appellant.\n\nThe legal spring-board is s. 58 of the ESI Act and it is best to start off with reading t!Joat section :\n\n\"58. Provision of medical treatment by State Government.-( 1) The State Govermnent shall provide for insured persons and (where such benefit is extended to their\n\nfamilies) their families in the State, reasonable medical, surgical and obstetric treatment : Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at clinics of medical practitioners on such scale and subject to snch terms and conditions as may be agreed upon.\n\n( 2) Where the incidence ... \"\n\nTwo things are self-evident.\n\nAn obligation to provide medical treatment for insured persons has been saddled on the State Government.\n\nSecondly, that Government may discharge this responsibility through arrangement with medical practitioners who run clinics. The bare bones of s. 58 have to be clothed with flesh before a viable project comes to life.\n\nThis is achieved by rules framed under s. 96 especially s. 96(1)(d) & (e). We may make it clear that the Corporation's entry into the field is not inhibited by s. 58 as s. 59A underscores.\n\nBut what is posed before us is the appellant's status as a holder of an office of profit under the Government since he is admittedly a + medical insurance officer within the mechanism set np by the rules.\n\nHere we seek light from the several rules governing medical insurance officers, their empanelment, control, removal and allied matters; Some empathy with the plan of benefit by the State Govermnent is a pre-requisite to an insight into the true nature of a medical insurance officer in the context of an office of profit.\n\nA broad idea can be gained from the key rules and so we sketch the outlines by reference to them, skipping the rest.\n\nThe Chief Officer entrusted with the working of the scheme is the Director.\n\nRule 2(3A) defines 'Director' as the Director, ESI scheme, Government of Maharashtra. This officer, the kingpin of the whole programme, is an appointee of the State Govermnent.\n\nThe content of medical benefits is covered by r. 4 which extends the medical services to insured persons and runs thus :\n\n\"4. Provision of general medical services to insured persons by Insurance Medical Practitioners.- ( 1) The State Government shall arrange to provide general medical services to insured persons at clinics of Insurance Medical Practitioners, who have undertaken to provide general medical services under these rules and in accordance with their terms of service. ( 2) An Insurance Medical Practitioner shall be deemed to be appointed as an Insurance Medical officer for the purposes of the Regulations.\"\n\nThe agency for rendering medical treatment is called Insurance Medical Practitioner. Rule 2(6) defines the Insurance Medical Practitioner as one appointed as such to provide medical benefits nnder the Act and to perform such other functions as may be assigned to him.\n\nRule 2(2) authorizes the appointment of one or more officers by the State Govermnent to control the administration of medical benefits and they are called 'administrative medical\n\n.. \"\n\nMADHUKER v. J. c. RAJAN! (Krishna Tyer, /.) 841\n\nofficers'.\n\nThese officers shall, under r. 5, prepare a list of the pra- A ctitioners whose applications have been approved by the Allocation Committee (defined in r. 2(13). This list is called the Medical List of Insurance Medical Practitioners. Before a doctor can be included in the medical list, he has to apply to the administrative medical officer in the form specified by the State Goverument for the purpose.\n\nThe Insurance Medical Practitioners have to be responsible for rendering medical treatment and must conform to the conditions speci- B lied. A Medical Service Committee shall be set up for such areas as may be considered appropriate by the State Government.\n\nThis Committee investigates into questions between an Insurance Medical Practitioner and a person who is entitled to obtain treatment from that practitioner, etc.\n\nOn the report of the Medical Services Committee relating to the conduct of an Insurance Medical Practitioner, the Director may take action in one or more of the ways specified in C r. 22(2). He may even remove the Insurance Medical Practitioner's name from the medical list. There is an appeal by the aggrieved doctor to the State Government. Rule 24 relates to investigation into cases of disputed prescriptions, record keeping and certification relating to Insurance Medical Practitioners. The total impact of a detailed study of the various rules framed by the State Government bearing on Insurance Medical Practitioners is that a doctor applies for getting D into the Medical List, agrees to abide by the duties and conditions prescribed, is under the control of the Medical Services Committee and may even be removed or resign from the panel. It is clear that he cannot extricate himself from government control by the plea that he is a private doctor because his entry into the Medical List is preceded by an application for inclusion where he undertakes certain responsibilities. Such application is considered by an Application Com- E mittee which recommends his name to the Director, Employees State Insurance Scheme.\n\nThe Surgeon General ultimately grants the prayer for inclusion in the Medical List on the recommendations of the Allocation Committee. It is true that an insurance medical practitioner has the right to resign and also to have the name of any insured person removed from his list. _ He has duties which are prescribed by the rules vis a vis the patients. He is required to furnish various pieces F of clinical information and to do other medical duties as are set out in r. 10. The State Government has the power to remove the name of any individual Insurance Medical Practitioner from the Medicwl List even as the latter is entitled to give notice to the Director, ESI Scheme that he desires to cease to be an Insurance Medical Practitioner and that his name may be removed from the Medical List. It fol- !ows that although he is a private doctor, running a private clinic, he G 1s. als? an Inura!lce Medical Practitioner subject to the discipline, dtrecttons, obhgattons and control of the relevant officers appointed by the State Government in implementing the medical benefit scheme.\n\nAn insurance medical practitioner-the appellant is one--being a medical practitioner 'appointed as such to provide medical benefit uuder the Act and to perform such other functions as may be assigned to him,' the question arises whether this is tantamount to holding an office.\n\nThe legal provisions under the Act and the rules certainly make of an insurance medical practitioner a category different from one who runs a private clinic and enters into contractual terms for treatment of patients sent by Government, nor is he a full-fledged government servant.\n\nHe is a tertium quid, as it were, but the finer question is whether this category falls squarely within the description of 'office of profit under government'.\n\nThis very question fell for decision before the Bombay and Calcutta High Courts but the learned Judges, on a study of the identical provisions, arrived at antipodean conclusions.\n\nAfter all, minds differ as rivers differ and, assisted by the flow of logic in these and other rulings cited before us, we will hopefully reach the shore of correct interpretation. The process of mentation, the office of words like office of profit' which convey many meanings and the inputs into the complex matrix of statutory construction make what looks simple to the lay, sophisticated for the legal, as the case on hand amply illustrates.\n\nBack to the issue of 'office of profit'. If the position of an Insurance Medical Officer is an 'office', it actually yields profit or at least probably may. In this very case the appellant was making sizeable income by way of capitation fee from the medical service, rendered to insured employees.\n\nThe crucial question then is whether thL' species of medical officers are holding 'office' and that 'under Government'. There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute.\n\nAfter all, all law is a means to an end.\n\nWhat is the legislative end here in disqualifying holders of 'offices of profit under government'?\n\nObviously, to avoid a conflict between duty and interest, to cut out the misuse of official position to advance private benefit and to avert the likelihood of influencing government to promote personal advantage. So this is the mischief to be suppressed. At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive reality.\n\nIn such an expanding situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non-officials who are wanted in various fields, not as fulltime government servants but as part-time participants in people's projects sponsored by government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part-time in the ennobling occupation of legal aid to tne poor.\n\nDoctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technol@gy.\n\nSo, an interpretation of 'office of profit' to cast the net so wide that\n\n\\ >\n\n)\"'\n\nMADHUKER v. J. c. RAJAN! (Krishna Iyer, !.) 843\n\nall our citizens with specialities and know-how are inhibited from A ; entering elected organs of public administration and offering semivoluntary services in para-official, statutory or like projects run or directed by Government or Corporation controlled by the State may be detrimental to democracy itself.\n\nEven athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat ! A balanced view, even if it involves 'judicious irreverence' to vintage precedents, is the B wiser desideratum.\n\nThe general interpretative approach hallowed by Heydon's case is expressed by the Bench in the Bombay ruling AIR 1958 Born 314 Deorao v. Keshav thus :\n\n\"The object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence.\n\nPutting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest amongst the members of the Legislature.\n\nThis object must always be borne in mind in interpreting Art. 191.\"\n\nWhile we agree that this consideration is important for purity of elective offices, the need for caution against exaggerating its importance to scare away men of skill in various fields coming into socially beneficial projects on part-time posting or small fee cannot be ignored.\n\nInformed by these dual warnings, we proceed to assess the worth of the rival contentions.\n\nSection 58 charges the State Government with the duty to provide medical facilities to insured employees.\n\nThis obligation may be discharged by arrangements with private clinics.\n\nAn Insurance Medical Officer is not a government servant, but he is more than a mere private doctor with a contractual obligation, for he undertakes certain functions which are regulated by law viz., rules framed under s. 96.\n\nThe question is not what he is but whether he is 'holding an office of profit'.\n\nWe have already referred to the principal sections and rules, the broad scheme and infra-structure and the rights, duties and degree ' of con'.rol over Insurance Medical Practitioners exercised by the s.tate dlfec.tiy or through its officers.\n\nA further elaboration is possible, but is supererogatory.\n\nA full study of the Bench decisions of Bombay and Calcutta led to diametrically opposite conclusions thus proving the wide judicial choice available depending on the perspective, the. import and. he objections one accepts from the two enactments VIZ. the Mun1c1pal Act and the Insurance Act. It is a context-purpose quandary.\n\nChainani J ., speaking for the Court set out the true approach thus:\n\nP. 318, para 12.\n\n\"In our opinion, the principal tests for deciding whether an office is under the Government, are ( 1) what authority has the power to make an appointment to the office concerned, (2) what authority can take disciplinary action and remove or dismiss the holder of the office and (3) by whom and from what source is his remuneration paid'?\n\nOf these, the first two are, in our opinion, more important than the third one.\"\n\nSbri A. N. Ray, J. (as he then was) stated his touchstone to be C fourfold:\n\n\"The four tests which have been applied to these cases were stated by Lord Thankerton in the case of Short v. J. and W. Henderson, Limited, reported in (1946) 174\n\nL.T. 417.\n\nThese four tests are :-(a) the master's power of selection of his servant, (b) the payment of wages or other remnneration, ( c) the master's right to control the method of doing the work, and (d) the master's right of suspension or dismissal.\n\nLord Thankerton referred to the observation of Lord Justice Clerk in the judgment under appeal in that case that a contract of service may still exist if some of these elements are absent altogether, or present only in an unnsnal form, and that the principal requirement of contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently b_een treated as critical and decisive of the legal quality of the relationship.\"(')\n\nA few searching questions and implied answers may help a solution. Is the appellant (or those of his ilk nuder the Scheme) an employee of government? Not more than any other expert consulted by Government for fee paid? But he has obligations of a statutory savour. He is 'appointed' on his application which is processed by the appropriate body, removed if fonnd wanting, obliged to discharge duties, make some reports and subject himself to certain discipline while on the panel. In the words of the Bombay decision\n\nPara 30, p. 323.\n\n\"In the form of application, a medical practitioner, who desires his name to be included in the medical list, has also to state that he agrees to abide by the terms of service.\n\nIn other words, he agrees to join a service, see also Rule 22( d), which uses the words 'prejudicial to the efficiency of the Service'. He is also subject to disciplinary action and contro I.\n\nHe cannot also resign or give up his post except by giving three months' notice under Service Rule\n\n(!) Manipope\\ V. State A.I.R. 1970 Cal. I, 5 para. 20.\n\nMADHUKER v. J. c. RAJAN! (Krishna Tyer,!.) 845\n\n14.\n\nHe is also required to maintain records and to submit A returns.\n\nHis employment has, therefore, all the attributes of a service. He must, therefore, be held to be a holder of an office.\n\nThe fact that he is allowed private practice will not alter the character of his appointment.\" The other features pointing in a different direction are not to be overlooked e!thcr.\n\nRay J. (as he then was) drew the lines, boldly, B when he observed :\n\nPara 29, p. 7.\n\n\"These medical practitioners apply themselves for inclusion in the medical list.\n\nTheir payment is not out of the government revenue but out of a special fund consisting of contribution made by the employers.\n\nTherefore such a fund over which the government has no legal title and which is vested in the corporation under the combined effect of sections 3 and 26 of the Act to which I have already referred indicates beyond any doubt that the remuneration of medical practitioners is paid not out of the public exchequer. The contention of Mr. Advocate General is correct that medical practitioner in the present case gave nothing more than a voluntary undertaking to offer services in lieu of fees for professional service rendered and the inclusion of names in the list and the preparation of the list did not have the effect of making the medical practitioner an employee of the State.\"\n\nx x x x x x Para 23, p. 6.\n\n\"Mr. Advocate General, in my opinion, rightly contended that the medical practitioners were really undertaking and offering services and if the undertaking was treated as a contract between the medical practitioner and the persons in charge of preparation of medical list, namely, the State or the Corporation it was a mere contract for services and not a contract of services.\n\nThis proposition was extracted from the decision in Gould v. Minister of National Insurance, repMted in (1951) 1 KB 731 and also in (1951) I\n\nAIL E.R. 368.\n\nThat case was on the construction of the provisions of the National Insurance Act, 1946 and the question was whether the appellant in that case who was a music-hall artist and who had entered into a written contract with the second respondent acting on behalf of several companies, under which he undertook to appear in a variety 'act' at a theatre for one week from September 6, 1948 was an employed person within the meaning of the Act.\n\nThe first respondent, the Minister of National Insurance, had decided that during that week the appellant was not an 'employed person' within the meaning of the Act.\n\nIt was held that the question would turn on the particular facts of each case and the authority of cases based on different statutes would not always be of assistance. It was said 4-275SCl/76\n\nthat it would be easy in some cases to say that the contract was a contract of service and in others that it was a contract for services, but between these two extremes there was a large number of cases where the line was much more difficult to draw.\"\n\nDoes the destiny of this case depend on murky semantics as to what is an 'office'-filling columns of Law Lexicons and English Dictionaries-or the nub of the dispute tum on contract of service versus. contract for services ? Alas ! Could not the law be made plainer in this area of mass-participatory process called elections ?\n\nDickens is still valid about our modern Legislations unresponsive to the common man's need of comprehensible Jaw and unmindful of the court's consequential wrestling with etheric differences ! 'The Jaw is a ass-a idiot' (Mr. Bumble in Oliver Twist).\n\nThe commensense way, rather than the lexicographic street, is the better route to the destination.\n\nAnd that means we have to crystallise our notion of 'office of profit' and then test the fate of Insurance Medical Practitioners., Profit he does derive, but does be bold an office under Government ? Mere incumbancy in off; ce is no disqualification even if some sitting fee or piflling honorarium is paid (vide: 1954 SC 653).\n\nIf a lawyer (or doctor in a system of National Health Insurance) is on a panel of Government for looking after case~ or other legal work and paid for services rendered but, otherwise, a freelance, does be hold an office under Government ?\n\nShivamurthy Swami(') clears the ground for the discussion by going to the basics which determine what is an office of profit under Government.\n\nThese tests are : \"(1) Whether !he Government makes the appointment;\n\n(2) Whether the Government has the right to remove or dismiss the holder;\n\n(3) Whether the Government pays the remuneration; ( 4) What are the functions of the bolder ? Does he perform them for the Government; and\n\n(5) Does the Government exercise any control over the performance of those functions ?\"\n\nWe are not faced with the plea of office under the Corporation and thus under the Central Government but only with the disqualifi- .,,., ' cation of holding an office directly under the State Government via \" s. 58 read with the rules framed under s. 96 of the Insurance Act. In this connection, a closer link with the present situation is established H by Kanta(') where an Advocate, acting for Govrnment under the directions of the Government pleader could be said to hold an office .of profit.\n\nSikri J., (as be then was) adopted the classic definition\n\nJl) [1971] J S.C.C. 870. (') '.l970] 2 S.C.R. ~35.\n\n' '\n\n!\\IADHUKER v . . l. c. RAJAN! (Krishna lyu, !.) 8~ 7\n\nof 'office' given by Justice Rowlatt in Great Eastern Rly Co. ( 1) as appropriate even in an electoral context and proceeded to apply the ratio to the facts of the case.\n\nObserved the learned Judge :\n\n\"We cannot visualise an office coming into existence, every time a pleader is asked by the Government to appear in a case on its behalf.\n\nThe notification of his name under\n\nrule SB, does not amount to the creation of an 'office'. Some B reliance was also placed on rule 4 of Order 27\n\nC.P.C. which provides that :\n\n\"The Government pleader In any Court shall be t!he agent of the Government for the purpose of receiving processes against the Government issued by such Court.\"\n\nThis rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case.\n\nAssuming it applies, it only means that the processes could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XL V of the Supreme Court Rules, 1966.\n\nThis does not mean that an Advocate on Record would hold an office under the client.\n\nThe learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object underlying Art. 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object. lt is not necessary to give a wide meaning to the word 'office' because if Parliament thinks that a legal prac.titioner who is heing paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly, it can make that provision under Art. 191 (1 )(c) of the Constitution. The case of Sakhawat Ali.\n\nv. The State of Orissa(') provides an instance where the Legislature provided that a paid legal practitioner shot>ld not stand in the municipal elections.\"\n\nThis takes us to Sakhawat Ali(') and to Mahadeo('') which too afford . some lucilcrous parallels.\n\nIn Sakhawat Ali (supra) the quostion arose about a legal practitioner employed on behalf of a Municipality standing as candidate for election to the Municipal Council.\n\nStress was laid on the purity of G public life, an object which would be thwarted if there arose a situation of conflict between interest and duty.\n\nA lawyer paid by the municipality becoming a councillor is a situation fraught with perils to purity in public life.\n\nThis factor was emphasized by an express provision in the Municipal Act in that case disqualifying such paid legal practitioners from becoming candidates.\n\nHad such a step been taken in our case, the law would have been at least clear, whether it was H wise or no.\n\n(1) 8 Tax Cases 231.\n\n(2) [1955] I S.C.R. 1004.\n\n(3) [19591 2 S.C.R. 422.\n\nA In Mahadeo's Case(') a fine distinction from Kanta (supra) arose.\n\nThere also the disqualification of a lawyer on account of holding an office of profit under the government arose.\n\nAfter quoting Lord \" ; Wright in Mcmillan v. Guest('), trying to define 'office', the Court proceeded to consider whether a lawyer who accepted a position on the panel of Railway pleaders for conducting suits filed against the Union of India on the terms and conditions therein mentioned, was B holding an office of profit.\n\nHolding that such an appointment on the panel of lawyers for the Union ot India was an office of profit, the\n\nCourt observed :\n\n\"If by 'office' is meant the right and duty to exercise an employment or a position to which certain duties are attached as observed by this Court, it is difficult to see why the engagement of the appellant in this case under the letter of February 6, 1962 would not amount to the appellant's holding an office.\n\nBy the said letter he accepted certain obligations and was required to discharge certain duties.\n\nHe was not free to take a brief against the Railway Administration.\n\nWhether or not the Railway Administration thought it proper to entrust any particular case or litigation pending in the court to him, it was :his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent.\n\nEven if nu instructions regarding any particular case were given to him, he was expected to appear in court and obtain an adjournment.\n\nIn effect this cast a duty on him to appear in court and obtain an adjournment so as to protect the interests of the Railway.\n\nThe duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the panel of Railway lawyers or so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render service to the Railway.\n\nIn the absence of the above he was bound by the terms of the engagement to watch the interests of the Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had made no arrangement for representation.\n\nIt is true that he would get a sum of money only if he appeared but the possibility that the Railway might not engage him is a matter of no moment.\n\nAn office of profit really means an office in respect of which a profit may accrue.\n\nIt is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him.\"\n\nThe next case of considerable importance is Gurugobinda(') which related to a chartered accountant, a partner of a firm of auditors of two companies which were owned by the Union Goverurnent\n\n(!) [1969] 2 S.C.R. 422.\n\n(2) [19421 A.C. 561.\n\n\nMADHUKER v. J. c. RAJAN! (Krishna Iyer, !.) 8 4 9\n\n.and the State Government.\n\nDisqualification for holding an office of A profit, again, in this circumstance, was pressed before the Court and\n\nS. K. Das, Acg. C. J., speaking for the Court observed :\n\n\"We think that this contention is correct.\n\nWe agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them.'' (p. 319) \"In Mau/ana Abdul Shakur v. Rikhab Chand and another ( 1958 SCR 387) the appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955.\n\nwas appointed by the administrator of the Durgah and was C paid Rs. 100 per month.\n\nThe question arose whether he was disqualified to be chosen as a member of Parliament in view of Art. 102(1) (a) of the Constitution.\n\nIt was contended for the respondent in that case that under ss. 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the D power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and supervision of the Government and that therefore be was holding an office of profit under the Government of India.\n\nThis contention was repelled and this court pointed out the distinction between the holder of an office of profit under some other authority subject to the control of Govern- E ment.\"\n\n(p. 319-320)\n\n\"It has to be noted that in Mau/ana Abdul Shakur's case the appointment of the appellant in that case was not made by the Government nor was he liable to be dismissed by the Government.\n\nThe appointment was made by the administrator of a committee and he was liable to be dismissed by the same body.\"\n\n(p. 320)\n\n\"It is clear from the aforesaid observations that in Maulana Abdul Shakur's case the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always decisive factor.\n\nIn the case before us the appointment. of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies.\n\nHis remuneration is also fixed by Government. We assume for the purpose of this appeal that they are Government companies within the meaning of\n\nthe Indian Companies Act, 1956 and 100% of t\\1.e sharei\n\nare held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor-General who is himself undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure ot oftice and removability therefrom.\"\n\n(p. 321)\n\n\"Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government Companies, the Durgapur Projects Ltd.,. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, he is. removable from office by the Government of India, he performs functions for two Government companies under the control of the Comptroller and Auditor General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President.\"\n\n(p. 322)\n\n\"In Ramappa v. Sangappa the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under Art. 191 of the Constitution, which is the counterpart of Art. 102, in the matter of membership of the State Legislature. It was observed therein.\n\n\"T¥ Government makes the appointment to the office though 1t may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements.\n\nThe office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditarv right to it.\n\nThe fact that the Government cannot refuse to make the appointment does not alter the situation.\"\n\nThere again, the decisive test was held to be the test of appointment.\n\nIn view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determine' the ren1uneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent. the test of a person holding an office under the Government.\n\nCentre or State, is not satisfied.\n\nThe cases we have referred to specifically point out that the circumstance that the source\n\nMADHUKER v. J. c. RAJAN! (Krishna Iyer, !.) 851\n\nfrom which the rcmunerntion is paid is not from public revenue is a neutral factor-not decisive of the question. As we have said earlier whether the stress will be laid on one factor or the other will depend on the facts of each case.\n\nHowever, we have no hesitation in saying that where the several elements. the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the 01tice are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered.\"\n\n(p. 322-323) The core question that comes to the fore from the survey of the panorama of case law is as to when we can designate a person gainfully engaged in some work having a nexus with Government as the holder of an 'office of profit' under Government in the setting of disqualification for candidature for municipal or like elections.\n\nThe holding of an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce.\n\nCertain aspects appear to be elementary.\n\nFor holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant (Gurugobinda supra).\n\nSimilarly, we have to look at the substance, not the form.\n\nThirdly, all the several factors stressed by this Court, as determinative of the holding of an 'office' under Government, need not be conjointly present.\n\nThe critical circumstances, not the total factors, prove decisive.\n\nA practical view not pedantic basket of tests, should guide in arriving at a sensible conclusion, In the present case, can we say that the post (forgetting the liner issue of office, as distinguished from post) is under the State Governmeat ? The capitation fee is the remuneration the doctor is paid and this comes not tram Government direct but from a complex of sources.\n\nBut Gurugobinda and Gurushantappa(') tock the view that pay1ncnt of remuneration not from public revenue i& a neur_il factor.\n\nIs tae degree of control by Government decisive?\n\nThe power to appoint, direct and remove, to regulate and discipline, may be good indicia but not decisive, as pointed out in Gurushantappa.\n\nIn our case, Government does have, partly direct and partly indirect, control hut the conclusion is not inevitable because the doctor is put in the List not by Government directly but through a prescribed process\n\nwhere the Surgeon General has a presiding place.\n\nHow proximate or remote is the subjection of the doctor to the control of Government to bring him under Government is the true issue.\n\nGurushantaopa has highlighted this facet of the question.\n\nIndirect control, though real, is insufficient, flows from the ratio of Abdul Shakur(').\n\nThe appellant, as elaborated by Ray J (as he then was) in the Calcutta case, was not a servant of government but a private practitioner was not appointed directly bv Government, but by an officer of gdvernrnent on the recommendation of a Committee, was paid not necessarily\n\n\n(2) [t9581 S.C'.R. 387.\n\nout of Government revenue and the control over him in the scheme was vested not in Government but in an Administrative Medical Officer and Director whose position is not qua Government servant but creatures of statutory rules.\n\nThe ultimate power to remove him did lie in Government even as he enjoyed the power to withdraw from the panel.\n\nThe mode of medical treatment was beyond Government's contml and the clinic was a private OJ!e.\n\nIn sum, it is fair to hold that the Insurance Medical Practitioner is not a free-lancer but subject to duties, obligations, contrpl and rates of remuneration under the overall supervision and powers of Government.\n\nWhile the verdict on being under the Government is a perilous exercise in Judicial brinkmanship, especially where the pros and cons are evenly balanced, the ruling in Kanta Kathuria which binds us and the recondite possibility of conflict of duty and interest for a Municipal President who is an Insurance Medical Practitioner under an arrangement with Government induce us to hold that though the line is fine, the appellant is not functioning under the Government in the plenary sense implied in electoral disqualification.\n\nAfter all, the means, i.e., the ban on candidature, must have a substantial link with the end viz., the possible misuse of position as Insurance Medical Practitioner in doing his dutles as Municipal President.\n\nThis question is interlaced, in the present context, with the concept of 'office of profit'.\n\nAnd the twin problems baffle easy solution since an apparent-not rea]-conftict of reasoning exists between Mahadeo (decided by a Bench of two Judges) and Kanta (by a Bench of five Judges). Of course Sikri, J. (as he then was) thought that Mahadeo 'in no way militates against the view' which appealed to the majority in Kanta.\n\nJudicial technology sometimes distinguishes, sometimes demolishes earlier decisions; the art is fine and its use skilful. Both the cases dealt with advocates and we have referred to them in the earlier resume of precedents.\n\nEven so, a closer look will disclose why we follow the larger Bench (as we are bound to, even if there is a plain conflict between the two cases).\n\nJustice Rowlatt's locus classicus in Great Western Ry. Co. (followed by this Court in many cases) helps us steer clear of fogomachy about 'officio' especially since the New English Dictionary fills four columns ! Rowlatt J. rivetted attention on 'a subsisting, permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders'.\n\nSo. the first step is to enquire whether 'a permanent, substantive position, which had an existence independent from the person who filled it' can be postulated in the case of an Insurance Medical Practitioner.\n\nBy contrast is the post an ephemeral, ad hoc, provisional incumbency created, not independently but as a List or Panel elastic and expiring or expanding, distinguished from a thin~ that survives even when no person had been appointed for the time being. 'Thin partitions do their bounds divide' we agree, but the distinction, though delicate. is real.\n\nAn office of Insurance Medical Practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office. We cannot equate it with the post of a peon or security gunmen who too has duties\n\nMADIIUKER v. J, c. RAJAN! (Krishna Iyer, J.) 853\n\nto perform or a workshop where Government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for Legal Aid to the Poor or a body of uoctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit. lf this perspective Qe correct, Kanta and Mahadeo fit into a legal scheme.\n\nIn the former, an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside 'office of profit'. It was a casual engagement, nut exalted to a permanent position, occupied pro-tempore by A or B. ln Mahadeo, a permanent panel of lawyers 'maintained by the Railway Administration' with special duties of a lasting nature constituted the otlices of profit-more like standing counsel. If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned-as in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled.\n\nOn the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise. If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner.\n\nThe critical test of independent existence of the p06ition irrespective of, the occupant is just not satisfied.\n\nLikewise, it is not possible to conclude that these doctors, though subject to responsi!iilities, eligible to remuneration and liable to removal-all with a governmental savour-cannot squarely fall under the expression 'Holding under Government'.\n\nEnveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an 'office of profit' held by him and that he is 'under government'.\n\nThis conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi-voluntary social projects in an era of expanding cosmos of State activity.\n\nWe hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government.\n\nIs it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the Jaw and preempt liti_e:ation.\n\nJu<licial pessimism nersu<'!des us not to b~ hooeful even after this judgment.\n\nThe Court and the Legislature have no medium of inter-communication under our system.\n\nIts desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the A\"ociatinn of the Har of the City of New York and proposed an agency to mediate between the courts and the legislature).\n\nIn characteristically beautiful prose he said :\n\n\"The Courts are not helped as they could and ought to be in the adaptation of Jaw to iustice.\n\nThe reason they are not helped in because there is no one whose business it is to give warning that help is needed.. . . . We must have a courier who will carry the tidings of distress.. . . . Today\n\ncourts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production anrl in the lowered quality of the product.\n\nOn the one side, the judges, left to fight against anachronism and injustice by the methods of judge-made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain.\n\nOn the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, an<l mars often when it would mend.\n\nLegislature and courts move on in proud and silent isolation.\n\nSome agency must be found to mediate between them.\" In the light of the conclusion we have reached, the other twct grounds raised may not strictly arise for consideration.\n\nHowever, since arguments have been addressed, we had better briefly express our view.\n\nIt was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membersbip, the proper procedure is to invoke s. 44 and not to resort to an election petition under s. 21.\n\nOn a close study of the two provisions in the light of the ruling of this Court in 1953 SCR 1154, we are satisfied that an election petition under s. 21 is all inclusive and not under inclusive.\n\nWhat we mean is that even if the invalidation of the election is on the score of the disqualification under s. 16 it is appropriate to raise that point under s. 21 which is comprehensive.\n\nAll grounds on the strength of which an election can be demolished can be raised in a proceeding under s. 21.\n\nThe language of the provision is wide enough. Maybe that supervening disqualifications after a person is elected may attract s. 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councillor (including the President).\n\nWe agree in this regard with the Full Bench decision in Da(tatraya( 1).\n\nLikewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Election Tribunal.\n\nIn the present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronterl by the appellate adjudication by the District Judge about the validity or otherwise of the homination and its resuscitation before the Election G Trihunl. In this view. \\.le rln not accede to the contention of the appellant based on s. 44 or rule 15.\n\nThe third plea, not aimed at salvaging the poll success of the appellant hut in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a sifoation where there are only two candidates H\n\n(1) A. LR. 1975 Born. 205.\n\n' /\n\nMADHUKER v. J, c. RAJAN! (Krfahna Iyer, J.) 855\n\nand the election of one is set aside by the Tribunal, the other auto- A. matically gets returned, without resort to polls.\n\nAnyway, m the , J present case, if the appellant's election were invalid, there is only\n\na single survivor left in the field, i.e., the first respondent.\n\nNaturally, in any constituency where there is only one valid nom.ination, that nominee gets elected for want of contest.\n\nTo conclude, since the appellant is JlOt disqualified, the appeals n. are bound to be allowed and we do so, but in the circumstances, without costs.\n\nIn the connected appeal C.A. No. 1270 of 1975 the consequence is to conform to what we have held above.\n\nTherefore, that appeal is also allowed.\n\nThe parties will bear their respective costs thrpughout.\n\n-i P.B.R. Appeali allowed.", "total_entities": 136, "entities": [{"text": "MADHUKER G. E. PANKAKAR", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "MADHUKER G. E. PANKAKAR", "offset_not_found": false}}, {"text": "JASWANT CHOBBILDAS RAJAN! & ORS.", "label": "RESPONDENT", "start_char": 30, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "JASWANT CHOBBILDAS RAJANI & ORS", "offset_not_found": false}}, {"text": "March 23, 1976", "label": "DATE", "start_char": 64, "end_char": 78, "source": "ner", "metadata": {"in_sentence": "March 23, 1976\n\n[V. R, KRISHNA !"}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 104, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Maharashtra Municipalities Act", "label": "STATUTE", "start_char": 126, "end_char": 156, "source": "regex", "metadata": {}}, {"text": "s. 16(1 )(g)", "label": "PROVISION", "start_char": 1960, "end_char": 1972, "source": "regex", "metadata": {"statute": null}}, {"text": "Maharashtra Municipalities Act, 1965", "label": "STATUTE", "start_char": 1980, "end_char": 2016, "source": "regex", "metadata": {}}, {"text": "Employees State Insurance Scheme", "label": "ORG", "start_char": 2252, "end_char": 2284, "source": "ner", "metadata": {"in_sentence": "The respondent challenged the election on the ground that the appellant was disqualified under s. 16(1 )(g) of the Maharashtra Municipalities Act, 1965 which debars a person who holds an office of profit under Government from becoming a councillor, because on the date of nomination he was holding an office of profit under the Government by reason of his being a panel doctor under the Employees State Insurance Scheme."}}, {"text": "[1964] 4 SCR 311", "label": "CASE_CITATION", "start_char": 4523, "end_char": 4539, "source": "regex", "metadata": {}}, {"text": "Kanta", "label": "OTHER_PERSON", "start_char": 7195, "end_char": 7200, "source": "ner", "metadata": {"in_sentence": "Viewed from this point Kanta and Mahadeo are reconcilable in the former an ad hoc Assistant Government Pleader with diities and remuneration was held to fall outside office of profit in the latter a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted an office Of profit. ["}}, {"text": "Mahadeo", "label": "RESPONDENT", "start_char": 7205, "end_char": 7212, "source": "ner", "metadata": {"in_sentence": "Viewed from this point Kanta and Mahadeo are reconcilable in the former an ad hoc Assistant Government Pleader with diities and remuneration was held to fall outside office of profit in the latter a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted an office Of profit. [", "canonical_name": "Mahadeo"}}, {"text": "ss. 21 and 44", "label": "PROVISION", "start_char": 8475, "end_char": 8488, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2", "label": "PROVISION", "start_char": 8579, "end_char": 8583, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 8715, "end_char": 8720, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 8765, "end_char": 8770, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 8899, "end_char": 8904, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 8984, "end_char": 8989, "source": "regex", "metadata": {"statute": null}}, {"text": "R. P. Bhat", "label": "OTHER_PERSON", "start_char": 9574, "end_char": 9584, "source": "ner", "metadata": {"in_sentence": "R. P. Bhat (In CAs."}}, {"text": "K.\n\nChaudhury", "label": "LAWYER", "start_char": 9609, "end_char": 9622, "source": "ner", "metadata": {"in_sentence": "1315-1316/75, K.\n\nChaudhury, K.\n\nRajendra Chaudhury and Mrs. Veena Khanna for the Appellants in CAs."}}, {"text": "K.\n\nRajendra Chaudhury", "label": "LAWYER", "start_char": 9624, "end_char": 9646, "source": "ner", "metadata": {"in_sentence": "1315-1316/75, K.\n\nChaudhury, K.\n\nRajendra Chaudhury and Mrs. Veena Khanna for the Appellants in CAs."}}, {"text": "Veena Khanna", "label": "LAWYER", "start_char": 9656, "end_char": 9668, "source": "ner", "metadata": {"in_sentence": "1315-1316/75, K.\n\nChaudhury, K.\n\nRajendra Chaudhury and Mrs. Veena Khanna for the Appellants in CAs."}}, {"text": "D. V. Patel", "label": "LAWYER", "start_char": 9731, "end_char": 9742, "source": "ner", "metadata": {"in_sentence": "D. V. Patel (In CAs."}}, {"text": "V. N. Ganpule", "label": "LAWYER", "start_char": 9764, "end_char": 9777, "source": "ner", "metadata": {"in_sentence": "1315-16/75, V. N. Ganpule for respondent No."}}, {"text": "E D. V. Patel", "label": "LAWYER", "start_char": 9820, "end_char": 9833, "source": "ner", "metadata": {"in_sentence": "E D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent\n\nNo."}}, {"text": "P. H. Parekh", "label": "LAWYER", "start_char": 9835, "end_char": 9847, "source": "ner", "metadata": {"in_sentence": "E D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent\n\nNo."}}, {"text": "Manju Jetley", "label": "LAWYER", "start_char": 9859, "end_char": 9871, "source": "ner", "metadata": {"in_sentence": "E D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent\n\nNo."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 9917, "end_char": 9929, "source": "ner", "metadata": {"in_sentence": "M. N. Shroff for respondents 4 and 5 in CAs."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 10021, "end_char": 10033, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThe first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President of the Basscfo Council (and the third raises virtually the same point but refers to the Bhibendi MuJaicipal Council) under the Maharashtra Municipalities Act, 1965 (the Municipal Act, for short) has led to Jong and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and illumining which, by interpretative effort, has drained ns of onr faith in the blessings of simplicity, certainty and consistency in Indian codified law."}}, {"text": "Bhibendi MuJaicipal Council", "label": "ORG", "start_char": 10239, "end_char": 10266, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThe first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President of the Basscfo Council (and the third raises virtually the same point but refers to the Bhibendi MuJaicipal Council) under the Maharashtra Municipalities Act, 1965 (the Municipal Act, for short) has led to Jong and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and illumining which, by interpretative effort, has drained ns of onr faith in the blessings of simplicity, certainty and consistency in Indian codified law."}}, {"text": "Maharashtra Municipalities Act, 1965", "label": "STATUTE", "start_char": 10278, "end_char": 10314, "source": "regex", "metadata": {}}, {"text": "Grent E. Gilmore", "label": "OTHER_PERSON", "start_char": 11169, "end_char": 11185, "source": "ner", "metadata": {"in_sentence": "835\n\nProfessor Grent E. Gilmore comments :\n\n\"The law, codified, has proved to be quite as unstable, unpredictable, and uncertain-quite as mulishly unruly----11s the common law, !"}}, {"text": "H. R. Hahlo", "label": "OTHER_PERSON", "start_char": 11546, "end_char": 11557, "source": "ner", "metadata": {"in_sentence": "(Quoted by H. R. Hahlo in Codifying the Common Law : Protracted Gestation-Mod."}}, {"text": "Rajani", "label": "PETITIONER", "start_char": 12468, "end_char": 12474, "source": "ner", "metadata": {"in_sentence": "1315 and 1316 of 1975\n\nOne Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri SamaJat, a voter in tha:t municipal mea, made common cause and filed two election petitions challenging the E declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes."}}, {"text": "Bassein Municipal Council", "label": "ORG", "start_char": 12513, "end_char": 12538, "source": "ner", "metadata": {"in_sentence": "1315 and 1316 of 1975\n\nOne Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri SamaJat, a voter in tha:t municipal mea, made common cause and filed two election petitions challenging the E declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes."}}, {"text": "SamaJat", "label": "PETITIONER", "start_char": 12548, "end_char": 12555, "source": "ner", "metadata": {"in_sentence": "1315 and 1316 of 1975\n\nOne Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri SamaJat, a voter in tha:t municipal mea, made common cause and filed two election petitions challenging the E declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes."}}, {"text": "Parulekar", "label": "OTHER_PERSON", "start_char": 12702, "end_char": 12711, "source": "ner", "metadata": {"in_sentence": "1315 and 1316 of 1975\n\nOne Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri SamaJat, a voter in tha:t municipal mea, made common cause and filed two election petitions challenging the E declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes."}}, {"text": "Bassein", "label": "OTHER_PERSON", "start_char": 12962, "end_char": 12969, "source": "ner", "metadata": {"in_sentence": "We are confining, as suggested by counsel, to the twin appeals relating to Bassein since the fate of Bhibandi must follow suit."}}, {"text": "Bhibandi", "label": "OTHER_PERSON", "start_char": 12988, "end_char": 12996, "source": "ner", "metadata": {"in_sentence": "We are confining, as suggested by counsel, to the twin appeals relating to Bassein since the fate of Bhibandi must follow suit."}}, {"text": "October 21, 197 4", "label": "DATE", "start_char": 13104, "end_char": 13121, "source": "ner", "metadata": {"in_sentence": "Three candidates, including the two already mentioned, had filed nominatiol,1 papers on October 21, 197 4 for the presidential election of the Municipal Council."}}, {"text": "17-11-74", "label": "DATE", "start_char": 13481, "end_char": 13489, "source": "ner", "metadata": {"in_sentence": "The poll battle which took place on 17-11-74 found the appellant victor and he was so declared."}}, {"text": "s. 21", "label": "PROVISION", "start_char": 13684, "end_char": 13689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 13837, "end_char": 13845, "source": "regex", "metadata": {"statute": null}}, {"text": "ESI Act, 1948", "label": "STATUTE", "start_char": 14192, "end_char": 14205, "source": "regex", "metadata": {}}, {"text": "November 5, 1974", "label": "DATE", "start_char": 14268, "end_char": 14284, "source": "ner", "metadata": {"in_sentence": "Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11, 1974."}}, {"text": "November 11, 1974", "label": "DATE", "start_char": 14310, "end_char": 14327, "source": "ner", "metadata": {"in_sentence": "Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11, 1974."}}, {"text": "ESI", "label": "COURT", "start_char": 14758, "end_char": 14761, "source": "ner", "metadata": {"in_sentence": "that the appellant has \"been a councillor of the aforesaid municipality since 1962 and he has also been a doctor on the ESI panel throughout the same span of years and no one has chosen to raise the question of disqualification on this score up ti11 the 1st respondent fell to his rival and had no other tenable grou'ild of attack."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 15459, "end_char": 15467, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Bhatt", "label": "OTHER_PERSON", "start_char": 15527, "end_char": 15532, "source": "ner", "metadata": {"in_sentence": "Three main contentions have been urged before us by Shri Bhatt, counsel for the appellant, which we will formulate and deal with one by one, although on the merits the most formidable issue is as ta whether figuring in the medical list under the ESI scheme amounts to holding aln office of profit under Government."}}, {"text": "s. 16(1)", "label": "PROVISION", "start_char": 16378, "end_char": 16386, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 16599, "end_char": 16604, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 16662, "end_char": 16667, "source": "regex", "metadata": {"statute": null}}, {"text": "Bessem", "label": "GPE", "start_char": 18277, "end_char": 18283, "source": "ner", "metadata": {"in_sentence": "It is a heartening omen that this local body, Bessem, has electorally attracted professional men, not mere politicians, into its administrative circle; for the appellant is a 'medic' while respondent 1 is an 'advocate'."}}, {"text": "s. 1()(1)", "label": "PROVISION", "start_char": 18608, "end_char": 18617, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(7)", "label": "PROVISION", "start_char": 19230, "end_char": 19237, "source": "regex", "metadata": {"statute": null}}, {"text": "Bacon", "label": "OTHER_PERSON", "start_char": 21646, "end_char": 21651, "source": "ner", "metadata": {"in_sentence": "For instance, in Ramachandran (AIR 1961 Madras 450, 458) it has beeJ,1 observed :\n\n\" .. We find, in Bacon's Abridgment at Vol."}}, {"text": "Earl Jowitt", "label": "OTHER_PERSON", "start_char": 23190, "end_char": 23201, "source": "ner", "metadata": {"in_sentence": "According to Earl Jowitt's Dictionary a public office is one which entitles a man to act 'in the •affairs of others without their appointment or permission.\""}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 23814, "end_char": 23835, "source": "regex", "metadata": {}}, {"text": "ESI Corporation", "label": "ORG", "start_char": 23981, "end_char": 23996, "source": "ner", "metadata": {"in_sentence": "The question may well arise whether the ESI Corporation is under the control of government and can be equated with State so that holding any office thereunder may 'attract the proscriptiota of s. 16(l)(g)."}}, {"text": "s. 16(l)(g)", "label": "PROVISION", "start_char": 24134, "end_char": 24145, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Patel", "label": "OTHER_PERSON", "start_char": 24251, "end_char": 24256, "source": "ner", "metadata": {"in_sentence": "We are relieved from this industrious adventure by the stand taken by counsel for the respondents, Shri Patel, that he stakes this part of his case on the sole ground that the appellant doctor is holding an office of profit under the Maharashtra government, as such."}}, {"text": "Maharashtra government", "label": "ORG", "start_char": 24381, "end_char": 24403, "source": "ner", "metadata": {"in_sentence": "We are relieved from this industrious adventure by the stand taken by counsel for the respondents, Shri Patel, that he stakes this part of his case on the sole ground that the appellant doctor is holding an office of profit under the Maharashtra government, as such."}}, {"text": "s. 3", "label": "PROVISION", "start_char": 25548, "end_char": 25552, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 25776, "end_char": 25794, "source": "ner", "metadata": {"in_sentence": "A: Medical Benefit Council is constituted by the Central Government to help in the discharge of the duties of the Corporation which involve expertise."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 26658, "end_char": 26663, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 96", "label": "PROVISION", "start_char": 26729, "end_char": 26734, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 26869, "end_char": 26874, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 27739, "end_char": 27744, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 96", "label": "PROVISION", "start_char": 27854, "end_char": 27859, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 96(1)(d)", "label": "PROVISION", "start_char": 27871, "end_char": 27882, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 58", "label": "PROVISION", "start_char": 27975, "end_char": 27980, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 59A", "label": "PROVISION", "start_char": 27984, "end_char": 27990, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of Maharashtra", "label": "ORG", "start_char": 28788, "end_char": 28813, "source": "ner", "metadata": {"in_sentence": "Rule 2(3A) defines 'Director' as the Director, ESI scheme, Government of Maharashtra."}}, {"text": "Bombay and Calcutta High Courts", "label": "COURT", "start_char": 33964, "end_char": 33995, "source": "ner", "metadata": {"in_sentence": "This very question fell for decision before the Bombay and Calcutta High Courts but the learned Judges, on a study of the identical provisions, arrived at antipodean conclusions."}}, {"text": "Heydon", "label": "OTHER_PERSON", "start_char": 37479, "end_char": 37485, "source": "ner", "metadata": {"in_sentence": "The general interpretative approach hallowed by Heydon's case is expressed by the Bench in the Bombay ruling AIR 1958 Born 314 Deorao v. Keshav thus :\n\n\"The object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amenable to its influence."}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 38141, "end_char": 38149, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Section 58", "label": "PROVISION", "start_char": 38525, "end_char": 38535, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 96", "label": "PROVISION", "start_char": 38924, "end_char": 38929, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay", "label": "GPE", "start_char": 39355, "end_char": 39361, "source": "ner", "metadata": {"in_sentence": "A full study of the Bench decisions of Bombay and Calcutta led to diametrically opposite conclusions thus proving the wide judicial choice available depending on the perspective, the."}}, {"text": "Calcutta", "label": "GPE", "start_char": 39366, "end_char": 39374, "source": "ner", "metadata": {"in_sentence": "A full study of the Bench decisions of Bombay and Calcutta led to diametrically opposite conclusions thus proving the wide judicial choice available depending on the perspective, the."}}, {"text": "Act and the Insurance Act", "label": "STATUTE", "start_char": 39581, "end_char": 39606, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Chainani", "label": "JUDGE", "start_char": 39643, "end_char": 39651, "source": "ner", "metadata": {"in_sentence": "Chainani J .,"}}, {"text": "A. N. Ray", "label": "JUDGE", "start_char": 40157, "end_char": 40166, "source": "ner", "metadata": {"in_sentence": "Sbri A. N. Ray, J. (as he then was) stated his touchstone to be C fourfold:\n\n\"The four tests which have been applied to these cases were stated by Lord Thankerton in the case of Short v. J. and W. Henderson, Limited, reported in (1946) 174\n\nL.T. 417."}}, {"text": "Thankerton", "label": "OTHER_PERSON", "start_char": 40304, "end_char": 40314, "source": "ner", "metadata": {"in_sentence": "Sbri A. N. Ray, J. (as he then was) stated his touchstone to be C fourfold:\n\n\"The four tests which have been applied to these cases were stated by Lord Thankerton in the case of Short v. J. and W. Henderson, Limited, reported in (1946) 174\n\nL.T. 417."}}, {"text": "sections 3 and 26", "label": "PROVISION", "start_char": 43105, "end_char": 43122, "source": "regex", "metadata": {"statute": null}}, {"text": "That case was on the construction of the provisions of the National Insurance Act, 1946", "label": "STATUTE", "start_char": 44215, "end_char": 44302, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "September 6, 1948", "label": "DATE", "start_char": 44582, "end_char": 44599, "source": "ner", "metadata": {"in_sentence": "That case was on the construction of the provisions of the National Insurance Act, 1946 and the question was whether the appellant in that case who was a music-hall artist and who had entered into a written contract with the second respondent acting on behalf of several companies, under which he undertook to appear in a variety 'act' at a theatre for one week from September 6, 1948 was an employed person within the meaning of the Act."}}, {"text": "Minister of National Insurance", "label": "RESPONDENT", "start_char": 44681, "end_char": 44711, "source": "ner", "metadata": {"in_sentence": "The first respondent, the Minister of National Insurance, had decided that during that week the appellant was not an 'employed person' within the meaning of the Act."}}, {"text": "Dickens", "label": "OTHER_PERSON", "start_char": 45596, "end_char": 45603, "source": "ner", "metadata": {"in_sentence": "Dickens is still valid about our modern Legislations unresponsive to the common man's need of comprehensible Jaw and unmindful of the court's consequential wrestling with etheric differences ! '"}}, {"text": "Bumble", "label": "OTHER_PERSON", "start_char": 45821, "end_char": 45827, "source": "ner", "metadata": {"in_sentence": "The Jaw is a ass-a idiot' (Mr. Bumble in Oliver Twist)."}}, {"text": "Shivamurthy Swami", "label": "OTHER_PERSON", "start_char": 46515, "end_char": 46532, "source": "ner", "metadata": {"in_sentence": "Shivamurthy Swami(') clears the ground for the discussion by going to the basics which determine what is an office of profit under Government."}}, {"text": "s. 58", "label": "PROVISION", "start_char": 47242, "end_char": 47247, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 96", "label": "PROVISION", "start_char": 47281, "end_char": 47286, "source": "regex", "metadata": {"statute": null}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 47294, "end_char": 47307, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sikri", "label": "JUDGE", "start_char": 47531, "end_char": 47536, "source": "ner", "metadata": {"in_sentence": "Sikri J., (as be then was) adopted the classic definition\n\nJl) [1971] J S.C.C. 870. (') '"}}, {"text": "Rowlatt", "label": "JUDGE", "start_char": 47730, "end_char": 47737, "source": "ner", "metadata": {"in_sentence": "8~ 7\n\nof 'office' given by Justice Rowlatt in Great Eastern Rly Co. ( 1) as appropriate even in an electoral context and proceeded to apply the ratio to the facts of the case."}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 48188, "end_char": 48193, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Order XL V of the Supreme Court Rules, 1966", "label": "STATUTE", "start_char": 48676, "end_char": 48719, "source": "regex", "metadata": {}}, {"text": "Chagla", "label": "OTHER_PERSON", "start_char": 48852, "end_char": 48858, "source": "ner", "metadata": {"in_sentence": "The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object underlying Art."}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 48930, "end_char": 48938, "source": "regex", "metadata": {"linked_statute_text": "Order XL V of the Supreme Court Rules, 1966", "statute": "Order XL V of the Supreme Court Rules, 1966"}}, {"text": "Parliament", "label": "ORG", "start_char": 49178, "end_char": 49188, "source": "ner", "metadata": {"in_sentence": "lt is not necessary to give a wide meaning to the word 'office' because if Parliament thinks that a legal prac.titioner who is heing paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly, it can make that provision under Art."}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 49393, "end_char": 49401, "source": "regex", "metadata": {"linked_statute_text": "Order XL V of the Supreme Court Rules, 1966", "statute": "Order XL V of the Supreme Court Rules, 1966"}}, {"text": "Sakhawat Ali", "label": "OTHER_PERSON", "start_char": 49443, "end_char": 49455, "source": "ner", "metadata": {"in_sentence": "The case of Sakhawat Ali."}}, {"text": "State of Orissa", "label": "RESPONDENT", "start_char": 49465, "end_char": 49480, "source": "ner", "metadata": {"in_sentence": "v. The State of Orissa(') provides an instance where the Legislature provided that a paid legal practitioner shot>ld not stand in the municipal elections.\""}}, {"text": "Mahadeo", "label": "RESPONDENT", "start_char": 49655, "end_char": 49662, "source": "ner", "metadata": {"in_sentence": "This takes us to Sakhawat Ali(') and to Mahadeo('') which too afford .", "canonical_name": "Mahadeo"}}, {"text": "Union of India", "label": "ORG", "start_char": 50902, "end_char": 50916, "source": "ner", "metadata": {"in_sentence": "After quoting Lord \" ; Wright in Mcmillan v. Guest('), trying to define 'office', the Court proceeded to consider whether a lawyer who accepted a position on the panel of Railway pleaders for conducting suits filed against the Union of India on the terms and conditions therein mentioned, was B holding an office of profit."}}, {"text": "Gurugobinda", "label": "OTHER_PERSON", "start_char": 53281, "end_char": 53292, "source": "ner", "metadata": {"in_sentence": "The next case of considerable importance is Gurugobinda(') which related to a chartered accountant, a partner of a firm of auditors of two companies which were owned by the Union Goverurnent\n\n(!) ["}}, {"text": "[1969] 2 S.C.R. 422", "label": "CASE_CITATION", "start_char": 53433, "end_char": 53452, "source": "regex", "metadata": {}}, {"text": "S. K. Das", "label": "JUDGE", "start_char": 53672, "end_char": 53681, "source": "ner", "metadata": {"in_sentence": "Disqualification for holding an office of A profit, again, in this circumstance, was pressed before the Court and\n\nS. K. Das, Acg."}}, {"text": "Durgah Khwaja Saheb Act, 1955", "label": "STATUTE", "start_char": 54167, "end_char": 54196, "source": "regex", "metadata": {}}, {"text": "Art. 102(1)", "label": "PROVISION", "start_char": 54380, "end_char": 54391, "source": "regex", "metadata": {"linked_statute_text": "the Durgah Khwaja Saheb Act, 1955", "statute": "the Durgah Khwaja Saheb Act, 1955"}}, {"text": "ss. 5 and 9", "label": "PROVISION", "start_char": 54478, "end_char": 54489, "source": "regex", "metadata": {"linked_statute_text": "the Durgah Khwaja Saheb Act, 1955", "statute": "the Durgah Khwaja Saheb Act, 1955"}}, {"text": "Durgah Khwaja Saheb Act, 1955", "label": "STATUTE", "start_char": 54497, "end_char": 54526, "source": "regex", "metadata": {}}, {"text": "Government of India", "label": "ORG", "start_char": 54531, "end_char": 54550, "source": "ner", "metadata": {"in_sentence": "5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the D power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and supervision of the Government and that therefore be was holding an office of profit under the Government of India."}}, {"text": "Mau/ana Abdul Shakur", "label": "OTHER_PERSON", "start_char": 55112, "end_char": 55132, "source": "ner", "metadata": {"in_sentence": "(p. 319-320)\n\n\"It has to be noted that in Mau/ana Abdul Shakur's case the appointment of the appellant in that case was not made by the Government nor was he liable to be dismissed by the Government.", "canonical_name": "Mau/ana Abdul Shakur"}}, {"text": "Maulana Abdul Shakur", "label": "OTHER_PERSON", "start_char": 55449, "end_char": 55469, "source": "ner", "metadata": {"in_sentence": "(p. 320)\n\n\"It is clear from the aforesaid observations that in Maulana Abdul Shakur's case the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always decisive factor.", "canonical_name": "Mau/ana Abdul Shakur"}}, {"text": "Indian Companies Act, 1956", "label": "STATUTE", "start_char": 56162, "end_char": 56188, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Durgapur Projects Ltd.", "label": "ORG", "start_char": 56770, "end_char": 56792, "source": "ner", "metadata": {"in_sentence": "(p. 321)\n\n\"Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government Companies, the Durgapur Projects Ltd.,."}}, {"text": "Hindustan Steel Ltd.", "label": "ORG", "start_char": 56803, "end_char": 56823, "source": "ner", "metadata": {"in_sentence": "and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, he is."}}, {"text": "Art. 191", "label": "PROVISION", "start_char": 57354, "end_char": 57362, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Art. 102", "label": "PROVISION", "start_char": 57412, "end_char": 57420, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Chaudhury", "label": "OTHER_PERSON", "start_char": 58068, "end_char": 58077, "source": "ner", "metadata": {"in_sentence": "In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question-the appointing authority, the authority vested with power to terminate the appointment, the authority which determine' the ren1uneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf-must all co-exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent."}}, {"text": "Gurushantappa", "label": "OTHER_PERSON", "start_char": 60926, "end_char": 60939, "source": "ner", "metadata": {"in_sentence": "But Gurugobinda and Gurushantappa(') tock the view that pay1ncnt of remuneration not from public revenue i& a neur_il factor.", "canonical_name": "Gurushantappa"}}, {"text": "Gurushantaopa", "label": "OTHER_PERSON", "start_char": 61623, "end_char": 61636, "source": "ner", "metadata": {"in_sentence": "Gurushantaopa has highlighted this facet of the question.", "canonical_name": "Gurushantappa"}}, {"text": "Abdul Shakur", "label": "OTHER_PERSON", "start_char": 61754, "end_char": 61766, "source": "ner", "metadata": {"in_sentence": "Indirect control, though real, is insufficient, flows from the ratio of Abdul Shakur(')."}}, {"text": "Ray", "label": "JUDGE", "start_char": 61804, "end_char": 61807, "source": "ner", "metadata": {"in_sentence": "The appellant, as elaborated by Ray J (as he then was) in the Calcutta case, was not a servant of government but a private practitioner was not appointed directly bv Government, but by an officer of gdvernrnent on the recommendation of a Committee, was paid not necessarily\n\n(2) [t9581 S.C'."}}, {"text": "Kanta Kathuria", "label": "OTHER_PERSON", "start_char": 62893, "end_char": 62907, "source": "ner", "metadata": {"in_sentence": "While the verdict on being under the Government is a perilous exercise in Judicial brinkmanship, especially where the pros and cons are evenly balanced, the ruling in Kanta Kathuria which binds us and the recondite possibility of conflict of duty and interest for a Municipal President who is an Insurance Medical Practitioner under an arrangement with Government induce us to hold that though the line is fine, the appellant is not functioning under the Government in the plenary sense implied in electoral disqualification."}}, {"text": "Kanta", "label": "GPE", "start_char": 63878, "end_char": 63883, "source": "ner", "metadata": {"in_sentence": "Of course Sikri, J. (as he then was) thought that Mahadeo 'in no way militates against the view' which appealed to the majority in Kanta."}}, {"text": "Cardozo", "label": "JUDGE", "start_char": 68355, "end_char": 68362, "source": "ner", "metadata": {"in_sentence": "Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the A\"ociatinn of the Har of the City of New York and proposed an agency to mediate between the courts and the legislature)."}}, {"text": "s. 44", "label": "PROVISION", "start_char": 70078, "end_char": 70083, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 70132, "end_char": 70137, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 70287, "end_char": 70292, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 16", "label": "PROVISION", "start_char": 70444, "end_char": 70449, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 70494, "end_char": 70499, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 21", "label": "PROVISION", "start_char": 70628, "end_char": 70633, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 70761, "end_char": 70766, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 44", "label": "PROVISION", "start_char": 71691, "end_char": 71696, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_856_861_EN", "year": 1976, "text": "8 56\n\nTHVL. BOMBAY AMMONIA PVT. LTD.\n\nSTATE OF TAMIL NADU\n\nMarch 24, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nMadras General Sale Tax Act, 1959 s. 32-Suo Motu Power-Scope of exe1nption-Ext:mption not clain1ed before assessn1ent-Appeal not preferred- !/ could plead ntistake !a&cr.\n\nThe appellant submitted a sales-tax return showing the taxable turn0ver.\n\nThe assessing authority, while checking the accounts, discovered an lij).disclosed turnover.\n\nHe added that sum to the turnover and then assessed sales-tax on that turnover.\n\nThe appellant did not file any appeal against the assessmt'nt order.\n\nThe Deputy Commissioner of Sales Tax issued a notice to the appellants in exercise of ~; uo 1notu power of revision under s. 32 of the Madras &'lies-tax Act to show cause why a penalty should not be imposed in respect 1 of the undisclosed turnover.\n\nWhile challenging the exercise of this !)Ower the -tappellant alternatively prayed for exemption in respect of a sum representin!! works contracts which, they alleged, did not amount to sale of goods.\n\nThe first ground was rejected; on the second ground it was held that since the appellants did not file an a!)peal in the regular course against the assessment order they were not entitled to exemption.\n\nOn appeal, the Appellate Tribunal allowed the clain1 for exemption on the ground that it represented works contract.\n\nThe High Court in revision set aside the order of the Tribunal granting exemption.\n\nDismissing the appeal,\n\nE HELD : The suo n1otu power of revision of the Deputy Commissioner in\n\ns. 32 is wide and can be exercised both in favour of the revenue as well as the tax-payer in order to correct any error or illegality committed by the assessing -.,.. authority in his order of assessment. [860Dl\n\nState of Kerala v. K. M. Cheria Abdulla and Company (1965) 16 S.T.C. 875 [1965] 1 S.C.R. 601 and The Swastik Oil Mill\" Ltd. v. fl. ll. Muushi, Deputy Cotn111issioner of Sales Tax, Bon1bay (1968) 21 S.T.C. 383 referred to.\n\nBut in the present case the Deputy Commissioner was right in refusing to exercise his revisional power in favour of the appellants and the High Ccurt was right in reversing the order of the Appellate Tribunal.\n\nAt no stage of the proceedings before the assessing authority did the assessee bring it to the assessing authority's notice that a suh.; t}Jntial portion of the turnover related to works contracts and as such exempt from liability to tax.\n\nSecondly, the appellants acquiesced in the order ot assess1nent passed by the assessing authority and did not prefer any appeal.\n\nIn face of the decision of this C'ourt in State of Madras v. Gannon Dunkerley and Co. Ltd. f 1959] SCR 379 the appe!Jants .rcanr1ot plead that they did hot claim exen1ption under the mist<iken impression that the transactions iin1ounted to sale of goods. [860 E G; 86 l B]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1699 of 1973.\n\nH Appeal by Special Leave from the Judgment and order dated 4-5-73 of the Madras High Court in T.C. No. 223 of 1969.\n\nK. S. Ramamurthi and (Mrs) S. Gopalakrishna, for the appellant.\n\nP. Ram Reddy, A. V. Rangam and (Miss) A. Subhashini, for the respondent.\n\nThe Judgmen'. of the Court was delivered by\n\nJASWANT SINGH, J.\n\nThis is an appeal by special leave against the judgment and order dated May 4, 1973 passed by the High Court of Madras in T.C. No. 223 of 1969.\n\nIt appears that the appellants who are dealers in refrigerators, spare parts etc. submitted a return for the year 1964-65 to the Joint Commercial Tax Officer, Madras (hereinafter called the 'Assessing Authorily') under the Madras General Sales Tax Act, 1959 (hereinafter referred to as 'the Act') showing a total taxable turnover of Rs. 6,41,031.77.\n\nOn checking the accounts of the appellants, the C Assessing Authority by its order dated Jaunary 31, 1966 made an addition of Rs. 33,710.88 to the turnover reported by the appellants and assessed the sales tax on the turnover of Rs. 6,74,742.65.\n\nThe appellants did not choose to prefer an appeal against this assessment.\n\nOn January 7, 1967, the Deputy Commissioner, Commercial Taxes, Madras Division, in exercise of his suo n1otu power of revision under section 32 of the Act issued a notice to the appellants calling D upon them to show cause why penalty of Rs. 5,056/- on the aforesaid undisclosed turnover of Rs. 33,710.88 be not levied against them.\n\nIn response to the notice, the appellants submitted their objections challenging the jurisdiction of the Deputy Commissioner to levy the proposed penalty and requested him to drop the proceedings.\n\nIn the alternative, they prayed that they should be granted exemption in respect of Rs. 6,32,142/- which represented works contracts for complete fabrication, erection and installation or air-conditioning pl11.nts with their employers which did not amount to sale of goods.\n\nThe Deputy Commissioner negatived the contention of the appellant regarding his jurisdiction to levy the penalty, and revising the assessment levied a penalty of Rs. 3,371/- under section 12(3) of the Act.\n\nThe Deputy Commissioner also declined to allow the aforesaid exemption claimed by the appellants on the ground that they 'did not file apepals in the regular course as contemplated by the provisions of the Act'.\n\nThe appellants went up in appeal from this order to the Sales Tax Appellate Tribunal, Madras, who substantially allowed the appeal, cancelled the penalty and acting on the statements of transactions filed before him by the appellants allowed an exemption for tax on a turnover of Rs. 5 ,99 ,468 /- as representing the works contracts holding that as suo motu power of revision could be exercised by the Deputy Commissioner both for the benefit of the State and the taxpayer, he should have gone into the question of exemption and set right the assessment by allowing the exemption on the turnover relating to works contracts.\n\nAg!(rieved by this order of the Sales Tax Apoellate Tribunal. the respondent filed a petition under section 38 of the Act to the High Court of Judicature at Madras for revision of the order of the Sales\n\nTax Appellate Tribunal.\n\nThe High Court allowed the revision petition in part and set aside the order of the Tribunal in so far as it related to the deletion of the turnover of Rs. 5,99,468/-. \\\n\nCounsel for the appellant has urged before us that as the suo motu power of revision under section 32 of the Act is wide enough and can be exercised both in favour of the revenue as well as the assessee regardless of the fact whether the latter has filed an appeal against the order of assessment or not, the High Court ought not to have reversed the order of the Sales Tax Appellate Tribunal in respect of the turnover of Rs. 5,99,468/- which related to worh contracts.\n\nTwo questions arise for determination in this appeal.\n\nFirstly, what is the scope of the suo motu power under section 32 of the Act.\n\nSecondly, whether the Deputy Commissioner rightly refused to exercise discretion under section 32 of the Act in favour of the appellants.\n\nFor the determination of the first question, it is necessary to refer~ to section 32 of the Act which runs as follows:-\n\n\"32. Special powers of the Deputy Commissioner.-\n\n(!) The Deputy Commissioner may, of his own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4-A, section 12, section 14, section 15, or sub-sections (1) and (2) of section 16 and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon as he thinks fit.\n\n(2) The Deputy Commissioner shall not pass any order under sub-section ( 1), if-\n\n( a) the time for appeal against the order has not expired;\n\n(b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal, or of a revision in the High Court; or\n\n(c) more than five years have expired after the passing oE the order.\n\n(3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable G opportunity of being heard.\n\n( 4) In computing the period referred to in clause ( c) , of sub-section (2), the time during which the proceedings /\" before the Deputy Commissioner remained stayed under the order of a Civil Court or other competent authority shall be excluded.\"\n\nH The language of this section makes it clear that the suo motu power conferred on the Deputy Commissioner in regard to the order or proceeding specified therein is quite wide and he can, subject to the conditions laid down in sub-sections (2) and (3), exercise the\n\nsame even at the instance of an assessee who has not filed an appeal against the order for the purpose of rectifying any illegality or impropriety thercm.\n\nThis section has also been subject matter of interpretation in two decisions of this Court viz. State of Kera/a v. K. M. Cheria Abduila and Company( 1) and The Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy Commissioner of Sales Tax, Bombay('). In the case of K. M. -Cheria Abdulla and Company (supra) the majority held as follows in .regard to the scope of the revisional power:- 1 'The Deputy Commissioner is thereby invested with power to satisfy himself about the legality or propriety ot any order passed or proceedmg recorded by any officer subordinate to him, or the regularity of any proceeding of such officer, and to pass such orders with respect thereto as he thinks fit For exercising this power, he may suo motu or on application call for and examine the record of any proceeding or order.\n\nThere is no doubt that the revising authority may only call for the record of the order or the proceedings and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding.\n\nBut there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceedings, he cannot make or direct any further enquiry ..... It is, therefore, not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the Officer subordinate to him, and can never make enquiry outside that record.. . . . Jurisdication to revise the order or proceeding of a subordinate officer has to be exercised for the purpose of rectifying any illegality or impropriety of the order or irregularity in the proceeding.\" The limitations to which the revisional power is subject were indicated by the majority thus :-\n\n\"It would not invest the revising authority with power to launch upon enquiries at large so as to trench upon the powers which are expressly reserved by the Act or by the Rules to other authorities or to ignore the limitations inherent in the exercise of those powers.\n\nFor instance, the power to reassess escaped turnover is primarily vested by rule I 7 in the assessing officer and is to be exercised subject to certain limitations, and the revising authority will not be competent to make an enquiry for reassessing a taxpayer.\n\nSimilarly, the power to make a best judgment assessment is vested by section 9(2) (b) in the assessing authority and has to be exercised in the manner provided. It would not be open to the revising authority to assume that power.\"\n\n\n(2)( !968] 21 S.T.C. 383.\n\nThe above view was affirmed by this Court in the case of The Swastik Oil Mills Ltd. (supra). In regard to the limitations to which the revisional power is subject, this Court went on in that case to observe:-\n\n\"In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K. M. Cheria Abdulla & Co's case (1965) 16 S.T.C. 875.\n\nThese limitations are that the revising authority should not trench upon the powers which are expressly reserved by the Acts, or by the Rules to other authorities and should not ignore the limitations inherent in the exercise of those powers.\" In view of the above, we are of opinion that the suo motu power of revision of the Deputy Commissioner is of wide amplitude and can be exercised in favour of the Revenue as well as the taxpayer in order to correct any error or illegality committed by the assessing authority in his order of assessment.\n\nWith regard to the second question relating to the refusal by the Deputy Commissioner to exercise his revisional power in favour of the appellants, we are of the view that the order does not suffer from any infirmity.\n\nIt is true that money paid under a mistake of law common both to the assessee and the taxing authority can be got refunded [See the decision of this Court in The State of Kera/a v.\n\nAluminium Industries Ltd. ( 1) ].\n\nBut in the instant case, the appellants themselves submitted a return showing taxable turnover of Rs. 6,41,031.77. At no stage of the assessment proceedings before the assessing authority did they bring it to his notice that a substantial portion of the turnover related to works contracts and was as such exempt from liability to tax_ The appellants not having raised the question bv claiming the exemption, the Assessing Authority had no occasion to consider it.\n\nIt cannot, therefore, be said that the order of assessment suffered from any illegality. It is also significant that the appellants acquiesced in the order of assessment passed by the assessing authority and did not prefer any appeal against it nor did they take any other step to have it modified.\n\nEven in the objections filed by them to the show cause notice issued by the Deputy Commissioner in regard to the levy of penalty, they made a half-hearted attempt to claim exemption.\n\nIt will be relevant in this connection to advert to the prayer made by them which is couched in the following terms:-\n\n•.\"\n\nH \"In the circumstances we request you that the Deputy Commissioner may either totally drop the proposal to levy\n\n(I) (1965) 16 S.T.C. 689.\n\npenalty or in the alternative totally cure the illegality of the assessment and render justice.\"\n\nThe plea put forth by the appellants that they did not claim exemption under the mistaken impression that the transactions amounted to sale of goods cannot also be countenanced in view of the fact\n\nthat as far back as in 1954 it was held by the Madras High Court B: in Gannon Dunkerley and Co. Ltd. v. State of Madras(') that works contracts did not involve any element of saJ!e of materials and the levy of sales tax thereon was unlawful.\n\nThis ruling was affirmed by this Court in State of Madras v. Gannon Dunkerley and Co. Ltd. (2) We are, therefore, of the view that the Deputy Commissioner rightly refused to exercise his revisional jurisdiction in favour of the appel- C !ants and the High Court was right in reversing the order of the • Appellate Tribunal in so far as it related to the appellants' claim\n\nto the aforesaid exemption. '\n\nFor the fore'going reasons, we do not find any merit in this appeal which is dismissed with costs.\n\nP.B.R.\n\n(I) (1954) 5 S.T.C. 21E.\n\n5-725 SCI/7 6\n\nAppeal dismissed\n\n(2) [1959] S.C.R. 379", "total_entities": 38, "entities": [{"text": "56\n\nTHVL. BOMBAY AMMONIA PVT. LTD", "label": "PETITIONER", "start_char": 2, "end_char": 35, "source": "metadata", "metadata": {"canonical_name": "THVL. BOMBAY AMMONIA PVT. LTD", "offset_not_found": false}}, {"text": "STATE OF TAMIL NADU", "label": "RESPONDENT", "start_char": 38, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "STATE OF TAMIL NADU", "offset_not_found": false}}, {"text": "March 24, 1976", "label": "DATE", "start_char": 59, "end_char": 73, "source": "ner", "metadata": {"in_sentence": "STATE OF TAMIL NADU\n\nMarch 24, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 76, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 93, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 107, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Madras General Sale Tax Act, 1959", "label": "STATUTE", "start_char": 128, "end_char": 161, "source": "regex", "metadata": {}}, {"text": "s. 32", "label": "PROVISION", "start_char": 162, "end_char": 167, "source": "regex", "metadata": {"linked_statute_text": "Madras General Sale Tax Act, 1959", "statute": "Madras General Sale Tax Act, 1959"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 741, "end_char": 746, "source": "regex", "metadata": {"linked_statute_text": "Madras General Sale Tax Act, 1959", "statute": "Madras General Sale Tax Act, 1959"}}, {"text": "s. 32", "label": "PROVISION", "start_char": 1572, "end_char": 1577, "source": "regex", "metadata": {"statute": null}}, {"text": "[1965] 1 S.C.R. 601", "label": "CASE_CITATION", "start_char": 1858, "end_char": 1877, "source": "regex", "metadata": {}}, {"text": "K. S. Ramamurthi", "label": "OTHER_PERSON", "start_char": 3044, "end_char": 3060, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi and (Mrs) S. Gopalakrishna, for the appellant."}}, {"text": "S. Gopalakrishna", "label": "LAWYER", "start_char": 3071, "end_char": 3087, "source": "ner", "metadata": {"in_sentence": "K. S. Ramamurthi and (Mrs) S. Gopalakrishna, for the appellant."}}, {"text": "P. Ram Reddy", "label": "LAWYER", "start_char": 3109, "end_char": 3121, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, A. V. Rangam and (Miss) A. Subhashini, for the respondent."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 3123, "end_char": 3135, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, A. V. Rangam and (Miss) A. Subhashini, for the respondent."}}, {"text": "A. Subhashini", "label": "LAWYER", "start_char": 3147, "end_char": 3160, "source": "ner", "metadata": {"in_sentence": "P. Ram Reddy, A. V. Rangam and (Miss) A. Subhashini, for the respondent."}}, {"text": "Madras General Sales Tax Act, 1959", "label": "STATUTE", "start_char": 3615, "end_char": 3649, "source": "regex", "metadata": {}}, {"text": "Jaunary 31, 1966", "label": "DATE", "start_char": 3832, "end_char": 3848, "source": "ner", "metadata": {"in_sentence": "On checking the accounts of the appellants, the C Assessing Authority by its order dated Jaunary 31, 1966 made an addition of Rs."}}, {"text": "January 7, 1967", "label": "DATE", "start_char": 4069, "end_char": 4084, "source": "ner", "metadata": {"in_sentence": "On January 7, 1967, the Deputy Commissioner, Commercial Taxes, Madras Division, in exercise of his suo n1otu power of revision under section 32 of the Act issued a notice to the appellants calling D upon them to show cause why penalty of Rs."}}, {"text": "section 32", "label": "PROVISION", "start_char": 4199, "end_char": 4209, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Act, 1959", "statute": "the Madras General Sales Tax Act, 1959"}}, {"text": "section 12(3)", "label": "PROVISION", "start_char": 5053, "end_char": 5066, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Appellate Tribunal, Madras", "label": "COURT", "start_char": 5349, "end_char": 5385, "source": "ner", "metadata": {"in_sentence": "The appellants went up in appeal from this order to the Sales Tax Appellate Tribunal, Madras, who substantially allowed the appeal, cancelled the penalty and acting on the statements of transactions filed before him by the appellants allowed an exemption for tax on a turnover of Rs."}}, {"text": "section 38", "label": "PROVISION", "start_char": 6020, "end_char": 6030, "source": "regex", "metadata": {"statute": null}}, {"text": "High Court of Judicature at Madras", "label": "COURT", "start_char": 6049, "end_char": 6083, "source": "ner", "metadata": {"in_sentence": "the respondent filed a petition under section 38 of the Act to the High Court of Judicature at Madras for revision of the order of the Sales\n\nTax Appellate Tribunal."}}, {"text": "section 32", "label": "PROVISION", "start_char": 6411, "end_char": 6421, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Appellate Tribunal", "label": "COURT", "start_char": 6684, "end_char": 6712, "source": "ner", "metadata": {"in_sentence": "Counsel for the appellant has urged before us that as the suo motu power of revision under section 32 of the Act is wide enough and can be exercised both in favour of the revenue as well as the assessee regardless of the fact whether the latter has filed an appeal against the order of assessment or not, the High Court ought not to have reversed the order of the Sales Tax Appellate Tribunal in respect of the turnover of Rs."}}, {"text": "section 32", "label": "PROVISION", "start_char": 6902, "end_char": 6912, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 7013, "end_char": 7023, "source": "regex", "metadata": {"statute": null}}, {"text": "section 32", "label": "PROVISION", "start_char": 7139, "end_char": 7149, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 7383, "end_char": 7392, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 7396, "end_char": 7406, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 7408, "end_char": 7418, "source": "regex", "metadata": {"statute": null}}, {"text": "section 15", "label": "PROVISION", "start_char": 7420, "end_char": 7430, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 7463, "end_char": 7473, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9(2)", "label": "PROVISION", "start_char": 11362, "end_char": 11374, "source": "regex", "metadata": {"statute": null}}, {"text": "Swastik Oil Mills Ltd.", "label": "ORG", "start_char": 11614, "end_char": 11636, "source": "ner", "metadata": {"in_sentence": "The above view was affirmed by this Court in the case of The Swastik Oil Mills Ltd. (supra)."}}, {"text": "K. M. Cheria Abdulla & Co", "label": "OTHER_PERSON", "start_char": 11922, "end_char": 11947, "source": "ner", "metadata": {"in_sentence": "In regard to the limitations to which the revisional power is subject, this Court went on in that case to observe:-\n\n\"In fact, when a revisional power is to be exercised, we think that the only limitations, to which that power is subject, are those indicated by this Court in K. M. Cheria Abdulla & Co's case (1965) 16 S.T.C. 875."}}, {"text": "Madras High Court", "label": "COURT", "start_char": 14520, "end_char": 14537, "source": "ner", "metadata": {"in_sentence": "The plea put forth by the appellants that they did not claim exemption under the mistaken impression that the transactions amounted to sale of goods cannot also be countenanced in view of the fact\n\nthat as far back as in 1954 it was held by the Madras High Court B: in Gannon Dunkerley and Co. Ltd. v. State of Madras(') that works contracts did not involve any element of saJ!e of materials and the levy of sales tax thereon was unlawful."}}]}
{"document_id": "1976_3_862_868_EN", "year": 1976, "text": "HOMELY INDUSTRIES\n\nTHE SALES TAX OFFICER, SECTOR V, KANPUR\n\nMarch 24, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nU.P. Sales Tax Act-Secs. 1C(3)-8(1)(2)-Liability of heirs and legal representatives of a deceased assessee-Whether service of a notice condition precedent, to recovery proceedings.\n\nRashidul Hasan was a dealer registered under the U.P. Sales Tax Act.\n\nDuring the lifetime of Rashidul Hasan, the Sales Tax Officer sept a notice to him asking him to appear and to produce all ooks of account, csh mem?s, bills, receipts, bank pass books, statement of income and expenditure which he may desire to produce.\n\nHe died in December, 1968 leaving behind three adult sons.\n\nAt the time of his death assessment proceedings relating to the assessment years 196()-61 and 1961-62 were pending before the Sales T.:X Officer.\n\nAfter the death of Rasbidul Hasan. the business was continued by his sons by forming a partnership. His legal representatives obtained a number of adjournments in order to make an effective representation. After granting 6 adjournments the 7th Application for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made in April,\n\n1969. The Sales Tax Officer thereafter initiated recovery proceedings in pursuance of the assessment orders and the demand was soueht to be realised from the sons of the deceased by coercive measure.\n\nSection 7C(3) of the Act provides that where a person havini: furnished a return dies and the assessing authority may determine the turnover of such person and assess the tax payable by him on the basis of such determination and, for this purpose may by notice require from the legal representative of the deceased person any accounts. documents or other evidence which he might under the provisions of this Act require from the deceased person.\n\nSection 8 ( 1 ) provides that the tax assessed under the Act shall be paid Within such time not being less than 15 days from the date of service of the notice of assess ment. It further provides that in default of such payment the same may be recovered as arrears of land revenue. The appellant filed two Writ Petition~\n\nbefore the High Court of Allahabad challenging the orders and recovery certificates issued under 'Section 8 of the Act. The High Court rejected the app1ie31tion.\n\nOn appeal by certificate under Article 133 (!)(a) of the Constitution, tho appellant contended :\n\n(1) The assessment orders are invalid as they are made against a dead person, and that no notice as required by section 7C(3) was served on the legal representative to produce accounts, documents and other evidence.\n\n(2) A proper and valid notice which is a condition precedent for fixing liability under section 8 has not been served on the legal representatives and therefore the recovery proceedings were illegal.\n\nHELD : (1) The notice was already served on the deceased when he was alive. It was not necessary to serve the notice on legal representatives again under Sec. 7C(3). The legal representatives would have been entitled to a notice to produce documents and evidence if the deceased had not earlier been served with a similar notice during his life time. The orders of assessment cannot, therefore, he held to be invalid on account of non:.service of notice for production of documents Upon the legal representatives in this case.\n\nBesides the legal representatives were aware of the proceedings and toOk several adjournments and if they did not choose to produce any further evidence it was entirely their fattlt. [865 E, G, 866 A-BJ\n\n\\ I\n\n• I\n\n(2) It is clear that before a certificate proceeding can be instituted under 'Section 8 a notice of demand is condition precedent. There can be no recovery without service of a demand notice.\n\nIt is admitted that such notice has not heen served on the legal representatives.\n\nThat being the position, the recovery proceedings are not maintainable in law and are invalid and the same along with ' <:ertificateg are liable to be quashed. [867 C-D]\n\nSahu Rajeshwar Nath v. IncomeTax Officer l.C. Ward Meerut, 72 I.T.R. 617 S.C. distinguished.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1176-77 of 1971.\n\nFrom the Judgment and order dated the 17th March, 1970 of the Allahabad Court in Civil Misc. Writ Nos. 2681-82 of 1968.\n\nS. C. Manchanda. !. D. Jain, Ujjal Singh and Miss Kawaljit Migla11i for the Appellant.\n\nG. N. Dikshit and 0. P. Rana for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.-These are two appeals on certificates by the High Court of Allahabad from the judgments and orders of March 17, 1970.\n\nThe facts may briefly be stated :\n\nD The appellant Homely Industries is registered under the Uttar Pradesh Sales Tax Act (briefly the Act). Its sole proprietor was one Rashidul Hasan.\n\nHe died on December 10, 1968, leaving behind three adult sons, namely, Syed Mohd. Ibrahim, Syed Mohd. Ismail and\n\nSyed Mohd. l!ias.\n\nThe business was carried on by Rashidul Hasan under the name and style of Homely Industries.\n\nAt the time oi his death the assessment proceedings relating to the assessment years 1960- E 61 and 1961-62 were pending before the Sales Tax Officer on remand from the Assistant Commissioner (Judicial), Sales Tax, in pursuance of his order dated October 26, 1966.\n\nIt is said that after the death of Rashidul Hasan the business was continued by the sons by forming a partnership and Nazir Husain continued as the munim and also appeared before the Sales Tax Officer in the pending proceedings.\n\nOn December 19, 1968, Syed Mohd. Ibrahim, as legal heir and partner, sent an application through Nazir Husain informing the Sales Tax Officer, Kanpur, in connection with the two assessment proceedings that bis father had expired oh December 10, 1968 and that it was not possible for them to proceed with the case on that day.\n\nIt appears that the Sales Tax Officer during the life time of Rashidut Hasan had addressed a notice to Homely Industries calling upon it to appear in person or through pleader, or authorised representative on November 29, 1968, and to produce all books of accounts, cash memos, bills, receipts, bank pass-books, statement of income and expenditure and other documents which it may desire to produce in connection with the assessment. This notice was served on November 20, 1968, on the son of the proprietor of Homely Industries.\n\nIt appears that a number of adjournments were taken after the death of Hashidul Hasan, sometimes on the application of the munim\n\nand once even on the application of the son, Syed Mohd. Ismail, to enable the assessee to make an effective representation. While as many as six. adjournments were granted on the application of Nazir Husain and once of the son of the deceased between 19-12-1968 and 26-4-1969, on the last date a further application by Nazir Husain for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made on April 28, 1969.\n\nThe Sa;]es Tax Officer initiated recovery proceedings in pursuance of the assessment orders and the demand was sought to be realised from the sons of the deceased proprietor by coercive measures. That led to two writ applications before the High Court of Allahabad challenging the assessment orders and the recovery certificates issued under section 8 of the Act.\n\nThe High Court rejected the applications and granted certificates un.der Article 133(1)(a) of the Constitution.\n\nIt is contended by Mr. Manchanda on behalf of the appellant that the assessment orders are invalid as they were made against a de,.ad person.\n\nSecondly, he submits that a proper and valid service of a demand notice is a condition precedent for fixing liability on the person from whom the lax is sought to be recovered and in this case there was no service of notice on the heirs and legal representatives prior to the attempt of recovery through a coercive process.\n\nWith regard to the first submission, the learned counsel draws our attention to section 7C of the Act which reads as follows :-\n\n\"7-C( l). Where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person; to the extent to which the estate is capable of meeting the charge, the tax assessed as payable by such person, or any penalty which would have been payable by him under this Act, if he had not died.\n\n(2)\n\n(3)\n\nWhere a person dies before the service upon him of the notice, if any, issued in pursuance of section 7, his executor, administrator or other legal representative shall, on the serving of the notice aforesaid, comply therewith and the Assessing Authority may proceed to assess the turnover of the deceased person as if such executor, administrator or other lega~ representative were the assessee.\n\nWhere a person dies without having furnished a return which he has been required to furnish under the provisions of section 7 or having furnished a return which the Assessing Authority has reason to believe to be incorrect or incomplete, the Assessing Authority may determine the turnover of such person and assess the tax payable by him on the basis of such determination, and for this purpose may, by notice, require from the executor, administrator or other legal representative of the deceased person any accounts, documents, or other\n\nevidence which he might nnder the provisions of this A Act have required from the deceased person''.\n\n(4) & (5) x x x x x x\n\nRelying upon section 7C(3), it is submitted that no notice as required under that sub-section was served on the legal heirs and representatives to produce accounts, documents and other evidence for the purpose of determination of the turnover and asessment of tax.\n\nCounsel submits that after death of the father no assessment order could be passed without notice under section 7C(3) upon the heirs and legal representatives of the deceased assessee.\n\nIt is true that the Sales Tax Officer did not accept the returns submitted by the dealer. It was, therefore, incumbent under the proviso to section 7(3) of the Act to give a reasonable opportunity to the C dealer for the purpose of proving the correctness and completeness of the returns already submitted. If the returns were accepted as correct there was no necessity for giving any opportunity to the dealer as the case will then be governed by section 7 (2) of the Act. Mr. Manchanda, therefore, submits that under section 7C(3) read with the proviso to section 7(3) it was obligatory on the part of the Sales Tax Officer to give a reasonable opportunity to the legal representatives to produce D the documents and accounts before completion of the assessment. Admittedly no notice under section 7C(3) had been served on the legal representatives.\n\nIt is, therefore, submitted that the orders of assessment are invalid.\n\nAlthough the submission on the first blush is attractive it does not bear a close scrutiny. This is a case where the assessee had submitted E the returns and since the Sales Tax Officer was not prepared to accept the returns as correct and complete, he served a notice on the sole proprietor of the assessee, when he was alive, to produce documents and books of accounts under the proviso to section 7(3). We have already referred to the said notice which was served on the son of the proprietor on November 20, 1968, calling upon the dealer to produce the accounts on November 29, 1968. It was, therefore, an obli- F gation on the part of the dealer to produce documents, books of accounts and other evidence to prove before the Sales Tax Officer that the returns were correct. This being the factual position about service of notice on the deceased while he was alive, there was no legal entitlement to any further notice to the dealer even if the sole proprietor were alive.\n\nUnder section 7C(3) the Sales Tax Officer may by notice require G from the legal representative of the deceased such accounts, documents or other evidence as \"he might under the provisions of the Act have required from the deceased person''. The Sales Tax Officer had already demanded by notice from the deceased while he was alive production of documents and the books of accounts.\n\nHence no valid objection can be taken under section 7C(3) that a further notice for production of documents and accounts should have been served on the legal repre- H sentatives.\n\nThe legal representatives would have been entitled to a notice to produce documents and evidence if the deceased had not earlier been s1erved with a similar notice during his life time. Section 7C(3)\n\n. .E\n\ndoes not entitle the legal representatives to any notice which the deceased, if alive, would not have been entitled to under the provisions. of the Act. Since there was no obligation under the Act for service of a second notice on the dealer, if he were alive, the legal representatives were not entitled to a notice as claimed under section 7C( 3) of the Act.\n\nThe orders of assessment cannot, therefore, be held to be invalid on account of non-service of notice for production of documents upon the legal representatives in this case. Besides, we find that the legal representatives were aware of the proceedings and took several adjournments and if they did not choose to produce any further evidence it was entirely their fault and they cannot blame the Officer when the request for adjournment was not granted after so many requests had already been acceded to.\n\nWe, however, express no opinion on the merits of their claim.\n\nMr. Dikshit appearing on behalf of the respondent strenuously contends that the word \"may\" in section 7C(3) makes it optional for the Sales Tax Officer to give or not to give notice to the legal represenlal. tive for production of documents after death of an assessee.\n\nWe are unable to accede to this submission.\n\nThe scheme of the relevant provisions of the Act is as follows :-\n\nOmitting the non-essentials for the purpose of this case, under subsection ( 1) of section 7 a return is required to be submitted by a dealer showing his turnover. Under sub-section (2) of section 7, if the Sales Tax Officer is satisfied that the return submitted by a dealer is correct and complete he shall assess the tax on the basis of that return. Under sub-section ( 3) of section 7 read with the proviso, if, according to the Officer, the return submitted by a dealer is incorrect or incomplete, he shall make, what i9 called, a best judgment assessment after making such enquiry as he considers necessary but must, under the proviso thereto, give a reasonable opportunity to the dealer to prove the correctness and completeness of the return submitted by him.\n\nSo far as material for the purpose of this case, section 7C(3), properly construed, provides, inter alia, that if a person dies after furnishing a return and his return, which was submitted, is not accepted by the Officer as correct or complete, the obligation to give a reasonable opportunity to prove the correctness and completeness of the return under section 7 ( 3) read with the proviso cannot be given a go-by if the person who submitted the return dies without a notice having been given for such an opportunity.\n\nThe word \"may\" in section 7C(3) does not clothe the Sales Tax Officer with arbitrary power of assessment without notice to the legal representative to produce evidence or documents which, if the dealer were alive, he would have been entitled to do under section 7(3) read with the proviso. The submission of Mr. Dikshit is, therefore, devoid of substance.\n\nIn the view we have taken that no fresh notice to the legal represen- H tatives was called for prior to the passing of the assessment orders irr this case, we are not called upon to decide whether the legal representatives had waived their right to notice as urged in the alternative by Mr. Dikshit.\n\nWe may now deal with the second submission of Mr. Manchanda A that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under section 8 of the Act. That section reads as under :-\n\n\"8 ( 1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from B the date of service of the notice of assessment, as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall become recoverable in accordance with sub-section (2).\n\n(2) Any tax or other dues payable to the State Government under this Act shall be recoverable as arrears of land revenue\".\n\nIt is clear that before a certificate proceeding can be instituted under sub-section (2) of section 8 a notice of demand under sub-section (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same D along with the certificates are liable to be quashed.\n\nMr. Dikshit has drawn our attention to a decision of this Court in Sahu Rajeshwar Nath v. Income-tax Officer, C-Ward, Meerut, and\n\nAnolher(l) and submitted that this decision is an authority for the proposition that no notice on the legal representative is required under the law prior to the institution of recovery proceedings by certificate.\n\nIn that case this Court was considering the libility of a partner of an unregistered firm which was the assessee and a notice under section 29 of the Income-tax Act, 1922, had been served on the unregistered firm and all the tax assessed against the firm was sought to be recovered from the partner in proceedings under section 46(2) of the Income-tax Act It was contended on behalf of the partner that a fresh notice of demand upon the partner was necessary under the law and in its absence the recovery proceedings were invalid.\n\nThis Court repelled th.e contention holding that although the unregistered firm was the assessee the partner was liable under section 25 of the Partnership Act and since the appellant, therein, conceded that he was a partner of that firm during the accounting year, no separate notice under section 29 of the Income-- tax Act upon the partner was necessary. It was further held that the notice contemplated under section 29 of the Income-tax Act, 1922, was to the assessee or to any other person liable and \"any other person liable under section 29\" meant \"liable under the Income-tax Act\" and not under any other law such as the Partnership Act.\n\nThat was a case where no question arose about the liability of the appellant therein under the provisions of the Income-tax Act such as section 24B of the Income-tax Act, 1922, which is almost identical H with section 7C(l) of the Act and that becaus.e of that under section\n\n(I) 72 !TR 617. (JOC)\n\nA 29 of the Income-tax Act a notice of demand was obligatory as a condition precedent to the institution of certificate proceedings for recovery of the dues as arrears of land revenue. The aforesaid decision of this Court in Sahu Rajeshwar Nath's case (supra) is, therefore, of no assist- ' ance to the learned counsel.\n\nIn the result the judgments of the High Court are affirmed but the B orders with regard to the recovery proceedings, which are invalid, are set aside. The appeals are partly allowed. There will be, however, no order as to costs.\n\nWe should observe that we express no opinion about the appeals which are said to be pending before the Assistant Commissioner (Judicial) , Sales Tax.\n\nP.H.P.\n\nAppeals partly allowed.\n\n' -+", "total_entities": 91, "entities": [{"text": "HOMELY INDUSTRIES", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "HOMELY INDUSTRIES", "offset_not_found": false}}, {"text": "THE SALES TAX OFFICER, SECTOR V, KANPUR", "label": "RESPONDENT", "start_char": 19, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "THE SALES TAX OFFICER, SECTOR V, KANPUR", "offset_not_found": false}}, {"text": "March 24, 1976", "label": "DATE", "start_char": 60, "end_char": 74, "source": "ner", "metadata": {"in_sentence": "HOMELY INDUSTRIES\n\nTHE SALES TAX OFFICER, SECTOR V, KANPUR\n\nMarch 24, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 77, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 94, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 120, "end_char": 133, "source": "regex", "metadata": {}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 351, "end_char": 364, "source": "regex", "metadata": {}}, {"text": "Rashidul Hasan", "label": "OTHER_PERSON", "start_char": 390, "end_char": 404, "source": "ner", "metadata": {"in_sentence": "During the lifetime of Rashidul Hasan, the Sales Tax Officer sept a notice to him asking him to appear and to produce all ooks of account, csh mem?s, bills, receipts, bank pass books, statement of income and expenditure which he may desire to produce.", "canonical_name": "Rashidul Hasan"}}, {"text": "Rasbidul Hasan", "label": "OTHER_PERSON", "start_char": 846, "end_char": 860, "source": "ner", "metadata": {"in_sentence": "After the death of Rasbidul Hasan.", "canonical_name": "Rashidul Hasan"}}, {"text": "Section 7C(3)", "label": "PROVISION", "start_char": 1394, "end_char": 1407, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 1841, "end_char": 1850, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 2260, "end_char": 2269, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 133", "label": "PROVISION", "start_char": 2356, "end_char": 2367, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 2535, "end_char": 2548, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 2728, "end_char": 2737, "source": "regex", "metadata": {"statute": null}}, {"text": "Sec. 7C(3)", "label": "PROVISION", "start_char": 2995, "end_char": 3005, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 3661, "end_char": 3670, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4124, "end_char": 4152, "source": "ner", "metadata": {"in_sentence": "CIVIL APPELLATE JURISDICTION : Civil Appeal Nos."}}, {"text": "S. C. Manchanda", "label": "PETITIONER", "start_char": 4312, "end_char": 4327, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda. !."}}, {"text": ". D. Jain", "label": "LAWYER", "start_char": 4330, "end_char": 4339, "source": "ner", "metadata": {"in_sentence": "S. C. Manchanda. !."}}, {"text": "Ujjal Singh", "label": "LAWYER", "start_char": 4341, "end_char": 4352, "source": "ner", "metadata": {"in_sentence": "D. Jain, Ujjal Singh and Miss Kawaljit Migla11i for the Appellant."}}, {"text": "Kawaljit Migla11i", "label": "LAWYER", "start_char": 4362, "end_char": 4379, "source": "ner", "metadata": {"in_sentence": "D. Jain, Ujjal Singh and Miss Kawaljit Migla11i for the Appellant."}}, {"text": "G. N. Dikshit", "label": "LAWYER", "start_char": 4400, "end_char": 4413, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and 0."}}, {"text": "0. P. Rana", "label": "LAWYER", "start_char": 4418, "end_char": 4428, "source": "ner", "metadata": {"in_sentence": "G. N. Dikshit and 0."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 4494, "end_char": 4501, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-These are two appeals on certificates by the High Court of Allahabad from the judgments and orders of March 17, 1970."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 4551, "end_char": 4574, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.-These are two appeals on certificates by the High Court of Allahabad from the judgments and orders of March 17, 1970."}}, {"text": "Homely Industries", "label": "PETITIONER", "start_char": 4676, "end_char": 4693, "source": "ner", "metadata": {"in_sentence": "The facts may briefly be stated :\n\nD The appellant Homely Industries is registered under the Uttar Pradesh Sales Tax Act (briefly the Act).", "canonical_name": "HOMELY INDUSTRIES"}}, {"text": "Syed Mohd. Ibrahim", "label": "OTHER_PERSON", "start_char": 4881, "end_char": 4899, "source": "ner", "metadata": {"in_sentence": "He died on December 10, 1968, leaving behind three adult sons, namely, Syed Mohd.", "canonical_name": "Syed Mohd. Ibrahim"}}, {"text": "Syed Mohd. Ismail", "label": "OTHER_PERSON", "start_char": 4901, "end_char": 4918, "source": "ner", "metadata": {"in_sentence": "Ibrahim, Syed Mohd.", "canonical_name": "Syed Mohd. Ibrahim"}}, {"text": "Syed Mohd. l!ias", "label": "OTHER_PERSON", "start_char": 4924, "end_char": 4940, "source": "ner", "metadata": {"in_sentence": "Ismail and\n\nSyed Mohd.", "canonical_name": "Syed Mohd. Ibrahim"}}, {"text": "Homely Industries", "label": "ORG", "start_char": 5017, "end_char": 5034, "source": "ner", "metadata": {"in_sentence": "The business was carried on by Rashidul Hasan under the name and style of Homely Industries."}}, {"text": "October 26, 1966", "label": "DATE", "start_char": 5284, "end_char": 5300, "source": "ner", "metadata": {"in_sentence": "At the time oi his death the assessment proceedings relating to the assessment years 1960- E 61 and 1961-62 were pending before the Sales Tax Officer on remand from the Assistant Commissioner (Judicial), Sales Tax, in pursuance of his order dated October 26, 1966."}}, {"text": "Nazir Husain", "label": "OTHER_PERSON", "start_char": 5421, "end_char": 5433, "source": "ner", "metadata": {"in_sentence": "It is said that after the death of Rashidul Hasan the business was continued by the sons by forming a partnership and Nazir Husain continued as the munim and also appeared before the Sales Tax Officer in the pending proceedings."}}, {"text": "December 19, 1968", "label": "DATE", "start_char": 5536, "end_char": 5553, "source": "ner", "metadata": {"in_sentence": "On December 19, 1968, Syed Mohd."}}, {"text": "Kanpur", "label": "GPE", "start_char": 5676, "end_char": 5682, "source": "ner", "metadata": {"in_sentence": "Ibrahim, as legal heir and partner, sent an application through Nazir Husain informing the Sales Tax Officer, Kanpur, in connection with the two assessment proceedings that bis father had expired oh December 10, 1968 and that it was not possible for them to proceed with the case on that day."}}, {"text": "December 10, 1968", "label": "DATE", "start_char": 5765, "end_char": 5782, "source": "ner", "metadata": {"in_sentence": "Ibrahim, as legal heir and partner, sent an application through Nazir Husain informing the Sales Tax Officer, Kanpur, in connection with the two assessment proceedings that bis father had expired oh December 10, 1968 and that it was not possible for them to proceed with the case on that day."}}, {"text": "Rashidut Hasan", "label": "OTHER_PERSON", "start_char": 5922, "end_char": 5936, "source": "ner", "metadata": {"in_sentence": "It appears that the Sales Tax Officer during the life time of Rashidut Hasan had addressed a notice to Homely Industries calling upon it to appear in person or through pleader, or authorised representative on November 29, 1968, and to produce all books of accounts, cash memos, bills, receipts, bank pass-books, statement of income and expenditure and other documents which it may desire to produce in connection with the assessment.", "canonical_name": "Rashidul Hasan"}}, {"text": "November 29, 1968", "label": "DATE", "start_char": 6069, "end_char": 6086, "source": "ner", "metadata": {"in_sentence": "It appears that the Sales Tax Officer during the life time of Rashidut Hasan had addressed a notice to Homely Industries calling upon it to appear in person or through pleader, or authorised representative on November 29, 1968, and to produce all books of accounts, cash memos, bills, receipts, bank pass-books, statement of income and expenditure and other documents which it may desire to produce in connection with the assessment."}}, {"text": "November 20, 1968", "label": "DATE", "start_char": 6320, "end_char": 6337, "source": "ner", "metadata": {"in_sentence": "This notice was served on November 20, 1968, on the son of the proprietor of Homely Industries."}}, {"text": "Hashidul Hasan", "label": "OTHER_PERSON", "start_char": 6462, "end_char": 6476, "source": "ner", "metadata": {"in_sentence": "It appears that a number of adjournments were taken after the death of Hashidul Hasan, sometimes on the application of the munim\n\nand once even on the application of the son, Syed Mohd."}}, {"text": "19-12-1968", "label": "DATE", "start_char": 6772, "end_char": 6782, "source": "ner", "metadata": {"in_sentence": "adjournments were granted on the application of Nazir Husain and once of the son of the deceased between 19-12-1968 and 26-4-1969, on the last date a further application by Nazir Husain for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made on April 28, 1969."}}, {"text": "26-4-1969", "label": "DATE", "start_char": 6787, "end_char": 6796, "source": "ner", "metadata": {"in_sentence": "adjournments were granted on the application of Nazir Husain and once of the son of the deceased between 19-12-1968 and 26-4-1969, on the last date a further application by Nazir Husain for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made on April 28, 1969."}}, {"text": "April 28, 1969", "label": "DATE", "start_char": 6955, "end_char": 6969, "source": "ner", "metadata": {"in_sentence": "adjournments were granted on the application of Nazir Husain and once of the son of the deceased between 19-12-1968 and 26-4-1969, on the last date a further application by Nazir Husain for adjournment was rejected by the Sales Tax Officer and an ex-parte order of assessment was made on April 28, 1969."}}, {"text": "section 8", "label": "PROVISION", "start_char": 7314, "end_char": 7323, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 133(1)(a)", "label": "PROVISION", "start_char": 7410, "end_char": 7427, "source": "regex", "metadata": {"statute": null}}, {"text": "Manchanda", "label": "OTHER_PERSON", "start_char": 7473, "end_char": 7482, "source": "ner", "metadata": {"in_sentence": "It is contended by Mr. Manchanda on behalf of the appellant that the assessment orders are invalid as they were made against a de,.ad person.", "canonical_name": "Manchanda A"}}, {"text": "section 7C", "label": "PROVISION", "start_char": 7998, "end_char": 8008, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 8506, "end_char": 8515, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 8926, "end_char": 8935, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 9488, "end_char": 9501, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 9845, "end_char": 9858, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(3)", "label": "PROVISION", "start_char": 10067, "end_char": 10079, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 10375, "end_char": 10384, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 10446, "end_char": 10459, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(3)", "label": "PROVISION", "start_char": 10485, "end_char": 10497, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 10719, "end_char": 10732, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(3)", "label": "PROVISION", "start_char": 11244, "end_char": 11256, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 11837, "end_char": 11850, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 12259, "end_char": 12272, "source": "regex", "metadata": {"statute": null}}, {"text": "s1", "label": "PROVISION", "start_char": 12529, "end_char": 12531, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7C(3)", "label": "PROVISION", "start_char": 12581, "end_char": 12594, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C( 3)", "label": "PROVISION", "start_char": 12936, "end_char": 12950, "source": "regex", "metadata": {"statute": null}}, {"text": "Dikshit", "label": "OTHER_PERSON", "start_char": 13537, "end_char": 13544, "source": "ner", "metadata": {"in_sentence": "Mr. Dikshit appearing on behalf of the respondent strenuously contends that the word \"may\" in section 7C(3) makes it optional for the Sales Tax Officer to give or not to give notice to the legal represenlal."}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 13627, "end_char": 13640, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 13998, "end_char": 14007, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 14104, "end_char": 14113, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 14294, "end_char": 14303, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 14733, "end_char": 14746, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7", "label": "PROVISION", "start_char": 15040, "end_char": 15049, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7C(3)", "label": "PROVISION", "start_char": 15224, "end_char": 15237, "source": "regex", "metadata": {"statute": null}}, {"text": "section 7(3)", "label": "PROVISION", "start_char": 15460, "end_char": 15472, "source": "regex", "metadata": {"statute": null}}, {"text": "Manchanda A", "label": "OTHER_PERSON", "start_char": 15914, "end_char": 15925, "source": "ner", "metadata": {"in_sentence": "We may now deal with the second submission of Mr. Manchanda A that no recovery proceedings could be instituted unless a notice of demand had been served on the legal representative under section 8 of the Act.", "canonical_name": "Manchanda A"}}, {"text": "section 8", "label": "PROVISION", "start_char": 16051, "end_char": 16060, "source": "regex", "metadata": {"statute": null}}, {"text": "Any tax or other dues payable to the State Government under this Act", "label": "STATUTE", "start_char": 16490, "end_char": 16558, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 16702, "end_char": 16711, "source": "regex", "metadata": {"linked_statute_text": "Any tax or other dues payable to the State Government under this Act", "statute": "Any tax or other dues payable to the State Government under this Act"}}, {"text": "section 29", "label": "PROVISION", "start_char": 17571, "end_char": 17581, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 17589, "end_char": 17609, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 46(2)", "label": "PROVISION", "start_char": 17759, "end_char": 17772, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 17780, "end_char": 17794, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25", "label": "PROVISION", "start_char": 18097, "end_char": 18107, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "section 29", "label": "PROVISION", "start_char": 18262, "end_char": 18272, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "section 29", "label": "PROVISION", "start_char": 18384, "end_char": 18394, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 18402, "end_char": 18422, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 29", "label": "PROVISION", "start_char": 18509, "end_char": 18519, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 18545, "end_char": 18559, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 18732, "end_char": 18746, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 24B", "label": "PROVISION", "start_char": 18755, "end_char": 18766, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act, 1922", "label": "STATUTE", "start_char": 18774, "end_char": 18794, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 7C(l)", "label": "PROVISION", "start_char": 18829, "end_char": 18842, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act, 1922", "statute": "the Income-tax Act, 1922"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 18930, "end_char": 18944, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Sahu Rajeshwar Nath", "label": "OTHER_PERSON", "start_char": 19143, "end_char": 19162, "source": "ner", "metadata": {"in_sentence": "The aforesaid decision of this Court in Sahu Rajeshwar Nath's case (supra) is, therefore, of no assist- ' ance to the learned counsel."}}]}
{"document_id": "1976_3_869_875_EN", "year": 1976, "text": "• )\n\nBHAGW AN DASS\n\nSTATE OF U.P. AND ORS.\n\nMarch 24, 1976\n\n[Y. V. CHANDRACHUD, V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.J\n\nMines and Minerals (Regulation and Development) Act 61, 1957 S. 3(e) r/w Rule 2(7) of the Uttar Pradesh Mines Minerals (Concession) Rules. 196' and Rule 6(a) (i) and 6(a)(ii) of the U.P. Zamindari Abolition and Land Reforms Act I of 1951-Scope of-Riparian owners do not have any title or\n\nright over the \"sand, graviel,, bajris etc.'' carried and depositid on their landi due to the fiuvial action of the river, superior to that of the State, the rightful owners-Minerals need not be subterranean.\n\nPractice-Art. 136 of the Constitution-Arguments not advanced in cdurts below, will 1101 be accedt•d to in this C Court.\n\nThe Mining and Minerals Departments of the State of U.P. have been selling by auction from 1965 onwards as \"minor minerals\" the deposits left on the surface of the appellant's lands, of the sand, gravel, bajris etc. due to the :fluvial action of the receding floods of the Jamuna river. In 1970, the appellants objected to the proposed auction laying claim to the deposits, contending that since he is a riparian owner of the lands or is otherwise entitled to an unrestricted user of the lands, he would be entitled to appropriate the deposits, D to the exclusion of others. Since his objection was not accepted, the appellant challenged the order by a writ petition under Article 226 in the Allahabarl High court which was dismissed foUowing its earlier decision in ''Sultan and Anr. v. State of U.P. (Civil Misc. Writ No. 826817! dated 28-!'-73) to the effect that the sand, gravel, boulders, bajris etc. deposited on lands abutting on rivers, as a result of fluvial action of a river vest in the State Government\".\n\nThe appeal to the Division Bench was also dismissed.\n\nDismissing the appeal by certificate, the Court E HELD : (i) The contention that some ot the lands being still zamindari lands, the right to mines and minerals which the zamindars originally had did not cease and, therefore, the Government had no right to the mines and minerals on such lands. cannot be acceded to, since no such argument whatsoever was made in the High Court either before the single iudge or before the Division Bench, though there was an averment to that effect in the Writ petition.\n\nThe co'ntention in regard to a part of the property raises at best a dispute between the Zamindari and the Government which the appellant has no right to raise.\n\nF It is for the zamindars, if so advised, to take an appropriate proceeding for recognition of their claims as against the Government. The appellant cannot be heard to say in a Writ Petition filed for the assertion of his own im.Iivkhhll rights that the action of the Government is calculated to prejudice somebody else's rights and should therefore be struck down [871 G.H, 872 A-CJ\n\n(2) The deposits in the nature of ordinary sand other than sand used for prescribed purposes, gravel, building stores and bajri squarely fall within the provision of s. 3 ( e) of the Mines and Minerals (Regulation and Development l Act 67 of 1957 and the rules 2(5). 2(7) and 3 of the Uttar Pradesh Minor Mineral (Concession) Rules. 1963 and are. therefore. 'minor minerals'. In equity, prior to the point of time when the flood waters of the river carried the sand and gravel to private lands, the title thereto was vested in the state Governm:nt. . The riyers, the river beds and the sand, bairis and building stones lytng in the rtver water are of state ownership. Nature carries these deposits to lands abutting on rivers and what the Act and Rules orovide for is to enable the Government to reclaim what is lost without anv fault of it\"l own. The sand and gravel deposits left by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State.\n\nThe fluvial action of the river carries them to riparian lands but such shifting cannot erase the title of the rightful owner. [872 H, 873 A, c to G] ·\n\nA Sultan and Anr. v. The State of U.P. (Civil Misc. Writ Petition No. 8268/\n\n71 decided on 28-9-73) [approved]; Halsbury's Laws of England 3rd Edn. Yul, 39 p. 559 para 775 [quoted with approval].\n\n(3) In the instant case, the minor minerals while wider the the river water \"'-, tbelonged to the State and the Statute answers the question whether the natural action of the flooding river destroys the title of, the state.\n\nThe 1951 Act has vested the z.amindaris right to mines and minerals in the State Government, rendering it of secondary relevance whether prior to flood caused migration, the ownership of the minerals wasi vested in the State. [874 C-D]\n\nNorn1an S. Wear v. State of Kansas 62 Law Ecln. 214 @ 219; Halshury's Laws of England 3rd Edn. Vol. 39 para 801 (page 568); Blewett v. 'Trigonning\n\n(1835) 3 Adolphus and Ellis' Reports 554 (distinguished).\n\n( 4) It is wrong to assume that mines and minerals must always be sub soil and that there can be no minerals on the surface of the earth.\n\nThe definition of mining operations and rhinor millerals in section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the 'Rules of 1963, states that mineral• need not be subterranean and that mining operations cover every operation undertaken for the purpose of \"winning\" any minor minerals.\n\nWinning does not !mply a hazardous or perilous activity.\n\nThe words simply mean 'extracting a mineral' and is used generally to indicate any activity by which minerals is t' secured. E.xtracating in turn meansi drawig out or obtaining. [874 E-F] - [In view of the specific concessions in the counter affidavit by the Government the Court expressed its full confidence that in cases where it becomes heces.sary to fix the corntion under rule 67 the State would have regard to all relevant factors parhcularly the length of deprivation entailed by the conduct of mining operation.] [875 A.C]\n\nOvit APPELLATE JURISDICTION : Civil Appeal No. 1044 of 1975.\n\nFrom the Judgment and Omer dated 20--9-1974 of the Allahabad High Court in Special Appeal No. 145 of. 1974.\n\nJ. P. Goyal and Shree Pal Singh for the appellant.\n\nG. N. Dikshit and 0. P. Rana for the respondents.\n\nThe Judgment of the Court was delivered by CHANDRACHUD, J.-Certain .Jands situated in Usmanpur and Dariyabad in the district of Allahabad are in the possession of the appellant, some as a Bhumidhar, some as a Sirdar and some as a hereditary tenant.\n\nThe lands abut on the Jamuna river and are submerged by the river water when the river is in flood. When the flood recedes large quantities of sand, gravel, boulders and bajris are deposited on the surface of the lands. The appellant lays claim to the deposits left behind by the fluvial action of the river contending that since he is the owner of the lands or is otherwise entitled to an unrestricted user of the lands, he would be entitled to appropriate the deposits to the exclusion of all others.\n\nThe Mines and Minerals Department, Government of Uttar Pradesh, took steps in about 1970 to sell by auction the right to remove the sand, gravel and bajris deposited on the appellant's lands. On October 13,\n\n1970 the appellant made an application to the Officer in-charge, Mines, Allahabad, objecting to the proposed auction on the ground that the Government had no right to deal with his property in a manner detrimental to his title. On February 18, 1971 the Department of Mines passed an order directing the disposal of the deposits by an auction-sale.\n\nIn October 1971 the appe11ant filed a writ petition under article 226 of the Costitution in the Allahabad High Court asking that the aforesaid order of the State Government be quashed and that the State\n\nI /\n\nGovernment be restrained from bringing the fiuvial deposits to sale by auction or otherwise. On behalf of the respondents, the Naib Tehsildar (Mines) Allahabad, filed a counter-affidavit stating that the appellant had no right of any kind to utilise the deposits left by the flood waters on his land, that the State Government had sold the deposits by auction from 1965 to 1969 to which the appellant had raised no objection, that the deposits of sand, gravel, bajris etc. were 'minor minerals' to which the title vested in the State Government and that the only right of the appellant was to receive damages which the State Government always awarded under rule 67 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963.\n\nThe writ petition came up for hearing before a learned Single Judge who dismissed it by his judgment dated April 2, 197 4, following a previous decision of the Allahabad High Court in Sultan and A nr. v.\n\nState of U.P. (Civil Misc. Writ No. 8268 of 1971 decided on 28th September, 1973). The appellant filed an appeal before a Division Bench of the High Court which was dismissed on September 20, 1974.\n\nThe Division Bench merely followed the decision in Sultan's case which hag taken the view that sand, gravel, boulders, bajris etc. deposited on lands abutting on rivers, as a resu, lt of fiuvial action of a river vest in the State Government. The High Court has, however, granted a certificate of fitness to the appellant to appeal to this Court.\n\nUnder section 4 of the U.P, Zamindari Abolition and Land Reforms Act, 1of1951, all estates situated in U, P. vested in the State Government free from all encumbrances, with effect from the date specified by the Government in a notification issued for that purpose, Section 6 of the Act of 1951 deals with the consequences of such vesting and provides that on the publication of a notification under section 4, all rights, title and interest of all the intermediaries shall cease and be vested in the State of U.P,, free from all encumbrances. Clause (a) of section 6 which brings about this result consists of two sub-clauses :\n\n(i) and (ii), Under section 6(a) (i), \"all rights, title and interest of all the intermediaries in every estate\" ceased and became vested in the State of U, P,, while under section 6(a) (ii), \"all rights, title and interest of aU intermediaries in all sub-soil in such estates including rights, if any, in mines and minerals\" ceased and became vested in the State of U , P, These provisions of the 1951 Act leave no doubt that whatever rights, inclusive of the rights to mines and minerals, which the erstwhile Zamindars possessed, stood extinguished and became vested in the State Government.\n\nThe appellant's writ petition contains an averment that two out of the four plots of land which were the subject-matter of the writ petition G were in his possession under Zamindars whose Zamindari rights were not yet abolished, as the 1951 Act was not extended to the areas in which those lands were situated, Mr. Goel appearing on behalf of the appellant repeated the same contention and argued that in respect of those lands to which the Act of 1951 did not apply, the Zamindar's right to mines and minerals remained unaffected, and therefore the Government had no right to the deposits Ieft on those lands by the R waters of the recedin¥ river, even on the assumption that the deposits were 'minor minerals'.\n\nWe cannot accede to this contention for the\n\nsimple reason that though the writ petition contained an verment. in terms of the contention no argument whatsoever was made m the High Court, either before the single Judge or before the Division Bench, that some of the lands being still Zamindari lands the right to mines , and minerals which the Zamr, idars originally had did not cease and therefore the Government had no right to the mines and minerals on such lands.\n\nApart from this the contention urged by Mr. Goel in regard to a part of the property involved in the writ petition, raises at best a dispute between the Zami•, idar •and the Government which the appellant has no right to ra'ise. If the title to the mines and minerals in respect of lands to which the Act of 1951 is not extended vests in the Zamindars and not in the Government, the Zamindars may, if so advised, take a\\1 appropriate proceeding for recognition of their claims as against the Government.\n\nThe appellant cannot be heard to say in a writ petition filed for the assertion of .his own individual rights that the action of the Government is calculated to prejudice somebody else's rights and should therefore be struck down. The •appeal must therefore be disposed of on the basis that the rights of the erstwhile 't' Zamindars over the la\\1ds in dispute stood extinguished under the Act of 1951 and that those rights are vested in the State Government under section 6 of that Act.\n\nWe are concerned in this, appeal with tl)e interpretation of the relevant provisions of the Mines and Minerals (Regulation \"l!ad Development) Act, 67 of 1957 and the Uttar Pradesh Minor Minerals (Concession) Rules, 1963. We will refer to them respectively as the Act of 1957 and the Rnles of 1963. Section 3(e) of the Act of 1957 defines (minor mineral\" to mean \"buildi11g stones, gravel, ordinary clay, ordinary sand other than sand nsed for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral\". Sectida 15 confers power on the State Government to make rules for regulating the grant of quarry leases, or other mineral concessions in respect of minor minerals and for purposes connected therewith.\n\nThe Government of Uttar Pradesh framed Rules of 1963 ra exercJSe of the power conferred upon it by section 15 of the Act of 1957. Rule 2(5) defines \"Mining operations\" as meanil)g any operations under- , taken for the purpose of winning a'ny minor mineral. Rule 2 (7) defines \"minor minerals\" substantially in the same terms as section 3(e) of the Act of 1957. By Rule 3, no person can within the State undertake any miEing operation of any minor mineral except under and in accordance with the terms and conditions of a mining lease or mining permit granted under the Rules.\n\nThese provsions of the Act of 1957 and the Rules of 1963 are clear and explicit, admitting of no doubt or difficulty. If the deposits left by th_e recedt1g waters of the river are of the description, mention- ed in section 3 ( e) of the Act or Rule 2 (7) of the Rules, Rule 3 must come into full play with the result that no mining operation in respect /Of the deposits can be undertaken except under and in accordance with\n\nthe terms and conditions of a lease or permit gra1.1ted by the Government under the Rules of 1963. We are concerned in this appeal with deposits in the nature of ordinary sand other than sand used for presy\n\ncribed purposes, gravel, building stones and bajris. These fall squarely\n\n1 within the above-quoted provisions of the Act of 1957 and the Rules of 1963 and are therefore minor minerals.\n\nAccordingly, the appellant cannot undertake any mining operation, even on the lands now belongillg to him for the purpose of winning these minor minerals except under a lease or permit granted by the State Government. The right of the former Zamindars to mines and minerals was extinguished by the Act of 1951 and became vested in the State Government. So long as the proprietary right to the lands was vested in the Zamindar he was entitled to mines and minerals.\n\nWith the abolition of Zamindari by the 1951 AC't, that right has passed on not to the appellant but to the State Government.\n\nThe appellant's writ petition filed to restrain the Sratc Government from auctioning the right to undertake mining operations must therefore fail.\n\nEvidently, the appellant finds it difficult to reconcile himself with t position that what nature and good fortune have bounteously left on his lands should be permitted to be taken away by the Government which has not a vestige of title to the lands. The answer to this difficulty is two-fold. In the first place the deposits, by a definition contained in a competent legislation, are 'minor minerals' and it is of no relevance that the Act of 1957 and the Rules of 1963 bring within their compass even those deposits which, are left behind by the fluvial action of rivers.\n\nIf that is the policy and the iiatendment of law, it is unprofitable t@ explore whether the statute could not have been more generous or less grudging to riparian owners. Secondly, and that bears on equity, prior to the point of time when the flood waters of the river carried the sand and gravel to priviite lands, the title thereto was vested in the State Government.\n\nThe rivers, the river beds rrad the sand, bajris and building stones lying in the river water are of State ownership. Nature carries those deposits to lands abutting on rivers and whiit the Act and the Rules provide for is to enable the Government to reclaim what it lost without any fault of its own. Halsbury's Laws of England (3rd Ed., Vol. 39, p. 559, paragraph 775) says that \"The soil of the seoashore, and of the bed of estuaries and arms of the sea and of tidal rivers, so far as the tide ebbs and flows, is prima facie vested of common right in the Crown, unless it has passed to a subject by grant or possessory title.\" Paragraph 768 (p. 556) says that the' Crown is also \"entitled to the mines and minerals under the soil of the seas\" within certain limits. The sand gravel deposited by the receding waters of the river are truly a part of the soil of the river bed and therefore belong to the State.\n\nThe fluvial action of the river carries them to ripanian lands but such shifting cannot erase the title of the rightful owner.\n\nThe judgment of Jnstice Holmes in Norman S. Wear v. State of Kansas('), turned on another point and involved different considerations altogether but the basis of that decision is instructive : The fact that sand in the bed of a river is migratory and liable to be shifted does not change its character so as to entitle the public to remove the sa>;1d as against the State, which owns the bed of the stream.\n\n(1) 62 Law Ed. 214 at 219.\n\nIn the High Court, reliance appears to have been placed by the appellant on a passage in Halsbury's Laws of England, 3rd Ed., Vol. 39, paragraph 801 (p. 568) where it is stated that gravel, stones and \" I sand, even when washed up by the seas on the foreshore are part of the freehold and belong to the owner of the foreshore who may deal with them as he pleases. This passage is based upon the decisim in Blewett v.\n\nTregonning (1835) 3 Adolphus and Ellis' Reports 554, where the defend•an't was a rank trespasser who pleaded a custom entitling him to take the sand blown by the wind on to a land situated on the foreshore.\n\nThe Court negatived the pica of custom both on the groui,1d that it was not established and on the ground that if the custom were to receive a legal recognition it would place the whole soil at the mercy of any person claiming under the so-called custom. Besides, there is no parallel between that case and our case because here, the 'minor minerals' while under the river water belonged to the State and the sttute answers the question whether the natural action of the 1 floodlag river destroys the title of the State. Secondly, the 1951 Act + has vested the Zamindar's right to mines and minerals in the State Government rendering it of secondary relevance whether prior to flood. caused migration, the ownership of the minerals was vested in the State.\n\nOnly one more argumerrt made o'a behalf of the appellant requires to be noticed. It was urged that the S'and and gravel are deposited on the surface of the land a.nd not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a mining operation. It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on \"\"· the surface of the earth. Such an assumption is contrary to informed experience. In any case, the definition of mining operations and minor minerals in section 3(d) and (e) of the Act of 1957 and Rule 2(5) and (7) of the Rules of 1963 shows that minerals need 'not be subterranean and that mining operations cover every operation undertaken for the purpose of \"winning\" any minor mineral. \"Wlnning\" does not imply a hazardous or perilous activity.\n\nThe word simply means \"extracting a mineral\" and is used generally to indicate any activity by which a mineral is secured. \"Extracting\", in turn, means drawlag\n\nout or obtaining. A tooth is 'extracted' as much as it fruit juice and as much as a mineral. Only, that the effort wries from tooth to tooth, from fruit to fruit and from mineral to mineral.\n\nWe would like before closing to invite especial attention to Rule 67 of the Rules of 1963 under which a \"persda having a right in any capacity in the land covered by a mining lease or mining permit .... shall be entitled to get compensation\" from the holder of a mining lease or mining permit of such land for the use of the surface, which may be agreed upon between the parties. In case of a'ay dispute. the amount of compensation has to be determined by the District Officer whose order assumes finality.\n\nThe counter-affidavit filed by the State Government in the High Court concedes expressly, as it ought, that considering the fact that the person entitled to the use of a land may\n\nbe preveiated from using it by reason of a mining lease or permit, Rule A 67 provides for the payment of compensation to him for such depriva-\n\n' 1 tion.\n\nWhen the right to conduct a mining operation is auctioned by\n\n. 1\n\nthe Government the person who is otherwise entitled to the user of the land, say for agricultural purposes, is deprived of its user and the object of Rule 67 is to ensure that he should be col!lpented adequately for the deprivatida of such user. We have no doubt that in cases where it becomes necessary for the District Officer to fix the B compensation under Rule 67, he would be having due regard to all relevant factors, particularly the length of deprivation entailed by the conduct of mining operations.\n\nFor these reasons, we confirm the judgment of the High Court and dismiss the appeal with costs. c\n\n1 S.R.\n\nAppeal dismissed .", "total_entities": 51, "entities": [{"text": "BHAGW AN DASS", "label": "PETITIONER", "start_char": 5, "end_char": 18, "source": "metadata", "metadata": {"canonical_name": "BHAGWAN DASS", "offset_not_found": false}}, {"text": "STATE OF U.P. AND ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "STATE OF U.P. AND ORS", "offset_not_found": false}}, {"text": "March 24, 1976", "label": "DATE", "start_char": 44, "end_char": 58, "source": "ner", "metadata": {"in_sentence": "March 24, 1976\n\n[Y. V. CHANDRACHUD, V. R. 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{"in_sentence": "The appellant's writ petition contains an averment that two out of the four plots of land which were the subject-matter of the writ petition G were in his possession under Zamindars whose Zamindari rights were not yet abolished, as the 1951 Act was not extended to the areas in which those lands were situated, Mr. Goel appearing on behalf of the appellant repeated the same contention and argued that in respect of those lands to which the Act of 1951 did not apply, the Zamindar's right to mines and minerals remained unaffected, and therefore the Government had no right to the deposits Ieft on those lands by the R waters of the recedin¥ river, even on the assumption that the deposits were 'minor minerals'."}}, {"text": "section 6", "label": "PROVISION", "start_char": 12570, "end_char": 12579, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3(e)", "label": "PROVISION", "start_char": 12892, "end_char": 12904, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Government", "label": "ORG", "start_char": 13090, "end_char": 13108, "source": "ner", "metadata": {"in_sentence": "Section 3(e) of the Act of 1957 defines (minor mineral\" to mean \"buildi11g stones, gravel, ordinary clay, ordinary sand other than sand nsed for prescribed purposes, and any other mineral which the Central Government may, by notification in the Official Gazette, declare to be a minor mineral\"."}}, {"text": "Government of Uttar Pradesh", "label": "ORG", "start_char": 13394, "end_char": 13421, "source": "ner", "metadata": {"in_sentence": "The Government of Uttar Pradesh framed Rules of 1963 ra exercJSe of the power conferred upon it by section 15 of the Act of 1957."}}, {"text": "section 15", "label": "PROVISION", "start_char": 13489, "end_char": 13499, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3(e)", "label": "PROVISION", "start_char": 13718, "end_char": 13730, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14182, "end_char": 14191, "source": "regex", "metadata": {"statute": null}}, {"text": "Sratc Government", "label": "ORG", "start_char": 15431, "end_char": 15447, "source": "ner", "metadata": {"in_sentence": "The appellant's writ petition filed to restrain the Sratc Government from auctioning the right to undertake mining operations must therefore fail."}}, {"text": "England", "label": "GPE", "start_char": 16795, "end_char": 16802, "source": "ner", "metadata": {"in_sentence": "Halsbury's Laws of England (3rd Ed.,"}}, {"text": "Jnstice Holmes", "label": "OTHER_PERSON", "start_char": 17531, "end_char": 17545, "source": "ner", "metadata": {"in_sentence": "The judgment of Jnstice Holmes in Norman S. Wear v. State of Kansas('), turned on another point and involved different considerations altogether but the basis of that decision is instructive : The fact that sand in the bed of a river is migratory and liable to be shifted does not change its character so as to entitle the public to remove the sa>;1d as against the State, which owns the bed of the stream."}}, {"text": "Ellis", "label": "OTHER_PERSON", "start_char": 18402, "end_char": 18407, "source": "ner", "metadata": {"in_sentence": "This passage is based upon the decisim in Blewett v.\n\nTregonning (1835) 3 Adolphus and Ellis' Reports 554, where the defend•an't was a rank trespasser who pleaded a custom entitling him to take the sand blown by the wind on to a land situated on the foreshore."}}, {"text": "section 3(d)", "label": "PROVISION", "start_char": 19978, "end_char": 19990, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_876_882_EN", "year": 1976, "text": "RAMASWAMI AYYANGAR AND ORS.\n\nSTATE OF TAMIL NADU\n\nMarch 24, 1976\n\n[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J.\n\nIndian Penal Code, S. 34, essence of-Applicationof S. 34, whether physicai presence and actual participation necessary in offences involving physical vidlenc, e.\n\nPrevious enmity between the appellant Ramaswami Ayyangar and the deceased Kaliapen1rnal resulted in ah occurrence, in which Kaliaperumal got seriously injured and died in the hospital.\n\nVarious charges were framed against the six accused, including those of murder and rioting. The Trial Judge acquitted three of the accused persons, convicted two under S. 302 I.P.C. and one under s. 324.\n\nCross-appeals were preferred in the High Court; one by the three accused against their convictions, and another by the State, against the acquittals. The High Court convicted all the six accused of the offence of rioting, A-2 to A-6 under S. 302 read with S. 34. A-I under Ss. 302/149 and 3021109, and A-2 under S. 324.\n\nIt was contended before this Court that. on the facts of the case, the High Court was not justified in interlering with the acquittal of A-1.\n\nA-5 and A-6, and that A-2 who did not physically _participate in the fatal beating of the deceased, could not be held vicariously liable for the acts of others, and that S. 34 was not applicable to him.\n\nPartly allowing the appeals, the Court\n\n\" I\n\nHELD : ( 1) In the case of an offence involving physical violence. it is essential for the application of S. 34 that the person who inStigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the com- mission of which is the aim of the joint c:r.irninal \\\"eDture. [881 C-D]\n\n(2) The \"act\" spoken of in S. 34 includes a series of act9 as a single act.\n\nIt follows that the words \"when a criminal act is done by several persons\" in S. 34, may be construed to mean \"when criminal acts are done by several persons\". The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise.\n\nSuch presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation ih the 'criminal act'. [881 A-B & D]\n\n(3) The essence of S. 34 is simultaneous consensus of the minds of persons participating in the 'criminal action' to bring about a particular result. Such sonsensus can be developed at the spot and thereby intended by all of them .. [881 D-E]\n\nCRIMINAL APPELLATE JURISDICTION : Criminar Appeal No. 251 of 1972 and 243 of 1973.\n\nAppeals by Special Leave from the Judgment and order dated 22-9-72 of the Madras High Court in Criminal Appeal No. 369 /72 and 976/71.\n\nDebaratea Mookerjee, M. S. K. Sastri and M. S. Narasimhan for the Appellants.\n\nA. V. Rangam and Miss A. Subhashni, for the Respondents.\n\n' •\n\nThe Judgment of the Court was delivered by\n\nUNTWAL!A, J. Criminal Appeal No. 251 of 1972 has been filed under section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Crimlllal Appeal No. 243 of 1973 is by special leave.\n\nIn all there are six appellants. lt would be convenient to refer to them with reference to their accused number given in the judgment of the Sessions Court.\n\nThey are as follows :\n\nAccused No. I (A-1)-Ramaswami Ayyangar.\n\nAccused No. 2 (A-2)-Vattappan . . Accused No. 3 (A-3)-Kaipillai alias Karuppayyan.\n\nAccused No. 4 (A-4)-Raman.\n\nAccused No. 5 (A-5)-Katbayyan.\n\nAccused No. 6 (A-6)-Kulandaiyan.\n\n1 The occurrence giving rise to these two appeals took place on Monday the 21st April, 1971 at about 4.00 p.m. at Sivan Koil tank in village Thadulhalkondapuram. In the said occurrence was seriously injured one Kaliaperumal who later died in the Hospital at about 9.00 p.m. the same evening.\n\nAnother person injured in the occur- D rencc was also named Kaliaperumal, P.W. 1.\n\nThe prosecution case is that deceased Kaliaperumal was living with his matcrnal uncle Pichai Konar, P.W. 7 since infancy.\n\nA-1 is the Karnam of the village and A-6 is the Government vetti. A-2 and A-3 are brothers, A-4, A-5 and A-6 are also inter-se brothers. A-2 to A-6 worked under A-1.\n\nThere was enmity between P.W. 7 and the deceased on the one hand and A-1 on the other on account of several causes.\n\nE The facts showing the enmity between them are stated in the judgments of the courts below and are not necessary to be detailed here.\n\nTwo days prior to the occurrence Marimuthu, P.W. 10 was driving some cattle, 4 or 5 of them went astray and entered into the Gingilli Hai (field) belonging to A-1.\n\nA-l's men scolded P.W. 10 and the deceased who was informed about the incident by the former at a tea shop.\n\nP.W. 1 was also present there.\n\nDeceased Kal!apcrumal F passed on the information to P.W. 7.\n\nRamalingam, P.W. 4 brother of the deceased was taking his bath in the Sivan Kail tank.\n\nKaliaperumal (deceased) also came there saying something against the Karnam.\n\nHe also started bathing at the north-western corner of the tank.\n\nAccording to the prosecution case, A-1 came there followed by A-2 to A-6. A-2 had a cross-stop (an instrument used in Survey and measurement, perhaps the correct name of tho instrument is cross-staff). A-3 and A-4 were each armed with an Aruval. A-5 had a stick and A-6 was carrying a stick with a spear attached to it.\n\nAccording to the evidence in Court, A-1 told the other accused \"Not content to with grazing (his) cattle in my gingilly field, he is also abusing me.\n\nCut him, whatever be the expenses, I will look after that.\" Thereupon A-4 asked the deceased Kaliaperumal \"Why are you abusing the 'Iyer' ?\" Saying something Kaliaperumal ascended the bank.\n\nA-3 and A-4 assaulted him on his bead with Aruvals.\n\nP.W, 1 ran to &eparate them when A-2 assaulted him on\n\n725 SCI/76\n\nA his head with the cross-stop. P. W. 1 attempted to run. Thereupon it is said A-6 obstructed him from running with the help of the stick\n\nwi, h spear head.\n\nA-4 agam cut on ..n~ neau ur 1'.aiwp.:rumal\n\n(deceased) with his Aruval. A-2 beat on P.W's head with the crossstvp , uur or Jive times.\n\nJ'.W. 1 fell down unconscious. P.W. 7 and others took the injured to the Government Dispensary Kodavasal.\n\nDr, Kadha Singh, Civil Assistant Surgeon,\n\nP.W. 15 exaniined Kal1apcrumal aeceasect at 4.55 p.m. and. 1~.:>ued a Wound Ccruuca.Le.\n\nB Smee his condition was senous he was sent to the Government Hospital, Kumbakonam. P. W. 15 exammed the injuries 01 P.W. 1 at 5.20 p.m. and found as many as nine injuries on his person. As already stated Kaliaperumal died at about 9.00 p.m. Dr. N. Jayaraj, P. W. 18 performed the autopsy over the dead body.\n\nAs many as '14 injuries were found.\n\nThe injuries given on the head with Aruval according to the opinions of the Doctors 'were sufficient in the ordinary C course of nature to cause his death.\n\nVarious charges were framed against the six accused including that of rioting under section 14 7 !PC against A-1 and\n\nA-5 and section 148 against A-2, A-3, A-4 and A-6. A-1 was further charged under sections 302/149 and sections 302/ 109. A-2 to A-6 were charged under section 302. An extra charge under section 324 was levelled D against A-2 for causing simple hurt to P.W. 1 with the cross-stop, an instrument which had sharp edges.\n\nA-6 was also charged under section 341 of the Penal Code for preventing P. W; 1 from escapmg.\n\nThe accused denied their complicity in the occurrence and pleaded not guilty.\n\nA-1 took . a plea of alibi also and asserted that he had gone to Madras in connection with some marriage negotiations. Two days after the date of occurrence. he was arrested at Kumbakonam E Railway Station when he alighted from the train on his return from Madras.\n\nThe Trial Judge acquitted A-1., A-5 and A-6 of all the charges. He convicted A-3 and A-4 under section 302 of the Penal . Code and awarded a sentence of life imprisonment to each of them. , They were acquitted of the charge under section 148. A-2 was convicted only under section 324 with a sentence of 4 months' rigorou,; imprisonment_ iind acquitted of all other charges. ' F\n\n . A~2, A-3 and A-4 preferred an appeal in the Madras High Court against their conviction and the sentences imposed upon them by the Trial Court. State preferred an appeal against the acquittals of A-1, A-5 and A-6 as also against the acquittal of A-2 of the charge under section 302. It, however, did not prefer any appeal against the acquittal of A-2, A-3 and A-4 of the charge under section 148 of the Penal Code.\n\nYet it is surprising to find that the High Court has convicted all the six accused fat the offences of rioting. A-I and A-5 under section 147 with two years' rigorous imprisonment and A-2, .A-3, A-4 and A-6 under section 148 with 3 years' rigorous imprison-.' ment.\n\nConviction of A-3 and A-4 for the offence of murder under section 302 has been maintained with the aid of section 34. High Court has also convicted A-2, A-5 and A-6 under sections 302/34 and awarded each of them life imprisoninent.\n\nA-1 has been convicted by the High Court under sections 302/149 and 302/109 with sentence\n\n-.,(-- -\n\nRAMASWAJ\\ffv. TAMIL NADU (Untwalia, I.) 879 /\n\nof life imprisonment under each. Conviction of A-2 under section 324 has been ma1mamed. Hence these two appeals.\n\n- That there was enmity and bad blood between A-1 and P. W. 7 is not open to any doubt. An occurrence did take place on the date, time anu place a, given by the prosecullon. The manner of occurrence in so far as it relates to the attack on the deceased is concerned by A-2 and A-3 has also been proved to the hilt.\n\nThe factum of assault by A-2 on P.W. 1 also does not admit of any doubL But the High Court does not seem to be justified in reversing the order of acquittal recorded by the Trial Court in favour of A-1, A-5 and A-6.\n\nIt was claimed by the prosecution that apart from P.W. 1 there were four more eye witnesses to the occurrence namely Govindaswami, P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5, and Ka!Japcrumal, P.W. 6. P. Ws 3 and 4 are brothers of the deceased.\n\nP.W. 5 is the brother-in-law of P.W. 3. Ext. P-1 is the statement of P.W. 1 before the police on the basis of which the First Information Report was drawn up.\n\nOn reading this statement as also the evidence oi P.W. I in Court, the Trial Judge rightly came to the . conclusion that P.Ws. 3, 4, 5 and 6 arrived at the scene of occurrence after it had taken place. None of them had witnessed it. It considered the evidence ot each w1tnesS, viz. P.Ws. 3 to 6, individually and did not rely upon it. In our judgment, the High Court was not right as against the explicit statement and evidence of P.W. 1 in treatmg P.Ws. 3 to 6 as eye witnesses to the occurrence. It is significant to note that although P.Ws. 3 and 4 were the brothers of the deceased Kaliaperumal but none of them made any attempt to save him !c \"' the attack of the assailants. Had they been present at the occurrence surely they would have _tried to save their brother, as was done by\n\nP.W. 1.\n\nWe are, therefore, left with the evidence of P.W. 1 alone.\n\nSince he was injured in the same occurrence, undoubtedly, his ocular version of the incident is of great value to the prosecution.\n\nThe plea of alibi set up by A-1 has not been substantiated at all.\n\nThe Trial Judge was not right in doubting the prosecution case merely because A-1 had applied for leave on the 18th April-3 days before the occurrence. There was no evidence to show that he was at Madras on the date of occurrence.\n\nAccording to the Investigating Agency, A-1 was arrested not on the Railway platform but near the Railway level crossing of Kumbakonam Railway Station.\n\nBut the Trial Court was right in saying that the only part attributed to A-1 was the order giving for assault. In the statement Ext. P-1 the only words of order attributed to A-1 are \"to cut\" .. In court there was great embellishment and improvement in the evidence. of P.W, 1 when he put several sentences in the mouth of A-1 at the time of the alleged order-giving. As already stated, A-1 was the Karnam of the village and even if he was at the back of the assault on the deceased. it does not stand to reason that he. himself would go to the place of occurrence merely for giving the order for assault.\n\nThe order, if any, must have been given to the assailants in secret by A-1. . He must not have come to the place of occurrence merely for this purpose. We\n\nare, therefore, of the view that although the High Court in its judgment purported to keep in front the well-settled principles of law to jusmy an mterlercnce by it with the order of acqumal, ll did commit \\, 1 a mistaKe in the applications of those pnnc1ples.\n\nConviction of A-1 by the High Court unoer any count is not justified.\n\nSo do we find in the case of A-5 and A-6 that they had not taken any part in the occurrence at all.\n\nThe alleged obstruction given by A-6 to P.W. 1 when he wanted to run was not be!Jevable and has. not been believed by the Trial Court. The reasons given by the Trial Court for their acquittal were not such as to justity an interference by the High Court. The view taken by the Trial Court was reasonably possible to be taken.\n\nComing to the case of A-2 we find that he did assault P.W. 1 with the cross-staff marked Ext. MO-I. This cross-staff, as alleged, has been recovered from the house of A-1. The Trial Court, rightly, , did not believe the story of its recovery from his house.\n\nBut surely + A-2 had used the cross-staff for assaulting P.W. I. A serious question for consideration is whether his conviction under section 302 with the aid of section 34 is justified or not.\n\nIn this connection we find the statement of P.W. 1 in Ext. P-1 to the following effect:\n\n\"Raman too with the aruval in his hitnd dealt a cut at the front portion of his head. I ran there to prevent it.\n\nAt that time Vattappan with the string fixed wood he was having in his hand beat on my head.\"\n\nIn the Sessions Court also he deposed :\n\n\"Thereupon, Accused No. 3 immediately cut on the head of Kaliyaperumal in the front portion with the aruval he was having in his hand. I ran to separate them. Immediately Accused No. 2 beat on my head with M.O. 1 ......... .\n\nThen accused number 2 beat on my head with M.O. 1, 4 or 5 times.\n\nI fell down unconscious.\n\nAfter some time, President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there.\n\nFrom the evidence of P.W. 1 corroborated as it is from his statement in Ext. P-1 it is clear that P.W. 1 wanted to save Kaliyaperumalthe deceased, from the murderous attack by A-3 and A-4.\n\nA-2 was standing as a guard and did not allow P.W. 1 to protect the deceased.\n\nA-2 went to the length of assaulting P.W. I and making him fall down unconscious.\n\nIt is contended that A-2 cannot be held vicariously liable with the aid of s. 34 for the act of A-3 and A-4, for two reasons : Firstly, he did not physically participate in the fatal beating administered by A-3 and A-4 to the deceased and thus the \"criminal act\" of murder was not done by all these three accused within the contemplation of s. 34, the act committed by A-2 in regard to the beating of P.W. 1 being a different and separate act of A-2.\n\nSecondly, it has not been shown that the act of A-2 in beating P.W. 1 was committed in\n\nfurtherance of the common intention of all the three, pursuant to a A pre-arranged plan.\n\n) The contention is fallacious and cannot be accepted.\n\nSection 34 is to be read along with the preceding s. 33 which makes it clear that the \"act\" spoken of in s. 34 includes a series of acts as a single act.\n\nIt follows that the words \"when a criminal act is done by several persons\" in s. 34, may be construed to mean \"when criminal acts are done by several persons\".\n\nThe acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design.\n\nSuch a person also commits an \"act\" as much as his co-participants actually committing the planned crime.\n\nIn the i case of an offence involving physical violence, however, it is essential for the application of s. 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.\n\nSuch presence of those who in one way or the other facilitate the execution of the common, design, is itself tantamount to actual participation in the 'criminal act'. The essence of s. 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result.\n\nSuch consensus can be developed at the spot and thereby intended by all of them.\n\nIn the case before us, A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to the relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased. Under these circumstances we think the High Court was justified in convicting A-2 for the offence of murder of Kaliyaperumal with the aid of section 34 of the Penal Code.\n\nThere was absolutely no difficulty in maintaining the convictions of A-3 and A-4 for the murder of Kaliyaperuma1 with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body.\n\nIn the case of A-2 also it is quite legitimate to hold that he had shared the common intention of A-3 and A-4 in the commission of the murder of Kaliyaperumal.\n\nThe conviction of none of the accused for the offence of rioting can be maintained either in law or, on facts.\n\nIn the view which we have expressed above that the High Court was not justified in reversing the acquittals of A-1, A-5 and A-6, there were only 3 left in the party of the assailnts. Moreover the State did not file any appeal, as\n\nA stated already, against the acquittal of A-2, A-3 and. A-4 under section 148 of the Penal Code.\n\nThat being so, they could not be convicted for having formed an unlawful assembly for any criminal \" 1 common object.\n\nNone could be convicted, therefore, under sections\n\n147 or 148.\n\nSection 149 could not be pressed into service against any.\n\nIn the result we allow both the appeals in part, restore the order of acquittal recorded in favour of A-1 viz., Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each.\n\nWe also maintain the conviction of A-2 under section 324 Indian ' Penal Code with the concurrent sentence of 4 months' rigorous im- + prisonment under the said count.\n\nM.R.\n\nAppeals partly allowed.\n\n..\"'", "total_entities": 104, "entities": [{"text": "RAMASWAMI AYYANGAR AND ORS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "RAMASWAMI AYYANGAR AND ORS", "offset_not_found": false}}, {"text": "STATE OF TAMIL NADU", "label": "RESPONDENT", "start_char": 29, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "STATE OF TAMIL NADU", "offset_not_found": false}}, {"text": "March 24, 1976", "label": "DATE", "start_char": 50, "end_char": 64, "source": "ner", "metadata": {"in_sentence": "STATE OF TAMIL NADU\n\nMarch 24, 1976\n\n[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J.\n\nIndian Penal Code, S. 34, essence of-Applicationof S. 34, whether physicai presence and actual participation necessary in offences involving physical vidlenc, e.\n\nPrevious enmity between the appellant Ramaswami Ayyangar and the deceased Kaliapen1rnal resulted in ah occurrence, in which Kaliaperumal got seriously injured and died in the hospital."}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 67, "end_char": 81, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA*", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ", "label": "JUDGE", "start_char": 86, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 109, "end_char": 126, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "S. 34", "label": "PROVISION", "start_char": 128, "end_char": 133, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "S. 34", "label": "PROVISION", "start_char": 160, "end_char": 165, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "Kaliapen1rnal", "label": "OTHER_PERSON", "start_char": 346, "end_char": 359, "source": "ner", "metadata": {"in_sentence": "STATE OF TAMIL NADU\n\nMarch 24, 1976\n\n[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J.\n\nIndian Penal Code, S. 34, essence of-Applicationof S. 34, whether physicai presence and actual participation necessary in offences involving physical vidlenc, e.\n\nPrevious enmity between the appellant Ramaswami Ayyangar and the deceased Kaliapen1rnal resulted in ah occurrence, in which Kaliaperumal got seriously injured and died in the hospital.", "canonical_name": "Kaliyaperumalthe"}}, {"text": "Kaliaperumal", "label": "OTHER_PERSON", "start_char": 396, "end_char": 408, "source": "ner", "metadata": {"in_sentence": "STATE OF TAMIL NADU\n\nMarch 24, 1976\n\n[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J.\n\nIndian Penal Code, S. 34, essence of-Applicationof S. 34, whether physicai presence and actual participation necessary in offences involving physical vidlenc, e.\n\nPrevious enmity between the appellant Ramaswami Ayyangar and the deceased Kaliapen1rnal resulted in ah occurrence, in which Kaliaperumal got seriously injured and died in the hospital.", "canonical_name": "Kaliyaperumalthe"}}, {"text": "S. 302", "label": "PROVISION", "start_char": 626, "end_char": 632, "source": "regex", "metadata": {"linked_statute_text": "Indian Penal Code", "statute": "Indian Penal Code"}}, {"text": "I.P.C", "label": "STATUTE", "start_char": 633, "end_char": 638, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 324", "label": "PROVISION", "start_char": 654, "end_char": 660, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. 302", "label": "PROVISION", "start_char": 902, "end_char": 908, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. 34", "label": "PROVISION", "start_char": 919, "end_char": 924, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "Ss. 302", "label": "PROVISION", "start_char": 936, "end_char": 943, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. 324", "label": "PROVISION", "start_char": 975, "end_char": 981, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. 34", "label": "PROVISION", "start_char": 1297, "end_char": 1302, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. 34", "label": "PROVISION", "start_char": 1482, "end_char": 1487, "source": "regex", "metadata": {"linked_statute_text": "I.P.C", "statute": "Indian Penal Code"}}, {"text": "S. 34", "label": "PROVISION", "start_char": 1788, "end_char": 1793, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 34", "label": "PROVISION", "start_char": 1916, "end_char": 1921, "source": "regex", "metadata": {"statute": null}}, {"text": "S. 34", "label": "PROVISION", "start_char": 2372, "end_char": 2377, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras High Court", "label": "COURT", "start_char": 2755, "end_char": 2772, "source": "ner", "metadata": {"in_sentence": "Appeals by Special Leave from the Judgment and order dated 22-9-72 of the Madras High Court in Criminal Appeal No."}}, {"text": "Debaratea Mookerjee", "label": "OTHER_PERSON", "start_char": 2817, "end_char": 2836, "source": "ner", "metadata": {"in_sentence": "Debaratea Mookerjee, M. S. K. Sastri and M. S. Narasimhan for the Appellants."}}, {"text": "M. S. K. Sastri", "label": "OTHER_PERSON", "start_char": 2838, "end_char": 2853, "source": "ner", "metadata": {"in_sentence": "Debaratea Mookerjee, M. S. K. Sastri and M. S. Narasimhan for the Appellants."}}, {"text": "M. S. Narasimhan", "label": "OTHER_PERSON", "start_char": 2858, "end_char": 2874, "source": "ner", "metadata": {"in_sentence": "Debaratea Mookerjee, M. S. K. Sastri and M. S. Narasimhan for the Appellants."}}, {"text": "A. V. Rangam", "label": "LAWYER", "start_char": 2896, "end_char": 2908, "source": "ner", "metadata": {"in_sentence": "A. V. Rangam and Miss A. Subhashni, for the Respondents."}}, {"text": "A. Subhashni", "label": "LAWYER", "start_char": 2918, "end_char": 2930, "source": "ner", "metadata": {"in_sentence": "A. V. Rangam and Miss A. Subhashni, for the Respondents."}}, {"text": "UNTWAL!A", "label": "JUDGE", "start_char": 3003, "end_char": 3011, "source": "ner", "metadata": {"in_sentence": "' •\n\nThe Judgment of the Court was delivered by\n\nUNTWAL!A, J. Criminal Appeal No."}}, {"text": "section 2", "label": "PROVISION", "start_char": 3069, "end_char": 3078, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970", "label": "STATUTE", "start_char": 3086, "end_char": 3158, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "21st April, 1971", "label": "DATE", "start_char": 3693, "end_char": 3709, "source": "ner", "metadata": {"in_sentence": "1 The occurrence giving rise to these two appeals took place on Monday the 21st April, 1971 at about 4.00 p.m. at Sivan Koil tank in village Thadulhalkondapuram."}}, {"text": "Thadulhalkondapuram", "label": "GPE", "start_char": 3759, "end_char": 3778, "source": "ner", "metadata": {"in_sentence": "1 The occurrence giving rise to these two appeals took place on Monday the 21st April, 1971 at about 4.00 p.m. at Sivan Koil tank in village Thadulhalkondapuram."}}, {"text": "Kaliaperumal", "label": "WITNESS", "start_char": 3971, "end_char": 3983, "source": "ner", "metadata": {"in_sentence": "Another person injured in the occur- D rencc was also named Kaliaperumal, P.W. 1."}}, {"text": "Pichai Konar", "label": "WITNESS", "start_char": 4080, "end_char": 4092, "source": "ner", "metadata": {"in_sentence": "The prosecution case is that deceased Kaliaperumal was living with his matcrnal uncle Pichai Konar, P.W. 7 since infancy."}}, {"text": "Marimuthu", "label": "WITNESS", "start_char": 4570, "end_char": 4579, "source": "ner", "metadata": {"in_sentence": "Two days prior to the occurrence Marimuthu, P.W. 10 was driving some cattle, 4 or 5 of them went astray and entered into the Gingilli Hai (field) belonging to A-1."}}, {"text": "Kal!apcrumal", "label": "WITNESS", "start_char": 4852, "end_char": 4864, "source": "ner", "metadata": {"in_sentence": "Deceased Kal!apcrumal F passed on the information to P.W. 7."}}, {"text": "Ramalingam", "label": "WITNESS", "start_char": 4905, "end_char": 4915, "source": "ner", "metadata": {"in_sentence": "Ramalingam, P.W. 4 brother of the deceased was taking his bath in the Sivan Kail tank."}}, {"text": "Kadha Singh", "label": "WITNESS", "start_char": 6326, "end_char": 6337, "source": "ner", "metadata": {"in_sentence": "Dr, Kadha Singh, Civil Assistant Surgeon,\n\nP.W. 15 exaniined Kal1apcrumal aeceasect at 4.55 p.m. and."}}, {"text": "Government Hospital, Kumbakonam", "label": "ORG", "start_char": 6505, "end_char": 6536, "source": "ner", "metadata": {"in_sentence": "B Smee his condition was senous he was sent to the Government Hospital, Kumbakonam."}}, {"text": "N. Jayaraj", "label": "WITNESS", "start_char": 6700, "end_char": 6710, "source": "ner", "metadata": {"in_sentence": "As already stated Kaliaperumal died at about 9.00 p.m. Dr. N. Jayaraj, P. W. 18 performed the autopsy over the dead body."}}, {"text": "Aruval", "label": "OTHER_PERSON", "start_char": 6837, "end_char": 6843, "source": "ner", "metadata": {"in_sentence": "The injuries given on the head with Aruval according to the opinions of the Doctors 'were sufficient in the ordinary C course of nature to cause his death."}}, {"text": "section 14", "label": "PROVISION", "start_char": 7042, "end_char": 7052, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 7084, "end_char": 7095, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 302", "label": "PROVISION", "start_char": 7157, "end_char": 7169, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 302", "label": "PROVISION", "start_char": 7178, "end_char": 7190, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 7227, "end_char": 7238, "source": "regex", "metadata": {"statute": null}}, {"text": "section 324", "label": "PROVISION", "start_char": 7262, "end_char": 7273, "source": "regex", "metadata": {"statute": null}}, {"text": "section 341", "label": "PROVISION", "start_char": 7421, "end_char": 7432, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 7440, "end_char": 7450, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Madras", "label": "GPE", "start_char": 7633, "end_char": 7639, "source": "ner", "metadata": {"in_sentence": "a plea of alibi also and asserted that he had gone to Madras in connection with some marriage negotiations."}}, {"text": "section 302", "label": "PROVISION", "start_char": 7929, "end_char": 7940, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 8064, "end_char": 8075, "source": "regex", "metadata": {"statute": null}}, {"text": "section 324", "label": "PROVISION", "start_char": 8106, "end_char": 8117, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 8485, "end_char": 8496, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 8599, "end_char": 8610, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 8618, "end_char": 8628, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 147", "label": "PROVISION", "start_char": 8761, "end_char": 8772, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 8844, "end_char": 8855, "source": "regex", "metadata": {"statute": null}}, {"text": "section 302", "label": "PROVISION", "start_char": 8956, "end_char": 8967, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 9004, "end_char": 9014, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 302", "label": "PROVISION", "start_char": 9069, "end_char": 9081, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 302", "label": "PROVISION", "start_char": 9178, "end_char": 9190, "source": "regex", "metadata": {"statute": null}}, {"text": "section 324", "label": "PROVISION", "start_char": 9336, "end_char": 9347, "source": "regex", "metadata": {"statute": null}}, {"text": "Govindaswami", "label": "WITNESS", "start_char": 10043, "end_char": 10055, "source": "ner", "metadata": {"in_sentence": "It was claimed by the prosecution that apart from P.W. 1 there were four more eye witnesses to the occurrence namely Govindaswami, P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5, and Ka!Japcrumal, P.W. 6."}}, {"text": "Rajagopal", "label": "WITNESS", "start_char": 10085, "end_char": 10094, "source": "ner", "metadata": {"in_sentence": "It was claimed by the prosecution that apart from P.W. 1 there were four more eye witnesses to the occurrence namely Govindaswami, P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5, and Ka!Japcrumal, P.W. 6."}}, {"text": "Ka!Japcrumal", "label": "WITNESS", "start_char": 10108, "end_char": 10120, "source": "ner", "metadata": {"in_sentence": "It was claimed by the prosecution that apart from P.W. 1 there were four more eye witnesses to the occurrence namely Govindaswami, P.W. 3, Ramalingam, P.W. 4, Rajagopal, P.W. 5, and Ka!Japcrumal, P.W. 6."}}, {"text": "section 302", "label": "PROVISION", "start_char": 13695, "end_char": 13706, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 13723, "end_char": 13733, "source": "regex", "metadata": {"statute": null}}, {"text": "Raman", "label": "WITNESS", "start_char": 13846, "end_char": 13851, "source": "ner", "metadata": {"in_sentence": "P-1 to the following effect:\n\n\"Raman too with the aruval in his hitnd dealt a cut at the front portion of his head."}}, {"text": "Vattappan", "label": "PETITIONER", "start_char": 13972, "end_char": 13981, "source": "ner", "metadata": {"in_sentence": "At that time Vattappan with the string fixed wood he was having in his hand beat on my head.\"", "canonical_name": "Vattappan"}}, {"text": "Kaliyaperumal", "label": "OTHER_PERSON", "start_char": 14152, "end_char": 14165, "source": "ner", "metadata": {"in_sentence": "3 immediately cut on the head of Kaliyaperumal in the front portion with the aruval he was having in his hand.", "canonical_name": "Kaliyaperumalthe"}}, {"text": "Rajagopal", "label": "OTHER_PERSON", "start_char": 14455, "end_char": 14464, "source": "ner", "metadata": {"in_sentence": "After some time, President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there."}}, {"text": "Mani alias Rajagopal", "label": "OTHER_PERSON", "start_char": 14466, "end_char": 14486, "source": "ner", "metadata": {"in_sentence": "After some time, President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there."}}, {"text": "Ramalingam", "label": "PETITIONER", "start_char": 14488, "end_char": 14498, "source": "ner", "metadata": {"in_sentence": "After some time, President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there.", "canonical_name": "Ramalingam"}}, {"text": "Govindaswami", "label": "OTHER_PERSON", "start_char": 14500, "end_char": 14512, "source": "ner", "metadata": {"in_sentence": "After some time, President Kaliyaperumal, Rajagopal, Mani alias Rajagopal, Ramalingam, Govindaswami-these persons came there."}}, {"text": "Kaliyaperumalthe", "label": "OTHER_PERSON", "start_char": 14660, "end_char": 14676, "source": "ner", "metadata": {"in_sentence": "P-1 it is clear that P.W. 1 wanted to save Kaliyaperumalthe deceased, from the murderous attack by A-3 and A-4.", "canonical_name": "Kaliyaperumalthe"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 14967, "end_char": 14972, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15233, "end_char": 15238, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 15578, "end_char": 15588, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 33", "label": "PROVISION", "start_char": 15628, "end_char": 15633, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15683, "end_char": 15688, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 15811, "end_char": 15816, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 16439, "end_char": 16444, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 16884, "end_char": 16889, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 34", "label": "PROVISION", "start_char": 17277, "end_char": 17287, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 17547, "end_char": 17557, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 17565, "end_char": 17575, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kaliyaperuma1", "label": "OTHER_PERSON", "start_char": 17677, "end_char": 17690, "source": "ner", "metadata": {"in_sentence": "There was absolutely no difficulty in maintaining the convictions of A-3 and A-4 for the murder of Kaliyaperuma1 with the aid of section 34 because both had mercilessly assaulted him with Aruvals on the vital parts of the body.", "canonical_name": "Kaliyaperumalthe"}}, {"text": "section 34", "label": "PROVISION", "start_char": 17707, "end_char": 17717, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 18378, "end_char": 18389, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 18397, "end_char": 18407, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections\n\n147", "label": "PROVISION", "start_char": 18571, "end_char": 18584, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 149", "label": "PROVISION", "start_char": 18594, "end_char": 18605, "source": "regex", "metadata": {"statute": null}}, {"text": "Kathayyan", "label": "PETITIONER", "start_char": 18790, "end_char": 18799, "source": "ner", "metadata": {"in_sentence": "Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each."}}, {"text": "Kulandaiyan", "label": "PETITIONER", "start_char": 18808, "end_char": 18819, "source": "ner", "metadata": {"in_sentence": "Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each."}}, {"text": "sections 14", "label": "PROVISION", "start_char": 18912, "end_char": 18923, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 18941, "end_char": 18951, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Vattappan", "label": "PETITIONER", "start_char": 18988, "end_char": 18997, "source": "ner", "metadata": {"in_sentence": "Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each.", "canonical_name": "Vattappan"}}, {"text": "Kaipillai alias Karuppayyan", "label": "PETITIONER", "start_char": 19003, "end_char": 19030, "source": "ner", "metadata": {"in_sentence": "Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each."}}, {"text": "Raman", "label": "PETITIONER", "start_char": 19036, "end_char": 19041, "source": "ner", "metadata": {"in_sentence": "Ramaswami Ayyangar, A-5 Kathayyan and A-6 Kulandaiyan acquitting them of all the charges, set aside the conviction of the remaining accused under sections 14 7 and 148 of the Penal Code and maintain the convictions of A-2 Vattappan, A-3 Kaipillai alias Karuppayyan, A-4 Raman under section 302/34 with the sentence of life imprisonment to each.", "canonical_name": "Ramalingam"}}, {"text": "section 302", "label": "PROVISION", "start_char": 19048, "end_char": 19059, "source": "regex", "metadata": {"statute": null}}, {"text": "section 324", "label": "PROVISION", "start_char": 19157, "end_char": 19168, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 19178, "end_char": 19188, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_883_892_EN", "year": 1976, "text": "MUNICIPAL CORPORATION OF CITY OF HUBLI\n\nSUBHA RAO HANUMATHARAO PRAY AG & ORS.\n\nMarch 24, 1976\n\n[H. R. KHANNA, P. N. BHAGWATI AND A. C. GUPTA, JJ.J\n\nBonibay Municipal Borougl1s Act, \\Born. 18 of 1925), Ss. 78 to 84-WheJhcr 1usessn1ent list should be authenticated before the expiry of the official year.\n\nStare Decisis-Principle when State High Courts have given a particular interpretation to State e11actn1ent.\n\ninterpretation of statutes-Statute 1nust be read as a whole-Legislative interpretation as u guide.\n\nThe scheme of ::-..:.. /8 to 84 of the Bombay Municipal Boroughs Act, 1925, shows that tne official year is the unit o: time for the levy of rates on buildings and lands.\n\nUnder these provisions the provisional assessment hst is prepared for the official year, e.ther before the co111mencement or in the cour.e of. the official year, objections are invited, and amendments con,,, cqu n 1 npon tile decisions on the ob1ections are carried out in the list.\n\nThe assessment list is then authenticated. 1 he precess of as:.t.~S1nent and levy of tax .. hich begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated.\n\nThe assessment list. when authenfcated. becomes effective from the first dav of the official vear and gives rise to the liability of the rate-payers to pay the tax levied. [8R8 G-889 Cj\n\nFor the assessment year 1951-52, the appell<1nt followed the rrocedure but the authentication was on July 24, 1952, after the expirv of the otfi ial year on March 31, 1952.\n\nSince property tax in accordance with the revised rates was sougnt to be levied, the respondents filed a suit for a declaration that the\n\nappel1ant was not entitled to recover ahy property tax at the rt:vised :a'es.\n\n' The suit was decreed and the decree was affirmed by the High Court,\n\nIn appeal to this Court, it was contended that, ( 1) the authentication of the assessment list in order to be valid and effective, need not be made befoe the expiry of the official year to which the assessment list relates; and (2) the suit was barred under s. 206A of the Act.\n\nDismissing the appeal, F\n\nHELD : ( 1) The assessment list in order to be effective in_ levying the tax must be authenticated b:fore the expiry of the officiat year aild if it is not, the assessn1ent list would be void and inoperative and would not 12ive rise to any liability in the tate-i:; ayers to pay tax. (891 H]\n\n(a) Once the view is taken that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it follows that the authentication must be made within the official year. The tax being a tax for the official year must obviously be levied during the official vear and since the ie,-y of tax is complete only when the assessment list is authenticated it must follow a fortiori that the authentication must take place in the official vear.\n\nOtherwise.· the tax for an official year would be leViable at any time, Without any time limit, even years after the expiration of the official year, which could not have been the intention of the legislature, since it is an annual tax intended to be levied for each official year.\n\n[889 D-FJ\n\n' (b) Section 84 provides that it shall not be necessary to prepare a new as.sessment list every year but subiect to the condition of revision once in everv four years, the Chief Officer may adopt the as$essment l'st for any veaf, with necessary alterations for the year immediately following. The provision\n\nA postulates that there would be an assessment list, that is, the authenticated assessn1ent list, for each official yea•r before the close of that official year so that it can be adopted by the Ch.:ef Officer for the immedia.ely foliowine year.\n\nOtherwise, he would have to prepare a new provisional assessment list every\n\nlime wnen the AssessmenL List for the precec..ung year is not finalised and au.lr.;; nticated, and this might lead to the sta• tling result of there befng mo.re than one provisional assessment list in the process of finalisation at the same\n\ntime. (889 G-890 CJ\n\n(c) ln interpreting a provision of a statute the court is entitled and indeed bcu.nd to consider any other parts of the Act which throw light on the intention of the legislature. The statu:e must, therefore, be read as a whole and every provision in it must be construed with reference to the context and other clauses so as, as far as possible, to make a consistent enactment of the whole statute. Section 82 ( 1 ) provides for making of an amendment in the assessment list by insertion or alteration of an entry in certain events, after hearing any objections to the amendment, Section 82(3) makes the amendment effective from 'the earliest day in the current official year in which the circumstances justifying the entry or alteration existed.' The expression clearly signifies the earliest day in the official year which is current when the amendment in the assessment list takes place, that is, the official year which is running at the time when the amendment is made by insertion or alteration of an entry.\n\nTherefore, a combined reading of s. 82(1) and (3) shows that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year. The Scheme of ss. 78 to 81 is identical with s. 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are investigated and disposed of, the assessment Ust in orie case, and the altered entry ih the other, are authenticated, giving rise to liability in the rate.payer. It must follow a fortiori, that if an alteration in the assessment list in order to fasten liability on the rate payer, is required to be made during the currency of the official year, equa1ly, the assessment list, in order to give rise to liability in the rate payer, must a1so be authenticated before the expiry Of the official year. [890 C-.\n\n891 BJ Sholapur Municipality v. Governor Central, 49 Born. L.R. 752 and Sholapur Municipal Corporation v. Ran1chandra 74 Born. L.R. 489 referred to.\n\n(d) Three High Courts having jurisdiction or the territories in which the Act is in force have all taken this view over a course of years and this Court will not be justified in departing from it, merely on the ground that a different view is possible. This Court is ordinarily loathe to interfere with the interpretation of a State statute which has prevailed in the State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. (891 C-D] ( e) In the present case, the Bombay Legislature has accepted the interpretation of ss. 78 to 81 bv the three High Courts and given legislative recognition to it by introducing s. 84A by Bombay Act 53 Of 1954. This provision makes it clear that the legislature not only did not amend the Act for the purpose of removing the time limit of the official vear as interpreted bv the High Courts or enlarging such time limit. but on the contrary, made the time limit more stringent by oroviding that the authentication shall be made by the Municipal Boroui!h not later than July 31, of the official year, and that if the authentication is not made within that time, the Stnte Government !llbaU be entitled to appoint a person for the puroose of authenticating the asse:ii!!- ment 1ist and that the authentication bv such oers0n shall not, in any event,'\n\nbe later than the Iast day of the official year. [891 D-H]\n\n(2) Section 206A provides, inter alia, that no suit shall lie against a muhi~ cipality in resoect of any act done in pursuance of execution or intended execution of the Act unless it is commenced within 6 months next after the accrual of the cause of action. It coud not, however, be contendf'd that the cause of action for the suit in the present cae arose in favour of the respond~ ents and other rate payers on July 24, 1952, when the list was authenticated, and that the suit, not having been filed within 6 month-; of that date is barred.\n\nThe assessment list in the present case was authenticated after the' expiry Of\n\nMUNJC. CORP. HUBL! v. SUBHA RAO (Bhagwati, J.) 8 85\n\nthe official year and was void and inoperative and the respondents and other rate-payers were entitled to ignore it as a nullity.\n\nTheir cause of action arose only when the appellant sought to recover the amount of tax from them on the strength of that assessment list.\n\nIn the absence of material to show 'vhen the notices of demand requiring the re<; pondents ahd 01hcr rate-payers to pay the amount of tax were issued, or which rate-payers paid and when it is not possible to say whether the cause of action for filing' le suit arose to the respondents withih six months before the filing of the suit or earlier.\n\n[892 A-E]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2406 of 1968.\n\nFrom the Judgment and Order dated 13-2-1968 of the High Court of Mysore at Bangalore in R.S.A. No. 477 of 1962.\n\nM. S. K_ Sastri and M. S. Narasimhan for the Appellant\n\nB. D_ Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, C 6, 10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThis appeal by special leave raises two questions relating to the interpretation of certain provisions of th_c Bombay Municipal Boroughs Act, 1925.\n\nThe facts giving rise to the appeal are few and may be briefly stated as follows : D\n\nThe respondents are rate-payers liable to pay property tax in respect of their lands and buildins situate within the limits of the erstwhile Municipal Borough of Dharwar now converted into the Hubli Dharwar Municipal Corporation.\n\nThe Municipal Borough of Dharwar (hereinafter referred to as the Municipal Borough) was at the material time governed by the provisions of the Bombay Muni- E pal Boroughs Act, 1925 (hereinafter referred to as the Act) . fhe Chief Officer of the Municipal Borough prepared an assessment list for the official year 1951-52 containing revised valuation and assessment of the lands and buildings situated within the limits of the Municipal Borough and published it on !st May, 1951 in accordance with the provisions of the Act.\n\nThe respondents and several other rate-payers filed their objections against the valuation and assessment F in the assessment list and consequent on the decisions on the objections, modifications were made in the assessment list and the assessment list so finalised was authenticated on 24th July, 1952_ Sinee the authentication of the assessment list was made after the expiry of the official year, the respondents and other rate-payers took the view that the assessment list was void and inoperative and the Municioal Borough was not entitled to recover property tax at the revised rates G which were higher than '.he rates charged in the previous official years_ It seems, however, that from a few persoru;, whose names do not appear in the record,. property tax in accordance with the revised rates was collected by the Municipal Borough. There was consequently an agitation amongst the rate-payers and a body called the Citizens Welfare Association championing the causes of the rate-payers address\n\ned a communication dated 30th November, 1952 to the Director of H Local Authorities requesting him to direct the Municipal Borough to refund the excess amount of property tax collected from the ratepayers, because according to them the levy and collection of property\n\nA tax at the revised rates was illegal in view of the fact that the assessment list was authenticated only on 24th July, 1952 beyond the expiration of the official year for which the property tax was sought to be levied.\n\nThe Director of Local Authorities by his reply dated 16th December, 1952 informed the Citizens Welfare Association that the levy of pro.verty tax under the authenticated assessment list was, according to hzm, perfectly valid.\n\nThe President of the Municipal B Borough thereaf, er issued a publ'c notice dated 10th November, 1954 calling upon the rate-payers to \"pay immediately all the tax still due from them aod extend their full cooperation to the Municipal Borough\".\n\nSince the Municipal Borough was determined to recover the amount of proper'y tax from the rate-payers at the enhanced rates appearing in the assessment list, the respondents, acting for and on behalf of themselves and other rate-payers, filed a suit against the Municipal C Borough on 6th June, 1955. after giving notice dated ls!' April, 1955 on the hypothesis that such notice was required to be given under s. 206A of the Act.\n\nThe main reliefs claimed in the suit were, fin; tly, a declaration that the Municipal Borough was. not entitled to recover property tail: from the rate-payers at the revised rates since the assessment list was authenticated beyond the expiration of the official year D and secondly, an order directing the Municipal B\"rou!!h to refund the excess property tax recovered by i_t from the rate-payers.\n\nThe Municipal Borough in its written statement raised a preliminary objection that the suit was barred by limitation since it was not filed within six months of the accrual of the cause of action as required by s. 206A of the Act and it also disputed the claim of the rate-payers on merits on the ground that there was nothing in the Act which E required that the assessment list should be authenticated before the expiration of the official year and that even if the assessment list was authenticated beyond the expiration of the official year, it did not have the effect of invalidating the assessment list.·\n\nThe Trial Court negatived the plea of limitation based on s. 206A of the Act and so far as the merits were concerned, held that since F the authentication of the assessment list was admittedly made beyond the expiry of the official year, -the assessment list was void and inoperative and -the Municipal Borough was not entitled to levy and _ _ co1lect property tax at the revised rates on the strength of such assessment list.\n\nThe Municipal Borough, being aggrieved by this decision, filed an appeal to the District Court, but the appeal was unsuccessful and a second appeal to the High Couit also failed.\n\nG Hence the present appeal by the Municipal Borough with special leave obtained from this Court.\n\nThe principal contention that was urged before us on behalf of the Municipal Borough was that on a true construction of the relevant provisions of the Act, the authentication of the assessment list, in tient to impose liability to tax for the official year even if it is made the official year to which the assessment list relates and it is sufficient to impose liability to tax for the official year even if it is made at any time after the expiry of the official year and, therefore, in the present case, though the authentication of the assessment list for the official year 1951-52 was made on 24th July, 1952 after the expiry of\n\n• '\n\n. MUNIC. CORP. IIUDLI v. SUBllA RAO (Bhagwati, J.) 887\n\nlhe official year, it was valid and effective and operated to create habJ.uy \"\" tn\" , ax payers rur payment of tax at the revised rates .. In oruer lv appreciate lhls contenuon it is necessary to examine br1eily the scheme of the Act in regard to assessment and levy of property ta.A. .. .uw .1.a::i1,; n .. u1us oi. 51,;;1,;1.~..., u aom / ts to 89 aeals with assessment of and liability to rates of buildings and lands.\n\nThese sections set out the procedure which must be followed for levy of rates on buildings and lands.\n\nSecuon 78, sub-s. (1) reqtiues the Chief Officer to cau>e an assessment list of all lands and buildings in the Mun1c1pal Boruugn to be prepared -Cvu...atn111g var1vu~ parL1culars set out in the section.\n\nWhen the preparation of the assessment list is completed, the Chief Officer is required under s. 80 to give public\n\nnotice of the list and of the place where the list or a copy thereof could be inspected.\n\nSimultaneously the Chief Officer. has also to give public notice under sub s. (1) of s. 81 of a date not less than one month after such publication before which objections to the valuation or assessment in such list shall be made.\n\nSub-s. (2) provides for the mode in which the objections must be made and sub-s.\n\n(3) provides for the hearing and disposal of the objections by the Standing Committee and the proviso to this sub-section permits the powers and duties of the Standing Co=ittee to be transferred to anyother committee or to any officer of the government. This sub-section provides that before the objections are investigated and disposed of, the objector shall be given an opportunity of being heard in person or by an agent and it is only after the hearing the objectors that the objections can be disposed of. When the objections are thus considered and disposed of, the assessment list with the modifications which may have been made consequent upon the decisions on the objections has to be authenticated in the manner set out in sub-s. (4). Suh-section (5) provides that the list so authenticated shall be deposited in the Municipal office and shall be open for inspection during office hours to all rate payers_ The completion of this procedure leads to certain important consequences and. they are set out in sub-s. ( 6) which reads as follows :\n\n\"(6) Subject to such alterations as may be made therein under the provisions of section 82 and to the result of any appeal or revision made under sec. 110, the entries in the assessment-list so authenticated and deposited and the entries, . if any, inserted in the said list under the provisions of sec. 82 shall be accepted as conclusive evidence- . (1)\n\n(ii) for the purposes of the rate for which such assessment-list has been prepared, of the amount of the rate liable on such buildings or lands or both buildings and land in any official year in which such list is in force.\"\n\nsection 82 then provides for amendment of assessment list in certain cases.\n\nThis section is rather material and it may be reproduced in full : }[ \"82. (1) The standing committee may at any time alter the assessment-list by inserting or altering an entry in respect of any property, such entry having been omitted from or\n\nerroneously niade in the assessment-list through fraud, accident or mistake or in respect of any building constructed altered, added to or reconstructed in whole or in part, where such construction, alteration, addition or reconstructfon had been completed after the preparation of the assessment-list, after giving notice to any person interested in the alteration of the list of a date, not less than one month ·\n\nfrom the date of service of such notice, before which any objection to the alteration should be made.\n\n(2) An objection made by any person interested in any such alteration, before the time fixed in such notice, and in the manner provided by sub-section\n\n(2) of section 81, shall be dealt with in all respects as if it were an application under the said section. .(3) An entry or alteration made under this section shall subject to the provisions of section 110, chave the same effect as if it had been made in the case of a building constrcted altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the ne\\v construction, alteration, addition or reconstruction was first occupied, whichever first occurs, or in' other cases, on the earliest_ day in the current official year on which the circumstances justifying the entry or alteration existed; and the tax or the enhaEced tax as the case may be shall be levied in suoh year in the proportion which the remainder of the year after such day bears to the whole year.\"\n\nThe next important section is s. 84 which provides for the adoption \".: of valuation and assessment contained in the assessment list of any \\ particular year for the year immediately following.\n\nThat section is in the following terms :\n\n\"84. (1) It shall not be necessary. to prepare a new assess-. ment list every year. Subject to the condition that every part of the assessment list shall be completely revised not less than once in every four years, the Chief Officer may adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following.\n\n(2) But the prmisions of sections 80, 81 and 82 shall be applicable every year as if a new assessment list had been completed at the commencement of the officill; l year.\" The other sections in this group are not material and it is not necessary_ to refer to them. ·\n\n- It is clear from the scheme of these provisions that the official year is the unit of time for the levy of the tax.\n\nThe provisional assessment -list is prepared for the official year.\n\nThis may be done before the commencement of the official year or: even ther; eafter in the course of the official year.· Then objections are invited and when made, they are disposed of andc amendments consequential upon the\n\nMUNIC. CORP. IIUBLI v. SUBIIA RAO (Bhagwati, J.)- - 889 ' A\n\n' /\n\ndecisions on the objections are carried out in the assessment list. The assessment list is then authenticated. The process of assessment and levy of the tax which begins with the preparation of the provisional assessment list is thus completed when the assessment list is authenticated.\n\nThe assessment list, when aulhe1mcated, becomes effective from the first day of the official year and gives rise to the liability to pay tax. It is on the authentication of the assessment list that the liability of the rate-payers to pay tax arises and the tax is levied on the rate-payers.\n\nThis position would seem to be clear as a matter of plain interpretation and in any event there is a long line of decisions of the Bombay High Court commencing from Sholapur. .f11unicipality v. Governor Gener111( 1). and ending has Sholapur Municipal Corporation v.\n\nRamchandra( 2 ) which has consistently accepted this position and the learned counsel appearing on behalf of the Municipal Borough did not dispute the correctness of these decisions.\n\nThe only contention raised by him was as to within what time the assessment list must be authenticated, if it is to be a valid and effective assessment list. It is to this contention that we must now address ourselves.\n\nNow, once we take the view that the process of levying the tax is complete only when the assessment list is authenticated and it is only then that the tax is levied on the rate-payers, it is ditlicuit to resist the conclusion that the authentication must be made within the official year.\n\nThe tax, being a tax for the official year, must obviously be levied during the official year and since the levy of the tax is complete only when the assessment list is authenticated, it must follow a fortiori that the authentication on the making of which alone the levy of the tax is effected, must take place in the official year. Any other view would result in an anomalom and rather absurd situation, namely, that the tax for an official year would be leviable at any time, even years after the expiration of the official year.\n\nTh:it could not possibly have been intended by the legislature.\n\nThat would indeed be a strange consequence in case of a tax which is annual in its structure and organisation and which is intended to be levied for each official year.\n\nBut, apart from this consideration, there is inherent evidence in the sections themselves which shows that the authentication wa5 intended by the legislature to be a step which must be taken before the close of the officbl year.\n\nSection 84 provides that it shall 11ot be nece>-\n\nsary to prepare a new assessment Est every year but, subject to he __ G conditions tha_t every part of the assessment list shall be completely c __. revised not less than once in every four years, the Chief OrTiccr may ' adopt the valuation and assessment contained in the list for any year, with such alterations as may be deemed necessary, for the year immediately following.\n\nThis provision postulates that there would be an assessment list for each official year at the close of that official year, so that the valuation and assessment contained in it can he adopted by H the Chief Officer for the immediately following year. Now clearly the assessment list which can be adopted for the immediately following year -\n\n(I) 49 Born. L. R. 752.\n\n(2) 74 Born. L. R. 489. -\n\nis the authenticated assessment list and it would, therefore, seem that the Jeg.slat1ve assumpt.on unue1Jymg LlliS provision is that in respect or eaeh omc1al year, there woulu be an amhent1cated assessment list before the cluse ot thar ornc.ai year, o inai. w~ ah.1.uuvl.l '1.Lau ......,,.,..,;').sment con.ameCI m ll can be aoopteCI by the Clue! Owc<r xor me . immea1alt:Jy rollowmg year.\n\nULncrwe, •l wuu1u not bt: pu~~101e tor the Clltef Ullicer to aaopt the vamauon ana assessment 01 rne p1eccding v111l:.tal ycal auu uc woulu. navt: to prepare a new prov1s1onal assessment Lst every tune when the assesment. J1st for Lile p1ct.:t:u.u.lg year J!) uuL 11.ual1su a.nu _aucuen~.cal .... u au.u t.h1:, m1gnt lead to the rather startling result of there beillg several provmonal a\"e>'mcnt lists for d!lferent otticrnl years m the process ot hnal.tsatlon at me same. time.\n\nWe shoulCI be slow to accept an interpretat10n which Dllght lead to such a strange consequence.\n\nThen again considerable Lght on this question is thrown by the provis10n enacted m s. 82.\n\nIt IS a well setJed rule of 11i.crpreiat10n that the Court is \"enc.tied and inaeea bounu, when cunsau.ug the terlllS of any provision xound m a staiute, to consider any otl!er pru ts of the Act wh1ch throw Lgnt on the liltenuon 01 the Jg1sl<J.LUte, and which may serve to show that the parucular provision ought not to be construed as it would be alone and apart trom the rest of the Act.\" The statute must be read as a whole and every prov1S1on in the statute must be consrrued with reference to the contex1 and other clauses in the staLUte so as, as far as poss.ble, to make a consistent enactment of the whole statu<e.\n\nObv.ously, therefore, section 78 to 81 must be'so consrrued as to harmonise with s. 82. 'Ibey must be read together so as to form part of a connec, ed whole. etion 82, sub-s. (1) provides for making of an amendment in the assessment llSC by insertion or alteration of an entry in certain events after hearing objections which may b~ made by any person interested in opposing the amendment.\n\nSub-section (3) of s. 82 makes the amendment effective from \"the ear1est nay in the currcu. ., llic.al year on which ihe circumstances ju,\"1y.ng the entry or alteration\n\nexisted.\" The expression 'current official year' in the context in which it occurs in s. 82, sub-s. (3) clearly signifies the earliest day in the official year which . is current when the amendment in the assessment list takes place and that expression refers only to the official year which is running at the time when the amendment is . made by insertion or alteration of an entry under sub-s. (1) of s. 82.\n\nIt would, therefore, seem clear, on a combined reading of sub-ss. (1) and ( 3) of s. 8 2, that an amendment, in order to be effective in levying tax for an official year, must be made during the currency of the official year.\n\nThat is now well settled as a result of several decisions of the Bombay High Court cuJminatiug in the Full Dench decision in Sholapur Municipal Corporar1011 v. Ramchandra (supra) and we do not see any reason to take a different view.\n\nNow the scheme of ss. 78 to 81 is identical with that of s. 82 and in both cases what is contemplated first is a proposal to which objections are invited and after the objections are iuvcstigated and disp 0 sed of. the assessment F<• in the OPe rase and the altered entry in the other are authenticated giving rise to liability in the rate-payer. It must follow a forliori that if an alteration in the assessment list, in order\n\nMUNC. CORP. HUBL! v. SUBHA RAO (Bhagwati, J.) -- 891\n\nto fasten liability on the rate-payer, is required to be made during the A currency of the official year, equally, on a parity cf reasoning, the asses~ f , J ment !1st, in order to give nse to hability rn the rate-payer, must also be / autncnt1cated betore tne expiry of the otticial year. Moreover, it is diffi! cult to believe (hat the legislature did not intend that there should be any time limit in regard to the levy of tax for an official year and that the tax should be legally leviablc at any time after the close of the ollicial year. There is, in our opinion, sufticient indication in the various pro- B visions of the Act to show that the authentication of the assessment list, in order to be valid and effective, must be made within the official year, though the tax so levied may be collected and recovered even after the expiry of thq _official year.\n\nWe may p\"aint out that the Karnataka High Court_is not alone in taking this vic\\V in the present case. This vie\\V has been consistently taken by the Bomoay High Court in a scncs ot decisions over the years and it has also been followed by the Gujarat High Court._ When we find that c\n\n--;-- three High Courts having jurisdiction over the territories in which the Act is in force have all taken this vie\\V over a course of years, ;, ve do not think we would be justified in departing from it, merely on lhe ground\n\nthat a different view is possible. This Court is ordinarily loathe to interfere Viith the interpretation of a State statute which has prevailed in tho State for a long number of years and which the State Legislature has chosen not to disturb by legislative amendment. As a matter of fact, we find that, in the present case, the Bombay Legislature accepted this interpretation of ss. 78 to 81 and gave legislative recognition to it by introducing s. 84A by Bombay Act 53 of 1954. That section pwvidcs that where in any year a new assessment list is prepared, or a list is revised, or the valuation and assessment contained in the list fer the year immediately preceding is adopted v.rith er \\Vithout ~11tera ir-n. \"u\"'li --,, v, revised or adopted assessment list shall be authenticated in the manner provided by section 81 at any time not later than the thirty-first day of July of the official year to which the list relates, and if it is not so authenticated, then the State Government shall appoint such person or persons as it thinks fit to prepare, revise or adopt and authenticate the assessment list, and !hereupon such person or persons shall duly authenticate such list at any time before the last.day Of the official year to wh'c s\"'ch list refates, and sections 78 to 81 or section 84 sliall,.as far as may be, apply to the preparation, revision or adoption of the list, as the case may be, by the person or persons appointed by the State Government. It is\n\nclear from this provision that the Legislature not only did not amend the Act for the purpose of removing the time limit of the official year or enlarging such time limit, but on the contrary, made the time limit more -c stringent by providing that the ai:thentication shall be made by the Muni- - cipal Borough not later than 31st July of the official year and if the authentication is not made within that time, the State Government shall be . entitled to oppoint a person fer the purpose of authenticating the assessment list and the authentication by such person shall not, in any event, be later than the last day of the official yea.r. We are, therefore, of the view that the assessment list;- in order to be effective in levying the tax, must be authenVcated before the expiry of the official year and if it is not, the assessment list '\"ould be void and inoperative and not give rise to liability in the rate-payers to pay t~.\n\n892 SUPREME COURT.REPORTS~· - [1976] 3 s.c.R.\n\nThat takes u3 to the second contention urged on behalf of the Municipal Borough based on s. 206A. That secuon provides inter alia that Jlu swt snail lie against a municipality or against any officer or servant of any municipality in respect of any act done in pursuance or execution '. • or intended cxecuuon of tne Act, or in respect ot any alleged neglect or C!efault in the execution of the Act, unless it is co=enced w1U11n six montns next after the accrual of the cause of action. The argument of the Municipal Borough was that the cause of action for the sull arose in favour_ of the respondents and other rate-payers on 24th July, 1952 when the assessment-list was authenticated and smce the suit was not Wed within six months from that date, it was barred by limitation under s. 206A: This argument is plainly unsusta.nable.\n\nThe assessment lL't being authenticated on 24th July, 1952, after the expLry of the official year 1951-52, was void and inoperative and the respondents and other rate-payers were entitled to ignore it as a nullity. It is only when the Municipal Borough sought to recover the amount of tax from them en the strength of the assessment list, that il became necessary for them t to challenge the validity of the assessment Est with a view to resisting .· the demand of the Municipal Borough. Then and then only could a cause of action be said to have accrued to them which they were required to enforce within a period of six months. Now, in the present case, there is no material to show as to when notices of demand requiring the respondents and other rate-payers to pay the amount of tax wre issued by the Municipal Borough or which rate-payers paid the amount of t:ni: and when. It is not possible to say, in the absence of such mater'c.l, as to when the cause of action for filing the suit arose to the respondents and other rate-payers and whether it arose within six months before the filing of the snit or at a point of time earlier than that. The Municipal Borough cannot, in the circumstances, be held to have established that the suit was not commenced by the respondents and other rate-payers , within six months after the accrual of the cause of action and the plea of limitation based on s. 206A must fail.\n\nWe are, therefore, of the view that there is no substance in th.e appeal and it must be dismissed, but in the peculiar circumstances of the case, we make no order as to costs.\n\nV.P.S. • Appeal dismissed.", "total_entities": 76, "entities": [{"text": "MUNICIPAL CORPORATION OF CITY OF HUBLI", "label": "PETITIONER", "start_char": 0, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "MUNICIPAL CORPORATION OF CITY OF HUBLI", "offset_not_found": false}}, {"text": "SUBHA RAO HANUMATHARAO PRAY AG & ORS", "label": "RESPONDENT", "start_char": 40, "end_char": 76, "source": "metadata", "metadata": {"canonical_name": "SUBHA RAO HANUMATHARAO PRAYAG & ORS", "offset_not_found": false}}, {"text": "March 24, 1976", "label": "DATE", "start_char": 79, "end_char": 93, "source": "ner", "metadata": {"in_sentence": "March 24, 1976\n\n[H. R. KHANNA, P. N. BHAGWATI AND A. C. GUPTA, JJ.J\n\nBonibay Municipal Borougl1s Act, \\Born."}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 96, "end_char": 108, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 110, "end_char": 124, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI", "offset_not_found": false}}, {"text": "A. C. GUPTA, JJ", "label": "JUDGE", "start_char": 129, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "Ss. 78 to 84", "label": "PROVISION", "start_char": 201, "end_char": 213, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 552, "end_char": 587, "source": "regex", "metadata": {}}, {"text": "S1", "label": "PROVISION", "start_char": 1035, "end_char": 1037, "source": "regex", "metadata": {"linked_statute_text": "the Bombay Municipal Boroughs Act, 1925", "statute": "the Bombay Municipal Boroughs Act, 1925"}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 2098, "end_char": 2105, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 84", "label": "PROVISION", "start_char": 3264, "end_char": 3274, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 82", "label": "PROVISION", "start_char": 4552, "end_char": 4562, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 82(3)", "label": "PROVISION", "start_char": 4733, "end_char": 4746, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82(1)", "label": "PROVISION", "start_char": 5201, "end_char": 5209, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 78 to 81", "label": "PROVISION", "start_char": 5374, "end_char": 5386, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 5405, "end_char": 5410, "source": "regex", "metadata": {"statute": null}}, {"text": "Three High Courts having jurisdiction or the territories in which the Act", "label": "STATUTE", "start_char": 6193, "end_char": 6266, "source": "regex", "metadata": {}}, {"text": "Bombay Legislature", "label": "ORG", "start_char": 6714, "end_char": 6732, "source": "ner", "metadata": {"in_sentence": "891 C-D] ( e) In the present case, the Bombay Legislature has accepted the interpretation of ss."}}, {"text": "ss. 78 to 81", "label": "PROVISION", "start_char": 6768, "end_char": 6780, "source": "regex", "metadata": {"linked_statute_text": "Three High Courts having jurisdiction or the territories in which the Act", "statute": "Three High Courts having jurisdiction or the territories in which the Act"}}, {"text": "s. 84A", "label": "PROVISION", "start_char": 6861, "end_char": 6867, "source": "regex", "metadata": {"linked_statute_text": "Three High Courts having jurisdiction or the territories in which the Act", "statute": "Three High Courts having jurisdiction or the territories in which the Act"}}, {"text": "Section 206A", "label": "PROVISION", "start_char": 7597, "end_char": 7609, "source": "regex", "metadata": {"statute": null}}, {"text": "July 24, 1952", "label": "DATE", "start_char": 8007, "end_char": 8020, "source": "ner", "metadata": {"in_sentence": "It coud not, however, be contendf'd that the cause of action for the suit in the present cae arose in favour of the respond~ ents and other rate payers on July 24, 1952, when the list was authenticated, and that the suit, not having been filed within 6 month-; of that date is barred."}}, {"text": "High Court of Mysore at Bangalore", "label": "COURT", "start_char": 9012, "end_char": 9045, "source": "ner", "metadata": {"in_sentence": "From the Judgment and Order dated 13-2-1968 of the High Court of Mysore at Bangalore in R.S.A. No."}}, {"text": "M. S. K_ Sastri", "label": "LAWYER", "start_char": 9074, "end_char": 9089, "source": "ner", "metadata": {"in_sentence": "M. S. K_ Sastri and M. S. Narasimhan for the Appellant\n\nB. D_ Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, C 6, 10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50."}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 9094, "end_char": 9110, "source": "ner", "metadata": {"in_sentence": "M. S. K_ Sastri and M. S. Narasimhan for the Appellant\n\nB. D_ Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, C 6, 10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50."}}, {"text": "B. D_ Bal", "label": "LAWYER", "start_char": 9130, "end_char": 9139, "source": "ner", "metadata": {"in_sentence": "M. S. K_ Sastri and M. S. Narasimhan for the Appellant\n\nB. D_ Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, C 6, 10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50."}}, {"text": "R. B. Datar", "label": "LAWYER", "start_char": 9141, "end_char": 9152, "source": "ner", "metadata": {"in_sentence": "M. S. K_ Sastri and M. S. Narasimhan for the Appellant\n\nB. D_ Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, C 6, 10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50."}}, {"text": "Rajan Yashpal", "label": "LAWYER", "start_char": 9157, "end_char": 9170, "source": "ner", "metadata": {"in_sentence": "M. S. K_ Sastri and M. S. Narasimhan for the Appellant\n\nB. D_ Bal, R. B. Datar and Rajan Yashpal for the respondents 1, 5, C 6, 10, 11, 17, 19, 23, 25, 26, 27, 35, 36 and 50."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 9294, "end_char": 9302, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nBHAGWATI, J.\n\nThis appeal by special leave raises two questions relating to the interpretation of certain provisions of th_c Bombay Municipal Boroughs Act, 1925."}}, {"text": "Bombay Municipal Boroughs Act, 1925", "label": "STATUTE", "start_char": 9419, "end_char": 9454, "source": "regex", "metadata": {}}, {"text": "Dharwar", "label": "GPE", "start_char": 9705, "end_char": 9712, "source": "ner", "metadata": {"in_sentence": "The facts giving rise to the appeal are few and may be briefly stated as follows : D\n\nThe respondents are rate-payers liable to pay property tax in respect of their lands and buildins situate within the limits of the erstwhile Municipal Borough of Dharwar now converted into the Hubli Dharwar Municipal Corporation."}}, {"text": "Hubli Dharwar Municipal Corporation", "label": "ORG", "start_char": 9736, "end_char": 9771, "source": "ner", "metadata": {"in_sentence": "The facts giving rise to the appeal are few and may be briefly stated as follows : D\n\nThe respondents are rate-payers liable to pay property tax in respect of their lands and buildins situate within the limits of the erstwhile Municipal Borough of Dharwar now converted into the Hubli Dharwar Municipal Corporation."}}, {"text": "Municipal Borough of Dharwar", "label": "ORG", "start_char": 9778, "end_char": 9806, "source": "ner", "metadata": {"in_sentence": "The Municipal Borough of Dharwar (hereinafter referred to as the Municipal Borough) was at the material time governed by the provisions of the Bombay Muni- E pal Boroughs Act, 1925 (hereinafter referred to as the Act) ."}}, {"text": "Bombay Muni- E pal Boroughs Act, 1925", "label": "STATUTE", "start_char": 9917, "end_char": 9954, "source": "regex", "metadata": {}}, {"text": "!st May, 1951", "label": "DATE", "start_char": 10238, "end_char": 10251, "source": "ner", "metadata": {"in_sentence": "fhe Chief Officer of the Municipal Borough prepared an assessment list for the official year 1951-52 containing revised valuation and assessment of the lands and buildings situated within the limits of the Municipal Borough and published it on !"}}, {"text": "24th July, 1952", "label": "DATE", "start_char": 10586, "end_char": 10601, "source": "ner", "metadata": {"in_sentence": "The respondents and several other rate-payers filed their objections against the valuation and assessment F in the assessment list and consequent on the decisions on the objections, modifications were made in the assessment list and the assessment list so finalised was authenticated on 24th July, 1952 Sinee the authentication of the assessment list was made after the expiry of the official year, the respondents and other rate-payers took the view that the assessment list was void and inoperative and the Municioal Borough was not entitled to recover property tax at the revised rates G which were higher than '.he rates charged in the previous official years It seems, however, that from a few persoru;, whose names do not appear in the record,."}}, {"text": "30th November, 1952", "label": "DATE", "start_char": 11329, "end_char": 11348, "source": "ner", "metadata": {"in_sentence": "There was consequently an agitation amongst the rate-payers and a body called the Citizens Welfare Association championing the causes of the rate-payers address\n\ned a communication dated 30th November, 1952 to the Director of H Local Authorities requesting him to direct the Municipal Borough to refund the excess amount of property tax collected from the ratepayers, because according to them the levy and collection of property\n\nA tax at the revised rates was illegal in view of the fact that the assessment list was authenticated only on 24th July, 1952 beyond the expiration of the official year for which the property tax was sought to be levied."}}, {"text": "10th November, 1954", "label": "DATE", "start_char": 12104, "end_char": 12123, "source": "ner", "metadata": {"in_sentence": "The President of the Municipal B Borough thereaf, er issued a publ'c notice dated 10th November, 1954 calling upon the rate-payers to \"pay immediately all the tax still due from them aod extend their full cooperation to the Municipal Borough\"."}}, {"text": "Municipal C Borough", "label": "ORG", "start_char": 12529, "end_char": 12548, "source": "ner", "metadata": {"in_sentence": "Since the Municipal Borough was determined to recover the amount of proper'y tax from the rate-payers at the enhanced rates appearing in the assessment list, the respondents, acting for and on behalf of themselves and other rate-payers, filed a suit against the Municipal C Borough on 6th June, 1955."}}, {"text": "6th June, 1955", "label": "DATE", "start_char": 12552, "end_char": 12566, "source": "ner", "metadata": {"in_sentence": "Since the Municipal Borough was determined to recover the amount of proper'y tax from the rate-payers at the enhanced rates appearing in the assessment list, the respondents, acting for and on behalf of themselves and other rate-payers, filed a suit against the Municipal C Borough on 6th June, 1955."}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 12677, "end_char": 12684, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 13308, "end_char": 13315, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 13767, "end_char": 13774, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 80", "label": "PROVISION", "start_char": 15935, "end_char": 15940, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 81", "label": "PROVISION", "start_char": 16132, "end_char": 16137, "source": "regex", "metadata": {"statute": null}}, {"text": "section 82", "label": "PROVISION", "start_char": 17494, "end_char": 17504, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 110", "label": "PROVISION", "start_char": 17560, "end_char": 17568, "source": "regex", "metadata": {"statute": null}}, {"text": "sec. 82", "label": "PROVISION", "start_char": 17713, "end_char": 17720, "source": "regex", "metadata": {"statute": null}}, {"text": "section 82", "label": "PROVISION", "start_char": 17996, "end_char": 18006, "source": "regex", "metadata": {"statute": null}}, {"text": "section 81", "label": "PROVISION", "start_char": 18997, "end_char": 19007, "source": "regex", "metadata": {"statute": null}}, {"text": "section 110", "label": "PROVISION", "start_char": 19185, "end_char": 19196, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 84", "label": "PROVISION", "start_char": 19879, "end_char": 19884, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 80, 81 and 82", "label": "PROVISION", "start_char": 20507, "end_char": 20529, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay High Court", "label": "COURT", "start_char": 21940, "end_char": 21957, "source": "ner", "metadata": {"in_sentence": "This position would seem to be clear as a matter of plain interpretation and in any event there is a long line of decisions of the Bombay High Court commencing from Sholapur."}}, {"text": "Sholapur", "label": "GPE", "start_char": 21974, "end_char": 21982, "source": "ner", "metadata": {"in_sentence": "This position would seem to be clear as a matter of plain interpretation and in any event there is a long line of decisions of the Bombay High Court commencing from Sholapur."}}, {"text": "Section 84", "label": "PROVISION", "start_char": 23769, "end_char": 23779, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 25645, "end_char": 25650, "source": "regex", "metadata": {"statute": null}}, {"text": "section 78 to 81", "label": "PROVISION", "start_char": 26298, "end_char": 26314, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 26357, "end_char": 26362, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 26686, "end_char": 26691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 26923, "end_char": 26928, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 27240, "end_char": 27245, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 8", "label": "PROVISION", "start_char": 27330, "end_char": 27334, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 78 to 81", "label": "PROVISION", "start_char": 27728, "end_char": 27740, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 82", "label": "PROVISION", "start_char": 27767, "end_char": 27772, "source": "regex", "metadata": {"statute": null}}, {"text": "Bomoay High Court", "label": "COURT", "start_char": 29209, "end_char": 29226, "source": "ner", "metadata": {"in_sentence": "This vie\\V has been consistently taken by the Bomoay High Court in a scncs ot decisions over the years and it has also been followed by the Gujarat High Court."}}, {"text": "Gujarat High Court", "label": "COURT", "start_char": 29303, "end_char": 29321, "source": "ner", "metadata": {"in_sentence": "This vie\\V has been consistently taken by the Bomoay High Court in a scncs ot decisions over the years and it has also been followed by the Gujarat High Court."}}, {"text": "High Courts having jurisdiction over the territories in which the Act", "label": "STATUTE", "start_char": 29357, "end_char": 29426, "source": "regex", "metadata": {}}, {"text": "ss. 78 to 81", "label": "PROVISION", "start_char": 29953, "end_char": 29965, "source": "regex", "metadata": {"linked_statute_text": "High Courts having jurisdiction over the territories in which the Act", "statute": "High Courts having jurisdiction over the territories in which the Act"}}, {"text": "s. 84A", "label": "PROVISION", "start_char": 30020, "end_char": 30026, "source": "regex", "metadata": {"linked_statute_text": "High Courts having jurisdiction over the territories in which the Act", "statute": "High Courts having jurisdiction over the territories in which the Act"}}, {"text": "section 81", "label": "PROVISION", "start_char": 30386, "end_char": 30396, "source": "regex", "metadata": {"linked_statute_text": "High Courts having jurisdiction over the territories in which the Act", "statute": "High Courts having jurisdiction over the territories in which the Act"}}, {"text": "sections 78 to 81", "label": "PROVISION", "start_char": 30838, "end_char": 30855, "source": "regex", "metadata": {"statute": null}}, {"text": "section 84", "label": "PROVISION", "start_char": 30859, "end_char": 30869, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 32115, "end_char": 32122, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 32810, "end_char": 32817, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 206A", "label": "PROVISION", "start_char": 34258, "end_char": 34265, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_893_896_EN", "year": 1976, "text": "MOHAN SINGH MALHI v.\n\nSTATE OF PUNJAB\n\nMarch 25, 1976\n\n[A. N. RAY, C.J. AND JASWANT SINGH, J.]\n\nCotr1pulsory retirement after attaining the age of 55, with three 1no11ths' salc.ry in lieu of ndtice-Competerrcy of the State Gov.erntncnt to retire-Scope of Rule 5.32 (c) ( 1) of the Punjab Ciril Service Rales, Vol. ll.\n\nUnder Section 5.32(c) (i), a retiring pension is granted to a Government Servant, other than a Class IV Government servant, who is retired by the Appointing Authority on or after he attains the age of 55 years by giving him not less than three months' notice.\n\nThe appellant who was served with an order on September 2, 1967, retiring him from service 'vith effect from the date of communication to him of the order on payment of three months' salary and. allowances in lieu of notice required by rule 5.32(c)(i) of the Punjab Civil Service Rules Vol. 11 challenged the order 011 the ground that the State Government was. competent to retire him ohly with three months' notice but not with sala_ry and allowance5 in lieu of the notice under the rules.\n\nThe Writ Petition was acce:ited by a single\n\njudge and in Letters Patent Appeal by the State, the Division Bench referred it D to the Full Bench. The Full Bench by majority ans\\vered the question referred to it in the affirmative and in favour of the State.\n\nDismissing the appeal by special leave the Court, HELD : Rule 5.32 merely provides for a contingency in which a retiringi pension is to be granted to a Government servant. Even assuming that the rule by implication requires three months' notice to be given to a Government servant of the description referred to therein before retiring him from service the requirement of the rule cannot be said to be violated if instead of three E months' notice, payment of three months salary ahd allowance is made. The object of the notice being to give sufficient time to the Govemment servant whom it is intended to retire from service to find employment\" elsewhere and to prevent hin1 from his being suddenly left in lurch without any rri_eans of livelihood, no prejudice can be said to be caused to the Government servant if in lieu of three months' notice. he is given three months salary and allowances. In fact he is put in a more advantageou9 pos.:.tj_on by being paid three months' salary and allowances instead of the notice for that period as he is thereby relieved of the obligation to spend his time in the office attending to F his duty and gets all the time to himself which he can utilize in finding an alternative job or se!ting his affairs.\n\nTherefore if the appointing authO:rity wahts to exercise its right to retire a government servant who has attained the age of 55 years, there is nothing to debar it from validly doinQJ so by payment to him of a sum equivalent to the amount of bis pay and allowances for the period of notice. (895 F-H, 896 A-BJ\n\nCIVIL APPELLATE JURISDICTION : 1970.\n\nCivil Appeal No. 1601 of G\n\nAppeal from the Judgment and Order dated the 20-2-70 of the Punjab and Haryana High Court in LP.A. No. 552 of 1968.\n\nV. C. Mahajan and S. S. Khanduja, for the Appellant.\n\n0. P. Sharma, for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-The question that arises for decision in this appeal by certificate granted by the High Court of Punjab and\n\n7-725SCl/76\n\nA Haryana against its Judgment and order dated February 20, l 970 in L.P.A. No. 552 of 1968 is whether under Rule 5.32(c) of the Punjab Civil Service Rules, Vol. II, the Government can retire an employee\n\non or after he attains the age of 55 years by giving him three months' °' salary and allowances in lieu of three months' notice.\n\nThe facts giving rise to the appeal lie in a hart compass and may be stated thus;\n\nBefore the partition of the country, the appellant joined the Veterinary Department of the Punjab Government as an Assistant Surgeon on December 1, 1933.\n\nIri course of time, he was appointed as Director of Animal Husbandry and Warden of Fisheries which post he held from March 16, 1957 to August 14, 1959, when Shri PritaD C Singh Brar was appointed Director in his place.\n\nOn Shri Pritam\n\nSingh Brar's attaining the age of superannuation, the appellant was again appointed as Director, Animal Husbandry, on regular basis on August 4, 1965.\n\nOn September 2, 1967, the appellant was served 1 with the following order :-\n\n\"The Governor of Punjab is pleased to retire Shri Mohan Singh Malhi, P.V.S.I. Director, Animal Husbandry, Punjab, Chandigarh with effect from the date of communication to him of this order on payment of three mqnths salary and allowances in lieu of notice required by rule 5.32(c) of the Punjab Civil Service Rules, Volume II.\n\n\"2. Shri Harbhajan Singh Saini, Technical Expeyt Poultry is hereby directed to relieve Shri Moha:i Singh Malhi.\n\nChandigarh,\n\nDated the 2nd Sept. 67\n\nS.S. GREWAL Secretary to Government Punjab\n\nAnimal Husbandry Department\n\n\"No. 3840/ AH(I)-67 /6213 Chandigarh <lated the 2nd Sept. 196'1.\n\nA copy is forwarded to Shri Mohan Singh Malhi, P.V.S.I.\"\n\nAgainst this order, the appellant made serveral representations which did not evoke a fayourable response.\n\nEventually, he approached the High Court on March 18, 1968, by means of a petition under Articles 226 and 2n of the Constitution of India foe issue of an appropriate writ quasl1ing the aforesaid order dated September 2, 1967, and declaring that he still continued to be in service. A Single Judge of the High Court allowed the appellant's petition by judgment and order dated April 22, 1968, and quashed the aforesaid order retiring the appellant from service.\n\nAggrieved by the judgment and order of the Single Judge, the State of Punjab preferred a Letters Patent Appeal.\n\nThe Bench hearing the appeal referred the above mentioned question for decision to a Full Bench of the Court.\n\nl )\n\nMOHAN SINGH v. PUNJAB (Jaswanl Singh, J.) 895\n\nDecember 18, 1969, the Full Bench by majority answered the question referred to it in the affirmative.\n\nThereupon the appellant applied for and obtained a certificate of fitness to appeal to this Court.\n\nThis is how the appeal is before us.\n\nAppearing in support of the appeal, counsel for the appellant has vehemently contended that the aforesaid majority decision of the Full Bench of the High Court is erroneous as there is no provision in the Pnnjab Gvil Service Rules like the one contained in Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, authorising the State Government to give three months' salary in 1ieu of three months' notice.\n\nFor a proper decision of the question, it is necessary to refer to Rule 5.32(c) of the Punjab Civil Service Rules, Vol. II which runs C as under:-\n\n\"5.32\n\n(c) (Vide No. 1243-SFRI-64/1143 dated 4.2.1964) A retiring pension is also granted to a Government servant other than a class IV Government servant;\n\n(i) Who is retired by the Appointing Authority on or after he attains the age of 55 years, by giving him not less than 3 months notice,\n\n(ii) Who retires on or after attaining the age of 55 years by giving not less than three months notice of his intention to retire to the appointing authority.\n\nProvided that where the notice is given before the age of 55 years is attained, it shall be given effect to from a date not earlier than the date on which the 55 years is attained.\n\nNorn :-Appointing authority retains an absolute right to retire any Government servant except a Class IV servant F on or after he has attained the age of 55 years without assigning any reason. A corresponding right i> also available to such a Government servant to retir:; on or after he has attained the age of 55 years.\"\n\nIt will be noticed that the Rule as reproduced above merely pr0vides for a contingency in which a retiring pension is to be granted t0 a Government servant. Assuming that the rule by implicatiou requires three months' notice to be given to a Government servant of the description referred to therein before retiring him from ,, ervice, we are unable to understand how that requirement can be said to be violated if: instead of three months' notice, payment of three months salary and allowances is made to him.\n\nThe object of the notice, as well known, is to give sufficient time to the Government nervant whom it is intended to retire from service to find employment elsewhere and to orevent his being suddenly left in lurch without any means of livelihood. If that be the object of the notice, no\n\nprejudice can be said to be caused to the Government servant if in lieu of three months' notice, he is given three months salary and\n\ncilowances. In fact, he is put in a more advantageous position by ' f being paid three months' salary and allowances instead of notice for ti1at period as he is thereby relieved of the obligation to spend his time in the office attending to his duty and gets all the time to himself which he can utilize in finding an alternative job or settling his affairs.\n\nThus we are of opinion that if the appointing authority wants to exercise its right to retire a Government servant other than a Class IV Government servant who has attained the age of 55 years, thre is nothing to debar it from validly doing so by by payment to him of a sum equivalent to the amount of his pay and allowances for the reriod of the notice.\n\nFor the foregoing reasons, we are unable to interfere with the majority view of the Full Bench of the High Court. In the result, the appeal fails and is dismissed but in the circumstances of the case without any order as to costs. i-\n\nS.R.\n\nAppeal dismissed.", "total_entities": 26, "entities": [{"text": "MOHAN SINGH MALHI", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "Moha:i Singh Malhi", "offset_not_found": false}}, {"text": "STATE OF PUNJAB", "label": "RESPONDENT", "start_char": 22, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "STATE OF PUNJAB", "offset_not_found": false}}, {"text": "March 25, 1976", "label": "DATE", "start_char": 39, "end_char": 53, "source": "ner", "metadata": {"in_sentence": "MOHAN SINGH MALHI v.\n\nSTATE OF PUNJAB\n\nMarch 25, 1976\n\n[A. N. RAY, C.J. AND JASWANT SINGH, J.]\n\nCotr1pulsory retirement after attaining the age of 55, with three 1no11ths' salc.ry in lieu of ndtice-Competerrcy of the State Gov.erntncnt to retire-Scope of Rule 5.32 (c) ( 1) of the Punjab Ciril Service Rales, Vol."}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 56, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "Section 5", "label": "PROVISION", "start_char": 325, "end_char": 334, "source": "regex", "metadata": {"statute": null}}, {"text": "September 2, 1967", "label": "DATE", "start_char": 626, "end_char": 643, "source": "ner", "metadata": {"in_sentence": "The appellant who was served with an order on September 2, 1967, retiring him from service 'vith effect from the date of communication to him of the order on payment of three months' salary and."}}, {"text": "V. C. Mahajan", "label": "LAWYER", "start_char": 3074, "end_char": 3087, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and S. S. Khanduja, for the Appellant."}}, {"text": "S. S. Khanduja", "label": "LAWYER", "start_char": 3092, "end_char": 3106, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and S. S. Khanduja, for the Appellant."}}, {"text": "P. Sharma", "label": "LAWYER", "start_char": 3131, "end_char": 3140, "source": "ner", "metadata": {"in_sentence": "P. Sharma, for the Respondent."}}, {"text": "December 1, 1933", "label": "DATE", "start_char": 3901, "end_char": 3917, "source": "ner", "metadata": {"in_sentence": "The facts giving rise to the appeal lie in a hart compass and may be stated thus;\n\nBefore the partition of the country, the appellant joined the Veterinary Department of the Punjab Government as an Assistant Surgeon on December 1, 1933."}}, {"text": "March 16, 1957", "label": "DATE", "start_char": 4037, "end_char": 4051, "source": "ner", "metadata": {"in_sentence": "Iri course of time, he was appointed as Director of Animal Husbandry and Warden of Fisheries which post he held from March 16, 1957 to August 14, 1959, when Shri PritaD C Singh Brar was appointed Director in his place."}}, {"text": "August 14, 1959", "label": "DATE", "start_char": 4055, "end_char": 4070, "source": "ner", "metadata": {"in_sentence": "Iri course of time, he was appointed as Director of Animal Husbandry and Warden of Fisheries which post he held from March 16, 1957 to August 14, 1959, when Shri PritaD C Singh Brar was appointed Director in his place."}}, {"text": "PritaD C Singh Brar", "label": "OTHER_PERSON", "start_char": 4082, "end_char": 4101, "source": "ner", "metadata": {"in_sentence": "Iri course of time, he was appointed as Director of Animal Husbandry and Warden of Fisheries which post he held from March 16, 1957 to August 14, 1959, when Shri PritaD C Singh Brar was appointed Director in his place."}}, {"text": "Pritam\n\nSingh Brar", "label": "OTHER_PERSON", "start_char": 4148, "end_char": 4166, "source": "ner", "metadata": {"in_sentence": "On Shri Pritam\n\nSingh Brar's attaining the age of superannuation, the appellant was again appointed as Director, Animal Husbandry, on regular basis on August 4, 1965."}}, {"text": "August 4, 1965", "label": "DATE", "start_char": 4291, "end_char": 4305, "source": "ner", "metadata": {"in_sentence": "On Shri Pritam\n\nSingh Brar's attaining the age of superannuation, the appellant was again appointed as Director, Animal Husbandry, on regular basis on August 4, 1965."}}, {"text": "Governor of Punjab", "label": "RESPONDENT", "start_char": 4391, "end_char": 4409, "source": "ner", "metadata": {"in_sentence": "On September 2, 1967, the appellant was served 1 with the following order :-\n\n\"The Governor of Punjab is pleased to retire Shri Mohan Singh Malhi, P.V.S.I. Director, Animal Husbandry, Punjab, Chandigarh with effect from the date of communication to him of this order on payment of three mqnths salary and allowances in lieu of notice required by rule 5.32(c) of the Punjab Civil Service Rules, Volume II."}}, {"text": "Mohan Singh Malhi", "label": "PETITIONER", "start_char": 4436, "end_char": 4453, "source": "ner", "metadata": {"in_sentence": "On September 2, 1967, the appellant was served 1 with the following order :-\n\n\"The Governor of Punjab is pleased to retire Shri Mohan Singh Malhi, P.V.S.I. Director, Animal Husbandry, Punjab, Chandigarh with effect from the date of communication to him of this order on payment of three mqnths salary and allowances in lieu of notice required by rule 5.32(c) of the Punjab Civil Service Rules, Volume II.", "canonical_name": "Moha:i Singh Malhi"}}, {"text": "Harbhajan Singh Saini", "label": "RESPONDENT", "start_char": 4723, "end_char": 4744, "source": "ner", "metadata": {"in_sentence": "Shri Harbhajan Singh Saini, Technical Expeyt Poultry is hereby directed to relieve Shri Moha:i Singh Malhi."}}, {"text": "Moha:i Singh Malhi", "label": "PETITIONER", "start_char": 4806, "end_char": 4824, "source": "ner", "metadata": {"in_sentence": "Shri Harbhajan Singh Saini, Technical Expeyt Poultry is hereby directed to relieve Shri Moha:i Singh Malhi.", "canonical_name": "Moha:i Singh Malhi"}}, {"text": "S.S. GREWAL", "label": "OTHER_PERSON", "start_char": 4864, "end_char": 4875, "source": "ner", "metadata": {"in_sentence": "Chandigarh,\n\nDated the 2nd Sept. 67\n\nS.S. GREWAL Secretary to Government Punjab\n\nAnimal Husbandry Department\n\n\"No."}}, {"text": "Mohan Singh Malhi", "label": "LAWYER", "start_char": 5031, "end_char": 5048, "source": "ner", "metadata": {"in_sentence": "A copy is forwarded to Shri Mohan Singh Malhi, P.V.S.I.\"\n\nAgainst this order, the appellant made serveral representations which did not evoke a fayourable response.", "canonical_name": "Moha:i Singh Malhi"}}, {"text": "Articles 226 and 2", "label": "PROVISION", "start_char": 5258, "end_char": 5276, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 5285, "end_char": 5306, "source": "regex", "metadata": {}}, {"text": "State of Punjab", "label": "ORG", "start_char": 5692, "end_char": 5707, "source": "ner", "metadata": {"in_sentence": "Aggrieved by the judgment and order of the Single Judge, the State of Punjab preferred a Letters Patent Appeal."}}, {"text": "4.2.1964", "label": "DATE", "start_char": 6765, "end_char": 6773, "source": "ner", "metadata": {"in_sentence": "1243-SFRI-64/1143 dated 4.2.1964) A retiring pension is also granted to a Government servant other than a class IV Government servant;\n\n(i) Who is retired by the Appointing Authority on or after he attains the age of 55 years, by giving him not less than 3 months notice,\n\n(ii) Who retires on or after attaining the age of 55 years by giving not less than three months notice of his intention to retire to the appointing authority."}}, {"text": "Norn", "label": "OTHER_PERSON", "start_char": 7356, "end_char": 7360, "source": "ner", "metadata": {"in_sentence": "Norn :-Appointing authority retains an absolute right to retire any Government servant except a Class IV servant F on or after he has attained the age of 55 years without assigning any reason."}}]}
{"document_id": "1976_3_897_904_EN", "year": 1976, "text": "' \\'\n\nNATIONAL TRANSPORT COMPANY v.\n\nSTATE OF BIHAR\n\nMarch 25, 1976\n\n[H. R. KHANNA A..ND P. K. GOSWAMI, JJ.]\n\nBihar Taxation on Passengers and Goods (Carried by Pf.4Plic Service Motor Vehicles} Act, 1961, .s. 2(d)-Owner, wha is-'ln-charge' of a vehicle, scope of\n\nUnder s. 3 ( 1) and (2) of the Bihar Taxation on Passenaers and Goods (Carried by Public Services lotor Vehicles) Act, 1961, every owner shall pay to the State Government a tax on all passengers and goods carried by a public motor vehicle. Under s. 2(d), 'owner' means not only the owner of the specified type of vehicle but also includes, inter alia, \"any perS9!1 for the time being in-charge of such vehicle\". Under s. 4(1) every owner liable to pay tax shall apply for registration, and under s. 6 every owner shall furnish the prescribed return to the prescribed authority. Section 18 provides _for penalties for failure to apply for registration or to sumit the return.\n\nThe assessee was the sole transporting company of the cement of a manufacturing company.\n\nSince it did not have its own fleet of trucks, Jt used to engage trucks for use in its transport work. It was provi9ing petrol and oil for the running of the trucks in the transport work although tbe prices paid by the assessee were later on adjusted in the hiring charges. The assesse was obtaining the receipts of delivery of the goods to the various stockists indicating the quantities of cement received through a particular vehicle.\n\nOn delivery to the appellant of the buyers' receipt by the truck owner or his representative, the bills of hire charges of the truck owner were paid by the appellant as per the agreement between the appellant and the truck owner. The assessee was maintaining a complete record of the trucks used by it for the transport work, of the \\barges realisable and realised from the stockists on account of freight payable by 1hen1, and of the charges actually paid to the .truck owners. The assessee was not registered under s. 4.\n\nAfter a surprise check, the total taxable amount of the assess:ee was determined and the tax and a pehalty were imposed on the assessee. The assessee's appeal, revision to the tribunal, and reference to the High Court, were all decided against the assessee.\n\nDismissing the appeal to this Court,\n\nHELD : The appellant was in-charge of the trucks for the purpOSe of its F business 'during the entire course of transportation of the cement frcim the factory to the various stockists and, as such, came within the definition of owner under s. 2(d). [904 D.E]\n\n( 1) Whether a certain person is in-charge of the vehicle for the time being depends on the particular facts of each case.\n\nBeihg 'in-charge' of tho vehiclt• in the context of the vruvisions of the Act, does not relate to mere physical charge or control in the process of movement of the vehicle from one l)lace to another but 'to charge or control' for fulfilment of the le2al obligation under the Act for payment of taxes for the carriage of goods or passengers.\n\nThe words \"for the time being in-charge of such vehicle\" have to be comprehended in the context of the provisions of the taxing statute and these words have nexus with the actual realisation and approprialion of the freight for the goods carried by the vehicle.\n\nIn a given case, the person, who is for the time being in-char!!\\' of the loaded truck and who or on whose behalf some one like a driver or conductor received the freight or fare. is also a\n\nowner within the meanin!!: of the definitioh in s. 2(d). [9Q3 C.D; 904 C-D]\n\n(2) On the facts of the present case the appellant took full responsibility for the carriage of the goods from the factory to various destinations. Tue freigbt had been realised by the appellant from the stockists and the truck\n\nowner received only 'hire cb.arges'. There is nothing to shO\\\\' nor is t4ere any averment by the appellant that those charges included the taxes under the Act.\n\nThe matter might have been different if the truck owners had been given the tax collections in addition to the hire charges.\n\nFurther tlie absence of any provision for tax payment by the truck owners in the agreement militates against. the contenton that it is only the truck owners thrtt are liable. [90'2\n\nB-C, 0•.903 BJ\n\n(3) The case of Jagir Singh v. State oi Bihar [19·761 2 SCR 809 was an application uhder Art. 32 9f the C.Onstitution and was coneerned with booking agents and forwarding agents whew were sought to he made liable under the Act at the instance of the truck owners but the truck owners were held to be Jiab•e. l.Tnlike t'hat case, the liability to pay taxes was_ entirely upon the appeJlants ih the present case as the truck owners were entitled only to hire charges. [903 F-G; 904 A]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1462 of 1971.\n\nAppeal by special leave from the Judgmt>M and Order dated 16th April 1971 of the Patna High Court in Tax Case No. 76/68.\n\nA. K. Sen, S. T. Desai, Somen Bose, D. N. Mukheriee and K. N.\n\nJain, for the appellant.\n\nV. S. Desai and B. P. Singh for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nThis appeal , by special leave is directed against the judgment of the Patna High Court in a reference under section 2 lB ( 1) of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (briefly the Act) as amended.\n\nThe facts as appearing from the statement of case annexing the various orders of the authorities may briefly be stated : The appellant, M/s. National Transport Company, is a tn!nsport undertaking without its transport.\n\nThe appellant (hereinafter to be described as the assessee) was the sole transporter by road of the cement manufactured by the Associated Cement Company at Sindri\n\n(briefly the company) from Sindri to different stockists at various places i'a Bihar and West Bengal. In order to have some sort of uniformity in price at different places the manufacturing company used to iix the transport charges according to a schedule.\n\nThe assessee's contract with the manufacturing company commenced some time on October 12, 1963. Since the assessee did not have its own fleet of trucks, it used to engage thirtysix trucks covered by public carrier permits belongi'ag to various persons at different times for transporting the cement.\n\nThe assessee was not registered under section 4 of the Act.\n\nOn September 3, 1966, there was a surprise inspection of the 9ffice of the assessee and certain books of acconnts containing accounts of transport charges realised by the assessee for transporting of ceme\"1t from the Sindri factory to the stockists 'in Bihar and West Bengal were seized. The assessce also produced some books of accounts during the hearing before the Officer. The assessee maintained his accounts ledger-wise in respect of the transport charges realised and realisable from different stockists of Bihar and West Be!,1gal for transport of cement by it from the Sindri factory to their godowns.\n\nThere were two ledgers. One was party-wise showing charges realised or realisable from the stockists and the other truck-wise showing hire charges\n\n' f\n\nl /\n\nNATIONAL TRA\"ISPORT co. v. BIHAR (Goswami, J.) 899\n\npaid to various trucks.\n\nThe assessee also produced a list of trucks A showing the names of the truck owners with their respective places of residence. Out of thirtysix trucks, twentyfour were registered in Bilrar and twelve in West Bengal.\n\nAgreements with the truck owners were also produced by the assessee.\n\nThe Bills from the petrel supplying company which were paid by the assessee were also filed showing the total amount and the lruclc-wise amount. The ledger party-wise showed rates charged from the stockists.\n\nThe ledger truck-wise showed B hire charges and also deductions on account of petrol, diesel and other lubricants.and also for loss in the way as per agreement.\n\nCM the basis of the statement furnished by the asscssee as corroborated by the books of accounts maintained by it the Assessing Officer determined the total taxable amount and imposed , a tax of Rs. 1,41,618.37 by his order of November 1, 1966.\n\nA, penalty of C Rs. 5000/- was also imposed under section 7(5) of the Act.\n\nThe assessee appealed to the Additional Deputy Commissioner of Commercial Taxes without success. Thereafter the assessee preferred an application in revision before the Commercial Taxes Tribunal, Bihar, which also met with the same fate.\n\nThe Tribunal, however, on the application of the assessee under section 218(1) of the Act referred the following question of law to the High Court :\n\n\"Whether in the facts and circumstances of the case t.he Tribunal has rightly held the applicant to be the 'owner' of the vehicles within the meaning of section 2(d) of t.he Act and whether the imposition of tax and levy of penalty was legal and justified\".\n\nThe High Court noted the facts found by the Tribunal as follows :\n\n(a) The assessee was the sole transporting company of the cement of the manufacturing company,\n\n(b) it had engaged certain trucks for use in his (sic) transport work,\n\n(c) it was providing petrol and oil for the running oft.he trucks in the transport work, although the prices paid by the assessee were later on adjusted in the hiring charges,\n\n(d) it was obtaining receipts for delivery of the goods to the stockists,\n\n(e) it was maintaining a complete record of the trucks used by it for the transport work,\n\n(f) it was keeping a complete record of the charges realisable and realised from the stockists on account of freight payable by them,\n\n(g) it was keeping a complete record of the charges actually paid to the real owners of the trucks, and\n\n(h) the receipts given by the stockists indicated that they had received from the assessee, certain quantities of cement by a particular vehicle\".\n\nFrom the above eight factors the Tribunal came to the conclusion that the assessee was in-charge of the trucks for the time being within the meaning of section 2 ( d) of the Act. The High Court agreed with the Tribunal in the following words :-\n\n''In any case, even if the conclusion that the assessee was in-charge of the trucks, for the time being, be a conclusion in law, I do not think that any error in law has been committed by the Tribunal, in arriving at its conclusion against the contentious raised on behalf of the assessee.\n\nRelevant facts have been found and a relevant finding has been given on them, before saddling the assessee with liability\".\n\nThe High Court thereupon upheld the Tribunal's decision against the assessee.\n\nThe only question that is canvassed by Mr. A. K. Sen on behalf of the appellant is that, on th.e various facts found by the Tribunal, it has D erred in law in holding that the assessee is an 'owner' within the mean- ' ing of section 2(d) of the Act. We may, therefore, immediately turn to the definition of owner as given under section 2(d):\n\n2 ( d) \" 'owner' means the owner of a public service motor vehicle in respect of which a permit has been granted by a Regional or State Transport Authority under the provisions of the MotorVehicles Act. 1939 (IV of 1939) and includes the holder of a permit under the said Act in respect . of a public service motor vehicle or any person for the time being in charge of such vehicle or responsible for the management of the place of business of such owner\".\n\nIt is olear that the above definition is an inclusive definition. Owner means not only the owner of the specified type of vehicle but also includes the permit holder in respect of such a vehicle as also any person for the time being in charge of such vehicle or any . person responsible for the management of the place of business of such owner.\n\nThe definition has fairly widened the meaning of \"owner\".\n\nWe are only concerned in this appeal with one category included in the definition, namely, that an owner is a person for the time being in charge of a public service motor vehicle. There is no dispute that the trucks in question are public service motor vehicles. We are only required to consider whether the assessee is u 'pemm \"for the time being in-charge of such vehicle\".\n\nAs the preamble shows the Act is to provide for the levy of tax on passengers and goods carried by public service motor vehicles. The taxing event is, thus, the carriage of goods and passengers by public service motor vehicles.\n\nBy section 2(a) 'business' means the business of the owner for the purpose of this Act.\n\nl /\n\nSection 3 is the charging section and may be read :\n\n3 (1) \"On and from the date on which this Act is deemed to have come into force nuder sub-section ( 3) of section 1, there shall be levied and paid to the State Government a tax on all passengers and goods carried by a public service motor vehicle; such tax shall be levied and paid at the rate of twelve and a half per centum of the fares and freights payable to the owner of snch vehicle;\n\n* • * •\n\n(2) Every owner shall, in the manner prescribed in section 9, pay to the State Government, the amount of tax due under this section.\n\n(3) Every passenger carried by a public service motor vehicle and every person whose goods are carried by su.ch vehicle shall be liable to pay to the owner the amount of tax payable under this section and every owner shall recover sucli tax from such passenger or person, as the case may be.\" D • • • Under section 4(1) every owner liable to pay tax shall apply for his registration within such period and in such manner as may be prescribed. Under sub-section (2) of section 4; if the application is in order, the prescribed , authority shall grant a certificate of registration in the_prescribed form.\n\nY Under section 6 every owner shall furnish to the prescribed authority such returns, within such period, as may be prescribed. There is a provision under this section for imposition of penalty on failure to submit a return without any reasonable cause.\n\nSection 18 is the penal section for various offences under the Act F including failure to apply for registration or to submit return 'or for contravention of any other provision of the Act of the Rules and the offender is punishable with fine which may extend to Rs. 1000/-, and when the offence is a continning one, with a daily fine not exceeding fifty rupees during the period of the continuance of the offence.\n\nBy section 3 (h) of the Act, a 'public service motor vehicle' means G any motor vehicle used or adopted to be used for the carriage of passengers and goods for hire or reward and includes a motor cab, a stage carriage, a contract carriage or a public carrier.\n\nFor the purpose of tax under the Act not every public service motor vehicle but only such a vehicle carrying goods and passengers is exigible to tax for the carriage of those goods and passengers under the Act.\n\nH The tax again is a percentage of the fares or freights realised. The fares and freights have to be realised as a fact. Such a vehicle carrying goods and passengers driven by employees of the owner of the\n\nvehicle would ordinarily be in-charge of that owner or of tho permitholder wherever it may ply.\n\nThe physical presence of the owner or the proprietor or of the permit holder in the running vehicle is not ' I essential. Even if the driver or the conductor realises ti1~ freight it is done on behalf of the owner of the vehicle or of the perm!t holder and the former 1s accountable to the latter. Suppose the conductor misappropriates _the _collection en route, that will not absolve the permit holder from hab1hty to pay the tax actually realised for the carriage of the goods or the passengers.\n\nIn view of the terms of the agreement, on which great reliance has been placed b) Mr Sen, it can be safely assumed that the appellant took full responsibility for the carriage of the goods from the Sindri factory to various destinations. This is manifest even in absence of prodnction by the appellant of agreements, if any, between it and the company or the stockists.\n\nCement bags will not be loaded on any and every vehicle that reports at the factory bnt only on those vehicles -l whose registration numbers must have been communicated to the 1 company or which were taken there by the appellant's representative who has to be present at the time of loading the trucks with cement as will appear from clause (I) of the agreement. Clause (I) reads \"Cement will be loaded into your lorry at the Sindri Works through us\".\n\nThe Sindri factory, -therefore, entrusted the carriage of their cement bags to the appellant for delivery to various stockists who again in turn, at destinations, gave buyer's receipts as per clause (3) of the agreement.\n\nClause (3) States : \"You will obtain proper receipts for such deliveries from the consignees on the challans handed over to you and bring back all the documents including the challan duly signed by the consignees leaving one copy of the challan with the con-\n\n'\"°I signees\".\n\nOn delivery to the appellant.of the buyer's receipt by the truck owner or his representative, \"the bills of hire charges\" of the truck owner are paid with three weeks thereafter at the rates \"as per our schedule\" F agreed between the appellant and the truck owners\". Clause ( 12) of the agreement says :\n\n\"Your bills of hire charges as per our schedule will be prepared every fortnight and will be paid within 3 weeks thereafter.\"\n\nThe truck owners. in this case, received as per agreement, only \"hire charges\" and there is nothing to show nor is there any averment by the appellant that those charges incltjded taxes under the Act although freight had been admittedly realised by the appellant from the stockists.\n\nIn the above background of facts and circumstances, there is no escape from the conclusion that the appellant was in charge of the H trucks for the purpose of the 'business' of the appellan~ during the entire course of transportation of the cement bags from the Sindri factory to the various stockists and as such comes within the third clause of the definition under section 3(d) of the Act.\n\nThe fact that under the terms of the agreement some incidental arrangement involving contingent financial implications in respect of carriage of the goods had been entered upon does not entitle the appellant to be relieved of the \"charge\" of the loaded truck for the purpose of tax nnder the Act for the carriage of the goods. The matter wonld have been different if the truck owners had been given the tax collections in addition to the hire charges, but absence of any provision for tax payment by the truck owners in the agreement militates against the contention that in this case the truck owners are liable for the payment of tax under the Act for the carriage of the cement bags.\n\nThe owner of the truck under a public carrier permit or a public carrier permit holder is undoubtedly an 'owner' under section 2(d)\n\nof the Act. But in a given case, the person who is for the time being in-charge of the loaded truck and who or on whose behalf some one C received the freight or fare is also an 'owner' within the third clause of the definition under section 2(d) of the Act.\n\nThe significant words \"for the time being in charge of such vehicle\" have to be comprehended in the context of the provisions of the taxing statute and these words have nexus with the actual realisation and appropriation of the freight for the goods carried by the vehicle. The I> meaning given to the words \"in-charge of vehicle\" in connection with traffic cases in criminal prosecution, as has been referred to by Mr. Sen citing two English cases, is of no avail to the appellant in_this case.\n\nMr. Sen forcefully submits that the present case is squarely covered by a decision of this Court in faflir Sinflh & Ors. etc. v. State nf Bilwr and A nr. (') This was a case where the same Act with some identical Acts from other States came up for consideration. It is submitted by E Mr. Sen that the truck owners lost in that decision and in this appeal also, therefore, they cannot escape from their legal liabiHty by shifting it to the appellant.\n\nWe must bear in mind that those applications were under article 32 of the Constitution while the present matter comes to us out of a reference in the fifth tier of litigation after the matter had been gone F into in great detail taking note of various facets of the rival pleas by the respective authorities and lastly by the High Court.\n\nIn Jagir Singh's case (supra) this Court was concerned merely with Booking Agents and Forwarding Agents who were sought to be made liable nnder the Act at the instance of the permit holders of the public service ''chicles who did not own their liability for payment of tax under the Act. This Court observed in that case as follows :- G \"If the permit holder lets out the vehicle to any person on hire it is a matter of internal arrangement between the owner who is the permit holder and the person who is allowed by the permit holder to hire the vehicle to collect tax in order to enable the owner to discharge the liability. If the owner does not make adequate provision in that behalf the owner cannot escape liability by pleading that the hirer of the vehicle is liable to pay tax and the owner is not liable\".\n\n(!) [1976] 2 S.C.R. 809\n\nFrom the terms of the agreement in the present case, it is clear that the liability to pay taxes was entirely upon the appellant as the owners of the trucks were only entitled to \"hire charges\".\n\nLegal liability for payment of tax under the Act is well known to the appellant carrying on transport business. The appellant has taken charge of the vehicles for the purpose of the collection of tax for the carriage of the goods. The appellant has actually collected the freight from the stockists on delivery of cement bags.\n\nThe appellant has only paid to the truck owners \"the hire charges\" as per its own schedule of rates without ani mention of tax.\n\nThese facts clearly distinguish the present case from what apears to have been pleaded in the writ application in lagir Singh's case (supra) and he decision is of no aid to the appellant.\n\nBeing \"in charge\" of the vehicle in the context of the provisions of the Act does fiot relate to mere physical charge or control in the process of movement of the vehicle from one place to another but to '+ charge or control for fulfilment of the legal obligation under the Act for payment of taxes for the carriage of goods or passengers. Whether a certain person is in charge of the vehicle for the time being depends always on the particular facts of each case and the answer cannot be put in the strait-jacket of a formula.\n\nOn the facts of the. present case we are clearly of opinion that the appellant comes within the meaning of the third clause of the definition under section 2(d) of the Act.\n\nWe should observe that once the tax is realised for a particular transaction from one category of owner as defined, no further tax can be collected for the same carriage from any other person even thongh that person also may come within the definition of \"owner\" under the Act.\n\nThe Tribunal was, therefore, justified in holding the appellant as \"owner\" for the purpose of the Act.· The High Court was right in not interfering with the conclusion of the Tribunal and in answering the question against the assessee.\n\nIn the result the appeal is dismissed but we make no order as to costs.\n\nV.P.S, .,4ppeal dismissed.", "total_entities": 59, "entities": [{"text": "NATIONAL TRANSPORT COMPANY", "label": "PETITIONER", "start_char": 6, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "NATIONAL TRANSPORT COMPANY", "offset_not_found": false}}, {"text": "STATE OF BIHAR", "label": "RESPONDENT", "start_char": 37, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "STATE OF BIHAR", "offset_not_found": false}}, {"text": "H. R. KHANNA A..ND P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 70, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 206, "end_char": 213, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 3", "label": "PROVISION", "start_char": 270, "end_char": 274, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 510, "end_char": 517, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(1)", "label": "PROVISION", "start_char": 682, "end_char": 689, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6", "label": "PROVISION", "start_char": 760, "end_char": 764, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 842, "end_char": 852, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 1986, "end_char": 1990, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 2530, "end_char": 2537, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 2(d)", "label": "PROVISION", "start_char": 3518, "end_char": 3525, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 32", "label": "PROVISION", "start_char": 4350, "end_char": 4357, "source": "regex", "metadata": {"statute": null}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 4930, "end_char": 4939, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai, Somen Bose, D. N. Mukheriee and K. N.\n\nJain, for the appellant.", "canonical_name": "A. K. Sen"}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4941, "end_char": 4952, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai, Somen Bose, D. N. Mukheriee and K. N.\n\nJain, for the appellant."}}, {"text": "Somen Bose", "label": "LAWYER", "start_char": 4954, "end_char": 4964, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai, Somen Bose, D. N. Mukheriee and K. N.\n\nJain, for the appellant."}}, {"text": "D. N. Mukheriee", "label": "LAWYER", "start_char": 4966, "end_char": 4981, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai, Somen Bose, D. N. Mukheriee and K. N.\n\nJain, for the appellant."}}, {"text": "K. N.\n\nJain", "label": "LAWYER", "start_char": 4986, "end_char": 4997, "source": "ner", "metadata": {"in_sentence": "A. K. Sen, S. T. Desai, Somen Bose, D. N. Mukheriee and K. N.\n\nJain, for the appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 5019, "end_char": 5030, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and B. P. Singh for the Respondent."}}, {"text": "B. P. Singh", "label": "LAWYER", "start_char": 5035, "end_char": 5046, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and B. P. Singh for the Respondent."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 5112, "end_char": 5119, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nThis appeal , by special leave is directed against the judgment of the Patna High Court in a reference under section 2 lB ( 1) of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (briefly the Act) as amended."}}, {"text": "Patna High Court", "label": "COURT", "start_char": 5196, "end_char": 5212, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J.\n\nThis appeal , by special leave is directed against the judgment of the Patna High Court in a reference under section 2 lB ( 1) of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (briefly the Act) as amended."}}, {"text": "section 2", "label": "PROVISION", "start_char": 5234, "end_char": 5243, "source": "regex", "metadata": {"statute": null}}, {"text": "National Transport Company", "label": "PETITIONER", "start_char": 5523, "end_char": 5549, "source": "ner", "metadata": {"in_sentence": "The facts as appearing from the statement of case annexing the various orders of the authorities may briefly be stated : The appellant, M/s. National Transport Company, is a tn!nsport undertaking without its transport.", "canonical_name": "NATIONAL TRANSPORT COMPANY"}}, {"text": "Sindri", "label": "GPE", "start_char": 5758, "end_char": 5764, "source": "ner", "metadata": {"in_sentence": "The appellant (hereinafter to be described as the assessee) was the sole transporter by road of the cement manufactured by the Associated Cement Company at Sindri\n\n(briefly the company) from Sindri to different stockists at various places i'a Bihar and West Bengal."}}, {"text": "Bihar", "label": "GPE", "start_char": 5845, "end_char": 5850, "source": "ner", "metadata": {"in_sentence": "The appellant (hereinafter to be described as the assessee) was the sole transporter by road of the cement manufactured by the Associated Cement Company at Sindri\n\n(briefly the company) from Sindri to different stockists at various places i'a Bihar and West Bengal."}}, {"text": "West Bengal", "label": "GPE", "start_char": 5855, "end_char": 5866, "source": "ner", "metadata": {"in_sentence": "The appellant (hereinafter to be described as the assessee) was the sole transporter by road of the cement manufactured by the Associated Cement Company at Sindri\n\n(briefly the company) from Sindri to different stockists at various places i'a Bihar and West Bengal."}}, {"text": "October 12, 1963", "label": "DATE", "start_char": 6102, "end_char": 6118, "source": "ner", "metadata": {"in_sentence": "The assessee's contract with the manufacturing company commenced some time on October 12, 1963."}}, {"text": "section 4", "label": "PROVISION", "start_char": 6363, "end_char": 6372, "source": "regex", "metadata": {"statute": null}}, {"text": "September 3, 1966", "label": "DATE", "start_char": 6389, "end_char": 6406, "source": "ner", "metadata": {"in_sentence": "On September 3, 1966, there was a surprise inspection of the 9ffice of the assessee and certain books of acconnts containing accounts of transport charges realised by the assessee for transporting of ceme\"1t from the Sindri factory to the stockists 'in Bihar and West Bengal were seized."}}, {"text": "Bilrar", "label": "GPE", "start_char": 7414, "end_char": 7420, "source": "ner", "metadata": {"in_sentence": "Out of thirtysix trucks, twentyfour were registered in Bilrar and twelve in West Bengal."}}, {"text": "November 1, 1966", "label": "DATE", "start_char": 8117, "end_char": 8133, "source": "ner", "metadata": {"in_sentence": "1,41,618.37 by his order of November 1, 1966."}}, {"text": "section 7(5)", "label": "PROVISION", "start_char": 8186, "end_char": 8198, "source": "regex", "metadata": {"statute": null}}, {"text": "Commercial Taxes Tribunal, Bihar", "label": "COURT", "start_char": 8381, "end_char": 8413, "source": "ner", "metadata": {"in_sentence": "Thereafter the assessee preferred an application in revision before the Commercial Taxes Tribunal, Bihar, which also met with the same fate."}}, {"text": "section 218(1)", "label": "PROVISION", "start_char": 8515, "end_char": 8529, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 8754, "end_char": 8766, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 9978, "end_char": 9987, "source": "regex", "metadata": {"statute": null}}, {"text": "A. K. Sen", "label": "LAWYER", "start_char": 10610, "end_char": 10619, "source": "ner", "metadata": {"in_sentence": "The only question that is canvassed by Mr. A. K. Sen on behalf of the appellant is that, on th.e various facts found by the Tribunal, it has D erred in law in holding that the assessee is an 'owner' within the mean- ' ing of section 2(d) of the Act.", "canonical_name": "A. K. Sen"}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 10792, "end_char": 10804, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 10895, "end_char": 10907, "source": "regex", "metadata": {"statute": null}}, {"text": "Regional or State Transport Authority under the provisions of the MotorVehicles Act", "label": "STATUTE", "start_char": 11028, "end_char": 11111, "source": "regex", "metadata": {}}, {"text": "section 2(a)", "label": "PROVISION", "start_char": 12384, "end_char": 12396, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 12475, "end_char": 12484, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 12634, "end_char": 12643, "source": "regex", "metadata": {"statute": null}}, {"text": "section 9", "label": "PROVISION", "start_char": 12980, "end_char": 12989, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(1)", "label": "PROVISION", "start_char": 13370, "end_char": 13382, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 13531, "end_char": 13540, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 13676, "end_char": 13685, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 18", "label": "PROVISION", "start_char": 13923, "end_char": 13933, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 14342, "end_char": 14351, "source": "regex", "metadata": {"statute": null}}, {"text": "Sen", "label": "OTHER_PERSON", "start_char": 15700, "end_char": 15703, "source": "ner", "metadata": {"in_sentence": "In view of the terms of the agreement, on which great reliance has been placed b) Mr Sen, it can be safely assumed that the appellant took full responsibility for the carriage of the goods from the Sindri factory to various destinations."}}, {"text": "section 3(d)", "label": "PROVISION", "start_char": 18021, "end_char": 18033, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 18854, "end_char": 18866, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 19102, "end_char": 19114, "source": "regex", "metadata": {"statute": null}}, {"text": "article 32", "label": "PROVISION", "start_char": 20132, "end_char": 20142, "source": "regex", "metadata": {"statute": null}}, {"text": "Jagir Singh", "label": "OTHER_PERSON", "start_char": 20418, "end_char": 20429, "source": "ner", "metadata": {"in_sentence": "In Jagir Singh's case (supra) this Court was concerned merely with Booking Agents and Forwarding Agents who were sought to be made liable nnder the Act at the instance of the permit holders of the public service ''chicles who did not own their liability for payment of tax under the Act.", "canonical_name": "Jagir Singh"}}, {"text": "[1976] 2 S.C.R. 809", "label": "CASE_CITATION", "start_char": 21235, "end_char": 21254, "source": "regex", "metadata": {}}, {"text": "lagir Singh", "label": "OTHER_PERSON", "start_char": 22023, "end_char": 22034, "source": "ner", "metadata": {"in_sentence": "These facts clearly distinguish the present case from what apears to have been pleaded in the writ application in lagir Singh's case (supra) and he decision is of no aid to the appellant.", "canonical_name": "Jagir Singh"}}, {"text": "section 2(d)", "label": "PROVISION", "start_char": 22775, "end_char": 22787, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_905_912_EN", "year": 1976, "text": "; /\n\nSOUTH INDIA COIR MILLS POOCHAKKAL\n\nTHE ADDITIONAL COLLECTOR OF CUSTOMS AND\n\nCENTRAL EXCISE AND ANOTHER\n\nMarch 25, 1976\n\n(Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L.UNTWALIA, JJ.J )).\n\nForeign Exchange Regulation Act (7 of 1947), s. 12(1) as amended by Act 40 of 1969-Scope of.\n\nThe appellant is a dealer and exporter in coir yarn. On its behalf a shippino bill for export of 150 bales of coir yarn to a port in Italy was filed, but th~ consignee was shown to be a firm of Yugoslavia. The invoice and the form of declaration prescribed under the Foreign Exchange Regulation Acl, 1947, were drawn up by the appellant on rupee terms in accordance .wit!i the contract with the Yugoslav firm.\n\nThe Collector of Customs, after 1ssu1ng a show cause notice to the appellant and considering the explanation Qf the appellant, held that the appellant had misde.lared the material particulars regarding the prescribed manner of payment, and that there was a contravention of s. 12(1), Fcreign Exchange Regulation Act read with s. 11 Customs Act, and ordered the confiscation of the goods under s. 113 and imposed a penalty of Rs. 25.000/- under s. 114. Customs Act. The High Court upheld the order.\n\nDismissing the appeal to this Court,\n\nHELD : In the circumstances of the case, the quantum of penalty is reduced to Rs. 15,000/ .. [912 F]\n\n(1) By virtue of s. 23A, Foreign Exchange Regulation Act the prohibition imposed under s. 12(1) of the Act becomes a prohibition imposed under\n\ns. 11, Customs Act. Section 11, Customs Act, empowers the Central Govern- E meat to prohibit the export of goods absolutely or conditionally and s. 113, Customs Act, provides for confiscation of goods exported contrary to any prohibition imposed, and the person attempting to export is liable to penalty under s. 114. [908 D, F-0]\n\n(2) Section 12(1). Foreign Exchange Regulation Act. as amended bv Act 40 of 1969, consists of 3 r;>arts : (a) Issuance of a notification by th\"e Central Government prohibiting the export of certain goods to any place specified in the notification. (b) The prohibition is relaxed and export is permitted whe_n F the exporter furnishes a declaration in the prescribed form which must be true in all material particulars including the amount representing the full export value of the goods or the expected exported value of the goods. ( c) Apart from furnishing the declaration containing the true statements in all material particulars, the exporter is also required to affirm in the said declaration that is, in the document or paper containing the declaration, that the full xport value of the goods will, within the prescribed period be paid in the prescribed manner. This affirmation is not required to be in anv prescribed form. Until G a11d unless the exporter so affirms, he cannot, in the interests of conserving the foreign exchange, be allowed to export the goods. [910 BD]\n\n(3) Jn the present case there was no affirmation that the full export value of th~ goods has been or will, within the prescribed period, be paid in the prescribed manner, and, the absence C5f the affirmation is tantamount to failure\n\n?n the prt of the. appellant to comply th the requi1rements of law engrafted\n\n1h s. 12(1). pgre1gn Exchange Regulation Act. [912 DJ ·\n\n(a) The declaration of the buyer's name as the Yugoslav firm was found to be wrng, but that did no~ attract the provisions of s. 12(1), because. in the prescribed form, the buyers name was not to be inserted.\n\n[910 G-HJ\n\n{19J:o] 3 S.C.R.\n\n(b) The High Court was wrong in holding that because the mode of payment mentioned in the declaration is contrary to r. 7 of the Foreign Exchange Rules. 1952. there was a misdedaration of material farticulars. The appel- .lant has managed to get the payment in Indian rupee through the Yugoslav .firm. , Therefore. even after the statement that the country of destination \\Vas\n\n; Italy, the statement that the payment was tobe recei,,.ed in India in Indian\n\nT, JJpees was not untrue, although. it was C<?ntrary to the mode prescribed in r. 7.\n\nBut the absehce of the affirmation is\" sgnificant. [911 E-G; 912 BJ\n\n(c) Rule 7 provides that the amount representing the full valu~ of the goods exported to the countries specified in the 2nd scht; dule shall be paid through .an authorised dealer and unless authorised by the Reserve Bank, shall be paid in the manner specified in the schedule. _The approved methods of payment in .the case of Italy, which is in Group A of the schedule, are : liJ Currency of any country in the sub-group; (ii) sterling from an 'Extern:il Account' as •defined .under the U.K. Exchange Control Regulations; and (iii) Rupees from the account of a bank in any country in the Convertible Account group. [91 I\n\nG-912 A]\n\n(d) The appellant could not have affirmed that the full export value of the goods would be paid in one of the prescribed modes. If such a..'firmation \".Vas .made it would have been false because of the statement in the d:!claratjon that the. value of the goods was to be received in India in Indian rui::ees.\n\nIf in the :affirmation the aripellant had stated that for the valW! of the soods exported to Italy it was to receive payment in Indian rupees, then the affirmation would have violated s. 12(1) as it would not have been an affirmaticn stating that the export_ value would be paid in the prescribed manner. Hence, the decision of the High Court that the appellant had attempted to export goods in violatioh of s. 12(1) is correct, though it is upheld on a different lnsis. [912 B-EJ ( 4) Though it is an economic offence and relates . to the la.w of foreign exchange since the Jaw was not clear either to the Customs authorities Or the High Court and has resulted in the recording of finding against the-- appellant\n\non a wrong basis, although not affecting the substance of the viey.r that the\n\nappe1Jant violated s. 12(1), the quant_µm of penalty is reduc_ed. [912 F.G]\n\n.E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 244 of 1976.\n\nAppeal by Special Leave from the Judgment and Order d; tcd 9-10-74 of the Kerala High Court in W. A. No. 142 of 1972.\n\nM. N. Phadke, S. K. Mehta, K. R. Nagaraja and P. N. Puri, for the Appellant.\n\nF G. L. Sanghi and Girish Chandra, for Respondent No. I.\n\nD. N. Misra,. for, Respondent No: 2.\n\nThe Jlldgment of the Court was delivered by\n\nUNTWALIA, J.-In this appeal by special leave an important question of law falls for our determination .. It concerns the interpretation of section 12 ( 1) of the Foreign Exchange Regulation Act, 19 4 7, Central Act 7 of 1947 as it stood ameniJed at the relevant time by Act 40 of 1969. ·· ,\n\nThe appellant is a firm, one of the partners or proprietors of which is Shri T. K. Seethy. It is a dealer in Coir Yam and exports the said commodity to foreign buyers also. On March 24, 1971 a shipping bill was filed on behalf of the appellant for the export of 150 bales of Coir Yarn to Trieste a port in Italay. The consignee's name in the shlJ?ping bill was shown as M/s Ferolektro, Sarajavo, Yugoslavia.\n\nIndtSputably the Central Government had published a notification in\n\n•• •\n\n, ,\n\nthe official gazette under section 12(1) of the Foreign Exchange Regulauon Act prohibiting the export of coir yarn from India to certain places specified in the notification including Italy unless ccrtacn conditions were fulfilled.\n\nThe exporter was, therefore, required to comply with the requirement of the said provision of law and file a declaration in the prescribed form.\n\nThe relevant prescribed from in the Foreign Exchange Regulation Rules, 1952-hereinafter referred\n\nto as the Rule>-framed under section 27 of the Act of 1947 was B Form G.R.I.\n\nThe Invoice and G. R. I. Form were drawn up by the appellant on rupee terms in accordance with the contract dated 1.3.1971 which it claimed to have had with M/s Ferolektro, Sarajavc,\n\nYugoslavia.\n\nThe Customs Authority found that the goods were attempted to be exported to Italy while payment, according to the form, was to be received in rupees.\n\nSo the appellant was asked to explain the discrepancy in the declaration.\n\nA request was made on behalf of the appellant to amend the lnvoicc and G.R.i. shewing payment in Sterling. It was not allowed to do so.\n\nOn April 20,\n\n,. !971 the premises of the appellant firm and the house of its owner were simultaneously searched and certain documents including some letters exchanged between the appellant and some foreign firms of Italy were seized.\n\nIt appeared to the Assistant Collector of Cust0ms, Customs House, Cochin that the goods in question were being bought D by M/s Tobia Giacomini, Italy while the buyer shown in the shipping document was M/s Ferolektro, Sarajavo, Yugoslavia.\n\nSuch a discrepancy in the bill was against the provisions of section 50 of the Customs Act, 1962-Central Act 52 of 1962. The Assistant Collector further found that in the declaration furnished by the appellant in accordance with section 12(1) of the Foreign Exchange Regulation Act the manner of payment for the goods sought to be exported was contrary to Rule 7 of the Rules.\n\nThe misdeclaration or untrue declaration made by the appellant in the shipping bill and\n\nG.R.I.\n\nForm was rrima facie not true in material particulars ;; nd violated section 12(1) of the Foreign Exchange Regulation Act. In view of the 11th section in the Customs Act, the violation attracted\n\nthe confiscation of the goods under section 1 l3(d) and imposition of penalty under section 114 of the said Act.\n\nA showcause notice dated May 19, 1971 was issued by the Assistant Collector to the appellant. The appellant filed a long reply to the show cause notice. 'The Additional Collector of Customs by bis order dated July 6, 1971 held:\n\n\"By declaring the buyer's name as\n\nFEROELETRO YUGOSLAVIA and the port of discharge and country of final destination as 'Trieste' and Italy respectively in the shipping bill and the mode of payment as in rupees in the shipping bill as well as in the G. R. I. form, the exporters have misdeclared the material particulars regarding the prescribed manner of payment and have thus clearly contravened the provisions of Section 12(1) of the F.E.R.A. read with section 11 of the Customs Act.\n\nThe goods are, therefore, liable for confiscation under section 113(d) and 113(i) of the Cn<toms Act anrl the, exoorters are liable for penalty under section 114 of the Customs Act.\"\n\n~UPREME COURT REPORTS\n\n[1976) 3 S.C.R.\n\nI He accordingly confiscated the goods, giving an option to the appellant to redeem them on payment of Rs. 5,000/- in lieu thereof.\n\nA penalty of Rs. 25,000/- was imposed under section 114 of the Customs Act. ' .\n\nThe appellant filed a writ petition in the Kerala High Court to challenge the erder of the Additional Collector.\n\nIt had exercised its option of getting the goods released on payment of Rs. 5,000/-. The fine of Rs .. 25,000/- was also paid.\n\nA learned single Judge of the High Court took the view that there was no violation of section 12 (l) of the Foreign Exchange Regulation Act and quashed the order of the Additional Collector.\n\nThe Customs Authority took the matter in appeal before a Bench of the High Court.\n\nThe Bench has allowed the appeal and upheld the order of the Additional Collector.\n\nHence this appeal was . filed after obtaining special leave of this Court.\n\nSection 23A of the Foreign Exchange Regulation At provides, inter i alia, that the restrictions imposed by or under sub-section ( 1) of section 12 shall be deemed to have been imposed under section 11 of the Customs Act and all the provisions of that Act shall have the effect accordingly.\n\nSection 11 of the Customs Act empowers the Central Government to prohibit eit_her absolutely or subject to such conditions as may be specified in a notification the import or export of goods of a~ specified description.\n\nSection 113 says: ·\n\n\"The following export goods sha:ll be liable to confiscation.-\n\n(d) any goods attempted to be exported or brought with- '\\ in the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;\"\n\nBy virtlie of Section 23A of the Foreign Exchange Regnlation Act the prohibition imposed under section 12(1) of that Act becomes a prohibition imposed nnder section 11 of the Customs Act.\n\nAnd if the goods wete attempted to be exported contrary to the said prohibition the goods became liable to confiscation under section 113 ( d) of the Customl! Act.\n\nConsequently the person attempting to export the goods also became liable to pay penalty under section 114.\n\nThere has been no difficulty in correct appreciation of the law so far either by the Customs Authority or the High Court.\n\nA good deal of difficulty and confusion however cropped up in the interpretation of section l 2 (1) of the Foreign Exchange Regulation Act.\n\nSub-section ( l ) of section 12 as it stood prior to the amendment brought about by Act 40 of J 969 read as follows :\n\n\"The Central Government may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereinafter-in this section referred to as export)\n\nSOUTH INDIA COIR MILLS V. ADDL. COLLECTOR CUSTOMS 909 (Untwalia, /.) of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be paid in the prescribed manner.\"\n\nIn Union of India & Ors. v. M/s Rai Bahadur Shree Ram Durga Prasad (P) Ltd: & Ors.(')., Hegde, J. speaking for himself and Bachawat, J gave a narrow interpretation to section 12(1) as it stood then. Sikri, J, as he then was, in his dissenting judgment said :\n\n\"I have to construe an Act which was enacted in the interest of the national economy.\n\nA deliberate large-scale contravention of its provisions would affect the. interests of C every man, woman and child in the country.\n\nSuch an Act, I apprehend, should be construed so as to make it workable; it should, however, receive a fair construction, doing no violence to the language employed by the Legislature.\n\nIt was said that if two constructions are possible the one that is in favour of the subject should be accepted. It is not necessary to pronounce on this proposition for I have D come to the conclusion that there is one true construction of s. 12(1). But I should not be taken to be assenting to this proposition in so far as it is applicable to an enactment like the Exchange Act, for no subject has a right to sabotage the national economy.\"\n\nSection 12(1) was, thereafter, amended by Act 40 of 1969. It then E read as follows :\n\n\"The Central Govermnent may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereinafter in this section referred to as export) of all goods or of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing-\n\n( i) the full export value of the goods; or\n\n(ii) if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the course of international trade,\n\nand affirms in the said declaration that the full export value of the goods (whether ascertainable at the time 0f H\n\n(I) [1969] 2 S.C.R. 727.\n\n8-725SC!/76\n\nSUPREME COURT REPORTS\n\n[1976) 3 S.C.R.\n\nexport or not) has been, or will within the prescribed period be, paid in the prescribed manner.\"\n\nUnder the changed law the Exporter was required to furnish a declaration in the prescribed form which must be true in all material particulars including the amount representing the full export value of the goods or the expected export value of the goods.\n\nApart from the furnishing of the declaration containing the true statements in all material particulars the exporter under the amended section 12 (1 ) of the Foreign Exchange Regulation Act was also required to affirm in the said declaration, i.e. in the document or the paper containing the declaration, that the full export value of the goods will within the prescribed period be paid in the prescribed manner.\n\nThe ailirmation under the last part of section 12(1) is not required to be in any prescribed form.\n\nTherefore, in the form prescribed for the declaration no form of ailirmation has been specified.\n\nBroadly speaking section 12(1) consists of 3 parts (1) issuance of a notification by the Central Government prohibiting the export of certain goods to any place specified in the notification; (2) the prohibition is relaxed and export is permitted when the exporter furnishes a declaration and (3) when he ailirms in the said deolaration that the payment will be in the prescribed manner.\n\nUntil and unless the exporter affirms that the payment would be in the prescribed manner, he cannot be allowed to export the goods.\n\nThis is for the purpose of conserving and preserving the foreign exchange so that by a subterfuge no person may be able to harm the national economy by exporting the goods without such affirmation.\n\nIn the instant case on the findings of fact recorded by the Additional Collector which were accepted to be correct by the High Court, both by the single Judge and the Division Bench, the stress seems to have been laid on the alleged violation of the requirement of giving true material particulars in the declaration.\n\nAnd that enabled Mr.\n\nM. N. Phadke to strenonsly attack the decision of the High Court in appeal.\n\nCounsel submitted that whatever the appellant had stated in the declaration was all true and nothing but true. It may well be, he submitted, that it violated certain provisions of the Customs Act or the Foreign Exchange Regulation Act.\n\nBnt surely the material particulars furnished by the appellant in its declaration not being untrue in any respect, there was no infraction of section 12 (1) of the Fon; ign Exchange Regulation Act.\n\nThe argument as presented had substance and force but did not merit acceptance on close scrutiny.\n\nThe declaration of the buyer's name even if wrong in the shipping bill and invoice did not attract the provisions of section 12(1) of the Foreign Exchange Regulation Act.\n\nIn the form prescribed under Rule 3 of the Rules (G.I.R. being one such form) the buyer's name was not to be inserted. It was not given in the declaration furnished by the appellant in tha~ to:m.\n\nBut the finding of te Aditional Collector is that the destmal!on of the goods was Tneste m Italy and in the declaration furnished in form G.I.R. the appellant had stated that the pavment was to be received in India in Indian rupees and this statement was untrue as being against the prescribed manner.\n\nIt is to be noticed that under section 12 ( 1) as it stood prior to the amendment by Act 40 of 1969 the declaration had to contain a statement that the amount representing the full export value of the goods will be paid in the prescribed manner.\n\nBut now this is not to be a part of the declaration but has to be separately affirmed although in the declaration itself.\n\nThe learned single Judge noticed in his judgment that section 12(1 )(ii) will not apply and the obligation of the exporter was :\n\n\"(a) to furnish to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed :\n\n(b) which declaration must be true in all materia, l particulars and that among others shall include 'the amount representing the full export value of the C goods' aud ( c) he must affirm in the said declaration that the full export value of the goods will, within the prescribed period, be paid in the prescribed mauner.\"\n\nStating that \"There is no case that there is no affirmation in the decclaration\" the single Judge held that section 12(1) was not violated.\n\nD The Division Bench, however, noted the fact that the declaration furnished by the appellant \"did not contain an affirmation as required by the last portion of the said sub-section\". Yet because of the mode of payment mentioned in the declaration being contrary to Rule 7 of the Rules the Division Bench upheld the view of the Additional Collector that the appellant \"had misdeclared the material particulars and attempted to export the goods in question in contravention of the E prohibition contained in section 12(1) of the Act.\" On the facts and in the circumstances of this case we are constrained to hold that even after the statement in column 2 of Form G.R. I that the country of destination of goods was Italy the statement in column 5 that the payment was to be received in India in Indian Rupees was not untrue.\n\nThe appellant had managed or manouvered to get the payment through the firm of Yugoslavia in Indian Rupees.\n\nThe statement therefore, F was not untrue although it was against the mode prescribed under Rule 7 of the Rules. But here comes in the importance of the affirmation in the declaration.\n\nRule 7 of the Rules says :\n\n\"The amount representing the full value of goods exported to the countries specified in the Second Schedule shall be paid through an authorised dealer and unless otherwise authorised by the Reserve Bank, shall be paid in the manner specified in the said Schedule.\" In the Second Schedule Italy occurs in Group A-\"Convertible Account Countries\". In that case the approved methods of payment are\n\n\"(a) Currency of any country' in this sub-group. ·\n\n(b) Sterling from an 'External Account', as defined under the U. K. Exchange Control Regulations.\n\nSUPREME COUR'J.'. REPO~TS\n\n[1!176) 3 S.C.R.\n\nA ( c) Rupees from the accouut of a bauk iu imy couutry iu the Couvertible Accouut group.\"· Yugoslavia iu the Secoud Schedule fiuds place iu Group B \"Bilateral Accouut couutries\" where the approved method of paymeut is. \"Rupees from the accouut of a bauk iu the couutry of import.\"\n\nIu the preseut case the abseuce of affinnatiou had its owu sigui- B ficauce.\n\nIt was difficult, ahuost impossible, for the appellant to affirm that the full export value of the goods was to be paid in oue of the three modes prescribed iu the Secoud Schedule to the Rules for the export of the goods to Italy. We are, therefore, of the opiniou that although the statemeut in the declaration that the value of the goods mentioned iu column 4 at Rs. 63,301.50 was to be received iu Iudia in Iudian rupees for the export of goods to Italy was not C untrue, the affirmation, if made, would have been either false or contrary to the requirement of the law. If iu the affirmatiou the appellant had stated that for the value of the goods exported to Italy it was to receive the paymeut iu Iudian rupees through the Chartered Bank i Ltd. Cochin as per the declaration, then the affirmation would have violated section 12(1) as it would not have been an affirmation stating that the. export value would be paid in the prescribed manuer. Absence D of affirmation in the declaration furnished by the appellant is tantamount to failure on the part of the appellant to comply with the requirement of the law engrafted in section 12(1) of the Foreign Exchange Regulation Act. That beiug so, the decisiou of the Division Bench of the High Cqurt that the appellant had attempted to export goods in violation of the restrictions imposed under section 12(1) of the Foreign Exchange Regulation Act is fit to be upheld, but E on a different basis.\n\nIn cases of economic offences and specially in relation to the law of Foreign Exchange uo leniency in the quantum of punishment is warranted. But on the facts and in the circumstances of this case we feel persuaded to reduce the amount of penalty imposed upon the appellant from Rs. 25,000/- to Rs. 15,000/-. The direction as to the payment of Rs. 5,000/- in lieu of confiscatiou of the goods is upheld.\n\nSince the law eugrafted in the amended Section 12(1) of the Foreigu Exchange Regulation Act was not very clear either to the Custom Authorities or to the High Court resulting iu the recQiding of the findings against the petitioner ou a wrong b.asis, although not affecting the substance of the view that the appellant had violated Section 12(1) of the Foreign Exchange Regulation Act, we have thought it fit to reduce the quautum of penalty by Rs. 10,000/-.\n\nBefore we part with this case we may just mention that now the Foreign Exchange Regu.Jation Act iu force is an Act of 1973-Centrat Act 46 of 1973. Section 18(1) (a) is ahuost the same as Section 12(1) of the Act of 1947.\n\nIn the result the appeal is dismissed but subject to the modification iu the quautum of penalty imposed under Section 114 of the Customs Act 1962. In the circumstances we shall make no order as to costs iu this Court.\n\nV.P.S.\n\nAppeal dismissed~", "total_entities": 130, "entities": [{"text": "SOUTH INDIA COIR MILLS POOCHAKKAL", "label": "PETITIONER", "start_char": 5, "end_char": 38, "source": "metadata", "metadata": {"canonical_name": "SOUTH INDIA COIR MILLS POOCHAKKAL", "offset_not_found": false}}, {"text": "THE ADDITIONAL COLLECTOR OF CUSTOMS AND\n\nCENTRAL EXCISE AND ANOTHER", "label": "RESPONDENT", "start_char": 40, "end_char": 107, "source": "metadata", "metadata": {"canonical_name": "THE ADDITIONAL COLLECTOR OF CUSTOMS AND CENTRAL EXCISE AND ANOTHER", "offset_not_found": false}}, {"text": "March 25, 1976", "label": "DATE", "start_char": 109, "end_char": 123, "source": "ner", "metadata": {"in_sentence": "; /\n\nSOUTH INDIA COIR MILLS POOCHAKKAL\n\nTHE ADDITIONAL COLLECTOR OF CUSTOMS AND\n\nCENTRAL EXCISE AND ANOTHER\n\nMarch 25, 1976\n\n(Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L.UNTWALIA, JJ.J ))."}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 126, "end_char": 143, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 145, "end_char": 163, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "N. L.UNTWALIA, JJ", "label": "JUDGE", "start_char": 168, "end_char": 185, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Foreign Exchange Regulation Act", "label": "STATUTE", "start_char": 193, "end_char": 224, "source": "regex", "metadata": {}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 238, "end_char": 246, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Italy", "label": "GPE", "start_char": 420, "end_char": 425, "source": "ner", "metadata": {"in_sentence": "On its behalf a shippino bill for export of 150 bales of coir yarn to a port in Italy was filed, but th~ consignee was shown to be a firm of Yugoslavia."}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 972, "end_char": 980, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Fcreign Exchange Regulation Act", "label": "STATUTE", "start_char": 982, "end_char": 1013, "source": "regex", "metadata": {}}, {"text": "s. 11", "label": "PROVISION", "start_char": 1024, "end_char": 1029, "source": "regex", "metadata": {"linked_statute_text": "Fcreign Exchange Regulation Act", "statute": "Fcreign Exchange Regulation Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1030, "end_char": 1041, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 113", "label": "PROVISION", "start_char": 1091, "end_char": 1097, "source": "regex", "metadata": {"linked_statute_text": "Fcreign Exchange Regulation Act", "statute": "Fcreign Exchange Regulation Act"}}, {"text": "s. 114", "label": "PROVISION", "start_char": 1142, "end_char": 1148, "source": "regex", "metadata": {"linked_statute_text": "Fcreign Exchange Regulation Act", "statute": "Fcreign Exchange Regulation Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1150, "end_char": 1161, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 23A", "label": "PROVISION", "start_char": 1354, "end_char": 1360, "source": "regex", "metadata": {"linked_statute_text": "Fcreign Exchange Regulation Act", "statute": "Fcreign Exchange Regulation Act"}}, {"text": "Foreign Exchange Regulation Act", "label": "STATUTE", "start_char": 1362, "end_char": 1393, "source": "regex", "metadata": {}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 1424, "end_char": 1432, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "s. 11", "label": "PROVISION", "start_char": 1481, "end_char": 1486, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1488, "end_char": 1499, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 11", "label": "PROVISION", "start_char": 1501, "end_char": 1511, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1513, "end_char": 1524, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Central Govern- E meat", "label": "ORG", "start_char": 1539, "end_char": 1561, "source": "ner", "metadata": {"in_sentence": "Section 11, Customs Act, empowers the Central Govern- E meat to prohibit the export of goods absolutely or conditionally and s. 113, Customs Act, provides for confiscation of goods exported contrary to any prohibition imposed, and the person attempting to export is liable to penalty under s. 114. ["}}, {"text": "s. 113", "label": "PROVISION", "start_char": 1626, "end_char": 1632, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 1634, "end_char": 1645, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 114", "label": "PROVISION", "start_char": 1791, "end_char": 1797, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Section 12(1)", "label": "PROVISION", "start_char": 1817, "end_char": 1830, "source": "regex", "metadata": {"linked_statute_text": "Foreign Exchange Regulation Act", "statute": "Foreign Exchange Regulation Act"}}, {"text": "Foreign Exchange Regulation Act", "label": "STATUTE", "start_char": 1832, "end_char": 1863, "source": "regex", "metadata": {}}, {"text": "Central Government", "label": "ORG", "start_char": 1958, "end_char": 1976, "source": "ner", "metadata": {"in_sentence": "as amended bv Act 40 of 1969, consists of 3 r;>arts : (a) Issuance of a notification by th\"e Central Government prohibiting the export of certain goods to any place specified in the notification. ("}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 3211, "end_char": 3219, "source": "regex", "metadata": {"statute": null}}, {"text": "Exchange Regulation Act", "label": "STATUTE", "start_char": 3229, "end_char": 3252, "source": "regex", "metadata": {}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 3391, "end_char": 3399, "source": "regex", "metadata": {"linked_statute_text": "Exchange Regulation Act", "statute": "Exchange Regulation Act"}}, {"text": "India", "label": "GPE", "start_char": 3945, "end_char": 3950, "source": "ner", "metadata": {"in_sentence": "even after the statement that the country of destination \\Vas\n\n; Italy, the statement that the payment was tobe recei,,.ed in India in Indian\n\nT, JJpees was not untrue, although."}}, {"text": "Exchange Control Regulations", "label": "STATUTE", "start_char": 4609, "end_char": 4637, "source": "regex", "metadata": {}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 5243, "end_char": 5251, "source": "regex", "metadata": {"linked_statute_text": "Exchange Control Regulations", "statute": "Exchange Control Regulations"}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 5467, "end_char": 5475, "source": "regex", "metadata": {"linked_statute_text": "Exchange Control Regulations", "statute": "Exchange Control Regulations"}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 5872, "end_char": 5880, "source": "regex", "metadata": {"statute": null}}, {"text": "M. N. Phadke", "label": "JUDGE", "start_char": 6114, "end_char": 6126, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, S. K. Mehta, K. R. Nagaraja and P. N. Puri, for the Appellant.", "canonical_name": "M. N. Phadke"}}, {"text": "K. Mehta", "label": "LAWYER", "start_char": 6131, "end_char": 6139, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, S. K. Mehta, K. R. Nagaraja and P. N. Puri, for the Appellant."}}, {"text": "K. R. Nagaraja", "label": "LAWYER", "start_char": 6141, "end_char": 6155, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, S. K. Mehta, K. R. Nagaraja and P. N. Puri, for the Appellant."}}, {"text": "P. N. Puri", "label": "LAWYER", "start_char": 6160, "end_char": 6170, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, S. K. Mehta, K. R. Nagaraja and P. N. Puri, for the Appellant."}}, {"text": "F G. L. Sanghi", "label": "LAWYER", "start_char": 6192, "end_char": 6206, "source": "ner", "metadata": {"in_sentence": "F G. L. Sanghi and Girish Chandra, for Respondent No."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 6211, "end_char": 6225, "source": "ner", "metadata": {"in_sentence": "F G. L. Sanghi and Girish Chandra, for Respondent No."}}, {"text": "D. N. Misra", "label": "LAWYER", "start_char": 6250, "end_char": 6261, "source": "ner", "metadata": {"in_sentence": "I.\n\nD. N. Misra,."}}, {"text": "UNTWALIA", "label": "JUDGE", "start_char": 6333, "end_char": 6341, "source": "ner", "metadata": {"in_sentence": "The Jlldgment of the Court was delivered by\n\nUNTWALIA, J.-In this appeal by special leave an important question of law falls for our determination .. It concerns the interpretation of section 12 ( 1) of the Foreign Exchange Regulation Act, 19 4 7, Central Act 7 of 1947 as it stood ameniJed at the relevant time by Act 40 of 1969. ·· ,"}}, {"text": "section 12", "label": "PROVISION", "start_char": 6472, "end_char": 6482, "source": "regex", "metadata": {"statute": null}}, {"text": "T. K. Seethy", "label": "OTHER_PERSON", "start_char": 6702, "end_char": 6714, "source": "ner", "metadata": {"in_sentence": "The appellant is a firm, one of the partners or proprietors of which is Shri T. K. Seethy."}}, {"text": "Coir Yam", "label": "OTHER_PERSON", "start_char": 6734, "end_char": 6742, "source": "ner", "metadata": {"in_sentence": "It is a dealer in Coir Yam and exports the said commodity to foreign buyers also."}}, {"text": "March 24, 1971", "label": "DATE", "start_char": 6801, "end_char": 6815, "source": "ner", "metadata": {"in_sentence": "On March 24, 1971 a shipping bill was filed on behalf of the appellant for the export of 150 bales of Coir Yarn to Trieste a port in Italay."}}, {"text": "Trieste", "label": "GPE", "start_char": 6913, "end_char": 6920, "source": "ner", "metadata": {"in_sentence": "On March 24, 1971 a shipping bill was filed on behalf of the appellant for the export of 150 bales of Coir Yarn to Trieste a port in Italay."}}, {"text": "Italay", "label": "GPE", "start_char": 6931, "end_char": 6937, "source": "ner", "metadata": {"in_sentence": "On March 24, 1971 a shipping bill was filed on behalf of the appellant for the export of 150 bales of Coir Yarn to Trieste a port in Italay."}}, {"text": "Sarajavo", "label": "GPE", "start_char": 7011, "end_char": 7019, "source": "ner", "metadata": {"in_sentence": "The consignee's name in the shlJ?ping bill was shown as M/s Ferolektro, Sarajavo, Yugoslavia."}}, {"text": "Yugoslavia", "label": "GPE", "start_char": 7021, "end_char": 7031, "source": "ner", "metadata": {"in_sentence": "The consignee's name in the shlJ?ping bill was shown as M/s Ferolektro, Sarajavo, Yugoslavia."}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 7141, "end_char": 7154, "source": "regex", "metadata": {"statute": null}}, {"text": "relevant prescribed from in the Foreign Exchange Regulation Rules, 1952", "label": "STATUTE", "start_char": 7497, "end_char": 7568, "source": "regex", "metadata": {}}, {"text": "section 27", "label": "PROVISION", "start_char": 7620, "end_char": 7630, "source": "regex", "metadata": {"linked_statute_text": "The relevant prescribed from in the Foreign Exchange Regulation Rules, 1952", "statute": "The relevant prescribed from in the Foreign Exchange Regulation Rules, 1952"}}, {"text": "1.3.1971", "label": "DATE", "start_char": 7783, "end_char": 7791, "source": "ner", "metadata": {"in_sentence": "The relevant prescribed from in the Foreign Exchange Regulation Rules, 1952-hereinafter referred\n\nto as the Rule>-framed under section 27 of the Act of 1947 was B Form G.R.I.\n\nThe Invoice and G. R. I. Form were drawn up by the appellant on rupee terms in accordance with the contract dated 1.3.1971 which it claimed to have had with M/s Ferolektro, Sarajavc,\n\nYugoslavia."}}, {"text": "Sarajavc", "label": "GPE", "start_char": 7842, "end_char": 7850, "source": "ner", "metadata": {"in_sentence": "The relevant prescribed from in the Foreign Exchange Regulation Rules, 1952-hereinafter referred\n\nto as the Rule>-framed under section 27 of the Act of 1947 was B Form G.R.I.\n\nThe Invoice and G. R. I. Form were drawn up by the appellant on rupee terms in accordance with the contract dated 1.3.1971 which it claimed to have had with M/s Ferolektro, Sarajavc,\n\nYugoslavia."}}, {"text": "April 20,\n\n,", "label": "DATE", "start_char": 8232, "end_char": 8244, "source": "ner", "metadata": {"in_sentence": "On April 20,\n\n,. !"}}, {"text": "Cochin", "label": "GPE", "start_char": 8531, "end_char": 8537, "source": "ner", "metadata": {"in_sentence": "It appeared to the Assistant Collector of Cust0ms, Customs House, Cochin that the goods in question were being bought D by M/s Tobia Giacomini, Italy while the buyer shown in the shipping document was M/s Ferolektro, Sarajavo, Yugoslavia."}}, {"text": "Tobia Giacomini", "label": "ORG", "start_char": 8592, "end_char": 8607, "source": "ner", "metadata": {"in_sentence": "It appeared to the Assistant Collector of Cust0ms, Customs House, Cochin that the goods in question were being bought D by M/s Tobia Giacomini, Italy while the buyer shown in the shipping document was M/s Ferolektro, Sarajavo, Yugoslavia."}}, {"text": "Ferolektro", "label": "ORG", "start_char": 8670, "end_char": 8680, "source": "ner", "metadata": {"in_sentence": "It appeared to the Assistant Collector of Cust0ms, Customs House, Cochin that the goods in question were being bought D by M/s Tobia Giacomini, Italy while the buyer shown in the shipping document was M/s Ferolektro, Sarajavo, Yugoslavia."}}, {"text": "section 50", "label": "PROVISION", "start_char": 8766, "end_char": 8776, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act, 1962", "label": "STATUTE", "start_char": 8784, "end_char": 8801, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 8934, "end_char": 8947, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 9249, "end_char": 9262, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 9338, "end_char": 9349, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 1", "label": "PROVISION", "start_char": 9412, "end_char": 9421, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "section 114", "label": "PROVISION", "start_char": 9460, "end_char": 9471, "source": "regex", "metadata": {"linked_statute_text": "the Customs Act, 1962", "statute": "the Customs Act, 1962"}}, {"text": "May 19, 1971", "label": "DATE", "start_char": 9515, "end_char": 9527, "source": "ner", "metadata": {"in_sentence": "A showcause notice dated May 19, 1971 was issued by the Assistant Collector to the appellant."}}, {"text": "Section 12(1)", "label": "PROVISION", "start_char": 10134, "end_char": 10147, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 10174, "end_char": 10184, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 10192, "end_char": 10203, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 113(d) and 113(i)", "label": "PROVISION", "start_char": 10262, "end_char": 10287, "source": "regex", "metadata": {"statute": null}}, {"text": "section 114", "label": "PROVISION", "start_char": 10356, "end_char": 10367, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 10375, "end_char": 10386, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 114", "label": "PROVISION", "start_char": 10607, "end_char": 10618, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 10626, "end_char": 10637, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 10687, "end_char": 10704, "source": "ner", "metadata": {"in_sentence": "The appellant filed a writ petition in the Kerala High Court to challenge the erder of the Additional Collector."}}, {"text": "section 12", "label": "PROVISION", "start_char": 10972, "end_char": 10982, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 11321, "end_char": 11332, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 11457, "end_char": 11467, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 11511, "end_char": 11521, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 11529, "end_char": 11540, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 11", "label": "PROVISION", "start_char": 11612, "end_char": 11622, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 11630, "end_char": 11641, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 113", "label": "PROVISION", "start_char": 11833, "end_char": 11844, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 23A", "label": "PROVISION", "start_char": 12165, "end_char": 12176, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 12246, "end_char": 12259, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 12308, "end_char": 12318, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 12326, "end_char": 12337, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 113", "label": "PROVISION", "start_char": 12466, "end_char": 12477, "source": "regex", "metadata": {"statute": null}}, {"text": "section 114", "label": "PROVISION", "start_char": 12600, "end_char": 12611, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 12899, "end_char": 12909, "source": "regex", "metadata": {"statute": null}}, {"text": "Hegde", "label": "JUDGE", "start_char": 13743, "end_char": 13748, "source": "ner", "metadata": {"in_sentence": "Hegde, J. speaking for himself and Bachawat, J gave a narrow interpretation to section 12(1) as it stood then."}}, {"text": "Bachawat", "label": "JUDGE", "start_char": 13778, "end_char": 13786, "source": "ner", "metadata": {"in_sentence": "Hegde, J. speaking for himself and Bachawat, J gave a narrow interpretation to section 12(1) as it stood then."}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 13822, "end_char": 13835, "source": "regex", "metadata": {"statute": null}}, {"text": "Sikri", "label": "JUDGE", "start_char": 13854, "end_char": 13859, "source": "ner", "metadata": {"in_sentence": "Sikri, J, as he then was, in his dissenting judgment said :\n\n\"I have to construe an Act which was enacted in the interest of the national economy."}}, {"text": "s. 12(1)", "label": "PROVISION", "start_char": 14562, "end_char": 14570, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12(1)", "label": "PROVISION", "start_char": 14766, "end_char": 14779, "source": "regex", "metadata": {"linked_statute_text": "But I should not be taken to be assenting to this proposition in so far as it is applicable to an enactment like the Exchange Act", "statute": "But I should not be taken to be assenting to this proposition in so far as it is applicable to an enactment like the Exchange Act"}}, {"text": "Central Govermnent", "label": "PETITIONER", "start_char": 14858, "end_char": 14876, "source": "ner", "metadata": {"in_sentence": "It then E read as follows :\n\n\"The Central Govermnent may, by notification in the Official Gazette, prohibit the taking or sending out by land, sea or air (hereinafter in this section referred to as export) of all goods or of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless the exporter furnishes to the prescribed authority a declaration in the prescribed form supported by such evidence as may be prescribed or so specified and true in all material particulars which, among others, shall include the amount representing-\n\n( i) the full export value of the goods; or\n\n(ii) if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in the course of international trade,\n\nand affirms in the said declaration that the full export value of the goods (whether ascertainable at the time 0f H\n\n(I) [1969] 2 S.C.R. 727."}}, {"text": "[1969] 2 S.C.R. 727", "label": "CASE_CITATION", "start_char": 15841, "end_char": 15860, "source": "regex", "metadata": {}}, {"text": "SUPREME COURT REPORTS\n\n[1976) 3 S.C.R.", "label": "COURT", "start_char": 15876, "end_char": 15914, "source": "ner", "metadata": {"in_sentence": "8-725SC!/76\n\nSUPREME COURT REPORTS\n\n[1976) 3 S.C.R.\n\nexport or not) has been, or will within the prescribed period be, paid in the prescribed manner.\""}}, {"text": "section 12", "label": "PROVISION", "start_char": 16406, "end_char": 16416, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 16724, "end_char": 16737, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 16900, "end_char": 16913, "source": "regex", "metadata": {"statute": null}}, {"text": "M. N. Phadke", "label": "JUDGE", "start_char": 17945, "end_char": 17957, "source": "ner", "metadata": {"in_sentence": "And that enabled Mr.\n\nM. N. Phadke to strenonsly attack the decision of the High Court in appeal.", "canonical_name": "M. N. Phadke"}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 18206, "end_char": 18217, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 12", "label": "PROVISION", "start_char": 18401, "end_char": 18411, "source": "regex", "metadata": {"statute": null}}, {"text": "Exchange Regulation Act", "label": "STATUTE", "start_char": 18432, "end_char": 18455, "source": "regex", "metadata": {}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 18674, "end_char": 18687, "source": "regex", "metadata": {"linked_statute_text": "Exchange Regulation Act", "statute": "Exchange Regulation Act"}}, {"text": "section 12", "label": "PROVISION", "start_char": 19260, "end_char": 19270, "source": "regex", "metadata": {"linked_statute_text": "Exchange Regulation Act", "statute": "Exchange Regulation Act"}}, {"text": "section 12(1 )(ii)", "label": "PROVISION", "start_char": 19653, "end_char": 19671, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 20293, "end_char": 20306, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 20833, "end_char": 20846, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 21566, "end_char": 21581, "source": "regex", "metadata": {"statute": null}}, {"text": "Second Schedule", "label": "PROVISION", "start_char": 21746, "end_char": 21761, "source": "regex", "metadata": {"statute": null}}, {"text": "Exchange Control Regulations", "label": "STATUTE", "start_char": 21989, "end_char": 22017, "source": "regex", "metadata": {}}, {"text": "Chartered Bank i Ltd. Cochin", "label": "ORG", "start_char": 23155, "end_char": 23183, "source": "ner", "metadata": {"in_sentence": "If iu the affirmatiou the appellant had stated that for the value of the goods exported to Italy it was to receive the paymeut iu Iudian rupees through the Chartered Bank i Ltd. Cochin as per the declaration, then the affirmation would have violated section 12(1) as it would not have been an affirmation stating that the."}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 23249, "end_char": 23262, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 23555, "end_char": 23568, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 23773, "end_char": 23786, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12(1)", "label": "PROVISION", "start_char": 24320, "end_char": 24333, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 12(1)", "label": "PROVISION", "start_char": 24612, "end_char": 24625, "source": "regex", "metadata": {"statute": null}}, {"text": "Jation Act iu force is an Act", "label": "STATUTE", "start_char": 24825, "end_char": 24854, "source": "regex", "metadata": {}}, {"text": "Section 18(1)", "label": "PROVISION", "start_char": 24887, "end_char": 24900, "source": "regex", "metadata": {"linked_statute_text": "Jation Act iu force is an Act", "statute": "Jation Act iu force is an Act"}}, {"text": "Section 12(1)", "label": "PROVISION", "start_char": 24927, "end_char": 24940, "source": "regex", "metadata": {"linked_statute_text": "Jation Act iu force is an Act", "statute": "Jation Act iu force is an Act"}}, {"text": "Section 114", "label": "PROVISION", "start_char": 25072, "end_char": 25083, "source": "regex", "metadata": {"linked_statute_text": "Jation Act iu force is an Act", "statute": "Jation Act iu force is an Act"}}, {"text": "Customs Act 1962", "label": "STATUTE", "start_char": 25091, "end_char": 25107, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}]}
{"document_id": "1976_3_913_918_EN", "year": 1976, "text": "K. L. SHINDE\n\n11.\n\nSTATE OF MYSORE\n\nMarch 26, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGII, JJ.J\n\nConstitution-Article 311-Domestic inquiry-Reasonable cpportunit'i:._ of , effectively defending-Dismissal pursuant to departmental proceedings-Whether Court can sit in appeal-Whether Evidence Act applies to departmental proceedings.\n\nThe appellant was a Police Constable. SOme persons were convicted for transporting smuggled illicit liquor under section 66(b) of the Bombay Prohibi~\n\ntion Act. The Police Sub Inspector submitted a Confidential report on that incident to the Superintendent of Police and pointed out that some Police C '\".\n\nConstables including the appellant wen; indulging in smugglihg illicit liquor.\n\nI The Superintendeht of Police directed the P.S.I. to record the statements of three constables, Akki, Warn.an and.Nishikant. The Police Sub Inspector, therefore, recorded the statements of those constables in the presence of the Superintendent of Police. The statements of Akki and Nishikan, t disclosed their complicity as well as complicity of six other Police constables including the appellant. D.S.P. ordered the S.D.P.0. t\" hold a departmental enquiry against them. They were all transferred from Belgaum and directed not to leave D their new station without the permission of the D.S.P. except for purpoSes of' or in connectioh with1 departmental enquiry. The appellant did not plead guilty.\n\nThe Enquiry Officer held enquiry. A number of witnesses were examined both by the prosecution and the defence. The Enquiry Officer made a report to the Superintendent of Police that the charge: against the appeUaht \\Vas not established. He, however, recommended that the appellant should be administered a severe warning since he was guilty of misconduct and dereliction of duty. The Superintendent of Police did hot agree with the finding; of the ' Enquiry Officer and directed him to examine. Police Constable Akki ¥.'h05e state- E rnent had been recorded before the enquiry was ordered against the ap-pellant.\n\nAkki was accordingly examihed but be resiled fron11 his earlier statement. The\n\nEnquiry Officer agaih submitted a further report and stn1ck to his former recommendation regarding administiratfun of severe warning to the appellant.\n\nThe Superintendent of Police disagreed with the. report of the Enquiry Officer and found that there was: sufficient evidehce against the appellant to prove his guilt.\n\nA.ccordingly, he issued a notice to the appellant callirtg upon him to show cause why he should not be dismissed from Service.\n\nNot feeling satisfied with the explanation tendered by t}Je appellant the Superintendent of F Police passed an order dismissing the appellant from service. An appeal filed to the D.I.G. was unsuccessful and so was a revision to the 'Government.\n\n't Thereafter, the appellant filed a suit challenging the order of dismissal and -claiming arrears of nay. The Trial Court dismissed the suit. The Lower Appellate Court reversed the judgment of the Trial Court. The High Court nllowed the second appeal filed by the State.\n\nIn an appeal by Special Leave, the appellant contended :\n\n( 1) The appellant was deprived of a reasonable opportunity of defending himself during the course of the departmental enquiry. He was not permitted to remain at Belgaum during the period of his, suspension. Evidence of some -of the prosecution witnesses was recorded in his absence.\n\n(2) The impugned judgment and decree cannot be sustained as there is no cogent legal evidence to establish the charge against the appellant.\n\nDismissinQ! the appeal, HELD : (I ) Whether a delinquent had a reasonable opportunity of effective 1y defending himself is a question of fact depending on cfrcumstances of each\n\ncase and no hard and fast rule can be laid in that behalf. In the instant case,. the order restricting his movement was not such as can b~. said to have deprived him of reasonable opportunity of making his defence.\n\nThe order did not \"- ._ place any embargo on the appellant going to Belgaum for the purpose of an~ in connection with the departmental enquiry. In fact, the appellant fully participated in the enquiry held at that place.\n\nHe also made full use of the assistance of a policeman called Police friend. provided to him to conduct the defence on his behalf. He was furnished with the statements recorded of the 3 constables before the enquiry was ordered. The witnesses examined by the prosecution were tendered for cross-examination. It, therefore, cannot be held that a reasonable opportunity as contemplated by Article 311 of the Costitution was denied lo the appellant. [91W-Gl\n\n(2) Neither the High Court nor this Court can re.examine and reassess the evidence in domestic enquiries of the instant natllre.\n\nWhether or not there is sufficient evidence agaiinst .a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. The departmental proceedings do not stand on the same footing as criminal proceedings in \"''hich high. degree of proof is required. The departmental proceeding9 are not covered by strict rules of evidence as oontaihed in the Evklence Act. l\\ copy of the statement made by Akki earlier was furnished to the appellant and he examined all the i\n\n3 constables including Akki who made statements before the enquiry was ordered. [916 H, 917 A.q\n\nStole of My:Jore v. Shivabsappa, [19631 2 S.C.R. 941; A.LR. 1963 S.C. 375; State of U.P. v. Om Prakash, A.LR. 1970 S.C. 669 followed; Ghanshyam Das Shrivastava\n\nv. State of Madhya Pradesh, A.I.R. 1973\n\nS.C. 1183 distinguished.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 847 of 1974.\n\nAppeal by Special Leave from the Judgment and Decree dated the 3-10-72 of the Mysore High Court in Regular Second Appeal No. 729 of 1967.\n\nS. S. Javali and H. K. Puri, for the Appellant.\n\nNarain Nettar, for the Respondent.\n\nThe Judgment of the Court was de.livered by\n\nJASWANT SINGH, J.\n\nThis appeal by special leave is directed against the judgment and decree dated October 3, 1972, passed by a Single Judge of the Mysore High Court whereby allowing the respondent's second appeal No. 72.9 of 1967, he set aside the appellate judgment and decree dated Apdl 18, 1967 passed by Civil Judge, Belgaum, declaring the order dismissing the appellant from service as illegal and ultra vires.\n\nFacts material for the purpose of this appeal are : The appellant herein was a Police Constable attached to Khade-bazar Police Station at Belgaum in 1960. In the small hours of the morning of November 17, 1960, the Cantonment Police intercepted a tonga transporting smuggled illicit liquor in four tubes from Devi Temple to the cantonment area with the intention of disposing of the same to bootleggers.\n\nAfter registering a case nnder section 66 (b) of the Bombay Prohibition Act, the Cantonment P .S.I. proceeded against the tonga driver and another person who was found following the tonga, in a criminal court of competent jurisdiction and succeeded in securing their conviction for the aforesaid offence.\n\nOn November 18, 1960, the Cantonment P.S.I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter\n\n) K. L. SHINDE v. MYSORE (laswant Singh, l.) 915\n\nthat some police constables including the appellant who were newly A . , recruited and attached to different police stations in Belgaum were indulging in smuggling illicit liquor.\n\nOn receipt of this report, the Superintendent of Police directed the P.S.I. Khade-bazar police station, to record. the statements of three constables namely M. Y.\n\nAkki, Waman Mangesh, and Nishikant Shimaji Satyannawar.\n\nPursuant to these directions, the P.S.I. recorded the statements of the aforesaid police constables in the presence of the Superintendent of Police.\n\nThe B statement of Nishikant and Akki, constables disclosed their own and six other police constables, complicity in the aforesaid smuggling activity.\n\nThe Superintendent of Police thereupon suspended the appellant and the other six constables and ordered the S.D.P.O. to hold a departmental enquiry against them.\n\nThe Superintendent of Police also transferred all the seven deliquents from Belgaum and directed that they would not leave their new stations without his permission except C for purposes of or in connection with the department enquiry. Though the appellant sought permission to stay at Belgaum during the period of his suspension, his request was refused.\n\nAs the appellant did not plead guilty to the charge framed against him, the Enquiry Officer proceeded to hold the enquiry against him in accordance with the rules contained in the Bombay Police Manual,\n\n1950.\n\nOn the conclusion of the enquiry during the course of which a number of witnesses were examined both by the prosecution and the defence, the Enquiry Officer reported to the Superintendent of Police on November 10, 1961, that the charge against the appellant was not established.\n\nHe, however, recommended that the appellant should be administered a severe warning as he was convinced that he had been guilty of misconduct and dereliction of duty.\n\nThe Superintendent of Police did not agree with the findings of the Enquiry Officer and directed him to examine police constable Akki whose statement had been recorded before the charge was framed against the appellant.\n\nAkki was accordingly examined but he resiled from his earlier statement.\n\nThe Enquiry Officer in the course of his second report dated November 30, 1961, submitted to the Superintendent of Police that no fresh evidence was forthcoming against the appellant.\n\nHe, however, stuck to his former recommendation regarding administration of severe warning to the appellant.\n\nThe Superintendent of Police again disagreed with the report of the Enquiry Officer and found that there was sufficient evidence against\n\nthe appellant to prove his guilt.\n\nAccordingly he issued a notice to G • the appellant on December 20, 1961, calling upon the latter to show ' cause why he should not be dismissed from service.\n\nNot feeling satistied with the explanation tendered by the appellant, the Superintendent of Police passed an order on February 9, 1962, dismissing the appellant from service. Aggrieved by this order, the appellant went up in appeal to the D.l.G. of Police but was unsuccessful.\n\nHe also took the matter in revision to the Government but there also he failed.\n\nH Eventually he brought a suit in the Court of the IInd Additional Munsiff, Relgaum, challenging the aforesaid orders of his dismissal and claiming the arrears of his pay.\n\nA The principal contentions raised by the appellant were two.fold :\n\n(1) That no reasonable opportunity was given to l]im to defend him self and (2) that the Superintendent of Police was wrong in relying on tbe statement~ of the witnesses recorded before the charge was framed against him and in re-assessing the evidence contrary to the conclusion arrived at by tbe Enquiry Officer who held that there was\n\nno evidence to substantiate the charge against him.\n\nAfter a regular trial, tbe suit was dismissed by tbe Munsiff, Belgaum. On appeal, tbe Civil Judge, Belgaum reversed the judgment of the Munsiff and decreed the suit.\n\nAggrieved by the decision of tbe Civil Judge, Belgaum, the State Government preferred an appeal to the High Court of Mysore which, as stated above, was allowed.\n\nCounsel for the appellant has, while supporting the appeal, vehemently contended that tbe aforesaid judgment and decree of the High Court cannot be sustained as the appellant was deprived of a reasoni able opportunity of defending himself during tbe course of the departmental enquiry.\n\nElaborating his submission, counsel has urged tbat as restrictions were placed on the movement of tbe appellant and he was not permitted to remain at Belgaum during the period of his suspension and evidence of some of the prosecution witnesses was recorded in his absence, there has been a gross violation of tbe provisions of Article 311 of the Constitution and tbe principles of natural justice. Counsel .has further contended that the impugned judgment and decree cannot also be sustained as tbere is no cogent and legal evidence to establish the charge against the appellant.\n\nIt is well settled tbat whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf.\n\nIn tbe instant case, the order restricting tbe movement of tbe appellant on which strong reliance has been placed on his behalf for assailing tbe impugned order of his dismissal was not such as can be said to have deprived him of a reasonable opportunity of making his defence.\n\nThe order, it would be noted, did not place any embargo on tbe appellant's going to Belgaum for the purpose of and in connection with the departmental enquiry.\n\nIn fact the appellant fully participated in the enquiry held at that place.\n\nHe also made full use of tbe assistance of a police man (called police friend) provided to him to conduct tbe defence on his behalf.\n\nThe police friend appeared on his behalf before tbe Enquiry Officer and crossexamined all the witnesses whom the prosecution examined or tendered for cross-examination.\n\nHe was also furnished with copies of the statements of tbe three police constables recorded by the Cantonm'ent P.S.I. and allowed an adequate opportunity of cross-examining them.\n\nThere is also nothing to indicate that the appellant's request for an opportunity to examine any witness in his defence was refused. In fact, he did examine some witnesses in his defence. In view of all\n\ntis, it cannot be held tbat a reasonable opportunity of defending himself as contemplated by Article 311 of the Constitution was denied to tbe appellant. ·\n\n. ,\n\n• '\n\nK. L. SHINDE v. MYSORE (Jaswant Singh, J.) 917\n\nRegarding the appellant's contention that there was no cogent evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and reassess the evidence adduced in domestic enquiries of the rature with which we are at present concerned. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not siand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case, reliance was pbced by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act.\n\nThat apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before the P .S.I. Khade-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to expla.in as to why he made that statement, he expressed his inability to do so.\n\nThe present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabsappa( 1) where it was held as follows :-\n\n\"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow\n\nthe procedure prescribed for trial of actions in courts nor E are they bound by strict rules of evidence.\n\nThey can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedures which govern proceedings in court.\n\nThe only obligation which the \"law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom F it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity kas been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.\n\n2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation.\n\nWhen the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him.\n\nThe position is the same when a witness is called, the statement given previously by him behind the back of the party is put\n\n(I) [1963] 2 S.C.R. 943 : A.I.R. 1963 S.C. 375.\n\nto him, and admitted in evidence, a copy thereof is gi vcn to the party and he is given an opportunity to cross-examine him.\n\nTo require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance.\n\nThey are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to crossexamine them.\"\n\nFollowing the above decision, this Court held in State of U.P. v.\n\nOm Prakash ( 1) that the enquiry is not vitiated if the statements taken at the preliminary stage of enquiry are made available to the delinquent officer and he is given an opportunity to cross-examine the witnesses in respect of those statements.\n\nThe decision of this Court in Ghanshyam Das Shrivastava v.\n\nState of Madhya Pradesh( 2 ) on which strong reliance is placed is clearly distinguishable and is not at all helpful to the appellant.\n\nIn that case the appellant was deprived of the opportunity to defend himself by participating in the enquiry which was held at Jagdalpur, 500 kilometres away from Rewa where the appellant was residing on account of paucity of funds resulting from non payment of subsistence allowance during his suspension.\n\nFor the foregoing reasons, we do not find any force in the contention of counsel for the appellant that there was no evidence on the record which could justify the appellant's dismissal from service.\n\nBoth the contentions raised on behalf of the appellant being without any substance, we find ourselves unable to interfere with the judgment and decree passed by the High Court.\n\nThe appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.\n\nP.H.P.\n\n(!) A.LR. 1970 S.C 669.\n\n(2) A.I.R. 1973 S.C. 1183.\n\nAppeal dismissed.\n\n\" .", "total_entities": 41, "entities": [{"text": "K. L. SHINDE", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "K. L. SHINDE", "offset_not_found": false}}, {"text": "STATE OF MYSORE", "label": "RESPONDENT", "start_char": 19, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "STATE OF MYSORE", "offset_not_found": false}}, {"text": "March 26, 1976", "label": "DATE", "start_char": 36, "end_char": 50, "source": "ner", "metadata": {"in_sentence": "STATE OF MYSORE\n\nMarch 26, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGII, JJ.J\n\nConstitution-Article 311-Domestic inquiry-Reasonable cpportunit'i:._"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 53, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 70, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Article 311", "label": "PROVISION", "start_char": 119, "end_char": 130, "source": "regex", "metadata": {"statute": null}}, {"text": "Dismissal pursuant to departmental proceedings-Whether Court can sit in appeal-Whether Evidence Act", "label": "STATUTE", "start_char": 202, "end_char": 301, "source": "regex", "metadata": {}}, {"text": "section 66(b)", "label": "PROVISION", "start_char": 453, "end_char": 466, "source": "regex", "metadata": {"linked_statute_text": "Dismissal pursuant to departmental proceedings-Whether Court can sit in appeal-Whether Evidence Act", "statute": "Dismissal pursuant to departmental proceedings-Whether Court can sit in appeal-Whether Evidence Act"}}, {"text": "Akki", "label": "WITNESS", "start_char": 824, "end_char": 828, "source": "ner", "metadata": {"in_sentence": "I The Superintendeht of Police directed the P.S.I. to record the statements of three constables, Akki, Warn.an and."}}, {"text": "Nishikant", "label": "OTHER_PERSON", "start_char": 842, "end_char": 851, "source": "ner", "metadata": {"in_sentence": "Nishikant.", "canonical_name": "Nishikant"}}, {"text": "Nishikan", "label": "OTHER_PERSON", "start_char": 1010, "end_char": 1018, "source": "ner", "metadata": {"in_sentence": "The statements of Akki and Nishikan, t disclosed their complicity as well as complicity of six other Police constables including the appellant.", "canonical_name": "Nishikant"}}, {"text": "Belgaum", "label": "GPE", "start_char": 1231, "end_char": 1238, "source": "ner", "metadata": {"in_sentence": "They were all transferred from Belgaum and directed not to leave D their new station without the permission of the D.S.P. except for purpoSes of' or in connectioh with1 departmental enquiry."}}, {"text": "D.S.P.", "label": "ORG", "start_char": 1315, "end_char": 1321, "source": "ner", "metadata": {"in_sentence": "They were all transferred from Belgaum and directed not to leave D their new station without the permission of the D.S.P. except for purpoSes of' or in connectioh with1 departmental enquiry."}}, {"text": "D.I.G.", "label": "ORG", "start_char": 2749, "end_char": 2755, "source": "ner", "metadata": {"in_sentence": "An appeal filed to the D.I.G. was unsuccessful and so was a revision to the 'Government."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 4577, "end_char": 4588, "source": "regex", "metadata": {"statute": null}}, {"text": "Akki", "label": "OTHER_PERSON", "start_char": 5200, "end_char": 5204, "source": "ner", "metadata": {"in_sentence": "l\\ copy of the statement made by Akki earlier was furnished to the appellant and he examined all the i\n\n3 constables including Akki who made statements before the enquiry was ordered. ["}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 5813, "end_char": 5823, "source": "ner", "metadata": {"in_sentence": "S. S. Javali and H. K. Puri, for the Appellant."}}, {"text": "Narain Nettar", "label": "LAWYER", "start_char": 5845, "end_char": 5858, "source": "ner", "metadata": {"in_sentence": "Narain Nettar, for the Respondent."}}, {"text": "JASWANT SINGH", "label": "JUDGE", "start_char": 5926, "end_char": 5939, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": true}}, {"text": "Civil Judge, Belgaum", "label": "COURT", "start_char": 6234, "end_char": 6254, "source": "ner", "metadata": {"in_sentence": "72.9 of 1967, he set aside the appellate judgment and decree dated Apdl 18, 1967 passed by Civil Judge, Belgaum, declaring the order dismissing the appellant from service as illegal and ultra vires."}}, {"text": "section 66", "label": "PROVISION", "start_char": 6779, "end_char": 6789, "source": "regex", "metadata": {"statute": null}}, {"text": "November 18, 1960", "label": "DATE", "start_char": 7057, "end_char": 7074, "source": "ner", "metadata": {"in_sentence": "On November 18, 1960, the Cantonment P.S.I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter\n\n) K. L. SHINDE v. MYSORE (laswant Singh, l.) 915\n\nthat some police constables including the appellant who were newly A . ,"}}, {"text": "P.S.I.", "label": "ORG", "start_char": 7091, "end_char": 7097, "source": "ner", "metadata": {"in_sentence": "On November 18, 1960, the Cantonment P.S.I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter\n\n) K. L. SHINDE v. MYSORE (laswant Singh, l.) 915\n\nthat some police constables including the appellant who were newly A . ,"}}, {"text": "P.S.I. Khade-bazar police station", "label": "ORG", "start_char": 7532, "end_char": 7565, "source": "ner", "metadata": {"in_sentence": "On receipt of this report, the Superintendent of Police directed the P.S.I. Khade-bazar police station, to record."}}, {"text": "M. Y.\n\nAkki", "label": "OTHER_PERSON", "start_char": 7620, "end_char": 7631, "source": "ner", "metadata": {"in_sentence": "the statements of three constables namely M. Y.\n\nAkki, Waman Mangesh, and Nishikant Shimaji Satyannawar."}}, {"text": "Waman Mangesh", "label": "OTHER_PERSON", "start_char": 7633, "end_char": 7646, "source": "ner", "metadata": {"in_sentence": "the statements of three constables namely M. Y.\n\nAkki, Waman Mangesh, and Nishikant Shimaji Satyannawar."}}, {"text": "Nishikant Shimaji Satyannawar", "label": "OTHER_PERSON", "start_char": 7652, "end_char": 7681, "source": "ner", "metadata": {"in_sentence": "the statements of three constables namely M. Y.\n\nAkki, Waman Mangesh, and Nishikant Shimaji Satyannawar."}}, {"text": "S.D.P.O.", "label": "ORG", "start_char": 8094, "end_char": 8102, "source": "ner", "metadata": {"in_sentence": "The Superintendent of Police thereupon suspended the appellant and the other six constables and ordered the S.D.P.O. to hold a departmental enquiry against them."}}, {"text": "November 10, 1961", "label": "DATE", "start_char": 8917, "end_char": 8934, "source": "ner", "metadata": {"in_sentence": "On the conclusion of the enquiry during the course of which a number of witnesses were examined both by the prosecution and the defence, the Enquiry Officer reported to the Superintendent of Police on November 10, 1961, that the charge against the appellant was not established."}}, {"text": "November 30, 1961", "label": "DATE", "start_char": 9520, "end_char": 9537, "source": "ner", "metadata": {"in_sentence": "The Enquiry Officer in the course of his second report dated November 30, 1961, submitted to the Superintendent of Police that no fresh evidence was forthcoming against the appellant."}}, {"text": "December 20, 1961", "label": "DATE", "start_char": 9982, "end_char": 9999, "source": "ner", "metadata": {"in_sentence": "Accordingly he issued a notice to G • the appellant on December 20, 1961, calling upon the latter to show ' cause why he should not be dismissed from service."}}, {"text": "February 9, 1962", "label": "DATE", "start_char": 10205, "end_char": 10221, "source": "ner", "metadata": {"in_sentence": "Not feeling satistied with the explanation tendered by the appellant, the Superintendent of Police passed an order on February 9, 1962, dismissing the appellant from service."}}, {"text": "Court of the IInd Additional Munsiff, Relgaum", "label": "COURT", "start_char": 10485, "end_char": 10530, "source": "ner", "metadata": {"in_sentence": "H Eventually he brought a suit in the Court of the IInd Additional Munsiff, Relgaum, challenging the aforesaid orders of his dismissal and claiming the arrears of his pay."}}, {"text": "High Court of Mysore", "label": "COURT", "start_char": 11351, "end_char": 11371, "source": "ner", "metadata": {"in_sentence": "Aggrieved by the decision of tbe Civil Judge, Belgaum, the State Government preferred an appeal to the High Court of Mysore which, as stated above, was allowed."}}, {"text": "Article 311", "label": "PROVISION", "start_char": 12024, "end_char": 12035, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 311", "label": "PROVISION", "start_char": 13806, "end_char": 13817, "source": "regex", "metadata": {"statute": null}}, {"text": "P .S.I. Khade-bazar police station, Belgaum", "label": "ORG", "start_char": 15222, "end_char": 15265, "source": "ner", "metadata": {"in_sentence": "It is also significant that Akki admitted in the course of his statement that he did make the former statement before the P .S.I. Khade-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to expla.in as to why he made that statement, he expressed his inability to do so."}}, {"text": "November 21, 1961", "label": "DATE", "start_char": 15270, "end_char": 15287, "source": "ner", "metadata": {"in_sentence": "It is also significant that Akki admitted in the course of his statement that he did make the former statement before the P .S.I. Khade-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to expla.in as to why he made that statement, he expressed his inability to do so."}}, {"text": "[1963] 2 S.C.R. 943", "label": "CASE_CITATION", "start_char": 17073, "end_char": 17092, "source": "regex", "metadata": {}}, {"text": "Jagdalpur", "label": "GPE", "start_char": 18360, "end_char": 18369, "source": "ner", "metadata": {"in_sentence": "In that case the appellant was deprived of the opportunity to defend himself by participating in the enquiry which was held at Jagdalpur, 500 kilometres away from Rewa where the appellant was residing on account of paucity of funds resulting from non payment of subsistence allowance during his suspension."}}, {"text": "Rewa", "label": "GPE", "start_char": 18396, "end_char": 18400, "source": "ner", "metadata": {"in_sentence": "In that case the appellant was deprived of the opportunity to defend himself by participating in the enquiry which was held at Jagdalpur, 500 kilometres away from Rewa where the appellant was residing on account of paucity of funds resulting from non payment of subsistence allowance during his suspension."}}]}
{"document_id": "1976_3_919_928_EN", "year": 1976, "text": ". ~\n\nACHUTANANDA PUROHIT AND ORS.\n\nTHE STATE OF ORISSA\n\nMarch 26, 1976\n\n[Y. V. CH, ANDRACHUD, V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.]\n\nOrissa Estates Abolition Act, 1951-Secs. 26-27-Constitution of India Articles 31A-31B-3l (2 )-31 (3 )-Agrarian ref arm-Whether ii1terr:st at n1arket rate or statutory rate-Calculation of cotnpensation.\n\nThe appellant was the intern1ediary in respect of vast forest and other land<; in the State of Orissa. The estates vested in the State i11 April 1960 by force\n\nof the Orissa Estates Abolition Act, 1951.\n\nThe appellant submitted necessary return for compensation as provided by the Act.\n\nThe Compensation Officer passed an order adverse to the appellant whereupon the-appellant filed ah appeal to C the Col1ector which was rejei; ted. A second appeal filed before the Board of Revenue was dismissed.\n\nLater on, Revision Petitions were filed in the High Court. The High Court set aside the order and directed remand to the Compensation Officer.\n\nThereafter, the District Forest Officer made his appraisal of the annual income and submitted to the Chief Conservator of Forests who altered the actual yield an<l reduced it substAntially.\n\nBoth the State and the appellant filed appeals to the Collector which were disn1issed.\n\nA second appeal was filed by the appel-\n\n- lant before the Board of Revenue without success. In the Revision Applications D filed before the High Court which led to the re.mand now challenged in the present appeals the appellant contended before this Court :\n\n(l) The interest ought to have been awarded at 12 per cent as against\n\nthe statutory rate of 2t per cent from the date of the vesting till payment.\n\n(2) Compensation money should be so calculated that the purchasing power of the amount of con1pensation to be paid .on the date of E actual payment will not be less than the purchasing pO\\\\'er on the date of vesting.\n\n(3) The slab-system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional.\n\n( 4) Unlike in case of fisheries etc., where the actual income is to be included in the gross assts, in the case of forests, the assumed income and not the actual income is to be included. During the agricultural F year immediately preceding the abolition, the petitioners had not actually derived any income from the forests and as such they ~'ere under no obligation to pay any income tax on such income.\n\nThere fore. deduction of income tax from the gross assets is illegal and unwarranted.\n\n(5) The compensation has not been computed in accordance with the scheme of the Act.\n\n(6J The date of vesting is the last date by which the calculation of G compensation should have been made and since that had not been done the Compensation Officer had become functus officio in awarding compensation.\n\nDismissing the appeals,\n\nHELD : 1. The policy of the law of agrarian reforms postulates the ext!nguishment of ancient privileges and c9rnering of land rsources and the socio- H econon1ic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in Article 31A and 31B of the Constitution. A similar principle applies to the a~'ard of interest which may sometimes be notional when feudal interests are puffed out. The\n\ndynamic rule of Jaw with a social mission makes a meaningful distinction between rights steeped in the old system and compensation for deprivation of those interests on the one hand and the ordinary commercial traru; actions on the other. [923F-GJ\n\n2. It is more or less a world phenomenon that the erosion in value of the unit of currency has been taking place.\n\nBut this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute. For the purposes of the law, the rupee of long ago is the same as the rupee of today although for the purposes of the, market place and cost of living, the housewife's answer may be different.\n\n[924B-CJ\n\n3. Article 31(3) read with Article 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to the compliance with the prescriptions in the said sub articles on the ground that the amount so fixed or determined is not adequate.\n\nPresidential assent has been accorded to this State Act and so the loan operates. [924C-D]\n\n4. The submission of the appellant proceeds on a misreading of section 27.\n\nIn the case of forests it is the assumed and not the actual income that forms the b:iis for calculation of compensation. Similarly an assumed income tax also has to be worked out and deducted.\n\n[924F-G]\n\n5. The scheme of the Act is that the compensation must be calculated on the basis of appraisal of the apnual yield of the forests en the date of vesting firstly by a Forest Officer and secondly by the Chief Conservator of Forests, screening it and approving it. In the present case, the Chief Conservator had substituted his appraisement which was accepted by the statutory Tribunal. There was a fundamental difference in the basis adopted by the Forest Officer and the Chief Conservator of Forests in the matter of assessing in the incorne of the Forest in Question. What the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary. This was wrong and contrary to section 26. This Court is in agreement with the course adopted by the High Court and the reasoning \\Vhich has prevailed with it.\n\n[925C, 927A-BJ\n\n6. Before the date of vesting the State never can nor does fix the compensation through the Compensation Officer in any of the agrarian refonn Jaws and these compensation operations are post-statutory exercises. Therefore, there is no substance in the funtcus officio argument.\n\nIf the officer had no jurisdiction the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdiction; a consequence the appellant never wants. Technicality can be frightened away by technicality. [927D-E]\n\n7. After remand the Forest Officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who \\Vitl take the said report into consideration and, if necessary, make the modifications therein or approve it th such changes as he deems fit.\n\nCertainly, the Chief Conservator cannot be ignored by the Compensation Officer nor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise. The take over of the forest of the appeUant was effected as early as in 1960. '(he fligh Court has stated that a large part of the delay has been due to laches committed from time to time by the officers charged with the duty to calculate the compensation.\n\nIt is therefore directed that the proceedings before the Compensation Officer shall be completed within six months from today.\n\n[927F-H, 928A-BJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 312 to 314 of 1972.\n\nAppeals by Special Leave from the Judgment and Order dated the 19-3-71 of the Orissa High Court in C.W. Nos. 3'25 to 327 /70.\n\nAppellant No. 1 in person and D. N. Misra for the Appellants.\n\n\" .\n\nA. PUROHIT v .. ORISSA (Krishna Iyer, J.)\n\nGobind Das and G. S. Chatterjee for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThree civil appeals, stemming from three revision petitions to the High Court of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (for short, the Act) have reached this Court, thanks to special leave granted to the appellant, who is common in all the cases.\n\nThe High Court, after deciding various issues, remanded the cases to the Compensation Officer under the Act, after over-ruling most of the contentions pressed before it by the appellant.\n\nShri Achutananda Purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of Jujumura in the district of Sambalpur.\n\nThis estate vested in the State on April 1, 1960 by force of the Act and the crucial question agitated before us, consequentially, turns on the quantum of compensation awardable under Chapter V of the Act.\n\nThe appellant has received around Rs. 3,00,000/- but much more, according to him, is due and this controversy can be settled by examining his specific points.\n\nShri Purohit, appellant, is an Advocate by profession and is 83 D years old.\n\nHe has argued in person and with passion.\n\nWe have listened with patience to all his submissions, good, bad and indifferent.\n\nIf we may anticipate ourselves, none of the nine submissions has appealed to us, save to the extent the High Court has upheld.\n\nEven so, a minimal narration of the facts and a brief consideration of each argument is necessary and we proceed to do so.\n\nWhile his arguments did not impress us, we were touched by his concluding words E that he had been born and had grown in an adivasi village, in the only brahmin family and, in his evening years of life, proposed to give a substantial part of the compensation the State would give him for adivasi welfare.\n\nAlthough he waxed sentimentally on this note, he did not convince us on his contentions.\n\nWith these prefatory observations, we proceed to formulate the many points urged and give our findings and reasons, one after the other.\n\nWe are directly concerned with the issue of compensation which is dealt with. as earlier stated, in Chapter V of the Act.\n\nThe Compensation Officer is charged with fixing_ the quantum in the prescribed manner.\n\nA compensation assessment roll containing the gross asset and net income of each estate, together with the compensation payable in respect of such estate, has to be prepared by him.\n\nOf course, when there is joint ownership, s. 24 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein.\n\nSection 26 has great relevance as it lays down the method of arriving at the gross asset and s. 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. Section 28 states how the amount of compensation is to be determined and the methodology of payment. There are a few other sections in Chapter VI which deal with payment of compensation. The Act also provides for appeal, second appeal and\n\nrevision, the last being to the High Court and the earlier ones being to the Collector and a Board constituted under s. 22.\n\nThe rule-making power is vested in the government under s. 4 7 and there is a routine 'removal of difficulties' clause contained in s. 50.\n\nThese furnish in bare outline the provisions with which we are directly concerned.\n\nAgainst the background of law just projected, we may set out Shri Purohit's points which, if we may say so, are substantially the same as have been argued by him in revision before the High Court with partial success.\n\nFor convenience of reference, we may extract the statement by the High Court of the contentions urged before it (and repeated before us) by the appellant :\n\n\"(l) The provisions of s. 37(3) read with s. 26(2) (b) ( v) of the Act make it clear that the date of vesting is the last date by which the calculation of compensation should have been made.\n\nAs admittedly compensation had not been calculated by the date of vesting, the Compensation Officer lost his statutory jurisdiction to do so.\n\nIt is this Court which, by its order dated 10-4-1969 in Civil Revisions 201, 202 and 203 of 1968 conferred new jurisdiction on the Compensation Officer to deal freshly with the case and therefore notwithstanding anything contained in the Act, the compensation has to be calculated according to the directions given by the Court;\n\n(2) The Court was fully aware of the statutory provision in s. 26(2) (b) (v) of the Act, but in spite of it, the direction E was that the Divisional Forest Officer should make the appraisement.\n\nThere was no direction that this report of the\n\nD.F.O. should be further subject to the approval of the Chief Conservator of Forests.\n\nThe calculatiOn made by the Chief Conservator of Forests therefore has no statutory force but could be just a piece of evidence.\n\nBut as the Court directed that no further evidence on behalf of the State F should be received, Ext. A/l is inadmissible in evidence.\n\n( 3) Assuming that in spite of the directions of the court the Compensation Officer is entitled' to follow the procedure laid down in Section 26(2) (b) (v), the expression 'subject to the approval of the Chief Conservator of Forests' does not refer to the appraisement made by the D .F .0. but refers to his appointment.\n\n(4) Assuming that s. 26(2) (b) (v) would have full force, what it contemplates is that the appraisement must be made by the D.F.O., and it is subject to the approval by the Chief Conservator of Forests.\n\nBut what has happened here is that the Chief Conservator himself made the appraisement without referring to the appraisement made by the D.F.O. and as such the appraisement made by the Chief Conservator is invalid.\n\n(5) The report of the Chief Conservator of Forests is also invalid because of the fact that the appraisement is made\n\n• i\n\nA. PUROH!T v. ORISSA (Krishna Iyer, J.) 923\n\nonly with reference to the area of the disputed forests with- A out taking into consideration the density of growth therein;\n\n( 6) Unlike in case of fisheries etc., where the actual income is to be included in the gross assets, in the case of forests, the assumed income and not the actual income is to be included.\n\nDuring the agricultural year immediately preceding the abolition, the petitioners had not actually deriv, ed any income from the forests and as such they were under .no obligation to pay any income-tax on such income.\n\nTherefore, deduction of income-tax from the gross assets is illegal and unwarranted.\n\n(7) The slab-system of calculation of compensation in the Act providing smaller multiples for estates yielding larger income is unconstitutional.\n\n(8) Compensation money should be so calculated that the purchasing power of the amount of compensation to be paid on the date of actual payment will not be less than its purchasing power on the date of vesting; and\n\n(9) Interest should be calculated at not less than 12% per annum from the date of vesting till payment.\"\n\nThe meat of the matter, the primary question agitated in the appeal, lopping off the fringe issues of lesser import, consists in the statutory methodology and functionaries prescribed by the Act for quantifying the compensation and the compliance therewith by the statutory machinery in the case of the appellant.\n\nBut before examining this essen- E tial issue we may dispose of the minor points pressed, so that the deck may be cleared for dealing with what deserves to be dealt with.\n\nPoint No. 9, in the catalogue already given, relates-to the claim for 12 % interest on the amount of compensation as against the statntory rate of 2!%. The policy of the law of agrarian reform postulates F the extinguishment of ancient privileges and cornering of land resources, and the socio-economic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special\n\nprovisions contained in Art. 3!A and Art. 31B of the Constitution.\n\nA similar principle applies to the award of interest which may sometimes be notional when feudal interests are puffed out.\n\nWe cannot import the notion of prevailing bank rates in such situations.\n\nThe G dynamic rule of law, with a social mission, makes a meaningful distinction .behveen rights s!eeped in the old system and compensation for depnvatlon of those interests, on the one hand, and the ordinary commercial. transactions or regulation of rights untinged by social !ransformat10n urges, on the other.\n\nThis gives rtionality to the seemmg d1spanty.\n\nHolmes once commented : 'It is revolting to have no better reason for a rule of law than that so it was laid down in H the time of Henry IV'.\n\nHere there is good reason to depart from the old rule of full compensation and it perhaps legitimates the reduced rate of recompense.\n\nMoreover, the High Court has rightly pointed\n\nout that the validity of s. 37(3) of the Act which fixes a small rate of interes_t on the compensation amount has been upheld by the Supreme Court in Ga; apati Narayan's Case(').\n\nPoint No. 8 has only to be stated to be rejected.\n\nThe contention is that on the date of vesting, which was well over two decades ago, the purchasing power of the rupee was much higher than its present value. It is more or less a world phenomenon that the erosii. •\n\non in value of the unit of currency has been taking place, but this invisible devaluation owing to the inflationary spiral does not affect the quantum of monetary compensation prescribed by statute.\n\nFor the purposes of the law, the rupee of long ago is the same as the rupee of today, although for the purposes of the market place and cost-ofliving, the housewife's answer may be different.\n\nLaw is sometimes blind.\n\nThe next point in the reverse order is equally unsubstantial and may be disposed of right away.\n\nThe appellant challenges the slab system of compensation provided in the Act which awards smaller __. multiples for estates yielding larger incomes, on the score of violation r of the fundamental rights under the Constitution.\n\nThe short answer is that Art. 31(3) read with Art. 31(2) bars any challenge to the amount of compensation on acquisition by the State subject to compliance with the prescriptions in the said sub-Articles, on the ground that the amount so fixed or determined is not adequate.\n\nPresidential assent has been accorded to this State Act and so the ban operates.\n\nMoreover, Art. 31A repels the applicability of Arts. 14, 19 and 31 to the acquisition by the State of any estate or of any rights therein etc.\n\nThis provision directly demolishes the contention of the appellant.\n\nPoint No. 6 in the list of contentions earlier reproduced is also bereft of force and we may make short shrift of it.\n\nThe argument is that for certain reasons the appellant could not derive any actual income from the forests taken over by the State from him and therefore there was no income-tax payable on any agricnltural income from these forests.\n\nThe contention is that therefore in arriving at the next income the deduction of income-tax is uot permissible.\n\nHere again, the flaw in the submission consists in mis-reading s. 27 of the Act which expressly states that the net income from an estate shall be computed by deducting from the gross assets of such estate any sum 'which was payable by the intermediary as income-tax in respect of any income . . . derived from such estate for the previous agricultural year'.\n\nNo income, therefore no income-tax, and therefore no deduction, is the syllogism of Shri Purohit.\n\nHe forgets that in the case of forests it is the assumed income and not the actual income that forms the basis of calculation of compensation.\n\nIndeed, if the actnal income were to be the foundation for computation of compensation on the premise that no actnal income has accrued, the compensation might\n\nbe zero. On the other hand, statutory compensation is provided for on the formula of assumed income in the previous year.\n\nSimilarly, an assumed income-tax also has to be worked out and deducted. If\n\n(!) A.LR. 1953 S.C. 375.\n\nA. PUROHIT v. ORISSA (Krishna Iyer, !.) 925\n\na notional income on the assumed basis can be used for fixing compensation, a notional income-tax can be calculated and deducted. The confusion that vitiates the argument is prompted by a circular letter of government regarding non-deductability of income-tax due to the State from the amount of compensation lying to the credit of estateholders.\n\nWe have examined the circular letter and are satisfied that it has no relevance to a situation like the present and it deals with a totally different matter. In short, s. 27 properly construed, can- . not lend itself to the meaning imputed to it by the appellant.\n\nThe serious question that survives for consideration is covered by the remaining points which more or less overlap.\n\nThe statutory scheme of compensation for forest lands consists of a machinery for assessment of the net income which is multiplied on a sliding scale and the method of challenge to the determination by the aggrieved owner of State. Section '26(2)(b) (v) is relevant here and may be set out:\n\n\"26(2) 'gross asset' when used with reference to an estate means the aggregate of the rents, including all cesses, which were payable in respect of the estate for the previous agricultural year-\n\n(b) by the raiyats or any other persons cultivating the land other than the land settled with the intermediary or intermidaris under Sub-section ( 1) of Section 7 and includes :- ( v) gross income from forests calculated on the basis of the appraisement made of annual yield of the forests on the date of vesting by a Forest Officer subject to the approval of the Chief Conservator of , Forests, such Forest O!licer being not below the rank of a Divisional Forest Officer to be appointed in this behalf by the State Government.\"\n\nThe expression 'Forest Officer', used here, has been explained in s. 26.\n\nSo the first step is for the Goverrnnent to appoint Forest Officers from out of D.F.Os. in the Forest Department, for the purposes of the Act.\n\nThose Officers ascertain the income from the forest con- F cerned and the figure so fixed is subject to the approval of the C.C.F.\n\n(Chief Conservator of Forests),, presumably the top expert in the department.\n\nThe power to approve implies the power to disapprove or modify but not to report or arrive at an income de hors the Forest Officer's Report altogether.\n\nThe section is clear that the gross income from forests must be G calculated on the basis of appraisal of the annual vield on the date of vesting,, firstly, by a Forest Officer and, secondly, by the Chief Conservator of orests scrning it a!ld appr<?ving it. . Indeed, p:eliminary to the appraisal operat10n, the mtermediary receives a nottce in Form 'D' (rule 13) and he is expected to furnish a return of the relevant particulars and supporting information to enable correct appraisement.\n\nIn the present case, the appellant did submit the 'D' return to the Comll pensation Officer and adduced some evidence to substantiate it. The Compensation Officer passed an order adverse to the appellant, whereupon he filed an appeal to the Collector which was rejected.\n\nA Second\n\n9-725SCIJ76 j\\\n\nA Appeal followed before the Board of Revenue which was dismissed Later, revision petitions were filed before the High Court and G. K ..\n\nMisra J '\" set aside the order disallowing the inclusion of the income \" • from forests for ascertainment of compensation and directed a remand to the Compensation Officer.\n\nThe said order (th(: relevant portion of which we are concerned) rnns thus :\n\nB \"He would immediately call upon the Divisional Forest Ollicer to make appraisement within three months from the receipt of the record. The appraisement can be scientifically done by looking to the age of the trees as they stand now.\n\nIt is open to the petitioners to give evidence that after the date of vesting many of the trees and forest prodnce have been removed. Besides the evidence already on record would be C taken into consideration.\n\nThe Divisional Forest Officer who would make the appraisement will be examined as a witnes for the Compensation Officer and would be subjected to cross-examination.\n\nNo other evidence would be permissible as the State has not chosen to give any other evidence.\n\nUnder Rule 13(1-c) of the Orissa Estates Abolition Rnles, 1952 the compensation officer may rely upon snch other mater- D ihis as may otherwise be ascertained by him.\n\nBut in such a case the materials mnst be brought to the notice of the petitioners who would be entitled to cross-examine the witnesses connected therewith and may give rebutting evidence.\n\nThe compensation case is to be disposed of b:9 the compensatio11. officer within six months from today ( 10-4-1969) with intimation to this Court.\" E\n\nStrictly speaking, the statutory requirement is for initial appraisal of tl1e annual income by the Forest Officer.\n\nThe use of the expression 'Divisional Forest Officer' is erroneous although Forest Officers are appointed from among Divisional Forest Officers.\n\nEqually clearly, a slight error has crept into the Judge's order because he does not make any reference specifically to the statutory requiremi; nt of approval of the Chief Conservator of Forests of the appraisement made by the Forest Officer.\n\nHowever, what followed is interesting though erroneous. The District Forest Officer (who, inc.identally, happens to be a Forest Officer under the Act, having been appointed as required thereunder) made his appraisal of the annual income and submitted to the Chief Conservator who altered the annual yield and reduced it substantially.\n\nBut he pointed out that the Forest Officer had omitted to include the income from kendu leaves and added that sum to the income from forests.\n\nEven so, the total figure was less than what the Divisional Forest Officer had recommended.\n\nThe Compensation Officer accepted the report of the Chief Conservator and made the statutory calculation on that date.\n\nBoth the State and the appellant filed appeals to the Collector which were dismissed.\n\nA second appeal was filed by the appellant before the Board of Revenue without success.\n\nThen followed three revisi•m petitions to the High Court which led to the order of remand now attacked before us in the present appeals.\n\n• .....\n\nA. PUROHIT v. ORISSA (Krishna lyer, J.) 927\n\nFrom this narrative, what follows is that the Chief Conservator had substituted his appraisement which was accepted by the statutory tribunal.\n\nIndeed, there was a fundamental ditlerence in the basis adopted by the. Forest Officer and the Chief Conservator in the matter of assessing the income of the forests in question.\n\nWe need not go into this detail except for the purpose of noticing that what the Chief Conservator did was not to approve wholly or in a modified form what the Forest Officer did but to make his own appraisal independently and without reference to the report of the statutory functionary, viz.,, the Forest Officer. This was wrong and contrary to s. 26, as was contended by the appellant and in a way accepted by the High Court.\n\nWe are in agreement with the course adopted by the High Court and the reasoning which has prevailed with it.\n\nThe direction given\n\nby the learned Judge in the remand order is correct although it may C require a little clarification. Having heard the appellant at some length, we see no flaw in the High Court's order on this aspect of the matter.\n\nIt is astonishing that anyone should urge, as the appellant did, that the date of vesting is the last date by which the calculation of compensation should have been made and since that had not been done, the Compensation Officer had becom.e funclus officio in awarding, compensation.\n\nBefore the date of vesting the State never can, nor docs, fix D the compensation through the Compensation Officer in any of the agrarian reform laws, and these compensation operations are poststatutory exercises.\n\nTherefore there is no substance in the functus officio argument. If the officer had no jurisdiction, the land would be gone because of the vesting provision and no compensation would be forthcoming for want of jurisdicltion-a consequence the appellant never wants.\n\nTechnicality can be frightened away by technicality.\n\nE Nor is it right to contend, as the appellant did, that the Compensation Officer's jurisdiction was created by the order of remand by the High Court. No, it was created by the statute and canalised by the order of remand.\n\nIt follows that, after the present second remand,, the re-appraisal of the annual net income cannot be done solely by the Forest Officer\n\nwithout securing the approval of the Chief Conservator.\n\nNor can the Fj Compensation Officer by-pass the Chief Conservator on the misunderstood strength of the High Court's first order of remand. The true legal drill is-and this holds good after the second remand orderthat the Forest Officer will do the appraisement of the annual income, forward his report to the Chief Conservator of Forests who will take the said report into conside.ration and, if necessary, make modifications therein or approve it with such changes as he deems fit.\n\nCertainly, the Chief Conservator cannot be ignored by the Compensation Officer\n\nnor can the Chief Conservator ignore the assessment made by the Forest Officer and go through an independent exercise.\n\nThe integrated process has already been explained by us and will be followed in the proceedings to ensue on remand. We may make it clear that now that a Forest Officer has made an appraisement, the Chief Conservator of Forests will auply his mind to it and approve it as a whole or with such modifications as he thinks necessary and fonvard it to the Compensation Officer.\n\nThis will,, among other things, save time.\n\nThereafter, the appropriate statutory conrse will follow.\n\nSubstantially, this\n\nA is what has been done by the learned Judge when allowing the revisions and remitting the case back to the Comnsation Officer.\n\nThe take-over of the forests of the appellant was effected as early as 1900 and 16 years have passed without the intermediary being out of the litigative woods.\n\nThe High Court has stated that a large part of the delay has been 'due to !aches committed from time to time by the Officers who have been charged with thfl duty to calculate the compensation. It is again du~ to mist; lkes committed by the authorities concerned that the matter is being remitted back to the Compensation Officer for disposal'. The force of these observations constrains us to direct that the proceedings before the Compensation Officer shall be completed within six months from today. In this context, it is perhaps not irrelevant to remember that the appellant, a freedom-fighter, is an 83-year-old man and, at this stage of his life, the State should show commisseration not merely in quickly disposing of the proceedin~ but also in not being cantankerous in awarding and disbursing the balance compensation.\n\nWith these directions and. observations we affirm the orders under appeal but, while dismissing the appeals, direct the parties to bear their costs in this Court.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 61, "entities": [{"text": "ACHUTANANDA PUROHIT AND ORS", "label": "PETITIONER", "start_char": 5, "end_char": 32, "source": "metadata", "metadata": {"canonical_name": "ACHUTANANDA PUROHIT AND ORS", "offset_not_found": false}}, {"text": "March 26, 1976", "label": "DATE", "start_char": 56, "end_char": 70, "source": "ner", "metadata": {"in_sentence": "THE STATE OF ORISSA\n\nMarch 26, 1976\n\n[Y. V. CH, ANDRACHUD, V. R. KRISHNA !"}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 117, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Orissa Estates Abolition Act, 1951", "label": "STATUTE", "start_char": 139, "end_char": 173, "source": "regex", "metadata": {}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 186, "end_char": 207, "source": "regex", "metadata": {}}, {"text": "Articles 31A", "label": "PROVISION", "start_char": 208, "end_char": 220, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "in the State of Orissa", "label": "RESPONDENT", "start_char": 421, "end_char": 443, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF ORISSA", "offset_not_found": false}}, {"text": "Orissa Estates Abolition Act, 1951", "label": "STATUTE", "start_char": 509, "end_char": 543, "source": "regex", "metadata": {}}, {"text": "Article 31A and 31B", "label": "PROVISION", "start_char": 3163, "end_char": 3182, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 31(3)", "label": "PROVISION", "start_char": 4044, "end_char": 4057, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 31(2)", "label": "PROVISION", "start_char": 4068, "end_char": 4081, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Presidential assent has been accorded to this State Act", "label": "STATUTE", "start_char": 4304, "end_char": 4359, "source": "regex", "metadata": {}}, {"text": "section 27", "label": "PROVISION", "start_char": 4459, "end_char": 4469, "source": "regex", "metadata": {"linked_statute_text": "Presidential assent has been accorded to this State Act", "statute": "Presidential assent has been accorded to this State Act"}}, {"text": "section 26", "label": "PROVISION", "start_char": 5492, "end_char": 5502, "source": "regex", "metadata": {"statute": null}}, {"text": "D. N. Misra", "label": "LAWYER", "start_char": 7293, "end_char": 7304, "source": "ner", "metadata": {"in_sentence": "1 in person and D. N. Misra for the Appellants."}}, {"text": "Gobind Das", "label": "JUDGE", "start_char": 7374, "end_char": 7384, "source": "ner", "metadata": {"in_sentence": "A. PUROHIT v .. ORISSA (Krishna Iyer, J.)\n\nGobind Das and G. S. Chatterjee for the Respondent."}}, {"text": "G. S. Chatterjee", "label": "LAWYER", "start_char": 7389, "end_char": 7405, "source": "ner", "metadata": {"in_sentence": "A. PUROHIT v .. ORISSA (Krishna Iyer, J.)\n\nGobind Das and G. S. Chatterjee for the Respondent."}}, {"text": "KRISHNA IYER", "label": "JUDGE", "start_char": 7471, "end_char": 7483, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKRISHNA IYER, J.\n\nThree civil appeals, stemming from three revision petitions to the High Court of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) (for short, the Act) have reached this Court, thanks to special leave granted to the appellant, who is common in all the cases.", "canonical_name": "KRISHNA IYER"}}, {"text": "High Court of Orissa under the Orissa Estates Abolition Act, 1951", "label": "STATUTE", "start_char": 7556, "end_char": 7621, "source": "regex", "metadata": {}}, {"text": "Orissa Act I of 1952", "label": "STATUTE", "start_char": 7623, "end_char": 7643, "source": "regex", "metadata": {}}, {"text": "Achutananda Purohit", "label": "PETITIONER", "start_char": 7967, "end_char": 7986, "source": "ner", "metadata": {"in_sentence": "Shri Achutananda Purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of Jujumura in the district of Sambalpur.", "canonical_name": "ACHUTANANDA PUROHIT AND ORS"}}, {"text": "Sambalpur", "label": "GPE", "start_char": 8118, "end_char": 8127, "source": "ner", "metadata": {"in_sentence": "Shri Achutananda Purohit, appellant, was the intermediary in respect of vast forests and other lands comprised in the estate of Jujumura in the district of Sambalpur."}}, {"text": "April 1, 1960", "label": "DATE", "start_char": 8165, "end_char": 8178, "source": "ner", "metadata": {"in_sentence": "This estate vested in the State on April 1, 1960 by force of the Act and the crucial question agitated before us, consequentially, turns on the quantum of compensation awardable under Chapter V of the Act."}}, {"text": "Chapter V of the Act", "label": "STATUTE", "start_char": 8314, "end_char": 8334, "source": "regex", "metadata": {}}, {"text": "Purohit", "label": "PETITIONER", "start_char": 8502, "end_char": 8509, "source": "ner", "metadata": {"in_sentence": "Shri Purohit, appellant, is an Advocate by profession and is 83 D years old.", "canonical_name": "Purohit"}}, {"text": "Chapter V of the Act", "label": "STATUTE", "start_char": 9587, "end_char": 9607, "source": "regex", "metadata": {}}, {"text": "s. 24", "label": "PROVISION", "start_char": 9923, "end_char": 9928, "source": "regex", "metadata": {"linked_statute_text": "Chapter V of the Act", "statute": "Chapter V of the Act"}}, {"text": "Section 26", "label": "PROVISION", "start_char": 10060, "end_char": 10070, "source": "regex", "metadata": {"linked_statute_text": "Chapter V of the Act", "statute": "Chapter V of the Act"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 10153, "end_char": 10158, "source": "regex", "metadata": {"linked_statute_text": "Chapter V of the Act", "statute": "Chapter V of the Act"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 10329, "end_char": 10339, "source": "regex", "metadata": {"linked_statute_text": "Chapter V of the Act", "statute": "Chapter V of the Act"}}, {"text": "s. 22", "label": "PROVISION", "start_char": 10686, "end_char": 10691, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4", "label": "PROVISION", "start_char": 10750, "end_char": 10754, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 50", "label": "PROVISION", "start_char": 10826, "end_char": 10831, "source": "regex", "metadata": {"statute": null}}, {"text": "Purohit", "label": "PETITIONER", "start_char": 10984, "end_char": 10991, "source": "ner", "metadata": {"in_sentence": "Against the background of law just projected, we may set out Shri Purohit's points which, if we may say so, are substantially the same as have been argued by him in revision before the High Court with partial success.", "canonical_name": "Purohit"}}, {"text": "s. 37(3)", "label": "PROVISION", "start_char": 11317, "end_char": 11325, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(2)", "label": "PROVISION", "start_char": 11336, "end_char": 11344, "source": "regex", "metadata": {"statute": null}}, {"text": "10-4-1969", "label": "DATE", "start_char": 11672, "end_char": 11681, "source": "ner", "metadata": {"in_sentence": "It is this Court which, by its order dated 10-4-1969 in Civil Revisions 201, 202 and 203 of 1968 conferred new jurisdiction on the Compensation Officer to deal freshly with the case and therefore notwithstanding anything contained in the Act, the compensation has to be calculated according to the directions given by the Court;\n\n(2) The Court was fully aware of the statutory provision in s. 26(2) (b) (v) of the Act, but in spite of it, the direction E was that the Divisional Forest Officer should make the appraisement."}}, {"text": "s. 26(2)", "label": "PROVISION", "start_char": 12019, "end_char": 12027, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 26(2)", "label": "PROVISION", "start_char": 12688, "end_char": 12701, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26(2)", "label": "PROVISION", "start_char": 12894, "end_char": 12902, "source": "regex", "metadata": {"statute": null}}, {"text": "Krishna Iyer", "label": "JUDGE", "start_char": 13441, "end_char": 13453, "source": "ner", "metadata": {"in_sentence": "(5) The report of the Chief Conservator of Forests is also invalid because of the fact that the appraisement is made\n\n• i\n\nA. PUROH!T v. ORISSA (Krishna Iyer, J.) 923\n\nonly with reference to the area of the disputed forests with- A out taking into consideration the density of growth therein;\n\n( 6) Unlike in case of fisheries etc.,", "canonical_name": "KRISHNA IYER"}}, {"text": "Art. 3", "label": "PROVISION", "start_char": 15484, "end_char": 15490, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31B", "label": "PROVISION", "start_char": 15497, "end_char": 15505, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Holmes", "label": "OTHER_PERSON", "start_char": 16087, "end_char": 16093, "source": "ner", "metadata": {"in_sentence": "Holmes once commented : 'It is revolting to have no better reason for a rule of law than that so it was laid down in H the time of Henry IV'."}}, {"text": "s. 37(3)", "label": "PROVISION", "start_char": 16436, "end_char": 16444, "source": "regex", "metadata": {"statute": null}}, {"text": "Supreme Court", "label": "COURT", "start_char": 16544, "end_char": 16557, "source": "ner", "metadata": {"in_sentence": "Moreover, the High Court has rightly pointed\n\nout that the validity of s. 37(3) of the Act which fixes a small rate of interes_t on the compensation amount has been upheld by the Supreme Court in Ga; apati Narayan's Case(')."}}, {"text": "apati Narayan", "label": "OTHER_PERSON", "start_char": 16565, "end_char": 16578, "source": "ner", "metadata": {"in_sentence": "Moreover, the High Court has rightly pointed\n\nout that the validity of s. 37(3) of the Act which fixes a small rate of interes_t on the compensation amount has been upheld by the Supreme Court in Ga; apati Narayan's Case(')."}}, {"text": "Art. 31(3)", "label": "PROVISION", "start_char": 17626, "end_char": 17636, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 31(2)", "label": "PROVISION", "start_char": 17647, "end_char": 17657, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Presidential assent has been accorded to this State Act", "label": "STATUTE", "start_char": 17877, "end_char": 17932, "source": "regex", "metadata": {}}, {"text": "Art. 31A", "label": "PROVISION", "start_char": 17969, "end_char": 17977, "source": "regex", "metadata": {"linked_statute_text": "Presidential assent has been accorded to this State Act", "statute": "Presidential assent has been accorded to this State Act"}}, {"text": "Arts. 14, 19 and 31", "label": "PROVISION", "start_char": 18006, "end_char": 18025, "source": "regex", "metadata": {"linked_statute_text": "Presidential assent has been accorded to this State Act", "statute": "Presidential assent has been accorded to this State Act"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 18701, "end_char": 18706, "source": "regex", "metadata": {"linked_statute_text": "Presidential assent has been accorded to this State Act", "statute": "Presidential assent has been accorded to this State Act"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 20190, "end_char": 20195, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 7", "label": "PROVISION", "start_char": 21045, "end_char": 21054, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 26", "label": "PROVISION", "start_char": 21488, "end_char": 21493, "source": "regex", "metadata": {"statute": null}}, {"text": "C.C.F.", "label": "RESPONDENT", "start_char": 21764, "end_char": 21770, "source": "ner", "metadata": {"in_sentence": "Those Officers ascertain the income from the forest con- F cerned and the figure so fixed is subject to the approval of the C.C.F.\n\n(Chief Conservator of Forests),, presumably the top expert in the department."}}, {"text": "Misra", "label": "JUDGE", "start_char": 22931, "end_char": 22936, "source": "ner", "metadata": {"in_sentence": "A Second\n\n9-725SCIJ76 j\\\n\nA Appeal followed before the Board of Revenue which was dismissed Later, revision petitions were filed before the High Court and G. K ..\n\nMisra J '\" set aside the order disallowing the inclusion of the income \" • from forests for ascertainment of compensation and directed a remand to the Compensation Officer."}}, {"text": "District Forest Officer", "label": "PETITIONER", "start_char": 24967, "end_char": 24990, "source": "ner", "metadata": {"in_sentence": "The District Forest Officer (who, inc.identally, happens to be a Forest Officer under the Act, having been appointed as required thereunder) made his appraisal of the annual income and submitted to the Chief Conservator who altered the annual yield and reduced it substantially."}}, {"text": "Forest Officer under the Act", "label": "STATUTE", "start_char": 25028, "end_char": 25056, "source": "regex", "metadata": {}}, {"text": "s. 26", "label": "PROVISION", "start_char": 26638, "end_char": 26643, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_929_941_EN", "year": 1976, "text": "STATE OF ANDHRA PRADESH\n\nK. VEN.KATA REDDY & OTHERS\n\nMarch 26. 1976\n\n(R. S. SARKARJA AND P. N. SHINGHAL, JJ.]\n\n. Evidence Act (l of 1872), s. 9-ldentification of accused a: test identification parad(;:-Use of. '\n\nh Indian Penal Code (Act 45 of 1860), ss. 34 and 302-Conviction under w en named co-accused are acqulfted-When permissible. '\n\nWhe1~ the bus in which the deceased and P.Ws. 1 to 3 were travelling, alone with other passengers, halted at a bus stop, a number of persons surrouned. the bus, orced all the passengers out of the bus except the deceased, and znfiicted multiple st!lbs on the deceased causing his death. Thirteen persons were charged with offences under s. 302, 34 and 149 I.P.C. The trial cc;>u-!1 convicted ome and acquitted the others.\n\nIn appeals against the conv1tion and acqmttal, the High Court acquitted all the accused. In appeal to this. Court against the acquittal of seven accused, including A-7,\n\nHELD: Confirmihg the acquittal of others, A-7 is guilty of an offence under s. 302, read with s. 34, I.P.C.\n\n( 1) The evidence of the intereited eye-witnesses PWs 2 and 3 was sufficiently corroborated as against A-7 by the testimony of PWs 9 and 11 the conductor and driver of the bus. They had identified A~7 at an identification parade. It is true that while picking out this accused at the parade these witbesses did not say anything w1th regard to the specific part played by hin1 in the commission of the crime. That, however, does not render the evidence of such idenofication inadmissible. From the fact that P\\V 9 while testifying as to the fact of identification was referring: to this accused as A-7 in1pEes that he had identified him in court. He had in that connectioh elucidated why he had picked out A-7 at the identification parade. The evidence given by the witness in court was substantive testimony, while the identification made by him at the parade was confinnatory of that fact.\n\nAs regards PvY' 11 his evidence was more clear. The Magistrate who held the parade had mixed up 12 other persohs at this parade with the four accused, including A-7. It could not therefore be said that the number of other persons mixed with the accused was inadequate. [936H; 937F; 938B-F, G-H; 939C]\n\n(2) The result is that excepting A-7, the participation of the other 12 F named accused in the commission of the crime has not been established. There is also no evidence to show as to which of the assailants dealt the fatal blow on the deceased. The medical evidence, however, shows that there were hot less than 44 incised injuries including penetrating wounds upon the body of the deceased. The extremelv large number of injuries on the body of the -deceased lends assurance to the testimony of PWs 2 ahd 3 that the number of assailants was more than 13 including some unnamed and unidentified persons.\n\nTherefore, apart from the accused named in the charge, there \\\\''ere at least one or n1ore unidehtified person who participated in the fatal assault on the G deceased conjointly with A.7.\n\nA~7 can, therefore, be convicted under s. 302 read with s. 34, l.P.C. [940B, G-941B]\n\nMaina Singh v. State of Rajasthan [1976] 3 SCR 651, followed.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 ()f 1971.\n\nAppeal by Special Leave from the Judgment and Order dated 31-7-70 of the Andhra Pradesh High Court in Criminal Appeal No. 45/69 and Criminal Revision Case No. 391/ 69.\n\nA P. Ram Reddy and P. P. Rao for the Appellants.\n\nGovind Das, Mrs. Sunanda Bhandare, A. K. Mathur, A. K. Sharma \"- ,. and M. S. Narasimhan for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nSARKARIA, J .-This appeal by special leave is directed against a judgment of acquittal rendered by the High Court of Andhra Pradesh.\n\nThe facts may now be stated.\n\nThere are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the\n\nSarpanch of Konda Kala-Vatala.\n\nThe rival faction was headed by Akkanunareddigari Venkata Kondareddy, Accused No. 1 (for short, -1 A-1)_. There was bad bloq_d between the two factions. Both the factions were proceeded against under ss. 107 /151, Cr.P.C., also\n\nThe deceased was a resident of Konda Papayapalli village. On May D 16, 1968, the deceased accompanied by PW 1, K. Venkatareddy, went to Jammalamadugu and stayed for the night there in the hotel of PW 12 (Dastagiri).\n\nOn the following morning at about 8-30 a.m., they boarded bus No. APD 2083 for proceeding to their village. L.\n\nVenkata Ramanna (PW 14) was checking tickets on that bus. When the bus stopped at Sanjamalavari House, Accused 2, 3, 5 to 8 (for short, A-2, A-3, A-5 to A-8) boarded it. On seeing the accused, who E belonged to his opposite faction, the deceased got apprehensive of his safety. He therefore alighted from the bus, and, accompanied by PW !, returned to the hotel of Dastagiri. After remaining at the hotel for some time they returned to the bus stan.d, and boarded bus No. APD 2276, at about 9-30 a.m. for going to their village. P.W. 11 (E. Solomon) was the driver and P.W. 9 (V. Bala Subbanna), the conductor of that bus. There were about 30 passengers, including PW 2, PW 3 F and PW 4, in the bus. At about 10-30 a.m., the bus halted at Nossam near the hotel of Rangappa, PW 10. This bus-stop is at a distance of about 60 or 65 yards from the Police Outpost and is located in a populated quarter of the town which has a population of 3,000 souls. The conductor, the driver and some of those passengers got down to take refreshments in the nearby hotel.\n\nSome passengers including the deceased .and P.Ws. 1, 2 and 4, however, remained inside the vehicle.\n\nG A-4 then came there. He peeped into the bus through the door and went away towards the house of one Yerikala Reddy, situated at a distance of 200 feet from the bus towards the north. Soon thereafter, A-1 and A-2, armed with revolvers, and A-3 to A-13, all armed with daggers, came there from Yerikala Reddy's house, encircled the bus, d at the point of daggers forced the passengers including PWs 1 and 4, to get out of the bus. The deceased also tried to get away but the H accusedprevented him from doing so.\n\nA-1 and A-2 took positions in the doors of the vehicle. They fired revolvers in the air wh; Je their companions immediately entered the bus and there, stabbed the deceased to death causing no less than 44 injuries. The assailants were\n\nyelling : \"Stab! kill!\" P.Ws. 1 to 4 witnessed the occurrence P.W. 1 A while raising an alarm proceeded towards the Police Outpost, but the accused obstructed and chased him over a short distance. P.W. 1 took to his heels, went away from the village and concealed himself somewhere. After abont two hours he came out of his hiding and returned to the spot at about 12-30 p.m.\n\nAfter murdering the deceased, the miscreants went away towards the north taking their weapons with them.\n\nThereafter, P.Ws. 2, 3 and 4 entered the bus and found the deceased lying dead in a pool of blood. P.W. 2 then went to Papayapalli, five mHes away, and infoimecl the wife and the relations of the deceased about the occurrence. He returned to the scene of the crime in the company of those relations at about 4 p.m.\n\nIn the meantime, the village Munsiff (P.W. 15) on learning about this incident, also came there. At the dictation of P.W.l, the Munsiff recorded the complaint, Ex. P-3, and then prepared an ihjury statement c\n\nof the deceased. At about 3 p.m., he sent the complaint together with other documents prepared by him, through the Talyari to the Police\n\nStation, Vuyyalawada. A copy of the complaint was sent to the Judicial Magistrate Koilkuntla.\n\nPrior to the making of this complaint, Head Constable Abdul Khadar, PW 16, of the Police Out-Post had sent an oral information to the Police Inspector about this murder. The Head Constable had heard the reports of revolver\"fite at about.10-30 a.m. Thereupon, he alongwith a Constable went out to the bus stand. At the spot, he heard from the by-standers that the deceased had been killed inside the bus. But, despite inquiries, no one told him about the identity or particulars of the culprits. He looked for the complainant, if any. No one came forward to make a complaint.\n\nThe driver and the conductor of the bus were abo found absent. He therefore sent an oral information to the Inspector through the Talari, Pollana.\n\nOn receiving the information, Inspector Santhoji Rao (P.W. 25) reached the place of the murder at 6 p.m. He examined P.Ws. 1, 15, 16 and 19 and recorded their statements under s. 161, Cr.P.C. Thereafter, he held an inquest over the dead-body from 2-30 a.m. to 6 a.m. on May 18, 1968. During the inquest he examined P.Ws. 2, 9 and 11.\n\nIle Inspector searched for the accused but could not find them. A-4 to A-8 surrendered on May 22, 1968 and were taken into custody. A-2, A-3, A-9, A-10, A-11 and A-13 were arrested by the police on June 24, 1968. Thereafter, on some date before August 10, 1968, A-1, A-6 and A-12 were arrested.\n\nAll the accused persons were not previously known to the eyewitnesses. They were put up for test identification at three parades held by Mr. Johnson, Magistrate '1st Class (P.W. 20) on June 7, 1968, July 18, .1968 and August 10, 1968.\n\nAfter completing the investigation the police sent 13 accused persons under a charge-sheet before the Magistrate for preliminary enquiry. The Magistrate committed all the 13 accused for trial to the H court of Session. The Sessions Judge acquitted A-5, A-6, A-8, A-9 an4 A-11, but convicted the remaining seven under s. 302, Penal Code and sentenced each of them to imprisonment for life.\n\nAgainst that judgment, two appeals were preferred to the High Court, one by the State against the acquittal of A-5, A-6 and A-8, and the other by the co, nvicted accused against their conviction. The High Court dismissed the appeal preferred by the State but accepted the other filed by the accused and acquitted all of them.\n\nAggrieved, the State made a petition in this Court under Article 136 of the Constitution seeking leave to appeal against the acquittal of A-1 to A-9 and A-12. This Court however granted special leave to appeal against the acquittal of A-1 to A-4, A-7, A-9 and A-12 only and refused it against A-5, A-6 and A-8.\n\nMr. Ram Reddy appearing for the appellant-State contends that the judgment of the: High Court acquitting all the accused persons is perverse in law and has occasioned gross failure of justice. It is maintained that the reasons given by the High Court for wholesale rejection of the evidence of P.Ws. 1, 2, 3, :9 and 11 are manifestly erroneous and contrary to the fundamental canons of appraiSing\n\nevidence.\n\nAs against this, Mr. Govind Das maintains that the reasons given by the High Court for rejecting the evidence of these witnesses are quite sound and cannot, by any stretch of imagination, be branded as 'perverse'. According to the Counsel since the view taken by the High Court is also reasonably possible, this Court should not, in deference to the well-established ruler of practice, interfere with the order of acquittal.\n\nTo appreciate the rival contentions, it is necessary to examine the reasons given by the High Court for not accepting the evidence of these five witnesses. P.W. 1 is the prime-mover of the gear. The case was registered on his complaint (Ex. P-3) lodged with the village Mnnsiff (P.W. 15) at 12-30 p.m. At the trial, he narrated more or less the same story which has been set out at the commencement of this judgment. The High Court found his evidence unworthy of credit for these reasons :\n\n(i) P.W. 1 is a confirmed partisan of the deceased. (ii)\n\n(iii)\n\nHe was unable to 'give a consistent and satisfactory account of the purpose of his going to Jammalamagdu on May 16, 1968. . .\n\nIn the First Information Ex. P-3, he did not state manv material facts.\n\nFor instance, . he did not mention there that, in the first instance, he and .the deceased had boarded the Nandyal-Koilkuntla bus at 8-30 a.m. and thereafter alighted from it on seeing the accused getting into t]le bus.\n\n(iv) If P.W. 1 was really in the ill-fated bus, at the time of the occurrence, he could uot have been left unharmed;\n\n(v) The conduct of P.W. 1 was so unnatural that it improbablises his presence at the time and place of the incident: ·\n\n(a) If he had really seen A-4 peeping into the bus ancJ\n\ngoing back to the house of Erikala Reddy, 60 or 70\n\n.....\n\n(b)\n\nyards away, to inform the other accused, it was unlikely that P.W. 1 and the deceased would have remained sitting in the bus. P.W. 1 knew that A-4 was a partisan of the other accused:\n\nThe conduct of P.W. 1 after the occurrence, was also artificial, unnatural and strange.\n\nHe did not go to the Police Outpost which was at a stone's throw.\n\nHis explanation that he was prevented by the accused from going there and had to remaiin in hiding at some unspecified place towards the West for two hours till he returned to tho bus-stand at 12-30 p.m., was incredible. Although he had ample opportunity and time to go to his village and inform the co-villagers about the incident, he did nothing of the kind.\n\n(vi) No bus-ticket was found with P.W. 1.\n\n(vii) The evidence of the witnesses produced to corroborate the version of P.W. 1 was also unsatisfactory.\n\nP.W. 14, Ticket-Checker of bus No. APO 2083 which the deceas- . ed and P.W. 1 are said to have boarded earlier at Jamalamae1ugu, , admittedly did not know P.W. 1 prior to that date. P.W. 14 was not\n\n. asked to identify P.W. 1 at any test identification or even in court.\n\nMoreover, P.W. 14 was examined by the investigating Police Officer\n\nabout a week after the occurrence.\n\nThe evidence of Dastgiri, P.W. 12, owner of the hotel at Jamala- . madugu was no better. He had no record to show that P.W. 1 and the deceased had spent the night between the 16th and 17th May at his hotel. His testimony was at variance with his statement recorded under s. 164, Cr.P.C. In that statement, he did not say that the sons (i.e. A-2, A-3 and A-6) of Kalavatala Reddy were also reported by the deceased to be in the bus. He had simply stated there, that Kalavatala (Reddy) and his men were in the bus. At the trial, he stated that the deceased had informed him about the presence of A-2, A-3 and A-6, also, in the bus.\n\nP.W. 12 was not a disinterested witness.\n\nAdmittedly, the deceased had helped him in getting assignment of 1and for raising a building, before the revenue authorities. His state- . ment was also recorded by the police several days after the occur- : rence.\n\n(viii) There was unexplained delay in registration of the case.\n\nG The Police Statioin Vuyyalawada is 12 miles from Nos- . sam.\n\nThe complaint, Ex. P-3, was received there at 8 p.m.\n\nCopy of the complaint reached the Magistrate Koi!akuntla, 16 miles away, at 6 1p.m.\n\nThere was a bus leaving Nossam at 4-30 p.m. for Koilakuntla. It was more likely that the copy of the complaint was sent to the Magistrate by that bus at 4-39 p.m., and not at 3 p.m. as the Munsiff H P-W. 15, wanted to have it believed. This inordinate delay in registering the FJ.R. shows that the First Information was lodged after confabulation with other persons\n\nwho had come from the village of the deceased. In these circumstances, the F.I.R. had little value .as a 'corroborative piece of evidence.\n\nThese reasons given by the High Court for not relying on the evidence of P.W. 1, cannot, by any standard be said to be unsound or puerile. There is a good deal of force in them.\n\nWe will now take up P.W. 2. Mr. P. Ram Reddy contends that the High Court was in error in dubbing this. witness , as an interested witness. It is maintained that his relationship or affinity with the deceased or his party had not been established. It is argued that his evidence was ahnost impeccable.\n\nC The High Court has found that P.W. 2 is closely related to he deceased. This is an iuference drawn from the conduct of the witness in not denying a suggestion of such relationship put to him in crossexamination by the defence.\n\nThe pointed suggestion was, whether -1 the son of his junior paternal uncle was married to the daughter of the deceased. The witness replied that he did not know.\n\nThe relationship suggested was so near that the witness could not be unaware D of it. If the suggestion was wrong, he ought to have registered a categorical denial.\n\nThe High Court was therefore justified in prcsumjng that the wilness was he first cousin of the son-in-law of the. deceased.\n\nThe next infirmity in his evidence noted by the High Court, is . that his conduct in not trying to go to the Police Outpost or in not reporting the matter to the village Munsiff, was not the natural conduct of an eye-witness of the murder.\n\nThe third weakness in his evidence noted by the High Court, is, that he was not examined by ' the investigator on the 17th May, although he claimed to be present at the spot at that time.\n\nAnother reason given by the High Court for doubting his veracity was, that there was no necessity for him to go to Proddutur to ascertain the price of castor-oil cake because the same inquiry could be conveniently made telephonically. The Court further found that he could not give a satisfactory account as to why he adopted the circuitous route via Nossam when buses starting at 6-30 and 7-30 a.m. from Jammalamadugu and plying directly to Allagaddi were available. We need only add that this witness also was unable - to produce any bus ticket. ·\n\nWe agree with the High Court that in view of the infirmities enumerated above, the evidence of P.W. 2 could not be safely acted upon ./ without corroboration from independent sources.\n\nThis takes us to the evidence of P.W. 3.\n\nThe High Court found that P.W. 3, also, was not an independent H witness.\n\nHe stood surety for five partisans of the deceased in security proceedings under s. 107, Cr.P.C.\n\nThis fact was borne out by the documentary evidence furnished by the copies of the surety bonds, Exh. D-1 O to D-14, although the witness had the temerity to deny it ..\n\nMr. Ram Reddy laid great stress on the fact that the evidence of this witness with regard to his being among the passengers in the illfate<l bus at the time of occurrence, stands corroborated from the testimony of an independent witness, the bus conductor (P.W.9). It is further maintained that this witness (P.W. 3) was examined dming the inquest held on the night between the 17th and 18th May.\n\nReference on this point has been made to the inquest report Ex. P.6.\n\nThese twin circumstances-proceeds the argument-were sui!icient to lend assurance to the interested testimony of this witness so as to make it acceptable against A-1 and A-2, if not against the other accused respondents. These circumstances were noticed by the High Court. In its opinion, they did not furnish adequate confirmation of the testimony of P.W. 3. In this connection, the High Court observed :\n\n\"We do not think much assurance can be taken from the evidence of P.W. 9 about the presence of P.W. 3 on that day ; n that bus. It is true that the name of P.W. 3 was mentioned as a, n eye-witness in the inquest report. Even though\n\nthe inquest according to P.W. 25 was held in the early hours of the morning of 18-5-1968 and the inquest report\n\nwas said to be ready on that morning, the inquest report was ieceiYed in Court at 6 P.M. on 19-5-1968. As provided under sec. 174(2) Cr.P.C. the inquest report shall be forthwith forwarded to the Court.\n\nP.W. 3 was examined on 19-5-68 only.\n\nWith regard to the inquest report no othet :ndependent panchayatdar was examined apart from P.W.\n\nJ 5, the village Munsiff.\n\nHaving regard. to these circum- ' tances we do not think much can be taken from the fact 1hat the !lame of P.W. 3 finds a place in the inquest report.\"\n\nAnother infirmity in the teflimony of PW 3, according to the High Court. was that documentary evidence of the sales allegedly made by the witness at the Shandy (periodical market) and the receipts of the fecs/cess paid on such sales to the Panchayat, was not forthcoming rmd that the explanation given by the witness for non-production\n\nof such documentary evidence was unsatisfactory.\n\n; c will be seen from the synopsis of the reasoning of the High Court. gi, en above, that whereas the evidence of P.W.1 was considered to be wholly unreliable, the possibility of P.Ws. 2 and 3 being witnesses of the occurrence was not positively ruled out. The conclusion reached in respect of these two witnesses was that their evidence suffered from several infirmities and, as such in the absence of corro- Gborutioa from independent sources, it could not be accepted as a safe basis for qJnvicting the accused.\n\nWe are also of the opinion that as a matter of prudence, it was not safe to convict any of the accuseu respondents merely 'on the basis of the testimony of P.Ws. 2 and :i We, however, do not agree with the High Court that the evidence of P.Wo.9 and 11 did not furnish reliable corroboration of the testimony of the interested witnesses (P.Ws. 2 and 3) against any of the H accused-respondents whatever.\n\nThe sum and substance of the testimony rendered by P.W.9, the Omduclor of the bus, was that when the bus halted at Nossam at\n\nabout 10-30 a.m., the witness accompanied by the Driver (P.W. 11), got down and both of them went to the nearby hospital for getting an injury on his leg (P.W 9's) dressed up. They however, did not find the Doctor there. Consequently, both of them returned to the hotel of Rangappa which is hardly 18 ft. from the scene of occurrence.\n\nWhile the witness was standing in the verandah of the hotel, the driver took his meals inside and then came out and went to the adjacent hotel of Pullayya to take coffee. The witness asked Rangappa's wife to give him some water.\n\nHe was waiting in the doorway when he saw some persons coming from the northern side and going to the bus and encircling it.\n\nSome of them were armed with daggers.\n\nThe witness heard the sound \"dama dama\" of the firing of a revolver.\n\nThe witness heard cries from the bus-\"kill ! stab !\".\n\nAfter the disturbance had subsided, the witness went ollt and saw the deceased lying dead inside the bus in a pool of:blood. Due to fear, the witness and the driver (P.W.11) went into the nearby Vaisya's house and remained there till 7-30 or 8 p.m. when they came out on learning -.., that the Police Inspector had. come to the spot.\n\nAt the test identification parades, the witness had identified Accused 2 and 7. He stated that P.W. 3 was one of the passengers who travelled in the ill-fated bus.\n\nThe driver (P.W.11) substantially corroborated P.W.9. He stated that he had seen five or six persons carrying white think like daggers in their hands going behind the bus.\n\nThe witness was then taking coffee at the hotel of Pullayya. He then heard the \"dum dum\" sound from the bus. At the test identification parades held before the Magistrate, the witness had identified A-7 and A-11.\n\nThe High Court while conceding that P.Ws. 9 and 11 were the \"\\ \"proper persons to have spoken about the occurrence\", brushed aside their evidence even against the accused identified by them at the test identifications, mainly on the ground that they were \"unwilling witnesses\" and were not prepared to speak the whole truth.\n\nThe High Court noticed that there was a discrepancy with regard to the receipt\n\n~F of injury by P.W. 9 between his statement before the police and the subsequent statement recorded under s. 164, Cr.P.C.\n\nBefore the police, P.W.9 had stated that he had received an injury. But in his statement recorded under s. 164, Cr.P.C. he said that he had a boil on his leg. It appears to us that this discrepancy was of no consequence.\n\nP.Ws.9 and 11 were the conductor and the driver of the bus. It is undisputed that the bus was parked close to the hotels of Rangappa . .(; (P.W.10) and Pullayya.\n\nTheir presence near the bus at the hotels was a highly probable fact.\n\nEven if the reason for their going to the J nearby hospital was disbelieved, it could not affect their being eye- / witnesses of the incident. Might be that they did not disclose all that they had seen and had not identified all the culprits whom they could identify; but that is no ground to hold that their evidence could not furnish valuable corroboration of the testimony of the interested wit- .H nesses (P.Ws. 2 and 3) even aginst the accused whom they identified at the test identifications and later in court.\n\nThe statements of P.Ws. 2, 9 and 11 were recorded bv the Investigating Officer during the night between the 17th and 18th May 1968\n\nfrom 2-30 a.m. to 6 a.m. There was thus no good reason for wholesale rejection of the evidence of P .W s. 9 and 11. It therefore remains \" to be seen to what extent the independent testimony of P.Ws. 9 and 11 lends corrobation to the statements of the interested witnesses (P.Ws. 2 and 3).\n\nAt the test identification parade held on June 7, 1968, A-4, A-5, A-7 and A-8 were paraded along with 12 other prisoners. P.Ws. 2, 3, 9 and 11 were called upon to identify the accused at this parade.\n\nP.W. 2 while identifying A-7 at the parade, said : \"I saw him while killing the deceased in the bus\" P.W. 3 also identified A-7 as Konda Kalavatalavadu.\n\nHe also identified A-4 and A-8 by touching their hands. P .W .9 identified A-7 saying : \"I suspect this man\". He could not identify others. P.W.11 also at this parade picked out A-7 who was then standing at No. 15 in the parade and said that he had seen him. t- The second batch of the accused persons consisting of A-2, A-3, A-9, A-10, A-11 and A-13 was arrested on June 24, 1968. These six accused persons were paraded at the test identification on July 18,\n\n1968. P.Ws. 1, 2, 3 and 9 were called upon to identify them at the parade. P.W. 3 picked out A-2, A-3, A-9 and A-10 at the parade.\n\nP.W. 9 similarly identified A-2 by touching his hand. A-2 objected that in 1962 or 1963 P.W. 9 had served him as driver of his bus for\n\n10 days.\n\nThe third test identification parade was held on August 10, 1968.\n\nAt this parade, nine accused persons A-1 to A-3, A-6, A-9 to A-13 were paraded. P.Ws. 1, 2, 3 and 11 were called upou to identify.\n\nP.W. 2 identified A-8, while P.W.11 identified A-11 only. He could i' not identify A-2 or the other accused who were in this parade.\n\nThus the net result is that at the test identifications, P.Ws. 9 and 11 had correctly identified A-7, P.W 9 had identified A-2, also. But P.W. 11 could not identify him.\n\nThe question is, whether the evidence of P.Ws.9 and 11 can be safely relied upon as against A-7 and A-2.\n\nIn our opinion, so far as A-7 is concerned, chances of mistake in identification by these witnesses were extremely remote.\n\nMr. Gobind Das, Counsel for the respondents, contends that the evidence of test identification is not substantive evidence. It can be the Magistrate holding the parade did not mix up with the accused adequate 1number of other prisoners and did not hold separate parades for individual accused; (b) at the time of picking out A-7 and A-2 at the parade, the identifying witnesses did not say as to in what connection they were identifying them.\n\nIt is stressed that the evidence of test identification is not substantive evidence. It can be used only to corroborate or lend assurance to the identification made\n\nby the same witness in court.\n\nIf at the time of picking out a particular accused at the parade, a witness _does not say anything about the He\n\nrole of the person, thus identified, in the commission of the crime, such test identification little evidentiary value.\n\nFurther, it is pointed out that P.W. 9 was not called upon to identify A-2 and A-7\n\nin couFt at the time of his examination as a witness.\n\nReference has made to a number of decisions including Kamal Cope v. State of Bihar,( 1) Kanta Prasad v. Delhi Administration(') and Sampat Tatyada Shinde v. State of Maharashtra(').\n\nIn our opinion, so far as the identification of A-7 by P.Ws. 9 and 11 is concerned it can safely be relied npon as confirmatory of their evidence in court. A-7 was identified by P.Ws, 9 and n at the test identification parade held on June 7, 1968. It is true that while picking out this accused at the parade these witnesses did not say anything with regard to the specific part played by him in the commission of the crime.\n\nThat however does not render the evidence of such identification inadmissible. The Magistrate (P.W. 20) who held the parade had mixed up 12 other persons at this parade witJ1 the four accused, including A-7. It could not therefore be said that the number of other persons mixed with the accused was indequate.\n\nThe very fact that both P.Ws. 9 and 11 commonly identified A-7, dispels any suspicion of such identification being a chance identification. In .the witness-box, at the trial, however, P.W. 9 specifically stated: \"I .could identify only accused 2 and 7 among those persons who came to the bus from the northern side armed with daggers\".\n\nReferring to the test identification parade, the witness added :\n\n\"I identified A-7 as one of the persons who came with dagger to the bus\".\n\nIn cross-examination, the witness reaffirmed : \"It is not true ........ that A-2 and A-7 were not among the persons who came to the bus ...... It is not true that I have identified A-2 and A-7 at the parades not because they were seen near the bus but because Police showed them to me earlier to facilitate identification\".\n\nFrom the very fact that the witness while testifying as to the fact of identification was referring to this accused as A-7 implies that he .had identified him in court, also, and had, in that connection, elucidatf ed why he had picked out A-7 at the identification parade. The evidence given by the witness in court was substantive testimony, while the identification made by him at the parade was confirmatory of that fact.\n\nThis proposition is well established and it is not necessary to discuss the rulings cited at the bar on this point.\n\nNo capital can be made out of the fact that the trial judge record- G ed the evidence of the witness with regard to identification of A-7, in court, in an inartistic, laconic manner.\n\nIn the case of P.W. 11, however, the trial Judge recorded this fact more clearly.\n\nThe witness stated : \"I can identify 2 persons among the 5 or 6 persons who were seen going behind. the bus with white things like daggers.\n\nThey are accused 7 and 11 (witness identified accused 7 and 11) .\"\n\n(l) Cr. Appeal No. 45 of 1965 decided on 23-11-1967.\n\n(2) [1958] SCR 1218.\n\n(3) [19741 4 sec 213.\n\nWith reference to the test identification, the witness stated : A \"I identified A-7 in the 1st parade and A-11 in the second parade\".\n\nIn cross-examination, he refuted a suggestion made by the defence that he had identified accused 7 at the parade because the police had shown him to the witness, earlier.\n\nFor these reasons we think that the High Court was clearly in . error in discarding the evidence of these independent witnesses (P.Ws.\n\n9 and 11) so far as the participation of A-7 in the commission of the crime was concerned.\n\nThe evidence of the interested witnesses (P.Ws. 2 and 3) was sufficiently corroborated as against A-7 by the credible testimony of P.Ws. 9 and 11. It could therefore be safely acted upon for convicting A-7 as one of the participants in the commission of the murder of P. Eswara Reddy, deceased.\n\n~ As regards A-2, it is to be noted that neither PW 9 nor P.W. 11 . stated that this accused was armed with a revolver.\n\nNeither of these witnesses has stated that any of the five or six persons who were seeu by them going to the bus and encircling it, was armed with a revolver.\n\nThey only say that those persons were carrying daggers.\n\nThe prosecution case however is that A-2 was armed with a revolver only, which he fired in the air.\n\nFurther when P.W. 9 picked out A-2 at the identification parade, the latter had objected thaL P.W. 9 was . already known to him because he had served him as a driver for about\n\n10 days. It is true that this suggession was not repeated in the crossexamination of P.W. 9; but we have also to keep in mind in this con- _nection that P.W. 11 had failed to identify A-2 at the test identification / parade although both these witnesses had seen the culprits more or Jess from the same situation and distance.\n\nAs a matter of abundant\n\n• '\n\n caution, while hearing this appeal, we do not consider the identification of A-2 at the test identification parade by P.W. 9, can lend sufficient assurance to the testimony of P.Ws. 2 and 3 so as to justify the con- . version of his acquittal into conviction.\n\nThus, the position that emerges is that the evidence of P.Ws. 2 . and 3 has been adequately confirmed by the reliable and independent testimony of P.Ws. 9 and 11 as against A-7, while no such corroboration is forthcoming against any of the other accused-respondents. The High Court was therefore not justified in acquitting A-7 .\n\nThe only question that remains to be considered is : What offence ha.s been made out _against ~-7 ? The charge-sheet by the police in ; this case was submitted agamst 13 named persons including A-7 The charge under s. 302 read with s. 34, Penal Code was also framed by the essions Judge against all the 13 named accused.\n\nIn the charge, it was. not _mentioned that besides these named accused, there were some umdentified or un-named persons who acted conjointly with the charged accused, A-1 to A-13.\n\nBut there was positive evidence on the rcord. that besides the 13 named accused, there were four or more umden!Ified persons who participated in the commission of the crime.\n\n. ,\n\nA Now the position which emerges is that excepting A-7, the parti-\n\n\" .. cipation of the other 12 named accused in the commission of the crime has not been established. The effect of their acquittal is that they would be deemed to have never participated in the criminal enterprise which resulted in the death of the deceased. There is nothing on the record to show as to who out of these persons dealt the fatal blows to the deceased. The question that falls to be deter- B. mined is : Can A-7, in such circumstances, be held vicariously liable by invoking s. 149 or s. 34, Penal Code for the inurder in question'/ In Maina Singh v. State of Rajasthan(') after reviewing earlier decisions viz., Dalip Singh v. State. of Punjab(2); Bharwad Mepa Dana and Anr.\n\nv. State of Bombay('), Kartar Singh v. State of Punjab('); Kri5lma\n\nGovind Patil v. State of Maharashtra('); Mohan Singh v.\n\nState of c\n\nPunjab(6); Yeshwant v. State of Maharashtra('); on this point this Court speaking through Shinghal J. reiterated the law, thus.:\n\n\"It would thus appear that even if, in a given case, the charge discloses only the named persons as co-accused and the prosecution witnesses confine their testimony to them, even then it would be permissible to come to the. conclusion that others named or unnamed, besides those mentioned in the charge or the evidence of the prosecution witnesses, acted conjointly with one of the charged accused if there was other evidence to lead to the conclusion, but not otherwise.\"\n\n(emphasis supplied)\n\nLet us now have another look at the case in hand, in the light of the above enunciation.\n\nIn the F.l.R., it was alleged by the informant that 8 named per- \" sons and 10 unnamed persons who were not known to the informant, had conjointly committed the crime.\n\nAt the trial, P.W. 2 te8tified that the total number of culprits who had participated in the commission of the murder was 20. At the trial, he named A-2 to A-5 and identified A-7, A-10, and A-12 as 8 out of those 20 culprits who had committed the crime.\n\nThe evidence of P.W. 3 on this point was that the number of the culprits who committed the murder, while acting in concert, was 17. This means according to the evidcnce, there were acting conjointly with A 7 at least 4 or 7 more persons in addition to the 13 who were charged by the Committing Magistrate. The medical evidence shows that there were no less than 44 incised injuries, including penetrating wounds, apart from one lacerated wound, two contusions and one abrasion on the body of the deceased. Practically, he was .made minced meat.\n\nThe extremely large number of injuries f on the body of the deceased lends assurance to the testimony of / P.Ws. 2 and 3 that the number of assailants was more than 13 includ- ing some unnamed and unidentified persons. This evidence on the record is thus sufficient to base a firm finding that apart from the\n\n(!) [1976j 3 S.C.R. 651.\n\n(3) [1960j 2 SCR 172.\n\n(5) [1964] 1 SCR 678.\n\n(7) [1973] I, SCR 291.\n\n(21 {1954j SCR 145.\n\n(4) {1962] 2 SCR 395.\n\n(6) {1962] Supp 3, SCR 818.\n\n• '\n\naccused named in the charge, there were at least one or more unidenti lied persons who participated in the criminal action against the deceased con-jointly with A-7. While the precise number of those unidentified persons, other than the 13 named in the charge, cannot be ascertained with certitude, it can safely be said that apart from 13 named in the charge, there were some more confederates of A-7 and all of them participated in the fatal assault on the deceased in the manner alleged by the prosecution. A-7 can therefore be safely convicted under s. 302 read with s. 34, Penal Code.\n\nAccording, we allow this appeal against A-7, reverse his acquittal, convict him -under s. 302 read with s. 34, Penal Code and sentence him to imprisonment for life.\n\nV.P.S.\n\nAppeal allowed .\n\nl0---725SCl/76", "total_entities": 120, "entities": [{"text": "STATE OF ANDHRA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "K. VEN.KATA REDDY & OTHERS", "label": "RESPONDENT", "start_char": 25, "end_char": 51, "source": "metadata", "metadata": {"canonical_name": "K. VENKATA REDDY & OTHERS", "offset_not_found": false}}, {"text": "March 26. 1976", "label": "DATE", "start_char": 53, "end_char": 67, "source": "ner", "metadata": {"in_sentence": "STATE OF ANDHRA PRADESH\n\nK. 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Ram Reddy", "label": "LAWYER", "start_char": 3419, "end_char": 3433, "source": "ner", "metadata": {"in_sentence": "A P. Ram Reddy and P. P. Rao for the Appellants."}}, {"text": "P. P. Rao", "label": "LAWYER", "start_char": 3438, "end_char": 3447, "source": "ner", "metadata": {"in_sentence": "A P. Ram Reddy and P. P. Rao for the Appellants."}}, {"text": "Govind Das", "label": "LAWYER", "start_char": 3469, "end_char": 3479, "source": "ner", "metadata": {"in_sentence": "Govind Das, Mrs. Sunanda Bhandare, A. K. Mathur, A. K. Sharma \"- ,.", "canonical_name": "Govind Das"}}, {"text": "Sunanda Bhandare", "label": "LAWYER", "start_char": 3486, "end_char": 3502, "source": "ner", "metadata": {"in_sentence": "Govind Das, Mrs. Sunanda Bhandare, A. K. Mathur, A. K. Sharma \"- ,."}}, {"text": "A. K. Mathur", "label": "LAWYER", "start_char": 3504, "end_char": 3516, "source": "ner", "metadata": {"in_sentence": "Govind Das, Mrs. Sunanda Bhandare, A. K. Mathur, A. K. Sharma \"- ,.", "canonical_name": "A. K. Mathur"}}, {"text": "A. K. Sharma", "label": "LAWYER", "start_char": 3518, "end_char": 3530, "source": "ner", "metadata": {"in_sentence": "Govind Das, Mrs. Sunanda Bhandare, A. K. Mathur, A. K. Sharma \"- ,.", "canonical_name": "A. K. Mathur"}}, {"text": "M. S. Narasimhan", "label": "LAWYER", "start_char": 3541, "end_char": 3557, "source": "ner", "metadata": {"in_sentence": "and M. S. Narasimhan for the Respondents."}}, {"text": "SARKARIA", "label": "JUDGE", "start_char": 3624, "end_char": 3632, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J .-This appeal by special leave is directed against a judgment of acquittal rendered by the High Court of Andhra Pradesh."}}, {"text": "High Court of Andhra Pradesh", "label": "COURT", "start_char": 3727, "end_char": 3755, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nSARKARIA, J .-This appeal by special leave is directed against a judgment of acquittal rendered by the High Court of Andhra Pradesh."}}, {"text": "Konda Papaya Palli", "label": "GPE", "start_char": 3833, "end_char": 3851, "source": "ner", "metadata": {"in_sentence": "There are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the\n\nSarpanch of Konda Kala-Vatala."}}, {"text": "Govinda Palli", "label": "GPE", "start_char": 3856, "end_char": 3869, "source": "ner", "metadata": {"in_sentence": "There are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the\n\nSarpanch of Konda Kala-Vatala."}}, {"text": "Vellugoti Pedda Eswara Reddy", "label": "OTHER_PERSON", "start_char": 3976, "end_char": 4004, "source": "ner", "metadata": {"in_sentence": "There are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the\n\nSarpanch of Konda Kala-Vatala."}}, {"text": "Mumagala Narayana Reddy", "label": "OTHER_PERSON", "start_char": 4018, "end_char": 4041, "source": "ner", "metadata": {"in_sentence": "There are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the\n\nSarpanch of Konda Kala-Vatala."}}, {"text": "Konda Kala-Vatala", "label": "GPE", "start_char": 4060, "end_char": 4077, "source": "ner", "metadata": {"in_sentence": "There are three villages, Konda Kala Vatala, Konda Papaya Palli and Govinda Palli situated at a short distance from each other There were warring factions in these villages One was led by Vellugoti Pedda Eswara Reddy deceased and Mumagala Narayana Reddy, the\n\nSarpanch of Konda Kala-Vatala."}}, {"text": "Akkanunareddigari Venkata Kondareddy", "label": "OTHER_PERSON", "start_char": 4112, "end_char": 4148, "source": "ner", "metadata": {"in_sentence": "The rival faction was headed by Akkanunareddigari Venkata Kondareddy, Accused No."}}, {"text": "ss. 107", "label": "PROVISION", "start_char": 4280, "end_char": 4287, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 4294, "end_char": 4300, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Konda Papayapalli village", "label": "GPE", "start_char": 4340, "end_char": 4365, "source": "ner", "metadata": {"in_sentence": "P.C., also\n\nThe deceased was a resident of Konda Papayapalli village."}}, {"text": "May D 16, 1968", "label": "DATE", "start_char": 4370, "end_char": 4384, "source": "ner", "metadata": {"in_sentence": "On May D 16, 1968, the deceased accompanied by PW 1, K. Venkatareddy, went to Jammalamadugu and stayed for the night there in the hotel of PW 12 (Dastagiri)."}}, {"text": "K. Venkatareddy", "label": "WITNESS", "start_char": 4420, "end_char": 4435, "source": "ner", "metadata": {"in_sentence": "On May D 16, 1968, the deceased accompanied by PW 1, K. Venkatareddy, went to Jammalamadugu and stayed for the night there in the hotel of PW 12 (Dastagiri)."}}, {"text": "Jammalamadugu", "label": "GPE", "start_char": 4445, "end_char": 4458, "source": "ner", "metadata": {"in_sentence": "On May D 16, 1968, the deceased accompanied by PW 1, K. Venkatareddy, went to Jammalamadugu and stayed for the night there in the hotel of PW 12 (Dastagiri)."}}, {"text": "Dastagiri", "label": "WITNESS", "start_char": 4513, "end_char": 4522, "source": "ner", "metadata": {"in_sentence": "On May D 16, 1968, the deceased accompanied by PW 1, K. Venkatareddy, went to Jammalamadugu and stayed for the night there in the hotel of PW 12 (Dastagiri)."}}, {"text": "L.\n\nVenkata Ramanna", "label": "WITNESS", "start_char": 4634, "end_char": 4653, "source": "ner", "metadata": {"in_sentence": "L.\n\nVenkata Ramanna (PW 14) was checking tickets on that bus."}}, {"text": "Dastagiri", "label": "OTHER_PERSON", "start_char": 5003, "end_char": 5012, "source": "ner", "metadata": {"in_sentence": "returned to the hotel of Dastagiri."}}, {"text": "E. Solomon", "label": "WITNESS", "start_char": 5176, "end_char": 5186, "source": "ner", "metadata": {"in_sentence": "P.W. 11 (E. Solomon) was the driver and P.W. 9 (V. Bala Subbanna), the conductor of that bus."}}, {"text": "V. Bala Subbanna", "label": "WITNESS", "start_char": 5215, "end_char": 5231, "source": "ner", "metadata": {"in_sentence": "P.W. 11 (E. Solomon) was the driver and P.W. 9 (V. Bala Subbanna), the conductor of that bus."}}, {"text": "Nossam", "label": "GPE", "start_char": 5377, "end_char": 5383, "source": "ner", "metadata": {"in_sentence": "At about 10-30 a.m., the bus halted at Nossam near the hotel of Rangappa, PW 10."}}, {"text": "Rangappa", "label": "WITNESS", "start_char": 5402, "end_char": 5410, "source": "ner", "metadata": {"in_sentence": "At about 10-30 a.m., the bus halted at Nossam near the hotel of Rangappa, PW 10."}}, {"text": "Yerikala Reddy", "label": "OTHER_PERSON", "start_char": 5897, "end_char": 5911, "source": "ner", "metadata": {"in_sentence": "He peeped into the bus through the door and went away towards the house of one Yerikala Reddy, situated at a distance of 200 feet from the bus towards the north.", "canonical_name": "Yerikala Reddy"}}, {"text": "Papayapalli", "label": "GPE", "start_char": 7147, "end_char": 7158, "source": "ner", "metadata": {"in_sentence": "P.W. 2 then went to Papayapalli, five mHes away, and infoimecl the wife and the relations of the deceased about the occurrence."}}, {"text": "Munsiff", "label": "WITNESS", "start_char": 7373, "end_char": 7380, "source": "ner", "metadata": {"in_sentence": "He returned to the scene of the crime in the company of those relations at about 4 p.m.\n\nIn the meantime, the village Munsiff (P.W. 15) on learning about this incident, also came there."}}, {"text": "Police\n\nStation, Vuyyalawada", "label": "ORG", "start_char": 7684, "end_char": 7712, "source": "ner", "metadata": {"in_sentence": "At about 3 p.m., he sent the complaint together with other documents prepared by him, through the Talyari to the Police\n\nStation, Vuyyalawada."}}, {"text": "Judicial Magistrate Koilkuntla", "label": "COURT", "start_char": 7754, "end_char": 7784, "source": "ner", "metadata": {"in_sentence": "A copy of the complaint was sent to the Judicial Magistrate Koilkuntla."}}, {"text": "Abdul Khadar", "label": "WITNESS", "start_char": 7841, "end_char": 7853, "source": "ner", "metadata": {"in_sentence": "Prior to the making of this complaint, Head Constable Abdul Khadar, PW 16, of the Police Out-Post had sent an oral information to the Police Inspector about this murder."}}, {"text": "Pollana", "label": "GPE", "start_char": 8501, "end_char": 8508, "source": "ner", "metadata": {"in_sentence": "He therefore sent an oral information to the Inspector through the Talari, Pollana."}}, {"text": "Santhoji Rao", "label": "WITNESS", "start_char": 8551, "end_char": 8563, "source": "ner", "metadata": {"in_sentence": "On receiving the information, Inspector Santhoji Rao (P.W. 25) reached the place of the murder at 6 p.m. He examined P.Ws."}}, {"text": "s. 161", "label": "PROVISION", "start_char": 8687, "end_char": 8693, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 8695, "end_char": 8701, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "May 18, 1968", "label": "DATE", "start_char": 8781, "end_char": 8793, "source": "ner", "metadata": {"in_sentence": "P.C. Thereafter, he held an inquest over the dead-body from 2-30 a.m. to 6 a.m. on May 18, 1968."}}, {"text": "May 22, 1968", "label": "DATE", "start_char": 8936, "end_char": 8948, "source": "ner", "metadata": {"in_sentence": "A-4 to A-8 surrendered on May 22, 1968 and were taken into custody."}}, {"text": "June 24, 1968", "label": "DATE", "start_char": 9044, "end_char": 9057, "source": "ner", "metadata": {"in_sentence": "A-2, A-3, A-9, A-10, A-11 and A-13 were arrested by the police on June 24, 1968."}}, {"text": "August 10, 1968", "label": "DATE", "start_char": 9091, "end_char": 9106, "source": "ner", "metadata": {"in_sentence": "Thereafter, on some date before August 10, 1968, A-1, A-6 and A-12 were arrested."}}, {"text": "Johnson", "label": "OTHER_PERSON", "start_char": 9283, "end_char": 9290, "source": "ner", "metadata": {"in_sentence": "They were put up for test identification at three parades held by Mr. Johnson, Magistrate '1st Class (P.W. 20) on June 7, 1968, July 18, .1968 and August 10, 1968."}}, {"text": "June 7, 1968", "label": "DATE", "start_char": 9327, "end_char": 9339, "source": "ner", "metadata": {"in_sentence": "They were put up for test identification at three parades held by Mr. Johnson, Magistrate '1st Class (P.W. 20) on June 7, 1968, July 18, .1968 and August 10, 1968."}}, {"text": "July 18, .1968", "label": "DATE", "start_char": 9341, "end_char": 9355, "source": "ner", "metadata": {"in_sentence": "They were put up for test identification at three parades held by Mr. Johnson, Magistrate '1st Class (P.W. 20) on June 7, 1968, July 18, .1968 and August 10, 1968."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 9695, "end_char": 9701, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 9703, "end_char": 9713, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Article 136", "label": "PROVISION", "start_char": 10152, "end_char": 10163, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Reddy", "label": "OTHER_PERSON", "start_char": 10411, "end_char": 10420, "source": "ner", "metadata": {"in_sentence": "Mr. Ram Reddy appearing for the appellant-State contends that the judgment of the: High Court acquitting all the accused persons is perverse in law and has occasioned gross failure of justice."}}, {"text": "Govind Das", "label": "LAWYER", "start_char": 10837, "end_char": 10847, "source": "ner", "metadata": {"in_sentence": "As against this, Mr. Govind Das maintains that the reasons given by the High Court for rejecting the evidence of these witnesses are quite sound and cannot, by any stretch of imagination, be branded as 'perverse'.", "canonical_name": "Govind Das"}}, {"text": "Mnnsiff", "label": "GPE", "start_char": 11512, "end_char": 11519, "source": "ner", "metadata": {"in_sentence": "P-3) lodged with the village Mnnsiff (P.W. 15) at 12-30 p.m. At the trial, he narrated more or less the same story which has been set out at the commencement of this judgment."}}, {"text": "Jammalamagdu", "label": "GPE", "start_char": 11890, "end_char": 11902, "source": "ner", "metadata": {"in_sentence": "ii)\n\n(iii)\n\nHe was unable to 'give a consistent and satisfactory account of the purpose of his going to Jammalamagdu on May 16, 1968. . ."}}, {"text": "May 16, 1968", "label": "DATE", "start_char": 11906, "end_char": 11918, "source": "ner", "metadata": {"in_sentence": "ii)\n\n(iii)\n\nHe was unable to 'give a consistent and satisfactory account of the purpose of his going to Jammalamagdu on May 16, 1968. . ."}}, {"text": "Nandyal-Koilkuntla", "label": "ORG", "start_char": 12105, "end_char": 12123, "source": "ner", "metadata": {"in_sentence": "he did not mention there that, in the first instance, he and .the deceased had boarded the Nandyal-Koilkuntla bus at 8-30 a.m. and thereafter alighted from it on seeing the accused getting into t]le bus."}}, {"text": "Erikala Reddy", "label": "OTHER_PERSON", "start_char": 12541, "end_char": 12554, "source": "ner", "metadata": {"in_sentence": "(iv) If P.W. 1 was really in the ill-fated bus, at the time of the occurrence, he could uot have been left unharmed;\n\n(v) The conduct of P.W. 1 was so unnatural that it improbablises his presence at the time and place of the incident: ·\n\n(a) If he had really seen A-4 peeping into the bus ancJ\n\ngoing back to the house of Erikala Reddy, 60 or 70\n\n.....\n\n(b)\n\nyards away, to inform the other accused, it was unlikely that P.W. 1 and the deceased would have remained sitting in the bus.", "canonical_name": "Yerikala Reddy"}}, {"text": "Jamalamae1ugu", "label": "GPE", "start_char": 13546, "end_char": 13559, "source": "ner", "metadata": {"in_sentence": "ed and P.W. 1 are said to have boarded earlier at Jamalamae1ugu, , admittedly did not know P.W. 1 prior to that date."}}, {"text": "Dastgiri", "label": "WITNESS", "start_char": 13824, "end_char": 13832, "source": "ner", "metadata": {"in_sentence": "The evidence of Dastgiri, P.W. 12, owner of the hotel at Jamala- ."}}, {"text": "Jamala-", "label": "GPE", "start_char": 13865, "end_char": 13872, "source": "ner", "metadata": {"in_sentence": "The evidence of Dastgiri, P.W. 12, owner of the hotel at Jamala- ."}}, {"text": "s. 164", "label": "PROVISION", "start_char": 14079, "end_char": 14085, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 14087, "end_char": 14093, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Kalavatala Reddy", "label": "OTHER_PERSON", "start_char": 14170, "end_char": 14186, "source": "ner", "metadata": {"in_sentence": "P.C. In that statement, he did not say that the sons (i.e. A-2, A-3 and A-6) of Kalavatala Reddy were also reported by the deceased to be in the bus.", "canonical_name": "Kalavatala (Reddy"}}, {"text": "Kalavatala (Reddy", "label": "OTHER_PERSON", "start_char": 14273, "end_char": 14290, "source": "ner", "metadata": {"in_sentence": "He had simply stated there, that Kalavatala (Reddy) and his men were in the bus.", "canonical_name": "Kalavatala (Reddy"}}, {"text": "Police Statioin Vuyyalawada", "label": "ORG", "start_char": 14768, "end_char": 14795, "source": "ner", "metadata": {"in_sentence": "G The Police Statioin Vuyyalawada is 12 miles from Nos- ."}}, {"text": "Koilakuntla", "label": "GPE", "start_char": 15013, "end_char": 15024, "source": "ner", "metadata": {"in_sentence": "P-3, was received there at 8 p.m.\n\nCopy of the complaint reached the Magistrate Koi!akuntla, 16 miles away, at 6 1p.m.\n\nThere was a bus leaving Nossam at 4-30 p.m. for Koilakuntla."}}, {"text": "P. Ram Reddy", "label": "WITNESS", "start_char": 15683, "end_char": 15695, "source": "ner", "metadata": {"in_sentence": "Mr. P. Ram Reddy contends that the High Court was in error in dubbing this."}}, {"text": "Munsiff", "label": "GPE", "start_char": 16810, "end_char": 16817, "source": "ner", "metadata": {"in_sentence": "that his conduct in not trying to go to the Police Outpost or in not reporting the matter to the village Munsiff, was not the natural conduct of an eye-witness of the murder."}}, {"text": "Proddutur", "label": "GPE", "start_char": 17185, "end_char": 17194, "source": "ner", "metadata": {"in_sentence": "Another reason given by the High Court for doubting his veracity was, that there was no necessity for him to go to Proddutur to ascertain the price of castor-oil cake because the same inquiry could be conveniently made telephonically."}}, {"text": "Allagaddi", "label": "GPE", "start_char": 17512, "end_char": 17521, "source": "ner", "metadata": {"in_sentence": "The Court further found that he could not give a satisfactory account as to why he adopted the circuitous route via Nossam when buses starting at 6-30 and 7-30 a.m. from Jammalamadugu and plying directly to Allagaddi were available."}}, {"text": "s. 107", "label": "PROVISION", "start_char": 18004, "end_char": 18010, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 18012, "end_char": 18018, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ram Reddy", "label": "WITNESS", "start_char": 18195, "end_char": 18204, "source": "ner", "metadata": {"in_sentence": "D-1 O to D-14, although the witness had the temerity to deny it ..\n\nMr. Ram Reddy laid great stress on the fact that the evidence of this witness with regard to his being among the passengers in the illfate<l bus at the time of occurrence, stands corroborated from the testimony of an independent witness, the bus conductor (P.W.9)."}}, {"text": "19-5-1968", "label": "DATE", "start_char": 19503, "end_char": 19512, "source": "ner", "metadata": {"in_sentence": "Even though\n\nthe inquest according to P.W. 25 was held in the early hours of the morning of 18-5-1968 and the inquest report\n\nwas said to be ready on that morning, the inquest report was ieceiYed in Court at 6 P.M. on 19-5-1968."}}, {"text": "sec. 174(2)", "label": "PROVISION", "start_char": 19532, "end_char": 19543, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 19544, "end_char": 19550, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "19-5-68", "label": "DATE", "start_char": 19638, "end_char": 19645, "source": "ner", "metadata": {"in_sentence": "P.W. 3 was examined on 19-5-68 only."}}, {"text": "Rangappa", "label": "OTHER_PERSON", "start_char": 21637, "end_char": 21645, "source": "ner", "metadata": {"in_sentence": "Consequently, both of them returned to the hotel of Rangappa which is hardly 18 ft."}}, {"text": "Pullayya", "label": "GPE", "start_char": 21846, "end_char": 21854, "source": "ner", "metadata": {"in_sentence": "While the witness was standing in the verandah of the hotel, the driver took his meals inside and then came out and went to the adjacent hotel of Pullayya to take coffee."}}, {"text": "Pullayya", "label": "OTHER_PERSON", "start_char": 22944, "end_char": 22952, "source": "ner", "metadata": {"in_sentence": "The witness was then taking coffee at the hotel of Pullayya."}}, {"text": "s. 164", "label": "PROVISION", "start_char": 23620, "end_char": 23626, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 23628, "end_char": 23634, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 164", "label": "PROVISION", "start_char": 23741, "end_char": 23747, "source": "regex", "metadata": {"linked_statute_text": "Cr.P.C", "statute": "Code of Criminal Procedure"}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 23749, "end_char": 23755, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Rangappa", "label": "GPE", "start_char": 23983, "end_char": 23991, "source": "ner", "metadata": {"in_sentence": "It is undisputed that the bus was parked close to the hotels of Rangappa . .(; ("}}, {"text": "17th and 18th May 1968", "label": "DATE", "start_char": 24720, "end_char": 24742, "source": "ner", "metadata": {"in_sentence": "2, 9 and 11 were recorded bv the Investigating Officer during the night between the 17th and 18th May 1968\n\nfrom 2-30 a.m. to 6 a.m. There was thus no good reason for wholesale rejection of the evidence of P .W s. 9 and 11."}}, {"text": "s. 9 and 11", "label": "PROVISION", "start_char": 24847, "end_char": 24858, "source": "regex", "metadata": {"statute": null}}, {"text": "Konda Kalavatalavadu", "label": "WITNESS", "start_char": 25367, "end_char": 25387, "source": "ner", "metadata": {"in_sentence": "P.W. 2 while identifying A-7 at the parade, said : \"I saw him while killing the deceased in the bus\" P.W. 3 also identified A-7 as Konda Kalavatalavadu."}}, {"text": "July 18,\n\n1968", "label": "DATE", "start_char": 25841, "end_char": 25855, "source": "ner", "metadata": {"in_sentence": "These six accused persons were paraded at the test identification on July 18,\n\n1968."}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 26867, "end_char": 26877, "source": "ner", "metadata": {"in_sentence": "Mr. Gobind Das, Counsel for the respondents, contends that the evidence of test identification is not substantive evidence.", "canonical_name": "Govind Das"}}, {"text": "23-11-1967", "label": "DATE", "start_char": 30660, "end_char": 30670, "source": "ner", "metadata": {"in_sentence": "45 of 1965 decided on 23-11-1967."}}, {"text": "sec 213", "label": "PROVISION", "start_char": 30708, "end_char": 30715, "source": "regex", "metadata": {"statute": null}}, {"text": "P. Eswara Reddy", "label": "OTHER_PERSON", "start_char": 31521, "end_char": 31536, "source": "ner", "metadata": {"in_sentence": "It could therefore be safely acted upon for convicting A-7 as one of the participants in the commission of the murder of P. Eswara Reddy, deceased."}}, {"text": "s. 302", "label": "PROVISION", "start_char": 33331, "end_char": 33337, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 33348, "end_char": 33353, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 33355, "end_char": 33365, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 149", "label": "PROVISION", "start_char": 34357, "end_char": 34363, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 34367, "end_char": 34372, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 34374, "end_char": 34384, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Shinghal", "label": "JUDGE", "start_char": 34786, "end_char": 34794, "source": "ner", "metadata": {"in_sentence": "v. State of Bombay('), Kartar Singh v. State of Punjab('); Kri5lma\n\nGovind Patil v. State of Maharashtra('); Mohan Singh v.\n\nState of c\n\nPunjab(6); Yeshwant v. State of Maharashtra('); on this point this Court speaking through Shinghal J. reiterated the law, thus.:"}}, {"text": "[1964] 1 SCR 678", "label": "CASE_CITATION", "start_char": 36744, "end_char": 36760, "source": "regex", "metadata": {}}, {"text": "1962] 2 SCR 395", "label": "CASE_CITATION", "start_char": 36813, "end_char": 36828, "source": "regex", "metadata": {}}, {"text": "s. 302", "label": "PROVISION", "start_char": 37419, "end_char": 37425, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 37436, "end_char": 37441, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 37443, "end_char": 37453, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 302", "label": "PROVISION", "start_char": 37543, "end_char": 37549, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 37560, "end_char": 37565, "source": "regex", "metadata": {"statute": null}}, {"text": "Penal Code", "label": "STATUTE", "start_char": 37567, "end_char": 37577, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_942_946_EN", "year": 1976, "text": "TIRLOK SINGH & CO.\n\nDISTRICT MAGISTRATE, LUCKNOW & ORS.\n\nMarch 29, 1976\n\n[Y. V. (JiANDRACHUD AND V. R. KRISHNA IYER, JJ.]\n\nRight to be . heard-Lawful occupant of a building has no right to beheard at tl1e stage of ''notifying the vacc!llcy'' bv the District Maoislrate b1.fore passing an order of allot1nent or 1elease-U.P. Urban Building~ (Reguluion of Letting, Re111 and Eviction) Act, 13, 1972, S. 16 read with Rule 8 af U.P.\n\nUrban Buildings (Regulf1tlon of Letting, Rent and Eviction) Rules 1972- Scope of.\n\nUnder section 12 of the U.P. Rent Act boh the landlord and the tenant ar'! required to intimate a vacancy to the Distr:ct Magistrate, as and when a vacancy is deemed to have occurred in the circumstances specified therein. ()n the in!i1n;1tion of a vacancy, the District Mag:.Strate may under section 16 pasc; eithr an order allottin~ the premises to a person specified by him or he can release the vacancy in favour of the landlofd on being satisfied that i he requires the pre.mi.<les for the purposes mentioned in sectio'n 16(2). Sµch an order can however be passed only after \"ascertainment of vacancy\" under Rule 8 of U.P. Rent Rules 1972, through the Rent Inspector and after \"notifying the vacancy\" by display oh the notice board of the Di3trict !\\1agistrate for a period of three days from the date of such notificat, ion.\n\nFor the purposes of disposal of an application made by respondents 2 and 3 n/s 16(1)(b) of the Act for the \"release\" of certain residential premises of' which the appellants claim to be their tenants, the District Magistrate passed an order on May 20th 1974 viz. \"Let the vacahcy be notified\" admi.ttedly without granting any hearing tO' the appellants, which the appellants challenged as violative of the principle of \"Audi Alteram Partem\" in the Allahabad High Court. The High Court, though it granted an interim stay, after show cause notice rejected the Writ Petition summarily with a brief speakingorder oh the fi:TOund that the petition was premature and that the proper remedy lay to them u/s 16(5)(a) of the Act for review of the order directing that the vacancy be notified. Aggrieved by the said order the appellants filed a petition for special leave in this Court.\n\nDuring its pendency, the respondent No. 1 issued a notice to the appellants that the release applic1tion filed h'\n\nrcspond\"nts 2 and 3 would be takeh up for hearing on May 19th 1975 and on May 20th 1975 passed an order of release, after refusing to stay further proceedings.\n\nOn May 30th 1975, the appellants filed an appeal against the release order to the District Judge Lucknow, v..110 hasi stayed further proceeding.o; and t11e appeal is pending. The question is whether the flrder dated Ma,. 20th 1974 \"\\\\'as illegal for the reasoh that it was passetl \"''ithont affording a hearing to the appellants.\n\nDismissing the appeals the Court, HELD : ( 1) A study of the scheme of the Act and its provisions how the untenability of the contention as reQ:ards the illegalitv of the order passed by respondent No. I. [945A]\n\n(ii) The Act does not provide for a hearing at the stage when the District Magistrate passes an order of allotment or release.\n\n[945-CJ (iii-1A'n order passed under rule 8(2) of the -q.P: Rent Rules for. \"ascertainnt of va{; ancy\" is what is meant by \"notifying the vacancy'. 'The I>istrict Maistratc need not hear the parties before notifying the vacancy because under the scheme of the U.P. Rent Act an order notifying the vacancy does no injury and causes no prejudice to the interests of any party. A notification of the vacancy is a step-in-aid of an order of l1otn1ent or release a'n.--t\n\nit ic; onlv v.'hen such an order of a1lotment or release ts passed that the landlord or the tenant a~ the case may be have a grievance.\n\nOrders of allotpie?t and reJeae are in the first instahce reviewable. u/s 16(5)(a.) by the D1stnct\n\nMagistrate himself and an order passed u/s 16 is appealahle u/s 18.\n\nThe Ao..:t thus conten1plates successive opportunities being afforded to persons 'Yh~e interests are likely to be affucted by an order passed oy the Dlstnct Magistrate. [945F-G, 946A, Cl\n\n(iv) In the instant case, the Writ Petition was premature in the sense th~~ the order impugned thereby did not affect the appellants' interest in the particular pren1ises.\n\nThe appellants have since fil~ an appeal agaist the order of release to the District Judge and that appeal 1s pending. That is the proper forum for adjudicating on the rival claims. [946Ej\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1093 of 1975.\n\nAppeal by Special Leave from the Judgment and Order dated 7th August 1974 of the Allahabad High Court (Lucknow Bench) in Writ Petition No. 673/74.\n\nS. C. Malik, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the C Appellant. t S. T. Desai and M. L. Verma for Respondents 2 and 3.\n\nThe Judgment of the Court was delivered by\n\nCHANORACHUD, J. This appeal by special leave raises a short, though important question under the U.P. Urban Buildings (Regulation of D Letting, Rent and Eviction) Act, 13 of 1972.\n\nRespondents 2 and 3 filed an application under section 16(1)(b) of the Act for the 'release' of certain residential premises of which the appellants claim to be their tenants. Respondent 1, acting as a Rent Controller, directed a Senior Inspector to inspect thepremises and make a report. Accordingly, the Senior Inspector inspected the pre- E mises and submitted a report on April 9, 1974 stating : \"After hearing the parties it would be proper to take further action\". The Senior Inspector seems to have found that the premises were in occupation of 3 persons two of whom claimed to be partners of the appellant-firm M/s.\n\nTirlok Singh & Co. On receipt of the report respondent 1 passed the impugned order, \"Let the vacancy be notified\", admittedly without granting any bearing to the appellants.\n\nOn May 23, 1974 the appellants filed a writ petition in the High Court of Allahabad challenging the aforesaid order on the ground that it was passed in violation of the principles of natural justice. Pending admission of the writ petition the High Court stayed further proceedings consequent on the order. On August 7, 1974. a Division Bench of the High Court rejected the writ petition summarily, with a brief speaking G order. It felt that the writ petition was premature and that the proper remedy for the appellants was to approach respondent 1 under section 16 ( 5) (a) of the Act for review of the order directing that the vacancy be notified.\n\nIn Ap'.il, 1975 the appellants filed a petition for special leaw in this Court a~mst the order of he High Court but during the pendency of that petitton, respondent 1 issued a notice to the appellants stating that the relesc application filed by respondents 2 and 3 would be taken up for heanng on May 19. On May 21, 1975 respondent 1 passed a release\n\nA order and, though moved in that behalf by the appellants, refused to slay further proceedings.\n\nOn May 30., 1.975 the appellants filed an, appeal against the release order to the D1st~1ct Jud, ge, Lucknow who has \"- , stayed further proceedings. That appeal 1s pendmg.\n\nThe narrow question for determination is whether the order passe\" by respondent 1 on May 20, 1974 directing that the vacancy be notified is illegal for the reason that it was passed without affording a hearing to the appellants. This question incidentally involves an inquiry into the correctness of the view expressed by the High Court that the writ petition filed by the appellants was premature.\n\nIt is necessary for a proper appreciation of the controversy involved in this appeal to understand the scheme of the U. P. Rent Act, 13 of\n\n1972. Chapter III entitled \"Regulation of Letting\" proyides by section 12(1) that a landlord or tenant of a building shall be deemed to have ceased to occupy the bu>lding or a part thereof if (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be '1 occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of pis family have taken up residence not being temporary residence, elsewhere. By sction 12 ( 4), any building or part of a building which a .landlord or a tenant has ceased to occupy shall be deemed to be vacant. By section 13, where a landlord or a tenant ceases to occupy a bu\\lding no person can occupy it otherwise than under an order of allotment or release passed under section 16. Section 15 imposes an obligation on every landlord to give notice of the vacancy to the District Magistrate whenever a building falls vacant.\n\nSection 16 which deals with allotment and release of vacant buildings -.., provides by sub-section (1 )(a) that the District Magistrate may by order require the landlord to let any vacant building to any person specified in the order, to be called an allotment order. Section 16( 1) (h) empowers the District Magistrate to pass a release order directing that the whole or any part of such building may be released in favour of the landlord. By reason of section 16 (2), no release order can be passed under section 16 ( 1 )(b) unless the District Magistrate is satisfied that the building is required by the landlord -bona fide for occupation by himself or any member of his family or for any of the purposes specified in the sub-section. By section 16(5)(a), where the!andlord or any other person claiming to be a lawful occupant of the building comprised in the order of allotment or release satisfies the District Magistrate that such an order was not made in accordance with clause (a) or clause\n\n(b) of section 16 (1), the District Magistrate may review the order. If / the District Magistrate on review sets aside or modifies the order of allotment or release, he is empowered under section 16(5)(b) to put the applicant, if already evicted, back into possession. Section 18 which provides for an appeal against an order of allotment or release says that any person aggrieved by an order of allotment or release passed under section 16 may prefer an appeal to the District Jndge. If the order of allotment or release is varied or rescinded by the-District Jncl 00 the District Magistrate under section 18(2) has the power to place the\n\nparties back in the position which they would have occupied but for such order.\n\nA study of these provisions shows the untenability of the appellant's contention as reoards the illegality of the order passed by respondent.\n\n1. Chapter III otthe U .P. Rent Act casts an obligation both on the landlord and the tenant to intimate a vacancy to the District Magistrate. A vacancy is to be deemed to have occurred in the circnmstances specified in section 12. On the intimation of a vacancy or otherwise, the District Magistrate may under section 16 pass either an order a11otting the premises to a person specified by him or he can release the vacancy in favour of the landlord on being satisfied that he requires the premises for the purposes mentioned in section 16(2). The Act does not provide for a hearing at the stage when the District Magistrate passes an order of allotment or release. But any person aggrieved by such an order is entitled under section 16(5)(a) to ask the District Magistrate to review his order. II, in the meanwhile, any person in possession of the premises has been evicted the District Magistrate bas the power, iJ; be sets aside or modifies the order of allotment or release, to pnt the applicant back in possession. Fnrther, an order passed under section. 16 is appealable under section 18 which means that a person aggrieved by an order of allotment or release bas at aleast a two-fold opportunity to challenge an order affecting his interest.\n\nThe order dated May 20, 1974 passed by respondent 1 to. the effect \"Let tbe vacancy be notified\" is not by itself and without more calculated to injure or effect the appellant's interest. As a sequel to that order and after the High Court rejected the appellants' writ petition, respondent 1 served a notice on the appellants stating that the proceeding would be taken up for hearing on May 19, 1975. The release order was eventually passed on May 21 after hearing the appellants and they have filed an appeal against that order before the.'District Judge who is entitled to examine the legality and propriety of the order.\n\nThus, in the first place, it was unnecessary for respondent 1 to hea~ F the appellants before notifying the vacancy because under the scheme of the U.P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interests of any party. A notification of the vacancy is a step-in-aid of an order of allotment or release and it is only when such an order of allotment or release is passed that' the landlord or the tenant, as the case may be,. can have a grievance. Orders\n\nof allotment and release arc, in the first instance, reviewable by the G District Magistrate himself and an order passed by the District Magistrate under section 16 is appealable under section 18.\n\nA reference to the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 would be relevant and useful, in this behalf. Rnle 8(1) called \"Ascertainment of Vacancy\" enjoins the District Magistrate, before making an order of allotment or release H in respect of any building which is alleged to be vacant, to obtain a rep1:rt fron_i the Rnt Control In.spctor. Under rnle 8(2), the Inspector 1s reqmred to mspect the bmldmg as far as possible in the presence\n\nof the parties and submit the report to the District Magistrate after eliciting the necessary facts.\n\nRule 8(2) requires that the conclusion contained in the Inspector's report must be posted on the Notice Board of the District Magistrate's office for the information of the general public.\n\nThis is what is JW'ant by \"notifying the vacancy\" and this. explains the order passed by the District Magistrate : \"Let the vacancy be notified\".\n\nThe existence of the vacancy, by being displayed on the District Magistrate's notice board, is notified to the general public in order that persons interested in the allotment of the vacancy may apply to the District Magistrate in that behalf. Under Rule 8(2), an order of aHotment can be passed not before the expiration of 3 days from the date on which the vacancy is notified and if in the meantime any objection is received, not before the disposal of such objection. Under rule 8 ( 3), an objection to the notification of the vacancy has to be decided after considering any evrdence that the objector or any other person may adduce.\n\nThe Act thus contemplates successive opportunities being afforded i to persons whose interests are likely to be affected by any order passed by !he District Magistrate.\n\nPutting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can fil~ a review application. Thirdly, as against aa order passed under section 16, there is a right of appeal under section 18.\n\nThe High Court was therefore right in expressing the view that the\n\nappeants' writ petition was prmature. The writ petition was premature 111 !11.e sense at the or?er 1mpugn7d thereby did not affect the ap- \"' pellants 111terest 111 the particular premises. The appellants have since filed an appl aganst the orer of release to the District Judge and that appeal rs pendmg. That rs the proper forum for adjudicating on the rival claims of the appellants on one hand and respondents 2 and 3 on the other.\n\nThe appeal is accordingly dismissed with costs.\n\nS.R.\n\nAppeal dismissed. ..", "total_entities": 57, "entities": [{"text": "TIRLOK SINGH & CO", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "TIRLOK SINGH & CO", "offset_not_found": false}}, {"text": "DISTRICT MAGISTRATE, LUCKNOW & ORS", "label": "RESPONDENT", "start_char": 20, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "DISTRICT MAGISTRATE, LUCKNOW & ORS", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER, JJ.", "label": "JUDGE", "start_char": 97, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "S. 16", "label": "PROVISION", "start_char": 398, "end_char": 403, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12", "label": "PROVISION", "start_char": 519, "end_char": 529, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 806, "end_char": 816, "source": "regex", "metadata": {"statute": null}}, {"text": "Rent Rules 1972", "label": "STATUTE", "start_char": 1141, "end_char": 1156, "source": "regex", "metadata": {}}, {"text": "s 16(1)(b)", "label": "PROVISION", "start_char": 1422, "end_char": 1432, "source": "regex", "metadata": {"linked_statute_text": "Rent Rules 1972", "statute": "Rent Rules 1972"}}, {"text": "May 20th 1974", "label": "DATE", "start_char": 1589, "end_char": 1602, "source": "ner", "metadata": {"in_sentence": "For the purposes of disposal of an application made by respondents 2 and 3 n/s 16(1)(b) of the Act for the \"release\" of certain residential premises of' which the appellants claim to be their tenants, the District Magistrate passed an order on May 20th 1974 viz. \""}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 1793, "end_char": 1813, "source": "ner", "metadata": {"in_sentence": "Let the vacahcy be notified\" admi.ttedly without granting any hearing tO' the appellants, which the appellants challenged as violative of the principle of \"Audi Alteram Partem\" in the Allahabad High Court."}}, {"text": "s 16(5)(a)", "label": "PROVISION", "start_char": 2043, "end_char": 2053, "source": "regex", "metadata": {"linked_statute_text": "Rent Rules 1972", "statute": "Rent Rules 1972"}}, {"text": "May 30th 1975", "label": "DATE", "start_char": 2502, "end_char": 2515, "source": "ner", "metadata": {"in_sentence": "On May 30th 1975, the appellants filed an appeal against the release order to the District Judge Lucknow, v..110 hasi stayed further proceeding.o; and t11e appeal is pending."}}, {"text": "s 16(5)(a.)", "label": "PROVISION", "start_char": 3847, "end_char": 3858, "source": "regex", "metadata": {"statute": null}}, {"text": "s 16", "label": "PROVISION", "start_char": 3916, "end_char": 3920, "source": "regex", "metadata": {"statute": null}}, {"text": "s 18", "label": "PROVISION", "start_char": 3937, "end_char": 3941, "source": "regex", "metadata": {"statute": null}}, {"text": "CIVIL APPELLATE JURISDICTION", "label": "PETITIONER", "start_char": 4495, "end_char": 4523, "source": "ner", "metadata": {"in_sentence": "946Ej\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No."}}, {"text": "Allahabad High Court (Lucknow Bench)", "label": "COURT", "start_char": 4639, "end_char": 4675, "source": "ner", "metadata": {"in_sentence": "Appeal by Special Leave from the Judgment and Order dated 7th August 1974 of the Allahabad High Court (Lucknow Bench) in Writ Petition No."}}, {"text": "S. C. Malik", "label": "OTHER_PERSON", "start_char": 4706, "end_char": 4717, "source": "ner", "metadata": {"in_sentence": "S. C. Malik, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the C Appellant."}}, {"text": "S. K. Mehta", "label": "OTHER_PERSON", "start_char": 4719, "end_char": 4730, "source": "ner", "metadata": {"in_sentence": "S. C. Malik, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the C Appellant."}}, {"text": "K. R. Nagaraja", "label": "OTHER_PERSON", "start_char": 4732, "end_char": 4746, "source": "ner", "metadata": {"in_sentence": "S. C. Malik, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the C Appellant."}}, {"text": "P. N. Puri", "label": "OTHER_PERSON", "start_char": 4751, "end_char": 4761, "source": "ner", "metadata": {"in_sentence": "S. C. Malik, S. K. Mehta, K. R. Nagaraja and P. N. Puri for the C Appellant."}}, {"text": "S. T. Desai", "label": "LAWYER", "start_char": 4785, "end_char": 4796, "source": "ner", "metadata": {"in_sentence": "t S. T. Desai and M. L. Verma for Respondents 2 and 3."}}, {"text": "M. L. Verma", "label": "LAWYER", "start_char": 4801, "end_char": 4812, "source": "ner", "metadata": {"in_sentence": "t S. T. Desai and M. L. Verma for Respondents 2 and 3."}}, {"text": "CHANORACHUD", "label": "JUDGE", "start_char": 4883, "end_char": 4894, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nCHANORACHUD, J. This appeal by special leave raises a short, though important question under the U.P. Urban Buildings (Regulation of D Letting, Rent and Eviction) Act, 13 of 1972."}}, {"text": "section 16(1)(b)", "label": "PROVISION", "start_char": 5111, "end_char": 5127, "source": "regex", "metadata": {"statute": null}}, {"text": "April 9, 1974", "label": "DATE", "start_char": 5440, "end_char": 5453, "source": "ner", "metadata": {"in_sentence": "Accordingly, the Senior Inspector inspected the pre- E mises and submitted a report on April 9, 1974 stating : \"After hearing the parties it would be proper to take further action\"."}}, {"text": "May 23, 1974", "label": "DATE", "start_char": 5867, "end_char": 5879, "source": "ner", "metadata": {"in_sentence": "On May 23, 1974 the appellants filed a writ petition in the High Court of Allahabad challenging the aforesaid order on the ground that it was passed in violation of the principles of natural justice."}}, {"text": "High Court of Allahabad", "label": "COURT", "start_char": 5924, "end_char": 5947, "source": "ner", "metadata": {"in_sentence": "On May 23, 1974 the appellants filed a writ petition in the High Court of Allahabad challenging the aforesaid order on the ground that it was passed in violation of the principles of natural justice."}}, {"text": "August 7, 1974", "label": "DATE", "start_char": 6173, "end_char": 6187, "source": "ner", "metadata": {"in_sentence": "On August 7, 1974."}}, {"text": "section 16", "label": "PROVISION", "start_char": 6419, "end_char": 6429, "source": "regex", "metadata": {"statute": null}}, {"text": "May 30., 1.975", "label": "DATE", "start_char": 6969, "end_char": 6983, "source": "ner", "metadata": {"in_sentence": "On May 30.,"}}, {"text": "May 20, 1974", "label": "DATE", "start_char": 7225, "end_char": 7237, "source": "ner", "metadata": {"in_sentence": "The narrow question for determination is whether the order passe\" by respondent 1 on May 20, 1974 directing that the vacancy be notified is illegal for the reason that it was passed without affording a hearing to the appellants."}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 7743, "end_char": 7756, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 8306, "end_char": 8316, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 8466, "end_char": 8476, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 15", "label": "PROVISION", "start_char": 8478, "end_char": 8488, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 8621, "end_char": 8631, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16( 1)", "label": "PROVISION", "start_char": 8889, "end_char": 8903, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 9075, "end_char": 9085, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": 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"end_char": 10716, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 10797, "end_char": 10807, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16(2)", "label": "PROVISION", "start_char": 11016, "end_char": 11029, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16(5)(a)", "label": "PROVISION", "start_char": 11213, "end_char": 11229, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 11570, "end_char": 11580, "source": "regex", "metadata": {"statute": null}}, {"text": "May 19, 1975", "label": "DATE", "start_char": 12124, "end_char": 12136, "source": "ner", "metadata": {"in_sentence": "As a sequel to that order and after the High Court rejected the appellants' writ petition, respondent 1 served a notice on the appellants stating that the proceeding would be taken up for hearing on May 19, 1975."}}, {"text": "section 16", "label": 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{"document_id": "1976_3_947_955_EN", "year": 1976, "text": "YOGIRAJ CHARITY TRUST\n\nCOMMISSIONER OF INCOME-TAX, NEW DELHI\n\nMarch 30, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nExen1ption from /ncome-tax-Rejigious and charitable purposes .. -I ndian l11co1ne-tax Act, 1922-Section 4(3)(i)-Intent-Test for treaing a Trust incuJnt' as of a charitable 1wture and for entitlenient to exe111rti(!n u11Jer s. 4(3)\n\n(i) ibid.\n\nCharitable purposes under s. 4(3) of the Income Act includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but nothing contained in clause (i) and (ii) of s. 4(3) applies and shall operate to exempt from the provisions of the Act that part of the income from property held under a trust or other legal obligation for private religious purposes which does not ensure for the benefit of the public.\n\n,'\\ii the six income-tax references made by the Income-tax Appellate_ Tribunal, Delhi Bench under s. 66(1) of the Indian Income-tax Act, 1922 as to ''\\vbether on the facts and in the circumstances of the case the income of the\n\ntirust whic.h was spent on the religious and charitable purp6ses within the taxable territories was exempt under s. 4(3) (i) of the Indian Income Tax Act.\n\n1922\" \\Vere answered in the negative and in favour of Revenue, by the Division Bench of the Delhi High Court holding \"that the property of the trust cannot be held to be v.·holly for religious or charitable purposes\".\n\nThe terms of the trust deeds in all the cases are similar and the pattern of financial dealing of the various trusts is also the same as could be seen from the objects of the trusts particularly clauses (5) (a), which are, inter alia, as follows :-\n\n(i) To open, found, construct, establish takes over, equip, promote, conduct, maintain, support, subsidise, grant aids and make dona- E tions to schools, colleges, Pathshalas, boarding houses. reading clubs, libraries, art, music or literary societies and other institution~, educational or otherwise, w; sociations, printing presses, journals, newspapers, periodicals, and other religious, commercial, industrial, legal, medical, engineering scientific or other knowledge or training.\n\n(ii) To give stipends. scholarships, travelling expenses allowances and monetary aids to students and scholars in India and abroad engaged F in any of the pursuits referred to in sub-clause {i).\n\n(iii) To found, construct, maintain, support, assit_; t or grant aids or subscriµions to temples, prayer or congregational halls or other buildings for cultural, social or religious discourses.\n\n(iv) To open, found conduct, maintain, or contribute to the opening and maintaining of such institutions where work at living wageS can be provided to poor and deserving people and also be conducive - to the development of industries and benefit of the poor.\n\n(v) To open, found, establish, equip, finance assist, maintain or contribute to religious commercial technical industrial or commercial concerns, institutions, associations or bodies imparting any type of traiiaing or providing employment to persons.\n\n(vi) To give donations. subscriptions or contributions to anv other Charitable Trust in Jaipur State or outside. -\n\nClauses 11 and 16 of the deed give an uncontrolled discretion to the trustees to spend the whole of the trust fund on any of the non-charitable obiects of the trust. The non-charitable obJects authorise the opening and maintaining of commercial institutions where work at Jiving waes can be orovided to the\n\nA poor and also to contribute to commercial, technical, industfial or commercial concerns, institutions associations or bodies imparting any type of training .or providing ep1ployment to persons.\n\nDismissing the appeals by Special Leave, the Court held :-\n\n( 1) In order to claim the benefit of exemption under s. 4(3)(i) of the Act the property must be held under trust or other legal obligation wholly for religious or charitable purposes.\n\nThe only relaxation is that all the primary objects of the trust must be of religious and charitable nature and the existence of any ancillary or secondary object which is not of a religious or charitable nature but which is intended to subserve the religious and charitable objects may not prevent the grant of an exemption.\n\nThis is because such an ancillary or secondary obje1:t even though not of a religious or charitable nature is intended to effectuate the main and primary objects of the trust.\n\nA clear distinction n1ust be draw'n between the object ot' a trust and the pOWers conferred upon the trustees as incidental to the carrying out of the object.\n\nMere application of income to charity 'on the other hand will not avail to secure ex.emption if under the terms of the will or deed the income is applicable in the first instance to non-charitable objects and only the residue will go to charity. [953-A-B, C, DJ\n\nConunissioner of Tnconie Tax v.\n\nAndhra Chamber of Commerce ( 1965) --.+ 55 I. T.R. 722 applied.\n\nSole Trustee Loka Sl1ikshana Trust v. Conunissioner of Income-tax, Mysore [19761 1 SCR 461; All India Spinner's Association v. Commissioner of lncometax (1944) 12 l.T.R. 482; C.l.T,\n\nv. Krishna Warriar\n\n[1964] 8 SCR 36; Conunissioner of lnco111e Tax v. Bengal Home Industries Association 48 I.T.R. 181; Hyderabad Stock Exchange Ltd. v. C.I.T. 66 I.T.R. 195; and Commissioner of /ncouze Tax v. Radhaswami Satsang Sabha 25 I.T.R. 472. discucd and distinguished.\n\n(ii) The test is that if one of the obiects of the trust deed is not of a religious or charitable nature and the trust deed confers full discretion on the trustees to spend the trust funds for an object other than of a religious or charitable nature, the exemption under s. 4(3) (i) of the Act is not available to the assessee.\n\n[955DJ\n\nLaksluni Narain Nath Trust v. Commissioner of Income Tax (1969) 73 I.T.R. 402, followed.\n\n(iii) Where there are several objects of trusts some of which are charitable and some non-charitable and the trustees in their discretion are to apply the income to any of the objects, the \\Vhole trust fails and no part of the income\n\nis exe1npt from the tax.\n\nWhere the objects are distributive. each and every one of the objects nlust be charitable in order that the trust might be upheld as a valid charity. Tf no definite part of the property or its income is allocated to charitable purposes and it would be open to the trustees to apply the whole incon1e to any of the non-charitable objects no exemption can be claimed [952F-H]\n\nEa.\\f l11dta Industries (Madras) Pvt. Ltd. v. Conunissioner of Income Tax\n\n(1967) 65 T.T.R. 611 and Moha1nn1ed Ibrahin1 Riza v. C.l.T. 57 I.A .. 260 applied.\n\n(iv) In the instant case the various industrial and commercial concerns were , not st~Jrted by Ram Krishna Da1mia in furtherance of the objects of truts. _.,, The concerns \\Vere started for the purpose of earning profits which were to be distributed to the share holders who had invested share money in those concen1s.\n\nThe trust property could not be said to be wholly for religiouti or charitable purposes \\1.'ithin the meaning of s. 4(3) (i) of the Act. f954G-H,\n\n955-CJ\n\nArgun1ents for tlze avvellant:\n\n(1) The Trus'~ is entitled! to claim exemption under s. _4(3)(i) of the Act because the t.rust 'is for religious and charitable purposes only.\n\n(2) .!\\.s 10 clauses which confer power on the trustees to establish any A business, undertaking or industry the inco-!11~ derived fro!? uch commercial concern is to be spent \\Vholly for the reltg1ous and chantab1e purposes and\n\n,,_ \"' therefore exemption is permissible under s. 4(3)(i) oi the Act.\n\n(3) The dominant purpose of the founder of the trust as expressed in the forefront of the Deed is religious or charitable and even if money be spent on non-charitable purposes it should not be held that the trust is meant for non-charitable purposes and the founder has expressly provided in Clause\n\n30 of the Trust deed that the deed should not become invalid for the reason that. some object might be considered unla\\vful.\n\n(4) lf any income fron1 the tn1st is utilised <ind <tpplied \\\\'holly in carrying out the primary purposes of the trust. the Tn1st is entitled to claim exemption under proviso (b) to section 4(3) (i) of the Act and there was no bar on the trust to carry on business under the Act provided the profits of business were utilised only for charitable purposes.\n\nA rg111ne11ts {nr thl' respondents:\n\n(1) The Trust \\Vas not entitled to claim exemption under s. 4(3)(i) of the Indian Income-tax Act, 1922 for the simple reason that some of the object of tthe Trust gave a discretion to the Trustees to apply the funds of the Trust to purporses which could not be regarded charitable in the eye of la\\v,\n\n<2) If out of several objects of the Trllst some of them were found to be\n\nnon-charitable, the '\\vhole trust would fail and no part of its income \\vould be D exempt from tax.\n\n( 3) It was not a genuine charitable trust as claimed by the assessee but its creation and existence were a camouflage and \\\\'ere meant only as a device for the benefit of the settlor Shri Ram Krishna Dalrnia and the industrial and commercial concerns controJled by him.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 937 to 966 of 1971\n\nBishamber Lal, D. N. Banerjee, Pramod Dayal and M. Iyengar, for the appellant.\n\n• Hardyal Hardy (In CA 937 /71), S. P. Nayar (In CAs. 938-966) for the respondent.\n\nThe Judgment of the Court was delivered by\n\nRAY. CJ.\n\nThese appeals by special leave are from the judgment dated 26 May, 1970 of the High Court of Delhi.\n\nThe question referred to the High Court under section 66 (1) of the Income Tax Act, 1922 referred to as the Act was as follows :\n\n\"Whether on the facts and in the circumstances of the case the income of the trust which was spent on the religious and chantable purposes within the taxable territories was exempt under section 4 (3) (i) of the Indian Income Tax Act, 1922\".\n\nThe main judgment was delivered in Income Tax Reference No. 40 of 1965.\n\nThe High Court answered the question in the negative.\n\nThe trust in Income Tax Reference No. 40 of 1965 was taken as typical of all the cases.\n\nThe deed of trust dated 12 April, 1948\n\nA was made by Ramkrishna Dalmia.\n\nThe trust was called \"Jaipur Charitable Trust\". In Jaipur Charitable Trust Rs. 10,000 was given on trust on the terms and conditions set out in the deed.\n\n'°' I\n\nThe objects of the trust in clause 5 (a) are, inter alia, as follows :\n\n(i) To open, found, construct, establish, take over, equip, promote, conduct, maintain, support, subsidise, grant aids and make donations to schools, colleges, Pathshalas, boarding houses, reading clubs, libraries, art, music or literary societies and other institutions, educational or otherwise, associations, printing presses, journals, newspapers, periodicals, and other publications for imparting or developing religious, commercial, industrial, legal\" medical, engineering scientific or other knowledge or training.\n\n(ii) To give stipends, scholarships, travelling expenses allowances and monetary aids to students and scholars in India and abroad, engaged in any of the pursuits referred to in sub-clause (i).\n\n(iii) To found, construct, maintain, support, assist or grant aids or subscriptions to temples, prayer or congregational halls or other buildings for cultural, social or religious discourses.\n\n(iv) To open, found conduct, maintain, or contribute to the opening and maintaining of such institutions where work at living wages can be provided to poor and deserving; people and also be conducive to the development of industries and benefit of the poor. ( v) To open, found, establish, equip, finance, assist, maintaia or contribute to religious, commercial technical, industrial, or comn1ercial concerns, institutions, associations or bodies imparting any type of training or providing employment to persons.\n\n(vi) To give donations, subscriptions or contributions to any other Charitable Trust in Jaipur State or outside.\n\nThere are other objects to help widows, orphans, lunatics, indigent persons and to give relier to the poor and distressed, to build, equip, tak.e over, conduct, maintain and grant aids to dispensaries, maternity homes, hospitals, lunatic asylums, to construct. erect and maintain bridges, ghats, to give relief by subscription or otherwise during famines, flood, earthquake, pestilence, to help or maintain institutions for .the cultural,, social or economic advancement of any country or countries.\n\nFor the purpose of carrying out the trust the trustees are empowered in clause 5 (b), inter alia, (a) to purchase oc otherwise acquire any H property, rights leases, concession; (b) to purchase or acquire, start establish, equip or close any business undertaking or industry; ( c) purchase, acquire or undertake the whole or any part of property and liabilities on any person, firm or company.\n\n~ (\n\nThe property of the Trust is vested in the trustees. Clause (9) A of the Trust Deed provides that the Trustees shall carry out the aforesaid objec'.s from out of the net income of the Trust left after meeting the expenses of management and all charges and outgoings so far as such income shall permit, and shall not utllize the income or any portion thereof for any other objects or purpose.\n\nSection 4(3) (il of the Act is as follows :- g\n\n\"Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving then1;\n\n(i) Subject to the provisions of clause (c) of sub-section (!) of section 16, any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, in so far as such income is applied or accumulated for application to such religious or charitable purposes as relate to anything done within the taxable territories, and in the case of property so held in part only for such purposes, the income applied or finally set apart for application thereto :\n\nProvided that such income shall be included in the total income.\n\n(a) xx xx xx\n\n(b) in the case of income derived from business, carried on behalf of a religious or charitable institution, unless the\n\nincome is appljed wholly for the purpose of the institutions E and either- ( i) the business is carried on in the course of the actual carrying out of a primary purpose of the institution, or\n\n(ii) the work in connection with the business is mainly carried on by beneficiaries of the institution.\n\n(iii) any income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes.\"\n\nCharitable purpose under section 4(3) of the Act includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but nothing contained in clause (i) or clause (ii) of section 4(3) applies and shall operate to exempt from the provisions of the Act that part of the income from property held under tmst or other legal obligation for private religious purposes which does not ensure for the benefit of the public.\n\nThe terms of the Trust Deeds in all the cases are similar.\n\nThe pattern of financial dealings of the various Trusts is also the same.\n\nThe appellant contends that Trust is entitled to claim exemption H under section 4(3) (i) of the Act because the trust is for religious and charitable purposes only.\n\nAs to clauses which confer power on trustees to establish any business, undertaking or industry it is said by\n\nthe appellant that the income derived from such commercial concern is to be spent wholly for the religious and charitable purposes and therefore exemption is permissible.\n\nThe appellant contends that the dominant purpose of the founder of the trust as expressed in the forefront of the Deed is religious or charitable and even if money be spent on non-charitable purposes it should not be held that the trust is meant for non-charitable purpose. The appellant also relies on clause\n\n30 of the trust deed where it is said that the deed should not become invalid for the reason that some object might be considered unlawful.\n\nThe Revenue denies the claim for exemption on the ground that some objects are non-charitable and the trustees are given an unfettered discretion with regard to the utilisation of the income.\n\nSome of the objects of the Trust according to the Revenue give absolute discretion to the Trustees to apply the funds of the Trust for purposes which cannot be regarded charitable in the eye of law.\n\nThe R.evenue contends that if out of several objects of the Trust some are found to be noncharitable, the whole trust will fail.\n\nThe Revenue also contends that it is uot a genuine charitable trust bnt its creation and existence are a camoullage and are meant only as a device for the benefit of the settlor and the industrial and commercial concerns controlled by him.\n\nClauses 11 and 16 of the deed give an uncontrolled discretion to the trustees to spend the whole of the trust fund on any of the noncharitable objects of the trust.\n\nThe non-charitable objects authorise the opening and maintaining of commercial institutions where work at living wages can be provided to the poor and also to contribute to co1nmercia1, tchnical, industrial or commercial concerns, institutions, associations or bodies imparting any type of training or providing employment to persons. The Revenue contends that these clause~ are clearly non-charitable.\n\nEach clause is independent and distinct, According to the Revenue it is neither ancillary nor secondary to the primary dominant purpose of the trust nor can it be said that these clauses subservc the main object of the trust. Engagement in commercial institutions giving employment on wages cannot be said to be F charitable object. Some of the objects of the trust are non-charitable.\n\nThe trustees have been authorised to utilize the income of the trust for any purpose mentioned in the Trusi Deed.\n\nThe question is whether exemption can be granted where some objects are charitable and some non-charitable.\n\nWhere there are several objects of a trust, some of which are charitable and some noncharitable, and the trustees in their discretion are to apply the income to any of the objects, the whole trust fails and no part of the income is exempt from tax.\n\nWhere the objects are distributive, each and every one of the objects must be charitable in order that the. trust might be upheld as a valid charity.\n\nIf no definite part of the property or of its income is allocated to charitable purposes and it would be open to the trustees to apply the whole income to any of the noncharitable objects no exemption can be claimed. (See East India Industries (Madras) Pvt Ltd. v. Commissioner of Income tax(') and Mohammad Ibrahim Riza v. C.l.T.(')\n\n(1) (1967) 65 1.T.R. 611.\n\n(2) 57 I.A. 260.\n\n. ,,\n\n,,.\n\nln order to claim the benefit of the exemption under section 4(3) A\n\n(i) of the Act the property must be held under trust or other legal obligation wholly for religious or charitable purposes. The only relaxation which may arise in some cases is that all the primary objects of the trust must be of a religious and charitable nature and the existence of any ancillary or secondary object which is not ot a religious or charitable nature but which is intended to subserve the religious and charitable objects may not prevent the grant of an exemption.\n\nThis is B because such an ancillary or secondary object even though not of a re!iQious or charitable nature is intended to effectuate the main and primary objects of the trust.\n\nIf the primary or dominant purpose of a trust is charitable, another object which by itself may not be charitable but which is merely ancillary or incidental to the primary or dominant purpose would not prevent c the trust from being a valid charity. A clear distinction must be drawn between the object of a trust and the powers conferred upon the trustees as incidental to the carrying out of the object. If the only object of a turst is the construction and maintenance of a swimming bath which is a purpose of general public utility, the fact that the trustees are given the power to supply or sell refreshments to persons. who resort to the bath would not make the trust any of the less charitable.\n\nD Mere application of income to charity on the other hand will not avail to secure exemption if under the terms of the will or deed the income is applicable in the first instance to non-charitable objects and only the residue will go to charity. (See Commissioner of Income Tax v.\n\nA ndhra Chamber of Commerce (1).\n\nThe appellant contended that if any income from the Trust is, uti\\i- E sed and applied wholly in carrying out the primary purposes of the Trust, the Trust is entitled to claim exemption under proviso ( b) '.o section 4(3) (i) of the Act. The appellant relied on the recent decision of this Court in Sole Trustee Loka Shikshana Trust v. Commissioner of Income Tax, Mysore(').\n\nThe Loka Shikshana Trust was engaged in the business of printing and publication of newspaper and journals and the further fact that the activity yielded profit and there F were no restrictions on the trust earning profits in the course of its business went to show that the purpose of the trust did not satisfy the requirement that it was one not involving the carrying on of any activity for profit. This Court relied on the decision in All India Spinners' Association v. Commissioner of Income Tax(') namely, that the charitable purposes exclude objects of private gain.\n\nThe appellant contended that there was no bar on the trust to carry on business under the Act provided the profits of business were utilized only for charitable purpose. The appellant relied on the decision of this Court in C.l.T. v. Krishna Warriar(') In Krishna Warriar's case the trustees,, were directed to apply 60 per cent of the income of the business vested in the trustees to charitable purposes and 40 per cent for the benefit of the family.\n\nThe question was whether 60 per cent of the\n\n(!) (1965) 55 I.T.R. 722.\n\n(3) (1944) 12 l.T.R. 482.\n\n(2) [1976] I SCR 461.\n\n(4) [1964] 8 S.C.R. 36.\n\nincome was liable to tax under proviso (b) to section 4(3) (i) of the Act on the ground that the entire income was not applied for charitable purposes. The question that arose in that case dealt with the meaning of the expression \"part\" as used in section 4(3) (i) of the Act that \"in the case of profit so held in part oly _for such purposes the income applied or finally set apart for application thereto shall not be included in the total income of the person receiving'.\n\nKrishna Warriar's\n\n(supra) case does not deal with the effect of a deed which has charitable as well as non-charitable objects and the trustees have been given the power to apply the whole of the trust fund for non-charitable objects excluding charitable object.s.\n\nThe decision in C.l.T. v. Bengal Home Industries Association(') Hyderabad Stock Exchange Ltd. v. C.l.T.(') C.l.T. v. Radhaswmni\n\nSatsang Sabha(') on which the appellant relied are all applications of the ruling in All India Spinners' Association (supra) case that what has to be found out is whether the object clause has any non-charitable object. In the Bengal Home Industries (supra) case, the object was to promote and develop home industries, arts and crafts. The income of the Association was to be applied solely towards the promotion of and carrying out of its objects. No portion of the income could be paid or transferred directly or indirectly by way of dividends to the members.\n\nIn the case of winding up the surplus could not be distributed to the members but were to be transferred to the institution.\n\nIn the Hyderabad Stock Exchange (supra) case, the aims and objects were not only to further the interests of brokars and dealers but also to assist, regulate and control the trade in securities, to maintain high standards of commercial honour and integrity, to discharge and suppress mal-practices to settle disputes and decide all question of usage, custom or courtesy in the conduct of trade or business. The objects were found beneficial to a section of the public and of general public utility. The profit were not to be distributed to the members but were to be utilized for the promotion of the objects of the Exchange.\n\nTherefore, the object was charitable and the income was applied wholly for charitable purposes.\n\nIn Radl1aswami Satsang Sabha (supra), case several industrial and commercial concerns were started for the benefit of the Satsanghis.\n\nThose were not run for individual profits nor were the profits distributed among the members.\n\nThe concerns were started in furtherance of its objects of religious and charitable nature.\n\nIn the present case, the Income Tax Authorities found that the various industrial and commercial concerns were not started by Ram Krishna Dahnia in furtherance of the objects of the_ trusts. The concerns were started for the purpose of earning profits which were to be distributed to the share-holders who had invested share money in those concerns. ---- ----\n\n(I) 48 J.T.R. 181.\n\n(2) 661.T.R. 195.\n\n(3) 25 l.T.R. 472.\n\nThis Court in East India Industries (Madras) Privale Limited v.\n\nC.l.T.(') found that one of the objeots of the trust was not for charitable or religious purposes.\n\nThe object was to manufacture. buy, sell and distribute a pharmaceutical medicinal, chemical and other preparations.\n\nThe other objects were charitable in nature. The Trust Deed in East India Industries (Madras) Pvt. Limited (supra) case conferred power on the trustees to apply the whole or any part of the trust property or fund for all or any other purposes of the trust.\n\nThis Court found that there was no special trust and no particular item of property had been bumdened with the performance of any specific object of the trust.\n\nIt was open to the trustees to utilize the income for any one of the objects of the trust to the exclusion of all other objects.\n\nIt would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations.\n\nThis Court held that the trust property could not be said to be wholly for religious or charitable purposes within the meaning of section 4(3) (i) of the Act.\n\nThe present appeals are all of the type of East lndia Industries (Madras) Private Limited (supra) case and fall within the ruling in that case.\n\nThe test is that if one of the objects of the trust deed is not of D a religious or charitable nature and the trust deed confers full discretion on the trustees to spend the trust funds for an object other than of a religious or charitable nature, the exemption under section 4(3)\n\n(i) of the Act is not available to the assessee. (See Lakshmi Narain Nath Trust v. Commissioner of Income Tax(').\n\nFor these reasons the appeals are dismissed.\n\nIn view of the fact E that the High Court directed that the parties will bear their own costs, the same order is made as to costs.\n\nS.R.\n\n(l) {1967) 65!. T.R. 611.\n\n(2) (1969) 73 I.T.R. 402.\n\nAppeals dismissed.", "total_entities": 68, "entities": [{"text": "YOGIRAJ CHARITY TRUST", "label": "PETITIONER", "start_char": 0, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "YOGIRAJ CHARITY TRUST", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX, NEW DELHI", "label": "RESPONDENT", "start_char": 23, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX, NEW DELHI", "offset_not_found": false}}, {"text": "March 30, 1976", "label": "DATE", "start_char": 62, "end_char": 76, "source": "ner", "metadata": {"in_sentence": "COMMISSIONER OF INCOME-TAX, NEW DELHI\n\nMarch 30, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]"}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 79, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 96, "end_char": 105, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 110, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Section 4(3)(i)", "label": "PROVISION", "start_char": 227, "end_char": 242, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 354, "end_char": 361, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 400, "end_char": 407, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 596, "end_char": 603, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Appellate_ Tribunal, Delhi Bench", "label": "COURT", "start_char": 887, "end_char": 930, "source": "ner", "metadata": {"in_sentence": ",'\\ii the six income-tax references made by the Income-tax Appellate_ Tribunal, Delhi Bench under s. 66(1) of the Indian Income-tax Act, 1922 as to ''\\vbether on the facts and in the circumstances of the case the income of the\n\ntirust whic.h was spent on the religious and charitable purp6ses within the taxable territories was exempt under s. 4(3) (i) of the Indian Income Tax Act."}}, {"text": "s. 66(1)", "label": "PROVISION", "start_char": 937, "end_char": 945, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 953, "end_char": 980, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 1180, "end_char": 1187, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "India", "label": "GPE", "start_char": 2293, "end_char": 2298, "source": "ner", "metadata": {"in_sentence": "scholarships, travelling expenses allowances and monetary aids to students and scholars in India and abroad engaged F in any of the pursuits referred to in sub-clause {i)."}}, {"text": "Jaipur State", "label": "GPE", "start_char": 3170, "end_char": 3182, "source": "ner", "metadata": {"in_sentence": "subscriptions or contributions to anv other Charitable Trust in Jaipur State or outside. -"}}, {"text": "s. 4(3)(i)", "label": "PROVISION", "start_char": 3817, "end_char": 3827, "source": "regex", "metadata": {"statute": null}}, {"text": "[1964] 8 SCR 36", "label": "CASE_CITATION", "start_char": 5177, "end_char": 5192, "source": "regex", "metadata": {}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 5706, "end_char": 5713, "source": "regex", "metadata": {"statute": null}}, {"text": "Ram Krishna Da1mia", "label": "OTHER_PERSON", "start_char": 6752, "end_char": 6770, "source": "ner", "metadata": {"in_sentence": "(iv) In the instant case the various industrial and commercial concerns were , not st~Jrted by Ram Krishna Da1mia in furtherance of the objects of truts. _.,,", "canonical_name": "Ram Krishna Dalrnia"}}, {"text": "s. 4(3)", "label": "PROVISION", "start_char": 7090, "end_char": 7097, "source": "regex", "metadata": {"statute": null}}, {"text": "s 10", "label": "PROVISION", "start_char": 7316, "end_char": 7320, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(3)(i)", "label": "PROVISION", "start_char": 7585, "end_char": 7595, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause\n\n30", "label": "PROVISION", "start_char": 7901, "end_char": 7911, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 8217, "end_char": 8229, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 4(3)(i)", "label": "PROVISION", "start_char": 8486, "end_char": 8496, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 8504, "end_char": 8531, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Ram Krishna Dalrnia", "label": "OTHER_PERSON", "start_char": 9096, "end_char": 9115, "source": "ner", "metadata": {"in_sentence": "( 3) It was not a genuine charitable trust as claimed by the assessee but its creation and existence were a camouflage and \\\\'ere meant only as a device for the benefit of the settlor Shri Ram Krishna Dalrnia and the industrial and commercial concerns controJled by him.", "canonical_name": "Ram Krishna Dalrnia"}}, {"text": "Bishamber Lal", "label": "PETITIONER", "start_char": 9249, "end_char": 9262, "source": "ner", "metadata": {"in_sentence": "937 to 966 of 1971\n\nBishamber Lal, D. N. Banerjee, Pramod Dayal and M. Iyengar, for the appellant."}}, {"text": "D. N. Banerjee", "label": "OTHER_PERSON", "start_char": 9264, "end_char": 9278, "source": "ner", "metadata": {"in_sentence": "937 to 966 of 1971\n\nBishamber Lal, D. N. Banerjee, Pramod Dayal and M. Iyengar, for the appellant."}}, {"text": "Pramod Dayal", "label": "OTHER_PERSON", "start_char": 9280, "end_char": 9292, "source": "ner", "metadata": {"in_sentence": "937 to 966 of 1971\n\nBishamber Lal, D. N. Banerjee, Pramod Dayal and M. Iyengar, for the appellant."}}, {"text": "M. Iyengar", "label": "LAWYER", "start_char": 9297, "end_char": 9307, "source": "ner", "metadata": {"in_sentence": "937 to 966 of 1971\n\nBishamber Lal, D. N. Banerjee, Pramod Dayal and M. Iyengar, for the appellant."}}, {"text": "Hardyal Hardy", "label": "LAWYER", "start_char": 9331, "end_char": 9344, "source": "ner", "metadata": {"in_sentence": "• Hardyal Hardy (In CA 937 /71), S. P. Nayar (In CAs."}}, {"text": "S. P. Nayar", "label": "OTHER_PERSON", "start_char": 9362, "end_char": 9373, "source": "ner", "metadata": {"in_sentence": "• Hardyal Hardy (In CA 937 /71), S. P. Nayar (In CAs."}}, {"text": "26 May, 1970", "label": "DATE", "start_char": 9526, "end_char": 9538, "source": "ner", "metadata": {"in_sentence": "These appeals by special leave are from the judgment dated 26 May, 1970 of the High Court of Delhi."}}, {"text": "High Court of Delhi", "label": "COURT", "start_char": 9546, "end_char": 9565, "source": "ner", "metadata": {"in_sentence": "These appeals by special leave are from the judgment dated 26 May, 1970 of the High Court of Delhi."}}, {"text": "section 66", "label": "PROVISION", "start_char": 9614, "end_char": 9624, "source": "regex", "metadata": {"statute": null}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 9636, "end_char": 9656, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 9885, "end_char": 9894, "source": "regex", "metadata": {"linked_statute_text": "the Income Tax Act, 1922", "statute": "the Income Tax Act, 1922"}}, {"text": "Indian Income Tax Act, 1922", "label": "STATUTE", "start_char": 9910, "end_char": 9937, "source": "regex", "metadata": {}}, {"text": "12 April, 1948", "label": "DATE", "start_char": 10182, "end_char": 10196, "source": "ner", "metadata": {"in_sentence": "The deed of trust dated 12 April, 1948\n\nA was made by Ramkrishna Dalmia."}}, {"text": "Ramkrishna Dalmia", "label": "OTHER_PERSON", "start_char": 10212, "end_char": 10229, "source": "ner", "metadata": {"in_sentence": "The deed of trust dated 12 April, 1948\n\nA was made by Ramkrishna Dalmia.", "canonical_name": "Ram Krishna Dalrnia"}}, {"text": "Jaipur Charitable Trust", "label": "ORG", "start_char": 10254, "end_char": 10277, "source": "ner", "metadata": {"in_sentence": "The trust was called \"Jaipur Charitable Trust\"."}}, {"text": "clause 5", "label": "PROVISION", "start_char": 10422, "end_char": 10430, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income Tax Act, 1922", "statute": "the Indian Income Tax Act, 1922"}}, {"text": "clause 5", "label": "PROVISION", "start_char": 12579, "end_char": 12587, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 4(3)", "label": "PROVISION", "start_char": 13300, "end_char": 13312, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16", "label": "PROVISION", "start_char": 13555, "end_char": 13565, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 14670, "end_char": 14682, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 14870, "end_char": 14882, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 15323, "end_char": 15335, "source": "regex", "metadata": {"statute": null}}, {"text": "clause\n\n30", "label": "PROVISION", "start_char": 16003, "end_char": 16013, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 18942, "end_char": 18954, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 20849, "end_char": 20861, "source": "regex", "metadata": {"statute": null}}, {"text": "Loka Shikshana Trust", "label": "ORG", "start_char": 21020, "end_char": 21040, "source": "ner", "metadata": {"in_sentence": "The Loka Shikshana Trust was engaged in the business of printing and publication of newspaper and journals and the further fact that the activity yielded profit and there F were no restrictions on the trust earning profits in the course of its business went to show that the purpose of the trust did not satisfy the requirement that it was one not involving the carrying on of any activity for profit."}}, {"text": "Krishna Warriar", "label": "OTHER_PERSON", "start_char": 21825, "end_char": 21840, "source": "ner", "metadata": {"in_sentence": "T. v. Krishna Warriar(') In Krishna Warriar's case the trustees,, were directed to apply 60 per cent of the income of the business vested in the trustees to charitable purposes and 40 per cent for the benefit of the family."}}, {"text": "[1964] 8 S.C.R. 36", "label": "CASE_CITATION", "start_char": 22170, "end_char": 22188, "source": "regex", "metadata": {}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 22237, "end_char": 22249, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 22439, "end_char": 22451, "source": "regex", "metadata": {"statute": null}}, {"text": "All India Spinners' Association", "label": "ORG", "start_char": 23147, "end_char": 23178, "source": "ner", "metadata": {"in_sentence": "T. v. Radhaswmni\n\nSatsang Sabha(') on which the appellant relied are all applications of the ruling in All India Spinners' Association (supra) case that what has to be found out is whether the object clause has any non-charitable object."}}, {"text": "Bengal Home Industries", "label": "ORG", "start_char": 23289, "end_char": 23311, "source": "ner", "metadata": {"in_sentence": "In the Bengal Home Industries (supra) case, the object was to promote and develop home industries, arts and crafts."}}, {"text": "Hyderabad Stock Exchange", "label": "ORG", "start_char": 23758, "end_char": 23782, "source": "ner", "metadata": {"in_sentence": "In the Hyderabad Stock Exchange (supra) case, the aims and objects were not only to further the interests of brokars and dealers but also to assist, regulate and control the trade in securities, to maintain high standards of commercial honour and integrity, to discharge and suppress mal-practices to settle disputes and decide all question of usage, custom or courtesy in the conduct of trade or business."}}, {"text": "Radl1aswami Satsang Sabha", "label": "ORG", "start_char": 24478, "end_char": 24503, "source": "ner", "metadata": {"in_sentence": "In Radl1aswami Satsang Sabha (supra), case several industrial and commercial concerns were started for the benefit of the Satsanghis."}}, {"text": "Satsanghis", "label": "OTHER_PERSON", "start_char": 24597, "end_char": 24607, "source": "ner", "metadata": {"in_sentence": "In Radl1aswami Satsang Sabha (supra), case several industrial and commercial concerns were started for the benefit of the Satsanghis."}}, {"text": "Ram Krishna Dahnia", "label": "OTHER_PERSON", "start_char": 24924, "end_char": 24942, "source": "ner", "metadata": {"in_sentence": "In the present case, the Income Tax Authorities found that the various industrial and commercial concerns were not started by Ram Krishna Dahnia in furtherance of the objects of the_ trusts.", "canonical_name": "Ram Krishna Dalrnia"}}, {"text": "East India Industries (Madras) Pvt. Limited", "label": "ORG", "start_char": 25564, "end_char": 25607, "source": "ner", "metadata": {"in_sentence": "The Trust Deed in East India Industries (Madras) Pvt."}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 26388, "end_char": 26400, "source": "regex", "metadata": {"statute": null}}, {"text": "East lndia Industries (Madras) Private Limited", "label": "ORG", "start_char": 26461, "end_char": 26507, "source": "ner", "metadata": {"in_sentence": "The present appeals are all of the type of East lndia Industries (Madras) Private Limited (supra) case and fall within the ruling in that case."}}, {"text": "section 4(3)", "label": "PROVISION", "start_char": 26831, "end_char": 26843, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_956_965_EN", "year": 1976, "text": "A INCOME TAX OFFICER, l WARD, DIST. VI, CALC.UTTA & ORS.\n\nLAKHMANI MEW AL DAS\n\nMarch 30, 1976\n\n[H. R. KHAN\"fA AND P. K. GOSWAMI, JJ.]\n\n/nconie Tax Act, 1961--, S. 148-Scope of-Words & Phrases-\"Reason to believe\" meaning of 'ratio11al nexus'-What postulates.\n\nJn March 1967, a[ter obtaining the satisfaction of the Commissioner !he appel1ant issued a notice under s. 148 of the lnoe Tax Act. 1961 stating that he had reason to believe that the respondents income chargeable to t~ for the assessment year 1958-59 had escaped assessment. The respondent rephed that the I.T.0. had no competence or jurisdiction to reopen the assessment under s. 147 of the Act on a mere change of opinion.\n\nSince there \\vas no reply from the appellant, the respondent moved the High Cou!t for . a . wit.\n\nThe High Court held that the conditions precedent for the exercISe of 1und1c -1 tion by the Income Tax Officer were not fulfilled because the report subm1ted by the Income Tax Officer to the Commissioner under s. 147(a) was defective.\n\nOn appeal to this Court it was contended tha' the High c_; ourt was not right in holding that the Income Tax Officer\"s report was defective.\n\nDismissing the appeal,\n\nHELD : The High Court was right in holding that the material before the Income Tax Officer could not have led to the formation of the belief that the income of the assessee had escaped assessment because of his failure or omission to disclose fully and truly all material facts. [965Hl\n\n1. (a) The two conditions required to be satisfied before the Income Tax Officer issued a notice under s. 148 of the Income Tax Act are that he must have reason to believe (i) that the income chargeable to tax bad escaped assessment and (ii) that such income had escaped assessment by reason of the omission or failure on the part of assessee, to disclose fully and truly material facts necessary for assessment for that year. Both these conditions must coexist in order to confer jurisdiction on the Income Tax Officer.\n\nFurther the Income Tax Officer should record his reasons before initiating proceedings under s. 148(2); before issuing the notice after the expiry of four years from the end of the relevant assessment year, the Commissioner should be satisfied on the reasons recorded by the Income Tax Officer that it was a fit case for the issue of such notice. [962C-Dl\n\n(b) The duty cast upon the assessee does not extend beyond making a true and full disclosure of the primary facts. It is then for the Income Tax Officer to draw the correct inference from the primary facts.\n\nWhere his inference s'ubsequently appears to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening the assessment.\n\n[962F-G] ·\n\n( c) The grounds or reasons leading to the formation of the belief under s. 147(a) must have a material bearing on the question of escaPement of income.\n\nOnce there exist reasonable grounds for the Income Tax Officer to form the above belief. that would be sufficient to clothe him with jurisdiction to issue notice. While the sufficiency of grounds which induce the Income Tax Officer to act is not justiciable, it is open to the assessee to contend that the Income Tax Officer did not hold the belief that there was such non-\n\nisclos1;1re. _The expression .. reason to believe\" does not mean a purely subjective satisfaction on the part of the Income-Tax Officer.\n\nIt is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or relevant bearing on the formation of the belief arid are not extraneous or irrelevant for the purpose of the sectrion.\n\n[962H] _\n\nChlrugamal Rajpal v. S. P. Chaliha 79 I.T.R. 603, Calcutta Discount Co. Lt~.\n\nv. Income-Tax Officer, 41 I.T.R. 191 and S. Narayanappa & Ors. v. Commissioner of Income Tax 63 I.T.R. 219 followed.\n\n~ ,,, In the instant case the grounds given by the Income Tax Officer for reopening the assessment were (i) that the three persons whose names were mentioned in the list of creditors, were known name lenders and (ii) that another person shown as a creditor of the assessee had since confessed that he was doing only name lending.\n\nThe first ground mentioned by the Income Tax Officer could\n\nnot have led to the formation of the belief that the income of the respondent B had escaped assessment for that year because of his failure or omission to disclose fully and truly all material facts. The High Court was justified in excluding that ground from consideration. [963D-E]\n\nAs regards the second ground there is nothing to show that the confession of another person related to a Joan to the assessee and not to someone else.\n\nThere is no indication a.;; to when the confession \\Vas made and whether it related to the assessment year sought to be .re-opened. To infer from that C confession that it related to the period of assessment and that it pertained to the loan shown to have been advanced to the assessee would be far-fetched. [964G}\n\n2(a). Rational connection postulates that there rr1ust be a direct nexus or live link between the material coming to the notice of the Income Tax Officer and the formation of his belief that there had been escapement of income of the assessee from assessment in the particular year. It is not anv and every\n\nmaterial, -howsoever vague and indefinite or distant, remote and far-fetched whic.b \\VOuld warrant the formation of the belief relating to escapement of the D income of the assessee from assessment. The fact that the words \"definite information\" in s. 34 of 1922 Act before its amendment in 1948 do not find a place in s. 147 would not lead to the conclusion that action could now be taken for reopening assessment even if the information was wholly vague, indef!ni1:e, far-fetched and remote.\n\n[965B-DJ\n\n(b) The powers of the Income Tax Officer to reopen assessn1ent. though wide, are not plenary. The words are \"reason to believe\". and not \"reason to suspect\". The provisions of the Act depart from the .normal rule that there E should be finality about orders made in judicial and quasi-judicial proceedings.\n\nIt is, therefore, essential that before such action is taken the requirement of the law should be satisfied.\n\n[965E-F]\n\nIn the instant case the live link or close nexus bet.ween the material before the Income Tax Officer and the belief which he was to form regarding the\n\nesca_pe1nent of the income was missing or at any rate the link was too tenuous to provide a legally sound basis for reopening the assessment. [GJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2526 of 1972.\n\nAppeal from the Judgment and Order dated the 13th January, 1972 of the Calcutta High Court in Matter No. 326 of 1967.\n\nG. C. Sharma and S. P. Nayar, for the Appellant.\n\nD. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, S. R. Agarwala and G Parveen Kumar for the Respondent .\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J.\n\nThis appeal ou certificate is against the Full Bench Judgment of the Calcutta High Court whereby on petition under article 226 of the Constitution of India filed by the respondent that court by majority quashed notice under section 148 of the Income-tax Act 1961 (hereinafter referred to as the Act) issued by appeallant No. 2 (fucometax Officer E Ward, Hundi Circle, Calcutta) (hereinafter referred to\n\n11-725 SC!/76\n\nas the appellant) for the purpose of reopening assessment of the income of the respondent for the assessment year 1958-59.\n\nThe respondent was assessed for the assessment year 1958-59 ·\"' • under section 23(3) of the Indian Income-tax Act, 1922 on June 14,\n\n1960. His total income was assessed to be Rs. 37,872. While making the assessment the Income-tax Officer allowed deduction of a sum of Rs. 15,991 by way of expenses claimed by the respondent.\n\nThe expenses included Rs. 10,494/4 As/3 Pies by way of interest. According to the respondent, he produced through his authorised representative all books of accounts, bank statements and other necessary documents in connection with the return. On March 14, 1967 the respondent received notice dated March 8, 1967 issued by the . appellant under section 148 of the Act stating that the appellant had reason to believe that the respondent's income which was chargeable to tax for the assessment year 1958-59 had escaped assessment within the meaning of section 14 7_ of the Act and that the notice was being issued after obtaining the necessary satisfaction of the Commissioner of Income- -., tax. The respondent was called upon to submit within 30 days from the date of the service of the notice a return in the prescribed form of his income for the assessment year 1958-59.\n\nOn May 2,. 1967 the respondent through his lawyer stated that there was no material on which the appellant had reason to believe that the respondent's income had escaped assessment and, therefore, the condition precedent for the assumption of jurisdiction by the appellant had not been satisfied. The appellant was said to have no competence or jurisdiction to re-open the assessment under section 147 of the Act on a mere change of opinion.\n\nThe appellant was also called upon to furnish all the materials on which he had reason to believe that income had escaped assessment. As, according to the respondent, there was no satisfactory response from the appellant. he filed petition under article 226 of the :.._ Constitution for quashing the impugned notice.\n\nIt was denied in the affidavit on behalf of the appellant that all materials relevant and necessary for the assessment of the respondent's income for the assessment year 1958-59 had been produced before the Income-tax Officer at the time of the original assessment. It was further stated :\n\n\"Subsequent to the assessment for the assessment year 1958-59, it was discovered, inter alia, that some of the loans shown to have been taken and interests alleged to have been paid thereon by the petitioner during the relevant assessment G year were not genuine .. The Income-tax Officer had reason to believe and bona fide believed that the said alleged loans and the interest alleged to have been paid thereon are .,! not genuine. If necessary, I crave leave to produce before the hon'ble Judge hearing the application, the relevant records on the basis of which the said Income-tax Officer had reason to believe that the income of the petitioner escaped assessment H as aforesaid at the hearing of the application.\"\n\nDuring the pendency of the proceedings the High Conrt directer. that a copy of the report made by the appellant to the Commissioner of\n\nIncome-tax for obtaining latter's sanction under section 147 be pro- A duced.\n\nThe report was accordingly produced, and the same reads as under:\n\n\"There are hundi loau credits in the name of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., who are known name-lenders, and also hundi loan credit in the name, Mohansingh Kanayalal, who has since confessed he was doing only name-lending. In the original assessment these credits were not investigated in detail. As the information regarding the bogus nature of these credits is since known, action under section 147 (a) is called for to reopen the assessment and assess these credits as th~ undisclosed income of the assessee. The assessee is still claiming that the credits are genuine in the assessment proceedings for 1962-\n\n63. Commissioner's sanction is solicited to reopen the assessment for 1958-59, under section 147(a).\"\n\nAll the three Judges who constituted the Full Bench found that the\n\nassessee was not being charged with omission to disclose all facts : D he was charged for having made an un'.rue disclosure because the assessee had stated that he had received certain sums of money from certain persons as loans when, in fact, he had not received any sum at all from these persons. It was also stated by the assessee at the time of the original assessment that he had paid interest to certain persons when, in fact, he had not, if the information received later was true. The duty of the assessee, it was held, was not only to make a E full disclosure of all material facts, his duty was also to make a true disclosure of facts and not to mislead the assessing officer by disclosing certain things wmch did not represent facts. The High Court accordingly held that once an assessee infringes this rule, any subsequent discovery of fact by the assessing officer which would raise a resonable belief in his mind that the assessee had not made a true and correct disclosure of the facts and had thereby been responsible for F escapement of his income from assessment would attract section 147 of the Act. Two of the learned Judges, A. K. Mukherjea and S. K.\n\nMukherjea JJ., however, took the view that the conditions precedent for the exercise of jurisdiction by the Income-tax Officer under section 147 of the Income-tax Act were not fulfilled in the case as the report submitted by the Income-tax Officer to the Commissioner for sanction under section 147(a) was defective. The defects in the report, in the G opinion of the High Court, were the same as had been pointed out by this Court in the case of Chhugamal Rajpal v. S. P. Cltaliha.(') The Commissioner. while according permission for taking action under section 147, it was observed, acted mechanically because the Commissioner had not expressly stated that he was satisfied that this was a fit case for the issue of notice under section 148. As against the majority, Sabyasachi Mukherji J. held that notice under section 148 H of the Act was valid and did not suffer from any infirmity. It was\n\n(1) 79 l.T.R. 603.\n\nalso observed that the Co=issioner of Income-tax had not acted improperly in giving sanction.\n\nIn the result, by majority the High Court quashed the notice issued by the appellant to the respondent.\n\nIn appeal before us Mr. Sharma on behalf of the appellants ha> assailed the judgment of the majority of the learned Judges in so far as they have held that the report submitted by the Income-tax Officer to the Commissfoner of Income-tax for sanction was defective. As against that, Dr. Pal on behalf of the assessee-respondent has canvassed for the correctness-of the view taken by the majority regarding the defective nature of the report. Dr. Pal has in his own turn assailed the finding of all the three learned Judges of the High Court in so far as they have held that the assessee was being charged with omission to disclose true facts. Contention has also been advanced by Dr. Pal that the material on the basis of which the Income-tax Officer initiated these proceedings for reopening the assessment did not have a rational connection with the formation of the belief that the assessee had not made a tru.e disclosure of the facts at the time of the original assessment.\n\nBefore dealing with the points of controversy, it would be useful to reproduce the relevant provisions of the Act.\n\nSections 14 7 and 148 which deal with income escaping assessment and issue of notice where income has escaped assessment read as under :·\n\n\"147. Income escaping assessment.-If-\n\n(a) the Income-tax Officer has reason to believe that, by reason. of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year,. or\n\n(b) notwithstanding that there has been no omisswn or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or ressess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year).\n\nExplanation 1.-For...!_tbe purposes of this section, the following shall also be deemed to be cases where income H chargeable to tax has escaped assessment, namely :-\n\n(a) where income chargeable to tax has been under\" assessed; or\n\n(b) where such income has been assessed at too low a A 'fate; or\n\n( c) where such income has been made the subject of excessive relief under this Act or under the Indian Incometax Act, 1922 (XI of 1922); or\n\n( d) where excessive loss or depreciation allowance has been computed.\n\nExplanation 2.-Production before the Income-tax Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to dis- 'Closure within the meruring of this section.\n\n148. Issue of notice where income has escaped assessment.-\n\n(1) Before making the assessment, reassessment or recomputation under section 147, the Income-tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-sectidn.\n\n( 2) The Income-tax Officer shall, before issuing any notice under this section, record his reason for doing so.\"\n\nSub-section ( 1) of section 149 prescribes the time limit for notice and E reads as under :\n\n\"(l) No notice under section 148 shall be issued,,\n\n(a) in cases falling under clause (a) of section 14 7-\n\n(i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub-clause (ii) ; F\n\n(ii) for the relevant assessment year, where eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to ; rupees fity thous; ind or more for that year;\n\n(b.) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year.\" 'Section 151 pertains to the sanction for issue of notice and reads as under:\n\n\"151. Sanction for issue of notice.-(1) No notice shall be issuea under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied op. the reaSOl)S recorded by the Income-tax\n\n{)fficer that it is a fit case for the issue of such notice.\n\n(2) No notice shall be issued under section 148 after the expiry of four years from the end of the relevant assessment year, unless th.e Commissioner is satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.\"\n\nThe provisions of sections 147 to 153 of the Act correspond to those of section 34 of the Indian Income-tax Act, 1922. There have been some points of departure from the old law, but it is not necessary for the purpose of the present case to refer to them.\n\nIt would appear from the perusal of the. provisions reproduced above that two conditions have to b6 satisfied before an Income-tax Officer acquires jurisdiction to issue notice nnder section 148 in respect of an assessment beyond the period of four years but within a period of eight years from the end of the relevant year, viZ., (1) the Incometax Officer must have reason to believe that income chargeable to tax has escaped assessment, and (2) he must have reason to believe that 'i\n\nsuch income has escaped assessment by reason of the omission or failure on the part of the assessee (a) to make a return under section 139 for the assessment y'ar to the Income-tax Officer, or (bl to disclose fully and truly material facts necessary for his assessment for that year. Both these conditions must co-exist in order to confer jurisdiction on the Income-tax Officer. It is also imperative for the Income-tax Officer to record his reasons before initiating proceedings as required by section 148(2). Another requirement is that before notice is issued after the expiry of four years from the end of the relevant assessinent years, the Commissioner should be satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.\n\nWe may add that the duty which is cast upon the assessee is to make a true and full disclosure of the primary facts at the time of the original assessment. Production before the Incometax Officer of the account books or other evidence from which material evidence could with due diligence have been discovered by the Incometax Officer will not necessarily amount to disclosure contemplated by law. . The duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts. Once he has done that his duty ends. It is for the Income-tax Officer to draw the correct inference from the primary facts. It is no responsibility of the assessee to advise the Income-tax Officer with regard .to the inference which he should draw from the primary facts. If an Income-tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment.\n\nThe grounds or reasons which lead to the formation of the belief contemplated by section 147(a) of the Act must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omissio11..to disclose fully and trnly all material facts.\n\nOnce there exist reasonable grmfnds for the Income-tax Officer to form the above belief, that would be sufficient to clothe him with jurisdiction to issue notice. Whether the grounds are adequate or not is not a matter for the court to investigate. The\n\n. ,..\n\nsufficiency of grounds which induce the Income-tax Officer to act is, therefore, not a justiciable issue. It is, of course, open to the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure.\n\nThe existence of the belief can be challenged by the assessee but not the sufficiency of reasons for the belief. The expression \"reason to believe\" does not mean a purely subjective satisfaction on the part of the Income-tax Officer.\n\nThe reason must be held in good fai_th. It cannot be merely a pretence. It is open to the court to examine whether the reasons for the formation of the belief have a rationaLconnection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose of the section.\n\nTo this limited extent, the action of the Income-tax Officer in &!arting proceedings in respect of income escaping assessment is open to challenge in a court of law [see observations of this Court in the cases of Calcutta Discount Co. Ltd. v. Income-tax Officer(') and S. Narayanappa & Ors. v. Commissioner of Incometax(2) while dealing with corresponding provisions of the Indian Income-tax Act, 1922].\n\nKeeping the above principles in view, we may now turn our attention to the facts of the present case. Two grounds were mentioned in\n\nthe report made by the Income-tax Officer for reopening the assess- D men t of the assessee respondent with a view to show that his income had been under-assessed because of his failure to disclose fully and truly material facts necessary for the assessment.\n\nOne was that Mohansingh Kanayalal, who was shown to be one of the creditors of the asscssee, had since confessed that he was doing only name-lending.\n\nThe other ground was that Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., whose names too were mentioned in the E list of the creditors of ,\\he assessee, were known name-lenders.\n\nSo far as the second ground is concerned, neither the majority of the Judges of the High Court nor the learned Judge who was in the minority relied upon that ground.\n\nRegarding that ground, the learned Judge who was in the minority observed that no basis ha<i been indicated as to how it became known that those creditors wen:. known namelenders and when it was known. The majority while not relying upon F that ground placed reliance upon the case of Chhugamal Rajpal (supra). In that case the Income-tax Officer while submitting a report to the Commissioner of Income-tax for obtaining his sanction with a view to issue notice under section 148 of the Act stated :\n\n\"During the year the assessee bas shown to have taken Joans from various parties of Calcutta.\n\nFrom D.I.'s Inv.\n\nNo. A/P/Misc. (5) D.I./63-64/5623 dated August 13, 1965, G forwarded to this office under C.I.T., Bihar and Orissa, Patna's letter No. Inv. (Inv.) 15/65-66/1953-2017 dated Patna September 24, 1965 it appears that these persons are name-lenders and the transactions are bogns. Hence, proper investigation regarding these loans is necessary. The names of some of the persons from whom money is alleged to have been ta'lcen on loan on hundis are : H\n\n1. Seth Bhagwan Singh Sricharan\n\n(l) 41 l.T.R. 191.\n\n(2) 63 I. T. R. 219.\n\n2. Lakha Singh Lal Singh\n\n3. Radhakissen Sh yam Sunder\n\nThe amount of escapement iavolved amounts to Rs. 1,00,000.\"\n\nIn dealing with that report this Court observed :\n\n\"From the report submitted by the Income-tax Officer to the Commissioner, it is clear that he could not have had reasons to believe that by reason of the assessee's omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year, nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either clause (a) or clause (b) of section 147.\n\nTherefore he could not have issued a notice under section 148\".\n\nReference to the names 0£ Narayansingh Nandalal, D. K. Naraindas., Bhagwandas Srichand, etc., in the report of the Income-tax Officer to the Commissioner of Income-tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income-tax Officer in the case of Chuugamal Rajpal.\n\nWe would, therefore, hold that the second ground mentioned by the Income-tax Officer, i.e., reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., could not have led to the formation of the belief that the income of the respondent assessee chargeable to tax had escaped assessment for that year because of the failure or omission of the assessee to disclose fully and truly all material facts.\n\nAlt the three learned Judges of the High Court, in our opinion, were justified in excluding the second ground from consideration.\n\nWe may now deal with the first ground mentioned in the report of the Income-tax Officer to the Commissioner of Income-tax.\n\nThis gmund relates to Mohansingh Kanayalal, against whose name there was an entry about the payment of Rs. 7 4 Annas 3 as interest in the books of the assessee, having ma<; le a confession that he was doing only name-lending.\n\nThere is nothing to show that the above confession related to a loan to the assessee and not to someone else, much less to the loan of Rs. 2,500 which was shown to have been advanced by that person--to the assessee-respondent. There is also no indication as to when that confession was made and whether it relates to the period from April l, 1957 to March 31, 1958 which is the subject-matter of the assessment sought to be reopened. The report was made on February 13, 1967. In the absence of the date of the alleged confession, it would not be unreasonable to assume that the confession was made a few weeks or months before the report. To infer from that confession that it relates to the period from April 1, _1957 to March\n\n31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in onr opinion, would be rather far-fetched .\n\n.._ As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income-tax Officer on the point as to whether action should be iaitiated for reopening assessment. At the same time we have lo bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far-fetched, which would warrant the formation of the belief relating to escapement of the income of the r assessee from assessment. The fact that the words \"definite information\" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not lead to the conclusion that action cannot be taken for reopening assessment even if the inform.ation is wholly vague, indefinite, far-fetched and remote. The reason for the formation of the belief must be held in good faith and should not be a mere pretence.\n\nThe powers of the Income-tax Officer to reopen assessment though wide are not plenary. The words of the statute are \"reason to believe\" and not \"reason to suspect\". The reopening of the assessment after\n\nthe lapse of many years is a serious matter.\n\nThe Act, no doubt, E contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment.\n\nThe underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income-tax authorities after the assessment has been completed. The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, F finality about orders made in judicial and quasi-judicial proceedings.\n\nIt is, therefore, essential that before such action is taken the requirements of the law should be satisfied.\n\nThe live link or close nexus which should be there between the material before the Income-tax Officer in the present case and the belief which he was to form regard- . ing the escapement of the income of the assessee from assessment because of the latter's failure or omission to disclose fully and truly G all material facts was missing in the case. In any event, the link was l too tenuous to provide .a legally sound basis for reovening the assess- ment. The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts.\n\nWe would, therefore, H uphold the view of the majority and dismiss 1!he appeal with costs.\n\nP.B.R.\n\nAppeal dismissed.", "total_entities": 93, "entities": [{"text": "A INCOME TAX OFFICER, l WARD, DIST. VI, CALC.UTTA & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "INCOME TAX OFFICER, I WARD, DIST. VI, CALCUTTA & ORS", "offset_not_found": false}}, {"text": "LAKHMANI MEW AL DAS", "label": "RESPONDENT", "start_char": 58, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "LAKHMANI MEWAL DAS", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 114, "end_char": 132, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Tax Act, 1961", "label": "STATUTE", "start_char": 143, "end_char": 156, "source": "regex", "metadata": {}}, {"text": "S. 148", "label": "PROVISION", "start_char": 160, "end_char": 166, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1961", "statute": "Tax Act, 1961"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 363, "end_char": 369, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1961", "statute": "Tax Act, 1961"}}, {"text": "s. 147", "label": "PROVISION", "start_char": 638, "end_char": 644, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1961", "statute": "Tax Act, 1961"}}, {"text": "s. 147(a)", "label": "PROVISION", "start_char": 994, "end_char": 1003, "source": "regex", "metadata": {"linked_statute_text": "Tax Act, 1961", "statute": "Tax Act, 1961"}}, {"text": "s. 148", "label": "PROVISION", "start_char": 1576, "end_char": 1582, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 148(2)", "label": "PROVISION", "start_char": 2088, "end_char": 2097, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 147(a)", "label": "PROVISION", "start_char": 2827, "end_char": 2836, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 34", "label": "PROVISION", "start_char": 5569, "end_char": 5574, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 147", "label": "PROVISION", "start_char": 5639, "end_char": 5645, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta High Court", "label": "COURT", "start_char": 6685, "end_char": 6704, "source": "ner", "metadata": {"in_sentence": "Appeal from the Judgment and Order dated the 13th January, 1972 of the Calcutta High Court in Matter No."}}, {"text": "G. C. Sharma", "label": "LAWYER", "start_char": 6733, "end_char": 6745, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma and S. P. Nayar, for the Appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 6750, "end_char": 6761, "source": "ner", "metadata": {"in_sentence": "G. C. Sharma and S. P. Nayar, for the Appellant."}}, {"text": "D. Pal", "label": "LAWYER", "start_char": 6783, "end_char": 6789, "source": "ner", "metadata": {"in_sentence": "D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, S. R. Agarwala and G Parveen Kumar for the Respondent ."}}, {"text": "Leila Seth", "label": "LAWYER", "start_char": 6806, "end_char": 6816, "source": "ner", "metadata": {"in_sentence": "D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, S. R. Agarwala and G Parveen Kumar for the Respondent ."}}, {"text": "P. K. Pal", "label": "LAWYER", "start_char": 6818, "end_char": 6827, "source": "ner", "metadata": {"in_sentence": "D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, S. R. Agarwala and G Parveen Kumar for the Respondent ."}}, {"text": "S. R. Agarwala", "label": "LAWYER", "start_char": 6829, "end_char": 6843, "source": "ner", "metadata": {"in_sentence": "D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, S. R. Agarwala and G Parveen Kumar for the Respondent ."}}, {"text": "G Parveen Kumar", "label": "LAWYER", "start_char": 6848, "end_char": 6863, "source": "ner", "metadata": {"in_sentence": "D. Pal, B. Sen, (Mrs.) Leila Seth, P. K. Pal, S. R. Agarwala and G Parveen Kumar for the Respondent ."}}, {"text": "KHANNA", "label": "JUDGE", "start_char": 6930, "end_char": 6936, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nKHANNA, J.\n\nThis appeal ou certificate is against the Full Bench Judgment of the Calcutta High Court whereby on petition under article 226 of the Constitution of India filed by the respondent that court by majority quashed notice under section 148 of the Income-tax Act 1961 (hereinafter referred to as the Act) issued by appeallant No."}}, {"text": "article 226", "label": "PROVISION", "start_char": 7057, "end_char": 7068, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 7076, "end_char": 7097, "source": "regex", "metadata": {}}, {"text": "section 148", "label": "PROVISION", "start_char": 7166, "end_char": 7177, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Income-tax Act 1961", "label": "STATUTE", "start_char": 7185, "end_char": 7204, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 23(3)", "label": "PROVISION", "start_char": 7557, "end_char": 7570, "source": "regex", "metadata": {"linked_statute_text": "the Income-tax Act 1961", "statute": "the Income-tax Act 1961"}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 7578, "end_char": 7605, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "March 14, 1967", "label": "DATE", "start_char": 8059, "end_char": 8073, "source": "ner", "metadata": {"in_sentence": "On March 14, 1967 the respondent received notice dated March 8, 1967 issued by the ."}}, {"text": "March 8, 1967", "label": "DATE", "start_char": 8111, "end_char": 8124, "source": "ner", "metadata": {"in_sentence": "On March 14, 1967 the respondent received notice dated March 8, 1967 issued by the ."}}, {"text": "section 148", "label": "PROVISION", "start_char": 8157, "end_char": 8168, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 14", "label": "PROVISION", "start_char": 8363, "end_char": 8373, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "May 2,. 1967", "label": "DATE", "start_char": 8690, "end_char": 8702, "source": "ner", "metadata": {"in_sentence": "On May 2,."}}, {"text": "section 147", "label": "PROVISION", "start_char": 9077, "end_char": 9088, "source": "regex", "metadata": {"statute": null}}, {"text": "article 226", "label": "PROVISION", "start_char": 9376, "end_char": 9387, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "section 147", "label": "PROVISION", "start_char": 10645, "end_char": 10656, "source": "regex", "metadata": {"statute": null}}, {"text": "Narayansingh Nandalal", "label": "OTHER_PERSON", "start_char": 10787, "end_char": 10808, "source": "ner", "metadata": {"in_sentence": "The report was accordingly produced, and the same reads as under:\n\n\"There are hundi loau credits in the name of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc.,"}}, {"text": "D. K. Naraindas", "label": "OTHER_PERSON", "start_char": 10810, "end_char": 10825, "source": "ner", "metadata": {"in_sentence": "The report was accordingly produced, and the same reads as under:\n\n\"There are hundi loau credits in the name of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc.,"}}, {"text": "Bhagwandas Srichand", "label": "OTHER_PERSON", "start_char": 10827, "end_char": 10846, "source": "ner", "metadata": {"in_sentence": "The report was accordingly produced, and the same reads as under:\n\n\"There are hundi loau credits in the name of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc.,"}}, {"text": "Mohansingh Kanayalal", "label": "RESPONDENT", "start_char": 10922, "end_char": 10942, "source": "ner", "metadata": {"in_sentence": "who are known name-lenders, and also hundi loan credit in the name, Mohansingh Kanayalal, who has since confessed he was doing only name-lending.", "canonical_name": "Mohansingh Kanayalal"}}, {"text": "section 147", "label": "PROVISION", "start_char": 11166, "end_char": 11177, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147(a)", "label": "PROVISION", "start_char": 11475, "end_char": 11489, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 12656, "end_char": 12667, "source": "regex", "metadata": {"statute": null}}, {"text": "A. K. Mukherjea", "label": "JUDGE", "start_char": 12707, "end_char": 12722, "source": "ner", "metadata": {"in_sentence": "Two of the learned Judges, A. K. Mukherjea and S. K.\n\nMukherjea JJ.,"}}, {"text": "S. K.\n\nMukherjea", "label": "JUDGE", "start_char": 12727, "end_char": 12743, "source": "ner", "metadata": {"in_sentence": "Two of the learned Judges, A. K. Mukherjea and S. K.\n\nMukherjea JJ.,"}}, {"text": "section 147", "label": "PROVISION", "start_char": 12867, "end_char": 12878, "source": "regex", "metadata": {"statute": null}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 12886, "end_char": 12900, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 147(a)", "label": "PROVISION", "start_char": 13021, "end_char": 13035, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 13289, "end_char": 13300, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 13465, "end_char": 13476, "source": "regex", "metadata": {"statute": null}}, {"text": "Sabyasachi Mukherji", "label": "JUDGE", "start_char": 13503, "end_char": 13522, "source": "ner", "metadata": {"in_sentence": "As against the majority, Sabyasachi Mukherji J. held that notice under section 148 H of the Act was valid and did not suffer from any infirmity."}}, {"text": "section 148", "label": "PROVISION", "start_char": 13549, "end_char": 13560, "source": "regex", "metadata": {"statute": null}}, {"text": "Sharma", "label": "OTHER_PERSON", "start_char": 13875, "end_char": 13881, "source": "ner", "metadata": {"in_sentence": "In appeal before us Mr. Sharma on behalf of the appellants ha> assailed the judgment of the majority of the learned Judges in so far as they have held that the report submitted by the Income-tax Officer to the Commissfoner of Income-tax for sanction was defective."}}, {"text": "Pal", "label": "OTHER_PERSON", "start_char": 14137, "end_char": 14140, "source": "ner", "metadata": {"in_sentence": "As against that, Dr. Pal on behalf of the assessee-respondent has canvassed for the correctness-of the view taken by the majority regarding the defective nature of the report."}}, {"text": "Sections 14", "label": "PROVISION", "start_char": 14946, "end_char": 14957, "source": "regex", "metadata": {"statute": null}}, {"text": "section 139", "label": "PROVISION", "start_char": 15267, "end_char": 15278, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148 to 153", "label": "PROVISION", "start_char": 15817, "end_char": 15835, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 148 to 153", "label": "PROVISION", "start_char": 15990, "end_char": 16009, "source": "regex", "metadata": {"statute": null}}, {"text": "Act or under the Indian Incometax Act, 1922", "label": "STATUTE", "start_char": 16436, "end_char": 16479, "source": "regex", "metadata": {}}, {"text": "section 147", "label": "PROVISION", "start_char": 16975, "end_char": 16986, "source": "regex", "metadata": {"linked_statute_text": "Act or under the Indian Incometax Act, 1922", "statute": "Act or under the Indian Incometax Act, 1922"}}, {"text": "section 139", "label": "PROVISION", "start_char": 17149, "end_char": 17160, "source": "regex", "metadata": {"linked_statute_text": "Act or under the Indian Incometax Act, 1922", "statute": "Act or under the Indian Incometax Act, 1922"}}, {"text": "section 149", "label": "PROVISION", "start_char": 17434, "end_char": 17445, "source": "regex", "metadata": {"linked_statute_text": "Act or under the Indian Incometax Act, 1922", "statute": "Act or under the Indian Incometax Act, 1922"}}, {"text": "section 148", "label": "PROVISION", "start_char": 17528, "end_char": 17539, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 17600, "end_char": 17610, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 18081, "end_char": 18092, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 151", "label": "PROVISION", "start_char": 18185, "end_char": 18196, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 18335, "end_char": 18346, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 18598, "end_char": 18609, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 147 to 153", "label": "PROVISION", "start_char": 18847, "end_char": 18866, "source": "regex", "metadata": {"statute": null}}, {"text": "section 34", "label": "PROVISION", "start_char": 18901, "end_char": 18911, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 18919, "end_char": 18946, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 148", "label": "PROVISION", "start_char": 19269, "end_char": 19280, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 139", "label": "PROVISION", "start_char": 19700, "end_char": 19711, "source": "regex", "metadata": {"linked_statute_text": "the Indian Income-tax Act, 1922", "statute": "the Indian Income-tax Act, 1922"}}, {"text": "section 148(2)", "label": "PROVISION", "start_char": 20068, "end_char": 20082, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147(a)", "label": "PROVISION", "start_char": 21427, "end_char": 21441, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Income-tax Act, 1922", "label": "STATUTE", "start_char": 23073, "end_char": 23100, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Mohansingh Kanayalal", "label": "RESPONDENT", "start_char": 23510, "end_char": 23530, "source": "ner", "metadata": {"in_sentence": "One was that Mohansingh Kanayalal, who was shown to be one of the creditors of the asscssee, had since confessed that he was doing only name-lending.", "canonical_name": "Mohansingh Kanayalal"}}, {"text": "Chhugamal Rajpal", "label": "OTHER_PERSON", "start_char": 24299, "end_char": 24315, "source": "ner", "metadata": {"in_sentence": "The majority while not relying upon F that ground placed reliance upon the case of Chhugamal Rajpal (supra).", "canonical_name": "Chhugamal Rajpal"}}, {"text": "section 148", "label": "PROVISION", "start_char": 24482, "end_char": 24493, "source": "regex", "metadata": {"statute": null}}, {"text": "Calcutta", "label": "GPE", "start_char": 24599, "end_char": 24607, "source": "ner", "metadata": {"in_sentence": "In that case the Income-tax Officer while submitting a report to the Commissioner of Income-tax for obtaining his sanction with a view to issue notice under section 148 of the Act stated :\n\n\"During the year the assessee bas shown to have taken Joans from various parties of Calcutta."}}, {"text": "Seth Bhagwan Singh Sricharan", "label": "OTHER_PERSON", "start_char": 25079, "end_char": 25107, "source": "ner", "metadata": {"in_sentence": "Seth Bhagwan Singh Sricharan\n\n(l) 41 l.T.R. 191."}}, {"text": "Lakha Singh Lal Singh", "label": "OTHER_PERSON", "start_char": 25154, "end_char": 25175, "source": "ner", "metadata": {"in_sentence": "Lakha Singh Lal Singh\n\n3."}}, {"text": "Radhakissen Sh yam Sunder", "label": "OTHER_PERSON", "start_char": 25180, "end_char": 25205, "source": "ner", "metadata": {"in_sentence": "Radhakissen Sh yam Sunder\n\nThe amount of escapement iavolved amounts to Rs."}}, {"text": "section 147", "label": "PROVISION", "start_char": 25997, "end_char": 26008, "source": "regex", "metadata": {"statute": null}}, {"text": "section 148", "label": "PROVISION", "start_char": 26061, "end_char": 26072, "source": "regex", "metadata": {"statute": null}}, {"text": "Chuugamal Rajpal", "label": "OTHER_PERSON", "start_char": 26397, "end_char": 26413, "source": "ner", "metadata": {"in_sentence": "in the report of the Income-tax Officer to the Commissioner of Income-tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income-tax Officer in the case of Chuugamal Rajpal.", "canonical_name": "Chhugamal Rajpal"}}, {"text": "April l, 1957", "label": "DATE", "start_char": 27664, "end_char": 27677, "source": "ner", "metadata": {"in_sentence": "There is also no indication as to when that confession was made and whether it relates to the period from April l, 1957 to March 31, 1958 which is the subject-matter of the assessment sought to be reopened."}}, {"text": "March 31, 1958", "label": "DATE", "start_char": 27681, "end_char": 27695, "source": "ner", "metadata": {"in_sentence": "There is also no indication as to when that confession was made and whether it relates to the period from April l, 1957 to March 31, 1958 which is the subject-matter of the assessment sought to be reopened."}}, {"text": "February 13, 1967", "label": "DATE", "start_char": 27788, "end_char": 27805, "source": "ner", "metadata": {"in_sentence": "The report was made on February 13, 1967."}}, {"text": "April 1, _1957", "label": "DATE", "start_char": 28035, "end_char": 28049, "source": "ner", "metadata": {"in_sentence": "To infer from that confession that it relates to the period from April 1, _1957 to March\n\n31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in onr opinion, would be rather far-fetched ."}}, {"text": "March\n\n31, 1958", "label": "DATE", "start_char": 28053, "end_char": 28068, "source": "ner", "metadata": {"in_sentence": "To infer from that confession that it relates to the period from April 1, _1957 to March\n\n31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in onr opinion, would be rather far-fetched ."}}, {"text": "section 34", "label": "PROVISION", "start_char": 29273, "end_char": 29283, "source": "regex", "metadata": {"statute": null}}, {"text": "section 147", "label": "PROVISION", "start_char": 29361, "end_char": 29372, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_966_970_EN", "year": 1976, "text": "STATE OF ORISSA\n\nM/S. DINABANDHU SAHU & SONS\n\nMarch 30, 1976\n\n[H. R. Kl!ANNA AND P. K. GoSWAMI, JJ.]\n\nCentral Sales Tax Act (74 of 1956), s. 14(vi)-Notification by conr; erned dep11rt1nent of Government of India including some seeds in 'oil seeds'-How far relevant in determining category of seeds.\n\nUnder s. 14(vi), Central Sales Tax Act, 1956. among goods declared to be of special importance in inter-State trade and commerce are menfio1J-ed oiJ_seeds, that is to say, seeds yielding non-volatile oils used for human consumption, or in industry, etc., or volatile oils used chiefly in medicines etc.\n\nThe Assistant Commissioner under the Orissa Sales Tax Act, the Tribunal, and the High Court on reference, held that jeera, dhania, panmohuri, methi and postak are oil-seeds within the meaning of s. 14(vi) and liable to a lesser rate of tax.\n\nThe High Court relied on ordinary and technical dictionaries and a notification -1 of the Ministry of Finance, Department of Economic Affairs, Government of India, dated January 3, 1959 for its conclusion.\n\nJn appeal to this Court under Art. 136, it was contended by the State, relying on State of Andhra Pradesh v. Kajjam Ramchandraiah Gari Anantaiah\n\n(1961) 12 STC 795, that the Court should adopt the meaning given to these articles in common parlance by people who use them, that so understood they are spices and not oil-seeds, and that though they yield non-volatile oil to a certain extent, there is no evidence that they fall within the description in s. 14(vi).\n\nDismissing the -appeal,\n\nHELD : It cannot be said that the Tribunal was not right, and so it is not a fit case for interference under Art. 136, When the High Court held that the Tribunal was right.\n\n[970C-O, G] '\n\n(a) Item 3, Schedule IV, A.P. General Sales Tax Act, 1957, is identical with s. 14(vi) of the Central Act. In Kaijam Ramachandriah's case, the Andhra Pradesh High Court held that dhania did not come within the definition. of oil-seeds relying on some letters from (i) Director, National Chemical_ Laboratory, Poona, and (ii) Central Food Technological Research Institute, Mysore. r96SF]\n\n(b) The High Court was right iri the present case in holdiilg that tlie notification of the Government of India had no statutory force and wasnot binding on the Sales Tax Officer, but it cannot be said that the High Court and \"I'ribunal were not right in preferring the opinion therein as good evidence for their conclusion to the opinions in the letters relied upon by the Andhra Pradesh IIigh Court. The Ministry of Finance, which issued the notification, is inti-• mately conversant not only with the policy of legislation for the purpose of implementation of the provisions of the Central Act. but is also fahiiliar with the nature and quality of the commodities and also their use from time to time.\n\n[9700-F]\n\n(c) Further, the letters of the Director, National Chemical Laboratory and the Central Food Technological Research Institute, do not indicate that the opinions expressed therein were firm or even final or whether an the uses men 4 tioned in the definition of oil-seeds were brought to their notice.\n\n[970FJ\n\nCommissioner of Sales Tax, Madhya Pradesh, Indore v . . Bakhat Rai and Co. (1966) 18 Sales Tax Cases 285 and The Deputy Commissioner -of Agricul 4 rural Jncome-tai and Sales Tax, Kozldkode v. S'reedharCI Shenoy ( 1973) 32 Sales Tax Cases 181, referred to.\n\n? (\n\nORISSA v. D!NABANDHU SAHU & SONS (Goswami, J.) 967\n\nC1v1L APPELLATE JuRISDICTION: Civil Appeal Nos. 917. to 916 of A 1971.\n\nAppeals by Special Leave from the Judgment and Order dated the 2nd July 1969 of the Orissa High Court in Special Jurisdiction Cases Nos. 73, 74, 75 and 76 of 1964.\n\nV. C. Mahajan and R. N. Sachthey : for Appellants (In CAs. fl. 912-13/71)\n\nR. N. Sachthey; for Appellant in CAs. 914-16/71.\n\nGohind Das, amicus curiae for Respondent.\n\nThe Judgment of the Court was delivered by\n\nGOSWAMI, J .-Five quarters of assessment of sales tax are involved in these fie appeals, by special leave, the period commencing .._ from January 1, 1959 to March 31, 1960. 11us judgment will I govern all these appeals involving a common question.\n\nThe Assistant Sales Tax Officer, Cuttack, included in the turnover of the respondent the sale price of jeera, dhania (coriander) , panmohuri, methi, postak and pipall and levied 5 per cent sales tax under the Orissa Sales Tax Act (briefly the State Act). On appeal the Assistant Commissioner of Sales Tax, Puri, allowed the claim of the respondent and held that the above items are oil-seeds within the meaning of section 14(vi) of the Central Sales Tax Act and gave the respondent the benefit of a lower tax of 2 per cent on the sale turnover of those goods instead of 5 per cent under the State Act.\n\nOn appeal by the State of Orissa to the Sales Tax Tribunal claiming 5 per cent on the sale turnover thereof under the provisions of the Central Sales Tax Act, the orders of the Assistant Commissioner were affirmed.\n\nOn application by the State for each of the five quarters, the Tribunal referred the following two common questions under section 24 of the State Act :\n\n\" ( 1) Whether in the facts and circumstances of the case, the Sales Tax Tribunal is right in holding that jeera, dhania, panmohuri, methi, postak and pipali are oil-seeds within the meaning of section 14 of the Central Act and the tax payable under the State Law in respect of the sale or purchase of these goods inside the State, cannot exceed 2 per cent of the sale or purchase price thereof.\n\n(2) Whether the communication No. 4(8)-ST /57 dated 31st January, 1958. issued by the Government of India which is only an official communication having no statutory sanction behind it can have any legal effect to hold the !!oods\n\nin question as oil-seeds as understood in common parlance and whether such an official communica1on is binding on the State. Government.\"\n\nWe are not concerned with 'pipali' in these appeals.\n\nWhen these appeals came before us for hearing the respondent was not represented.\n\nWe, therefore, requested Mr. Gob ind Das to act as amicus curiae in .these appeals.\n\nefore e may proceed further, we may immediately turn to sect10n 14(v1) of the Central Sales' Tax Act (briefly tbe Central Act) :\n\n\"14. Certain goods to be special importance in inter- State trade or commerce.\n\nIt is hereby declared that the followmg goods are of special importance in inter-State trade or commence:-\n\n(vi) Oil-seeds, that is to say, seed; yielding non-volatile oils used for human consumption, or in industry, or in the manufacture of varnishes, soaps and the like, or in lubrication, and volatile oils used chiefly in medicines, perfumes cosmetics and the like\". '\n\nThe above definition is an explanatory one and uses mentioned therein cover a wide range. If the particular items which are assessed under the State Act can be brought under the definition of \"oil-seeds\", as given in the above provision, the assessee will be entitled to a lower levy of sales tax.\n\nMr. Mahajan appearing on behalf of the appellant sumbits that the Court should adopt the meaning given to these items in common parlance and by the people who use the articles.\n\nHe chiefly relies upon a decision of the Andhra Pradesh High Court in Th~ State of Andhra Pradesh v. Kajjam Ramchandraiah Gari Anantaiah. (') In that case the High Court was dealing, inter alia, with an identical item, viz., dhania (coriander) under item 3 of Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957. Item 3 is identical with item (vi) of section 14 of the Central Act giving the definition of \"oil-seeds\".\n\nThe Andhra Pradesh High Court relied upon a letter from the Director of the National Chemical Laboratory, Poona, dated January 29, 1959, addressed to the Secretary, Council of Scientific and Industrial Research, New Delhi, as also upon another letter from the Central Food Technological Research Institute, Mysore, dated February 18, 1959, and came to the conclusion that, amongst other things, dhania ( coriander) did not come \"within the definition of oil seeds\".\n\nThe High Court also held that it was not difficult to envisage with the increase in scientific knowledge and technological development that oil could be extracted from any seed which might not be known as an oil-seed in common parlance.\n\nThat Court also observed that there was no evidence to show that any oil was extracted in this country or that the oil extracted from the seeds concerned was used commercially or industrially or could be bought in the market.\n\nIn this view of the matter the Andhra Pradesh High Court held that dhania and other seeds which came up for consideration were not oil-seeds under item 3 of Schedule IV of the Andhra Pradesh Sales Tax Act.\n\nIt is interest dn!l that on this finding of that Court coriander escaped altogether from :assessment.\n\n!!) (1961) 12 S.T.C. 795.\n\nI /\n\nORISSA v. DINABANDHU SAHU & SONS (Goswami, l.) 969\n\nIn Commissioner of Sales Tax, Madhya Pradesh, Indore, v. Bakhat A Rai and Co.,(1) the Madhya Pradesh High Court also took 'the same view as that of the Andhra Pradesh High Court while dealing with item 3, Part II, Schedule 1 of the C.P. and Berar Sales Tax Act. In the Madhya Pradesh case, however, the term 'oil-seed' has not been defined under the Act.\n\nThe Court, therefore, held that since it was an item of every day use it must be construed in its popular meaning, that is to say, in that sense which people conversant with the subject matter B with which the statute was dealing would attribute to it.\n\nThe Division Bench of the Kerala High Court has also held in The Deputy Commissioner of Agricultural Income-tax and Sales Tax, Kozikode v. V. Sreedhara Shenoy(') 1that dhania (corianrler) and methi are not oil-seeds under section 14(vi) of the Central Act.\n\nMr. Mahajan has strenuously submitted that the articles in ques- C: !ion arc spices to all indents and purposes and not \"oil-seeds\". He further submits that even if they are oil-seeds in the sense that these r yield non-volatile oil to a certain extent, no evidence has been produced by the assessee that these are used for human consumption or in industry or in the manufacture of varnishes, soaps and the like,. or in lubrication, or in medicines, perfumes, cosmetics and the like as mentioned in the definition.\n\nMr. Gobind Das, on the other hand, has drawn our attention to the fact that the High Court had before it the Condensed Chemical Dictionary (7th Edition) edited by Arther and Elizabeth Rose, from which the following informations regarding the seeds in question were available:-\n\n\"Dhania (coriander seed); botanical name coriandrum sativem.\n\nCoriander oil is distilled from the coriander sativum\n\na colourless or slightly yellowish liquid having aromatic odour. ·\n\nJeera( cumin seed). Cumin oil is distilled from the cumin seed and ls used for medicine, flavouring and perfumery.\n\nIt is a colourless or yellowish, limpid liquid having characte- F ristic odour of cumin.\n\nPostak (poppy seed); botanical name papover somniferum.\n\nPoppy oil is a very pale, golden yellow liquid with • pleasant taste and odour extracted from the seeds and it is used as food oil, artist's colours, varnishes & lubrication.\n\nMethi (Fenugreek); botanical name trigonella Foenum- G; , graecum ( vide p. 164, vol. 9 of the Encyclopaedia Britannica) \"' It is staed inter alia therein that it bears a sickle-shaped pod, contammg from 10 to 20 seeds, from which 6% of a foetid fatty, and bitter oil can be extracted by ether\". '\n\nesides, the High Court also had before it the notification of the Min-\n\n1st~ of Fmance, Department of Economic Affairs, Government of R.\n\nIndia, dated January 3, 1959, wherein amongst other commodities\n\n(1) (1966) 18 S.T.C. 285.\n\n(2) (1973) 32 S.T.C.181.\n\nA the following were stated to be included iu the term \"oil-seeds\" under item (vi) o! section 14 of the Central Act:\n\n\"(18) Poppy-seed (Posta-dana, Khaskhas); .._ .l,\n\n(37) Aniseed (saunf); .( 42) Coriander-seeds (Dhania);\n\n8 ( 44) Cuminseed ( J eera, Safed J eera) ; ( 49) Fenugreek-seeds (Methi) \".\n\nMr. Gobind Das also drew our attention to the Webster's Third International Dictionary where coriander seed is described as \"the ripened dried fruit of coriander used for flavouring especially of pickels, curries, confectioneries, and liquors.\"\n\nThese appeals arise out of a decision in a reference under section 24 of the State Act under article 136 of the Constitution and we have to consider whether it is a fit case for-interference with the order of the High Court when it held that the Sales Tax Tribunal was right in 1 its conclusion.\n\nIt is true the High Court has rightly observed that the aforesaid notification of the Government of India has no statutory force and as such is not binding on the Sales Tax Officer. It cannot, however, be denied that the Ministry of Finance, Department of Economic Affairs, is intimately conversant not only with the policy of legislation for the purpose of implementation oL the provisions of the Central Act but\"is also familiar with the nature and quality of the commodities as also their use from time to time.\n\nIf, therefore, such an authority issued a notification including certain commodities under the head of 'oil-seeds', as defiued under the Central Act, it cannot be said that the Tribunal and the High Court were not right in preferring such an opinion of the Government as good evidence for its conclusion, to the ' opinions relied upon by the Andhra Pradesh High Court on which great reliance bas been placed by the appellant.\n\nA persual of the contents of the letters referred to in the judgment of the Audhra Pradesh High Court would indicate that the opinions cannot be said to be very firm or even final.\n\nApart from this, it is not known whether all the uses which are mentioned in the definition of \"oil-seeds\" were brought to the notice of the National Chemical Laboratory, Poona and of the Central Food Technological Research ln9titute, Mysore,, in rendering their opinions.\n\nIf, therefore, the Tribunal in the facts and circumstances of the case held that the particular commodities came within the definition of clause (vi) of section 14 of the Central Act, it is not possible to hold that it was not right.\n\nThe answer to the first question by the High Court is, therefore, rightly in the affirmative.\n\nWe do not also see anything wrong in the High Court's answering ) the second question in the way it did.\n\nThe appeals, therefore, fail and are dismissed.\n\nThere will be no order as to costs.\n\nWe are thankful to Mr. Gobind Das for assisting the Court as amicus curaie.\n\nV.P.S.\n\nAppeals dismissed.", "total_entities": 61, "entities": [{"text": "STATE OF ORISSA", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA", "offset_not_found": false}}, {"text": "M/S. DINABANDHU SAHU & SONS", "label": "RESPONDENT", "start_char": 17, "end_char": 44, "source": "metadata", "metadata": {"canonical_name": "M/S. DINABANDHU SAHU & SONS", "offset_not_found": false}}, {"text": "March 30, 1976", "label": "DATE", "start_char": 46, "end_char": 60, "source": "ner", "metadata": {"in_sentence": "STATE OF ORISSA\n\nM/S. DINABANDHU SAHU & SONS\n\nMarch 30, 1976\n\n[H. R. Kl!ANNA AND P. K. GoSWAMI, JJ.]"}}, {"text": "P. K. GoSWAMI, JJ.", "label": "JUDGE", "start_char": 81, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 102, "end_char": 123, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14(vi)", "label": "PROVISION", "start_char": 138, "end_char": 147, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "s. 14(vi)", "label": "PROVISION", "start_char": 306, "end_char": 315, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act", "statute": "Central Sales Tax Act"}}, {"text": "Central Sales Tax Act, 1956", "label": "STATUTE", "start_char": 317, "end_char": 344, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 14(vi)", "label": "PROVISION", "start_char": 799, "end_char": 808, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act, 1956", "statute": "Central Sales Tax Act, 1956"}}, {"text": "Ministry of Finance, Department of Economic Affairs, Government of India", "label": "ORG", "start_char": 936, "end_char": 1008, "source": "ner", "metadata": {"in_sentence": "The High Court relied on ordinary and technical dictionaries and a notification -1 of the Ministry of Finance, Department of Economic Affairs, Government of India, dated January 3, 1959 for its conclusion."}}, {"text": "January 3, 1959", "label": "DATE", "start_char": 1016, "end_char": 1031, "source": "ner", "metadata": {"in_sentence": "The High Court relied on ordinary and technical dictionaries and a notification -1 of the Ministry of Finance, Department of Economic Affairs, Government of India, dated January 3, 1959 for its conclusion."}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 1083, "end_char": 1091, "source": "regex", "metadata": {"linked_statute_text": "Central Sales Tax Act, 1956", "statute": "Central Sales Tax Act, 1956"}}, {"text": "s. 14(vi)", "label": "PROVISION", "start_char": 1506, "end_char": 1515, "source": "regex", "metadata": {"statute": null}}, {"text": "Art. 136", "label": "PROVISION", "start_char": 1652, "end_char": 1660, "source": "regex", "metadata": {"statute": null}}, {"text": "Schedule IV", "label": "PROVISION", "start_char": 1744, "end_char": 1755, "source": "regex", "metadata": {"statute": null}}, {"text": "General Sales Tax Act, 1957", "label": "STATUTE", "start_char": 1762, "end_char": 1789, "source": "regex", "metadata": {}}, {"text": "s. 14(vi)", "label": "PROVISION", "start_char": 1809, "end_char": 1818, "source": "regex", "metadata": {"linked_statute_text": "General Sales Tax Act, 1957", "statute": "General Sales Tax Act, 1957"}}, {"text": "Kaijam Ramachandriah", "label": "OTHER_PERSON", "start_char": 1842, "end_char": 1862, "source": "ner", "metadata": {"in_sentence": "In Kaijam Ramachandriah's case, the Andhra Pradesh High Court held that dhania did not come within the definition."}}, {"text": "Andhra Pradesh High Court", "label": "COURT", "start_char": 1875, "end_char": 1900, "source": "ner", "metadata": {"in_sentence": "In Kaijam Ramachandriah's case, the Andhra Pradesh High Court held that dhania did not come within the definition."}}, {"text": "National Chemical_ Laboratory, Poona", "label": "ORG", "start_char": 2010, "end_char": 2046, "source": "ner", "metadata": {"in_sentence": "of oil-seeds relying on some letters from (i) Director, National Chemical_ Laboratory, Poona, and (ii) Central Food Technological Research Institute, Mysore."}}, {"text": "Central Food Technological Research Institute, Mysore", "label": "ORG", "start_char": 2057, "end_char": 2110, "source": "ner", "metadata": {"in_sentence": "of oil-seeds relying on some letters from (i) Director, National Chemical_ Laboratory, Poona, and (ii) Central Food Technological Research Institute, Mysore."}}, {"text": "Government of India", "label": "ORG", "start_char": 2212, "end_char": 2231, "source": "ner", "metadata": {"in_sentence": "r96SF]\n\n(b) The High Court was right iri the present case in holdiilg that tlie notification of the Government of India had no statutory force and wasnot binding on the Sales Tax Officer, but it cannot be said that the High Court and \"I'ribunal were not right in preferring the opinion therein as good evidence for their conclusion to the opinions in the letters relied upon by the Andhra Pradesh IIigh Court."}}, {"text": "Andhra Pradesh IIigh Court", "label": "COURT", "start_char": 2494, "end_char": 2520, "source": "ner", "metadata": {"in_sentence": "r96SF]\n\n(b) The High Court was right iri the present case in holdiilg that tlie notification of the Government of India had no statutory force and wasnot binding on the Sales Tax Officer, but it cannot be said that the High Court and \"I'ribunal were not right in preferring the opinion therein as good evidence for their conclusion to the opinions in the letters relied upon by the Andhra Pradesh IIigh Court."}}, {"text": "Ministry of Finance", "label": "ORG", "start_char": 2526, "end_char": 2545, "source": "ner", "metadata": {"in_sentence": "The Ministry of Finance, which issued the notification, is inti-• mately conversant not only with the policy of legislation for the purpose of implementation of the provisions of the Central Act."}}, {"text": "National Chemical Laboratory", "label": "ORG", "start_char": 2878, "end_char": 2906, "source": "ner", "metadata": {"in_sentence": "[9700-F]\n\n(c) Further, the letters of the Director, National Chemical Laboratory and the Central Food Technological Research Institute, do not indicate that the opinions expressed therein were firm or even final or whether an the uses men 4 tioned in the definition of oil-seeds were brought to their notice."}}, {"text": "Central Food Technological Research Institute", "label": "ORG", "start_char": 2915, "end_char": 2960, "source": "ner", "metadata": {"in_sentence": "[9700-F]\n\n(c) Further, the letters of the Director, National Chemical Laboratory and the Central Food Technological Research Institute, do not indicate that the opinions expressed therein were firm or even final or whether an the uses men 4 tioned in the definition of oil-seeds were brought to their notice."}}, {"text": "V. C. Mahajan", "label": "PETITIONER", "start_char": 3695, "end_char": 3708, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and R. N. Sachthey : for Appellants (In CAs."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 3713, "end_char": 3727, "source": "ner", "metadata": {"in_sentence": "V. C. Mahajan and R. N. Sachthey : for Appellants (In CAs."}}, {"text": "Gohind Das", "label": "LAWYER", "start_char": 3820, "end_char": 3830, "source": "ner", "metadata": {"in_sentence": "Gohind Das, amicus curiae for Respondent.", "canonical_name": "Gob ind Das"}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 3907, "end_char": 3914, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGOSWAMI, J .-Five quarters of assessment of sales tax are involved in these fie appeals, by special leave, the period commencing .._ from January 1, 1959 to March 31, 1960."}}, {"text": "Assistant Sales Tax Officer, Cuttack", "label": "RESPONDENT", "start_char": 4160, "end_char": 4196, "source": "ner", "metadata": {"in_sentence": "The Assistant Sales Tax Officer, Cuttack, included in the turnover of the respondent the sale price of jeera, dhania (coriander) , panmohuri, methi, postak and pipall and levied 5 per cent sales tax under the Orissa Sales Tax Act (briefly the State Act)."}}, {"text": "section 14(vi)", "label": "PROVISION", "start_char": 4570, "end_char": 4584, "source": "regex", "metadata": {"statute": null}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 4592, "end_char": 4613, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "State of Orissa", "label": "ORG", "start_char": 4776, "end_char": 4791, "source": "ner", "metadata": {"in_sentence": "On appeal by the State of Orissa to the Sales Tax Tribunal claiming 5 per cent on the sale turnover thereof under the provisions of the Central Sales Tax Act, the orders of the Assistant Commissioner were affirmed."}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 4895, "end_char": 4916, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 24", "label": "PROVISION", "start_char": 5097, "end_char": 5107, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 5322, "end_char": 5332, "source": "regex", "metadata": {"statute": null}}, {"text": "31st January, 1958", "label": "DATE", "start_char": 5577, "end_char": 5595, "source": "ner", "metadata": {"in_sentence": "4(8)-ST /57 dated 31st January, 1958."}}, {"text": "Gob ind Das", "label": "LAWYER", "start_char": 6061, "end_char": 6072, "source": "ner", "metadata": {"in_sentence": "We, therefore, requested Mr. Gob ind Das to act as amicus curiae in .these appeals.", "canonical_name": "Gob ind Das"}}, {"text": "Mahajan", "label": "OTHER_PERSON", "start_char": 7004, "end_char": 7011, "source": "ner", "metadata": {"in_sentence": "Mr. Mahajan appearing on behalf of the appellant sumbits that the Court should adopt the meaning given to these items in common parlance and by the people who use the articles."}}, {"text": "Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957", "label": "STATUTE", "start_char": 7438, "end_char": 7499, "source": "regex", "metadata": {}}, {"text": "section 14", "label": "PROVISION", "start_char": 7539, "end_char": 7549, "source": "regex", "metadata": {"linked_statute_text": "Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957", "statute": "Schedule IV of the Andhra Pradesh General Sales Tax Act, 1957"}}, {"text": "National Chemical Laboratory, Poona", "label": "ORG", "start_char": 7684, "end_char": 7719, "source": "ner", "metadata": {"in_sentence": "The Andhra Pradesh High Court relied upon a letter from the Director of the National Chemical Laboratory, Poona, dated January 29, 1959, addressed to the Secretary, Council of Scientific and Industrial Research, New Delhi, as also upon another letter from the Central Food Technological Research Institute, Mysore, dated February 18, 1959, and came to the conclusion that, amongst other things, dhania ( coriander) did not come \"within the definition of oil seeds\"."}}, {"text": "Council of Scientific and Industrial Research, New Delhi", "label": "ORG", "start_char": 7773, "end_char": 7829, "source": "ner", "metadata": {"in_sentence": "The Andhra Pradesh High Court relied upon a letter from the Director of the National Chemical Laboratory, Poona, dated January 29, 1959, addressed to the Secretary, Council of Scientific and Industrial Research, New Delhi, as also upon another letter from the Central Food Technological Research Institute, Mysore, dated February 18, 1959, and came to the conclusion that, amongst other things, dhania ( coriander) did not come \"within the definition of oil seeds\"."}}, {"text": "Schedule IV of the Andhra Pradesh Sales Tax Act", "label": "STATUTE", "start_char": 8697, "end_char": 8744, "source": "regex", "metadata": {}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 9020, "end_char": 9045, "source": "ner", "metadata": {"in_sentence": "I /\n\nORISSA v. DINABANDHU SAHU & SONS (Goswami, l.) 969\n\nIn Commissioner of Sales Tax, Madhya Pradesh, Indore, v. Bakhat A Rai and Co.,(1) the Madhya Pradesh High Court also took 'the same view as that of the Andhra Pradesh High Court while dealing with item 3, Part II, Schedule 1 of the C.P. and Berar Sales Tax Act."}}, {"text": "Schedule 1", "label": "PROVISION", "start_char": 9148, "end_char": 9158, "source": "regex", "metadata": {"linked_statute_text": "Schedule IV of the Andhra Pradesh Sales Tax Act", "statute": "Schedule IV of the Andhra Pradesh Sales Tax Act"}}, {"text": "Berar Sales Tax Act", "label": "STATUTE", "start_char": 9175, "end_char": 9194, "source": "regex", "metadata": {}}, {"text": "Kerala High Court", "label": "COURT", "start_char": 9570, "end_char": 9587, "source": "ner", "metadata": {"in_sentence": "The Division Bench of the Kerala High Court has also held in The Deputy Commissioner of Agricultural Income-tax and Sales Tax, Kozikode v. V. Sreedhara Shenoy(') 1that dhania (corianrler) and methi are not oil-seeds under section 14(vi) of the Central Act."}}, {"text": "section 14(vi)", "label": "PROVISION", "start_char": 9766, "end_char": 9780, "source": "regex", "metadata": {"linked_statute_text": "Berar Sales Tax Act", "statute": "Berar Sales Tax Act"}}, {"text": "Gobind Das", "label": "LAWYER", "start_char": 10322, "end_char": 10332, "source": "ner", "metadata": {"in_sentence": "Mr. Gobind Das, on the other hand, has drawn our attention to the fact that the High Court had before it the Condensed Chemical Dictionary (7th Edition) edited by Arther and Elizabeth Rose, from which the following informations regarding the seeds in question were available:-\n\n\"Dhania (coriander seed); botanical name coriandrum sativem.", "canonical_name": "Gob ind Das"}}, {"text": "Arther", "label": "OTHER_PERSON", "start_char": 10481, "end_char": 10487, "source": "ner", "metadata": {"in_sentence": "Mr. Gobind Das, on the other hand, has drawn our attention to the fact that the High Court had before it the Condensed Chemical Dictionary (7th Edition) edited by Arther and Elizabeth Rose, from which the following informations regarding the seeds in question were available:-\n\n\"Dhania (coriander seed); botanical name coriandrum sativem."}}, {"text": "Elizabeth Rose", "label": "OTHER_PERSON", "start_char": 10492, "end_char": 10506, "source": "ner", "metadata": {"in_sentence": "Mr. Gobind Das, on the other hand, has drawn our attention to the fact that the High Court had before it the Condensed Chemical Dictionary (7th Edition) edited by Arther and Elizabeth Rose, from which the following informations regarding the seeds in question were available:-\n\n\"Dhania (coriander seed); botanical name coriandrum sativem."}}, {"text": "section 14", "label": "PROVISION", "start_char": 11861, "end_char": 11871, "source": "regex", "metadata": {"statute": null}}, {"text": "section 24", "label": "PROVISION", "start_char": 12382, "end_char": 12392, "source": "regex", "metadata": {"statute": null}}, {"text": "article 136", "label": "PROVISION", "start_char": 12416, "end_char": 12427, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Tribunal", "label": "COURT", "start_char": 12569, "end_char": 12587, "source": "ner", "metadata": {"in_sentence": "These appeals arise out of a decision in a reference under section 24 of the State Act under article 136 of the Constitution and we have to consider whether it is a fit case for-interference with the order of the High Court when it held that the Sales Tax Tribunal was right in 1 its conclusion."}}, {"text": "Ministry of Finance, Department of Economic Affairs", "label": "ORG", "start_char": 12841, "end_char": 12892, "source": "ner", "metadata": {"in_sentence": "It cannot, however, be denied that the Ministry of Finance, Department of Economic Affairs, is intimately conversant not only with the policy of legislation for the purpose of implementation oL the provisions of the Central Act but\"is also familiar with the nature and quality of the commodities as also their use from time to time."}}, {"text": "Audhra Pradesh High Court", "label": "COURT", "start_char": 13639, "end_char": 13664, "source": "ner", "metadata": {"in_sentence": "A persual of the contents of the letters referred to in the judgment of the Audhra Pradesh High Court would indicate that the opinions cannot be said to be very firm or even final."}}, {"text": "Central Food Technological Research ln9titute, Mysore", "label": "ORG", "start_char": 13933, "end_char": 13986, "source": "ner", "metadata": {"in_sentence": "Apart from this, it is not known whether all the uses which are mentioned in the definition of \"oil-seeds\" were brought to the notice of the National Chemical Laboratory, Poona and of the Central Food Technological Research ln9titute, Mysore,, in rendering their opinions."}}, {"text": "section 14", "label": "PROVISION", "start_char": 14172, "end_char": 14182, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_971_979_EN", "year": 1976, "text": "COLLECTOR OF CUSTOMS & ORS.\n\nPEDNEKAR AND COMPANY (PRIVATE) LIMITED (IN LIQUI-\n\nDATION) & ANR.\n\nMarch 31, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.] B\n\nSale of Goods Act (3 of 1930), s. 20-Time of passing of property in goods.\n\nConstitution of India, 1950, Art. 226-When may be invoked.\n\nPractice-Raising new contention, if permissible.\n\nThe. first respondent, an importer and dealer in sewing machines, was granted C an import licence for importing industrial sewing. machines and spare parts.\n\nAfter importing some goods through the Bombay port, the first respondent was permitted by the Customs Authorities to import the rest through the Calcutta port, and the first respondent entered into contracts with Japanese companies for supply of a certain number of industrial sewing machines and oscillating rock shafts. Being in some financial difficulty the first respoildent approached the 2nd respondent, _and the latter stood guarantee to Bankers at Delhi enabling the first respondent to open the necessary letter of credit. Thereafter, while .the goods contracted for from the Japanese_ conlpanies were on the high seas, D there was an agreement by which the first respondent agreed to sell to the second respondent at a future date, certain quantities of sewing machines, heads and oscillating rock shafts.\n\nWhen the goods arrived at Calcutta, the Customs authorities took the view that the goods were ascertained and specific goods,\n\nthat the property in them had passed to and vested in second respondent by reason of the agreement to sell, so that at the time of importation the goods were not covered by the licence in favour of the first respondent and ordered confiscation of the goods and the imposition of a penalty. Tue first respondent E thereupon moved the High Court and the High Court held against the appel - lant.\n\nIn appeal to this Court, the appellant-Collector of Customs, also raised the\n\ncontentio~ that though everything ostensibly was done by the 1st respondent, the real importer was the 2nd respondent and that, therefore, the importation was unauthorised~ and that the High Court had no jurisdiction to interfere under Art. 226, with the order of the Customs authority.\n\nDismissing the appeal, I\n\nHELD.: ( 1) It is not possible to hold on the facts of this case, that the property in the goods passed to the second respondent at the time of the agreemeI?-t• and the High Court was right in holding that the property in the goods dtd not pass to the buyer till the time of delivery of the goods in Bombay..\n\n[977E, G-HJ\n\n(a) Te agreemet t~ sell related not to the entire consignment of the goods which were being l!llported by .the first respondent but only to part of G the goods . even though 1t was a maior part.\n\nOut of 208 dozen rock shafts 1vh1ch wee 1mported, 200 dozen were to be sold to the 2nd respondent.\n\nThere was nothing to prevent the first repondent from selecting for itself any s dozen rock shafts, out of th~ consignment. The place of deliverY was the second respondents g?down 1n Bombay, and therefore, the property in the goods could n?t pass in favour of the second respondent until after the arrival of the goods in Bombay and the 200 dozen rock shafts to be delivered to the 2nd respondent w.ere separated. So far as the sewing machines were concerned, the property n them could also not pass to the buyer before the assing H of the i; iroperty 1n. rock safts as the contract was one indivisible c6ntract\n\nNo pecrfic QOods 1n a deliverable state were attached to the contract wh - ·~ was made. [977E-G] en '' ?{\n\n(b) In many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence. The mere fact of financial guarantee by the second respondent to a banker for the purpose of enabling the first respondent to open a letter of credit, without anything more~ would not convert the guarantor (2nd respondent) to be the o\\vner_ of the property, the moment the contract was entered into, if the terms therein pointed to the contrary.\n\n[978A-B]\n\n(2) It was never the contention of the Customs authorities that the importaw tion of the goods was not done by the 1st respondent or that the 1st respondent'~ contracts with the Japanese suppliers were shan1.\n\nTherefore the appellant cannot be permitted to raise the contention that the real importer was the 2nd respondent.\n\n[977E-GJ\n\n(3) The 1st respondent's licence was not an Actual User Licence and therefore the 1st respondent could sell the imported goods to others. The legal issue in the case was whether property had passed to the 2nd respondent at the time the agreement was entered into between the respondents and if on the terms of the agreement along with relevant facts and circumstances, the customs authorities had committed a manifest error of law apparent on the face of the order, the High Court's jurisdiction to interfere under Art. 226 is\n\n' .\n\n'°'\n\n\"ttracted. [978G-979Bl 1\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1434-1435 of 1968.\n\nD Appeal from the Judgment and Order dated 6th April 1967 of the Calcutta High Court in Appeal from Original Order No. 175 of 1963 and 177 of 1963.\n\nG. L. Sanghi and Girish Chandra, for the Appellant.\n\nH. K. Puri and M. C. Dhingra, for Respondents.\n\nE The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These two appeals are on certificate by the Cal- :.., cutta High Court from its common judgment of April 6, 1967, in Appeal Nos. 175 and 177 of 1963.\n\nRespondent No. 1 prior to its liquidation was a private limited company carrying on business as an importer and dealer in sewing machines.\n\nOn or about April 16, 1958, the respondent was granted an import licence by the Joint Chief Controller of Imports and Exports, Bombay, by which it was authorised to import industrial sewing machines together with spare parts to the extent of 5 per cent of the total value of the goods to be imported. The total value of the imports authorised was Rs. 47,406/-. The respondent could under the licence import the goods through any port in India.\n\nOut of the permitted value under the licence, goods worth about Rs. 9,919/- were imported by the respondent through the Bombay port. The respondent then wanted to arrange the rest of the import through the Calcutta port.\n\nAt the request of the respondent the Customs authorities of Bombay gave a release order in respect of the remaining goods to be imported in terms of the aforesaid licence through the Calcutta port.\n\nBy an indent of November 11, 1958, the respondent placed orders with M/s Fuji Trading Company Limited, Osaka, Japan, for supply of 162 pieces of industrial sewing machine head \"Raruna Brand\" and\n\n~.,\n\n~., +\n\n.J,\n\n208 dozen of oscillating rock shafts. By two other indents of Decem- A ber 3, 1958, the respondent sent orders to M/s Alickson & Company, Osaka, for the supply of 59 sets of industrial sewing machine head \"Prosper Brand\" and certain industrial sewing machine parts.\n\nAll these three indents were accepted by the two Japanese Companies in due comse. M/s Fuji Trading Company Limited shipped the goods against orders placed with them on January 30, 1959, by S. S. Sydney Marn. M/ s Alickson & Company also shipped the .goods covered by B the indents placed with them on January 28, 1959, by S. S. State of Andhm.\n\nThe respondent apparently had some, financial difficulties for rdeasing the goods at Bombay, as, according to it, it did not have sufficient credit with the Bombay Bank \"to open the letter of credit with paymen'. of a nominal margin only\".· The respondent, therefore approach- C ed the Bombay and Calcutta Cycle Company (briefly the Cycle Company), a partnership firm, which also used to carry on business as dealers in sewing machines and had previous dealings with the respondent.\n\nThe Cycle Company agreed to guarantee the letter of credit if it were opened through their Bankers at Delhi.\n\nThe respondent agreed to do so and thereupon at the request of the Cycle Company the Mercantile Bank Limited of Delhi agreed to act as the D respondent's Bankers and also to allow the respondent to open the letter of credit. Thereafter on or about December 29/30, 195S, the respondent opened with the Mercantile Bank Limited, Delhi, a lotter of credit being L. C. No. J()l/1085. The respondent advanced a sum of Rs. 2884.50 np by way of marginal deposit to the exteiat of 10 per cent of the value of the letter of credit and the necessary Bank charges.\n\nOn February 20, 1959, while the said goods were on the high seas there was au agreement between the respondent and the Cycle Company by which the respondent agreed to sell and the Cycle Company agreed to buy at a future date certain quantities of industrial sewing machine heads and oscillating rock shafts.\n\nThe contract of sale may be quoted in extenso : F\n\n\"SALE CONTRACT\" We Messrs. Pednekar and Co. Private Ltd., 172, Girgaon Road, Bombay-4 hereby agree to seU in forward sale 'Industrial' Sewing Mechine Heads and part~ thereof to Messrs. Bombay & Calcutta Cycle Co. of 48, Popatwadi, Kalbadevi Road, Bombay, on the following terms and conditions :\n\nItems and quantity: 221 pcs. Industrial Sewing Machine Head TA-1 Model complete with knee Lifter, accessories box Bobbin winder made in Japan.\n\n200 dozen Oscillating Rock Shaft \"Coto\" brand made in Japan.\n\nRates and value : 221 pcs. Industrial Sewing Machine Heads @ 305/- per machine .\n\nRs. 67,405/- 200 dozen Oscillating Rock Shaft @ Rs. 24/- per dozen . .\n\nRs. 4,800/·\n\nTOTAL Rs. 72,205/-\n\n12-725SCI/76\n\nA Payment: The sum of Rs. 13,300/- already received by the sellers from the buyers (Rs.7000/- received on 19th June, 1958, Rs. 2300/- received on 7th July, 1958, and Rs: 4.000/- received on 22nd December, 1958) will be adjusted against the above payment.\n\nThe sum of Rs. 56,000/- (Rs. fifty six thousand only) will be paid by the buyers as and when required before the delivery of the goods and the balance sum of Rs.\n\n2,905/- will be paid by the buyer after the delivery of the goods to them in good condition in their godown.\n\nPlace of delivery: Buyers' Godown at Bombay.\n\nTime of Delivery : June-July 1959.\n\nSales Tax : Buyers will issue 'K' Form (Bombay Sales Tax) against sellers Bill for the goods.\n\nBombay, dated 20th February, 1959.\n\nWe confirm.\n\nFor Bombay & Calcutta Cycle Co.\n\nSd/- Partner\".\n\nFor Pednekar & Co. Private Ltd.\n\nSd/- Managing Director 1\n\nS. S. State of Andhra and S. S. Sydney Maru arrived at the port of Calcutta on February 26 and February 27, 1959, respectively The respondent instructed the Bankers to engage Ml s Mackinon Mackenzie & Co. Pvt. Ltd. (briefly the Clearing Agents) as Agents for clearing the goods arriving by the said two ships.\n\nThe Bankers were also asked to despatch the shipping documents to the Clearing Agents.\n\nThe Bankers carried out these instructions and the Clearing Agents filed with the Customs auhorities, Calcutta, bills of entry in respect of the aforementioned goods for consumption in the name of the respondent.\n\nOn the requisition of the Customs authorities several documents, as required, were supplied to them.\n\nInformations as to who guaranteed for the letter of credit, who retained the documents and who paid for the goods were also supplied to the Customs authorities by the Clearing Agents as desired.\n\nOn October 23, 1959, the Assistant Collector of Customs for Appraisement issued a show cause notice on the respondent under section 167(8) and section 167(37) of the Sea Customs Act, 1878, read with section 3 (2) of the Imports and Exports (Controlj Act 194 7 relating to the goods that arrived by S. S. Sydney Maru.\n\nOn November 18, 1959, an exactly similar show cause notice was served upon the respondent by the Assistant Collector of Customs in respect of the goods arrived by S. S. State of Andhra.\n\nIn these notices it was alleged that the importation of the goods in question had been made by the Cycle Company without any valid import licence in their favour and not by the respondent and that the Cycle Company was the real owner of the goods.\n\nIt was further alleged that the respondent had aided and abetted in the unauthorised importation of the goods by the Cycle Company. There was a. further charge that the respondent had transferred the licence in favour of the Cycle\n\nCompany. It was alleged in the show cause notice of October 28, 1959, that the licence in any case did not cover the importation of oscillating rock shafts.\n\nThe respondent was asked to show cause within 14 days of receipt of the respective notices as to why the goods should not be confiscated and why a penalty should not be imposed on the respondent for being concerned in the unauthorised importation of the said goods.\n\nThe respondent was also asked in the first show cause notice to show cause why oscillating rock shafts of the value of Rs. 1373.19 np should not be confiscated under section 167(37) of the Sea Customs Act and why a penalty should not be imposed on the respondent.\n\nThe respondent submitted its explanation repudiating the allegations.\n\nThe respondent further contended that the oscillating rock shafts were spare parts of which clearance could be allowed to the extent of 5 per cent of the face value of the hcence.\n\nThe respondent denied the applicability of clause 3 7 of secllon 167 of the Sea Customs Act and demanded the release of the goods imt' mediately.\n\nOn December 17, 1959, the Assistant Collector addressed a Jetter to the respondent which is described as an additional show cause notice.\n\nThe substance of the allegations made in this letter is that the goods in question were ascertained and specific goods and that the property in the goods had passed from the respondent to the Cycle Company by reason of the agreement for forward sale elated February 20, 1959, and that the property in the goods had already vested in the Cycle Company at the time of importation so that the goods were not covered by the licence submitted by the respondent.\n\nThe respondent was asked to n; iake further submissions within a fortnight from receipt of this letter.\n\nThere was a similar additional E show cause letter dated December 22, 1959, addressed to the respondent with regard to goods which arrived by S. S. State of Anclhra.\n\nThe respondent sent a reply to the additional show cause notices. The respondent denied in its explanation that the property in the goods had passed to the Cycle Company before the goods were cleareJ.\n\n• '\n\nOn March 18, 1960, the Deputy Collector of Customs passed an order by which the goods which arrived by S. S. State of Andhra were confiscated under section 167(8) of the Sea Customs Act read with section 3(2) of the Imports and Exports (Control) Act, 1947. A personal penalty of Rs. 3501was also imposed on the respondent as well as on the Cycle Company. Thereafter on March 23, 1960, the Deputy Collector of Customs passed another order by which the goods which arrived by S. S. Sydney Maru were confiscated and a personal penalty of Rs. 1000/- was imposed on the respondout as well as on the Cycle Company.\n\nThe above is the background which led to two writ applications in the High Court against the aforesaid two orders under article 226 of the Constitution of India which the respondent filed against . the\n\nappelants impleading also the Cycle Company as respondent No. 4 therern.\n\nThe earned. sin_gle judge of te High Court dismissed the rcspnndent s wnt apphcallons except with reference to the oscillating rock\n\nshafts.\n\nAccording to the learned judge these shafts were properly imported under section 2, Part V, Item 76(a) of the Import Trade Control Policy Book, but these shafts also except 8 dozen were liable :...__ • to confiscation in view of his decision against the respondent in respect of 200 sewing machine heads. The respondent then appealed to the Division Bench of the High Court. The Division Bench allowed the appeals by setting aside the judgment of the single judge without disturbing at the same time the aforesaid portion of the judgment regarding oscillating rock shafts.\n\nThe High Court granted certificates to appeal to this Court under article 13 3 (1) (a) of the Constitution of India to the appellants.\n\nWe may note in passing that during the pendency of the p10ceedings before the lligh Court, the respondent was wound up by an order of the High Court of Bombay and necessary substitution was made.\n\nWe are only concerned in these appeals with the confiscation of '1 200 sewing machine heads and of 200 oscillating rock shafts.\n\nSince there had been n;, appeal by the appellant against that part of the order of the single judge with regard to the importation of 8 oscillating rock shafts, Mr. Sanghi has, rightly, not addressed us in respect of the same.\n\nMr. Sanghi at the commencement of his argument submitted, to quote his own words, that \"the main thrust of the show cause notice was the realness of the transaction\". In other. words, he wanted to raise the question, which had also been unsuccessfully pressed into service before the Division Bench that though everything ostensibly was done by the respondent the real importer in the case was the Cycle Company and the respondent merely lent his name.\n\nThe \"- Division Bench, in our opinion, rightly rejected the submis; ion holding that that was a completely new case which had not been made out either before the adjlldicator or before the learned single judge. The Division Bench further rightly helcl as follows :-\n\n'It was never the contention of the Customs authorities that the importation of the goods was not done by the petitioner and that though everything is ostensibly done by the petitioner the real importer is B. C. Cycle Company. In the show cause notice there is no allegation made on the part of the Customs that the contract with the Japanese supplier was a sham or that the petitioner's contract with the B. C.\n\nCalcutta Cycle Co., was also a sham transaction.\"\n\nWe are, therefore, unable to agree with Mr. Sanghi that he can be permitted to raise this question of a \"make-believe\" transaction by the respondent.\n\nThe only question, therefore, that arises for decision in this case and on which Mr. Sanghi has addressed us is as to the question whether property in the goods had passed to the Cycle Company when the contract.had been entered by the respondent with it, that is to say. prior to the arrival of the goods at Calcutta port for clearance. .\n\nWe may even quote what was stated in the additional show cause A notice:\n\n• A \"Thus it appears that the sale contract which purports\n\nto be an 'agreement to sell' is actually a sale and that the property in the subject goods vested with M/s Bombay & Calcutta Cycle Co., at the time of importation.\"\n\nThe learned single judge answered the question in the following words:-\n\n\"In this case the goods were specific goods in a deliverable state as already held. There was nothing in the contract indicating that the property in the goods would pass to the buyer at a later stage.\n\nTherefore, under section 20 of the Sale of Goods Act, the property passed at the time of the contract of sale and it was immaterial that time for payment of price and also time for delivery were postponed.\"\n\nThe Division Bench, on the other hand, after extensively dealing with all the facts and circumstances of the case including the terms of the contract, came to the conclusion that-\n\n\" .... no property could pass before the goods were delivered at the Bombay god owns of the B. C. Cycle Company.\"\n\nThe controversy bas to be resolved by reference to sections 18, 19 and 20 of the Sale of Goods Act, 1930.\n\nIt is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959.\n\nThe contract to sell related not to the entire consignment of th~ goods which were being imported by the respondent but only to part of those goods, even though it may be a major part. Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2.\n\nThere was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment.\n\nThe µlace of delivery of the goods was buyers godown in Bombay. The property in the goods could not pass in favour of respondent No. 2 until, after lhe arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated. So far as industrial sewing machines were . concerned, the property in them could also not µass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract. The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods Jn Bombay.\n\nNo specific goods in a deliberable state were attached to the contract when i• wns made.\n\nMr. Sanghi submits that the fact that the Cycle Company was Principally financing the whole transaction and stooJ guarantee to the H Bankers in Delhi enabling the respondent to open a lefter of credit for the importation of the goods clearly indicates that, notwithstanding the place of delivery in the contract; the parties intended that the\n\nimported goods were appropriated to the contract when the same was. made. In many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid , licence.\n\nThe mere fact of financial guarantee to a Banker for the ,\\.. • purpose of opening a letter of credit, without any thing more, would not convert tne guarantor to be th(\\ owner of the property the moment the contract was entered if the terms therein pointed to the contrary.\n\nWe are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arraui; emunt, which the respondent made with the Bankers in Delhi, would lead to the inescapable conclusion that the property in the goods had passed to the Cycle Company at the time wheu the contract was made. The correspondent between the respondent and the Cycle Company, that between the part; es and the Banker and the arran geIU!lts for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.\n\nIt is clear that the respondent had a valid import Iiceuce under the cover of which 1t imported the goods from Japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customs auhorities.\n\nThe entire controversy before the adjudicator was with reference to the importation of the goods by the Cycle Company which fact was sought to be established against the respondent from the legal position urged with regard to the passing of property to the Cycle Company at the time the contract had been made on February 20,\n\n1959. Mr. Sanghi submits that if, on the facts and circumstances, conduct of the parties and the correspondences during the relevant pceriod takethn withd' thd~ advance of finathnce and 1\n\naranhtee ohf the Gycle \\, ompany, e a JU 1cator came to e cone us10n t at t e property had passed and the goods were liable to confiscation and the conclusion was prima facie reasonable the High Court had no jurisdiction to interfere with the order under article 226 of the Constitution.\n\nThis would be true,. says counsel. even if the High Court could on the same facts and circumstances take another view in the matter.\n\nWe are unable to accede to the submissi<m,\n\nWe ate dealing with an order of confiscation of ce; tain goods imported under a licence granted to the respondent.\n\nIt was never • disputed that it was a valid licence.\n\nIt was alsel not an Actual User licence. The respondent, therefore, could sell these imported goods to others. The whole matter, therefore, tamed on the legal issue as to whether property had passed at the time the respondent had enter- ) ed mto the contract for the sale of the imported goods. Even the Customs Authority in its additional show cause notice made particular reference to section 20 of the Said of Goods Act and pointed out that:-\n\n\"the ownership in the goods under consideration appears to have passf'd on to M/s Bombay. & Calcutta Cycle Co. right from the time the sale contract was concluded.''\n\nWhen, therefore, on the terms of the contract along with other relevant facts and cilc11111Stances which had to be looked into by the adjudkator for application of section 20 of the Sale of Goods Act, he COIDllllUed a maruiest error of Jaw appaent on the face of the order the High Court's jurisdiction to interfere under article 226 of the Constitutio11 is clearly attracted. The sumbission of Mr. Sanghi is, therefore, without any force.\n\nIn the view we have taken regai:ding passing of property in the goods we need not d'al with Mr. Sangbi's submllision with reference to the provisions of warranty under section 12, of the Sale of Goods Act.\n\nThe orders of confiscation of the goods and penalities imposed are invalid and the High Court was right in quashing the same by issu- C ing the appropriate writs.\n\nIn the result the appeals are dismissed with costs.\n\nV.P.S .\n\nAppeals dismissed.", "total_entities": 90, "entities": [{"text": "COLLECTOR OF CUSTOMS & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "COLLECTOR OF CUSTOMS & ORS", "offset_not_found": false}}, {"text": "PEDNEKAR AND COMPANY (PRIVATE) LIMITED (IN LIQUI-\n\nDATION) & ANR", "label": "RESPONDENT", "start_char": 29, "end_char": 93, "source": "metadata", "metadata": {"canonical_name": "PEDNEKAR AND COMPANY (PRIVATE) LIMITED (IN LIQUIDATION) & ANR", "offset_not_found": false}}, {"text": "March 31, 1976", "label": "DATE", "start_char": 96, "end_char": 110, "source": "ner", "metadata": {"in_sentence": "March 31, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]"}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 113, "end_char": 125, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 130, "end_char": 148, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 153, "end_char": 170, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 20", "label": "PROVISION", "start_char": 184, "end_char": 189, "source": "regex", "metadata": {"linked_statute_text": "Sale of Goods Act", "statute": "Sale of Goods Act"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 229, "end_char": 250, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 258, "end_char": 266, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Bombay", "label": "GPE", "start_char": 536, "end_char": 542, "source": "ner", "metadata": {"in_sentence": "After importing some goods through the Bombay port, the first respondent was permitted by the Customs Authorities to import the rest through the Calcutta port, and the first respondent entered into contracts with Japanese companies for supply of a certain number of industrial sewing machines and oscillating rock shafts."}}, {"text": "Calcutta", "label": "GPE", "start_char": 642, "end_char": 650, "source": "ner", "metadata": {"in_sentence": "After importing some goods through the Bombay port, the first respondent was permitted by the Customs Authorities to import the rest through the Calcutta port, and the first respondent entered into contracts with Japanese companies for supply of a certain number of industrial sewing machines and oscillating rock shafts."}}, {"text": "Delhi", "label": "GPE", "start_char": 953, "end_char": 958, "source": "ner", "metadata": {"in_sentence": "Being in some financial difficulty the first respoildent approached the 2nd respondent, and the latter stood guarantee to Bankers at Delhi enabling the first respondent to open the necessary letter of credit."}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2150, "end_char": 2158, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 4908, "end_char": 4916, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "G. L. Sanghi", "label": "LAWYER", "start_char": 5173, "end_char": 5185, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and Girish Chandra, for the Appellant."}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 5190, "end_char": 5204, "source": "ner", "metadata": {"in_sentence": "G. L. Sanghi and Girish Chandra, for the Appellant."}}, {"text": "H. K. Puri", "label": "LAWYER", "start_char": 5226, "end_char": 5236, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and M. C. Dhingra, for Respondents."}}, {"text": "M. C. Dhingra", "label": "LAWYER", "start_char": 5241, "end_char": 5254, "source": "ner", "metadata": {"in_sentence": "H. K. Puri and M. C. Dhingra, for Respondents."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 5320, "end_char": 5327, "source": "ner", "metadata": {"in_sentence": "E The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These two appeals are on certificate by the Cal- :.., cutta High Court from its common judgment of April 6, 1967, in Appeal Nos."}}, {"text": "April 6, 1967", "label": "DATE", "start_char": 5432, "end_char": 5445, "source": "ner", "metadata": {"in_sentence": "E The Judgment of the Court was delivered by\n\nGOSWAMI, J .-These two appeals are on certificate by the Cal- :.., cutta High Court from its common judgment of April 6, 1967, in Appeal Nos."}}, {"text": "April 16, 1958", "label": "DATE", "start_char": 5636, "end_char": 5650, "source": "ner", "metadata": {"in_sentence": "On or about April 16, 1958, the respondent was granted an import licence by the Joint Chief Controller of Imports and Exports, Bombay, by which it was authorised to import industrial sewing machines together with spare parts to the extent of 5 per cent of the total value of the goods to be imported."}}, {"text": "India", "label": "GPE", "start_char": 6061, "end_char": 6066, "source": "ner", "metadata": {"in_sentence": "The respondent could under the licence import the goods through any port in India."}}, {"text": "Fuji Trading Company Limited", "label": "ORG", "start_char": 6563, "end_char": 6591, "source": "ner", "metadata": {"in_sentence": "By an indent of November 11, 1958, the respondent placed orders with M/s Fuji Trading Company Limited, Osaka, Japan, for supply of 162 pieces of industrial sewing machine head \"Raruna Brand\" and\n\n~.,\n\n~., +\n\n.J,\n\n208 dozen of oscillating rock shafts."}}, {"text": "Osaka", "label": "GPE", "start_char": 6593, "end_char": 6598, "source": "ner", "metadata": {"in_sentence": "By an indent of November 11, 1958, the respondent placed orders with M/s Fuji Trading Company Limited, Osaka, Japan, for supply of 162 pieces of industrial sewing machine head \"Raruna Brand\" and\n\n~.,\n\n~., +\n\n.J,\n\n208 dozen of oscillating rock shafts."}}, {"text": "Alickson & Company, Osaka", "label": "ORG", "start_char": 6821, "end_char": 6846, "source": "ner", "metadata": {"in_sentence": "By two other indents of Decem- A ber 3, 1958, the respondent sent orders to M/s Alickson & Company, Osaka, for the supply of 59 sets of industrial sewing machine head \"Prosper Brand\" and certain industrial sewing machine parts."}}, {"text": "January 30, 1959", "label": "DATE", "start_char": 7138, "end_char": 7154, "source": "ner", "metadata": {"in_sentence": "M/s Fuji Trading Company Limited shipped the goods against orders placed with them on January 30, 1959, by S. S. Sydney Marn."}}, {"text": "S. S. Sydney Marn", "label": "ORG", "start_char": 7159, "end_char": 7176, "source": "ner", "metadata": {"in_sentence": "M/s Fuji Trading Company Limited shipped the goods against orders placed with them on January 30, 1959, by S. S. Sydney Marn."}}, {"text": "Alickson & Company", "label": "ORG", "start_char": 7183, "end_char": 7201, "source": "ner", "metadata": {"in_sentence": "M/ s Alickson & Company also shipped the .goods covered by B the indents placed with them on January 28, 1959, by S. S. State of Andhm."}}, {"text": "January 28, 1959", "label": "DATE", "start_char": 7271, "end_char": 7287, "source": "ner", "metadata": {"in_sentence": "M/ s Alickson & Company also shipped the .goods covered by B the indents placed with them on January 28, 1959, by S. S. State of Andhm."}}, {"text": "S. S. State of Andhm", "label": "ORG", "start_char": 7292, "end_char": 7312, "source": "ner", "metadata": {"in_sentence": "M/ s Alickson & Company also shipped the .goods covered by B the indents placed with them on January 28, 1959, by S. S. State of Andhm."}}, {"text": "Bombay Bank", "label": "ORG", "start_char": 7472, "end_char": 7483, "source": "ner", "metadata": {"in_sentence": "The respondent apparently had some, financial difficulties for rdeasing the goods at Bombay, as, according to it, it did not have sufficient credit with the Bombay Bank \"to open the letter of credit with paymen'."}}, {"text": "Bombay and Calcutta Cycle Company", "label": "ORG", "start_char": 7601, "end_char": 7634, "source": "ner", "metadata": {"in_sentence": "The respondent, therefore approach- C ed the Bombay and Calcutta Cycle Company (briefly the Cycle Company), a partnership firm, which also used to carry on business as dealers in sewing machines and had previous dealings with the respondent."}}, {"text": "Mercantile Bank Limited of Delhi", "label": "ORG", "start_char": 7994, "end_char": 8026, "source": "ner", "metadata": {"in_sentence": "The respondent agreed to do so and thereupon at the request of the Cycle Company the Mercantile Bank Limited of Delhi agreed to act as the D respondent's Bankers and also to allow the respondent to open the letter of credit."}}, {"text": "December 29/30, 195S", "label": "DATE", "start_char": 8157, "end_char": 8177, "source": "ner", "metadata": {"in_sentence": "Thereafter on or about December 29/30, 195S, the respondent opened with the Mercantile Bank Limited, Delhi, a lotter of credit being L. C. No."}}, {"text": "Mercantile Bank Limited", "label": "ORG", "start_char": 8210, "end_char": 8233, "source": "ner", "metadata": {"in_sentence": "Thereafter on or about December 29/30, 195S, the respondent opened with the Mercantile Bank Limited, Delhi, a lotter of credit being L. C. No."}}, {"text": "February 20, 1959", "label": "DATE", "start_char": 8466, "end_char": 8483, "source": "ner", "metadata": {"in_sentence": "On February 20, 1959, while the said goods were on the high seas there was au agreement between the respondent and the Cycle Company by which the respondent agreed to sell and the Cycle Company agreed to buy at a future date certain quantities of industrial sewing machine heads and oscillating rock shafts."}}, {"text": "Pednekar and Co. Private Ltd., 172, Girgaon Road", "label": "ORG", "start_char": 8850, "end_char": 8898, "source": "ner", "metadata": {"in_sentence": "The contract of sale may be quoted in extenso : F\n\n\"SALE CONTRACT\" We Messrs. Pednekar and Co. Private Ltd., 172, Girgaon Road, Bombay-4 hereby agree to seU in forward sale 'Industrial' Sewing Mechine Heads and part~ thereof to Messrs. Bombay & Calcutta Cycle Co. of 48, Popatwadi, Kalbadevi Road, Bombay, on the following terms and conditions :\n\nItems and quantity: 221 pcs."}}, {"text": "Bombay-4", "label": "GPE", "start_char": 8900, "end_char": 8908, "source": "ner", "metadata": {"in_sentence": "The contract of sale may be quoted in extenso : F\n\n\"SALE CONTRACT\" We Messrs. Pednekar and Co. Private Ltd., 172, Girgaon Road, Bombay-4 hereby agree to seU in forward sale 'Industrial' Sewing Mechine Heads and part~ thereof to Messrs. Bombay & Calcutta Cycle Co. of 48, Popatwadi, Kalbadevi Road, Bombay, on the following terms and conditions :\n\nItems and quantity: 221 pcs."}}, {"text": "Bombay & Calcutta Cycle Co. of 48, Popatwadi, Kalbadevi Road,", "label": "ORG", "start_char": 9008, "end_char": 9069, "source": "ner", "metadata": {"in_sentence": "The contract of sale may be quoted in extenso : F\n\n\"SALE CONTRACT\" We Messrs. Pednekar and Co. Private Ltd., 172, Girgaon Road, Bombay-4 hereby agree to seU in forward sale 'Industrial' Sewing Mechine Heads and part~ thereof to Messrs. Bombay & Calcutta Cycle Co. of 48, Popatwadi, Kalbadevi Road, Bombay, on the following terms and conditions :\n\nItems and quantity: 221 pcs."}}, {"text": "19th June, 1958", "label": "DATE", "start_char": 9632, "end_char": 9647, "source": "ner", "metadata": {"in_sentence": "13,300/- already received by the sellers from the buyers (Rs.7000/- received on 19th June, 1958, Rs."}}, {"text": "7th July, 1958", "label": "DATE", "start_char": 9672, "end_char": 9686, "source": "ner", "metadata": {"in_sentence": "2300/- received on 7th July, 1958, and Rs: 4.000/- received on 22nd December, 1958) will be adjusted against the above payment."}}, {"text": "22nd December, 1958", "label": "DATE", "start_char": 9716, "end_char": 9735, "source": "ner", "metadata": {"in_sentence": "2300/- received on 7th July, 1958, and Rs: 4.000/- received on 22nd December, 1958) will be adjusted against the above payment."}}, {"text": "S. S. State of Andhra", "label": "RESPONDENT", "start_char": 10389, "end_char": 10410, "source": "ner", "metadata": {"in_sentence": "For Pednekar & Co. Private Ltd.\n\nSd/- Managing Director 1\n\nS. S. State of Andhra and S. S. Sydney Maru arrived at the port of Calcutta on February 26 and February 27, 1959, respectively The respondent instructed the Bankers to engage Ml s Mackinon Mackenzie & Co. Pvt."}}, {"text": "S. S. Sydney Maru", "label": "OTHER_PERSON", "start_char": 10415, "end_char": 10432, "source": "ner", "metadata": {"in_sentence": "For Pednekar & Co. Private Ltd.\n\nSd/- Managing Director 1\n\nS. S. State of Andhra and S. S. Sydney Maru arrived at the port of Calcutta on February 26 and February 27, 1959, respectively The respondent instructed the Bankers to engage Ml s Mackinon Mackenzie & Co. Pvt."}}, {"text": "Mackinon Mackenzie & Co. Pvt. Ltd.", "label": "ORG", "start_char": 10569, "end_char": 10603, "source": "ner", "metadata": {"in_sentence": "For Pednekar & Co. Private Ltd.\n\nSd/- Managing Director 1\n\nS. S. State of Andhra and S. S. Sydney Maru arrived at the port of Calcutta on February 26 and February 27, 1959, respectively The respondent instructed the Bankers to engage Ml s Mackinon Mackenzie & Co. Pvt."}}, {"text": "October 23, 1959", "label": "DATE", "start_char": 11303, "end_char": 11319, "source": "ner", "metadata": {"in_sentence": "On October 23, 1959, the Assistant Collector of Customs for Appraisement issued a show cause notice on the respondent under section 167(8) and section 167(37) of the Sea Customs Act, 1878, read with section 3 (2) of the Imports and Exports (Controlj Act 194 7 relating to the goods that arrived by S. S. Sydney Maru."}}, {"text": "section 167(8)", "label": "PROVISION", "start_char": 11424, "end_char": 11438, "source": "regex", "metadata": {"statute": null}}, {"text": "section 167(37)", "label": "PROVISION", "start_char": 11443, "end_char": 11458, "source": "regex", "metadata": {"statute": null}}, {"text": "Sea Customs Act, 1878", "label": "STATUTE", "start_char": 11466, "end_char": 11487, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 3", "label": "PROVISION", "start_char": 11499, "end_char": 11508, "source": "regex", "metadata": {"linked_statute_text": "the Sea Customs Act, 1878", "statute": "the Sea Customs Act, 1878"}}, {"text": "November 18, 1959", "label": "DATE", "start_char": 11621, "end_char": 11638, "source": "ner", "metadata": {"in_sentence": "On November 18, 1959, an exactly similar show cause notice was served upon the respondent by the Assistant Collector of Customs in respect of the goods arrived by S. S. State of Andhra."}}, {"text": "S. S. State of", "label": "ORG", "start_char": 11781, "end_char": 11795, "source": "ner", "metadata": {"in_sentence": "On November 18, 1959, an exactly similar show cause notice was served upon the respondent by the Assistant Collector of Customs in respect of the goods arrived by S. S. State of Andhra."}}, {"text": "Andhra", "label": "GPE", "start_char": 11796, "end_char": 11802, "source": "ner", "metadata": {"in_sentence": "On November 18, 1959, an exactly similar show cause notice was served upon the respondent by the Assistant Collector of Customs in respect of the goods arrived by S. S. State of Andhra."}}, {"text": "October 28, 1959", "label": "DATE", "start_char": 12338, "end_char": 12354, "source": "ner", "metadata": {"in_sentence": "It was alleged in the show cause notice of October 28, 1959, that the licence in any case did not cover the importation of oscillating rock shafts."}}, {"text": "section 167(37)", "label": "PROVISION", "start_char": 12877, "end_char": 12892, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 12904, "end_char": 12915, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "clause 3", "label": "PROVISION", "start_char": 13271, "end_char": 13279, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 13308, "end_char": 13319, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "December 17, 1959", "label": "DATE", "start_char": 13378, "end_char": 13395, "source": "ner", "metadata": {"in_sentence": "On December 17, 1959, the Assistant Collector addressed a Jetter to the respondent which is described as an additional show cause notice."}}, {"text": "December 22, 1959", "label": "DATE", "start_char": 14134, "end_char": 14151, "source": "ner", "metadata": {"in_sentence": "There was a similar additional E show cause letter dated December 22, 1959, addressed to the respondent with regard to goods which arrived by S. S. State of Anclhra."}}, {"text": "March 18, 1960", "label": "DATE", "start_char": 14454, "end_char": 14468, "source": "ner", "metadata": {"in_sentence": "The respondent denied in its explanation that the property in the goods had passed to the Cycle Company before the goods were cleareJ.\n\n• '\n\nOn March 18, 1960, the Deputy Collector of Customs passed an order by which the goods which arrived by S. S. State of Andhra were confiscated under section 167(8) of the Sea Customs Act read with section 3(2) of the Imports and Exports (Control) Act, 1947."}}, {"text": "section 167(8)", "label": "PROVISION", "start_char": 14599, "end_char": 14613, "source": "regex", "metadata": {"statute": null}}, {"text": "Customs Act", "label": "STATUTE", "start_char": 14625, "end_char": 14636, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 3(2)", "label": "PROVISION", "start_char": 14647, "end_char": 14659, "source": "regex", "metadata": {"statute": null}}, {"text": "March 23, 1960", "label": "DATE", "start_char": 14820, "end_char": 14834, "source": "ner", "metadata": {"in_sentence": "Thereafter on March 23, 1960, the Deputy Collector of Customs passed another order by which the goods which arrived by S. S. Sydney Maru were confiscated and a personal penalty of Rs."}}, {"text": "article 226", "label": "PROVISION", "start_char": 15181, "end_char": 15192, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 15200, "end_char": 15221, "source": "regex", "metadata": {}}, {"text": "section 2", "label": "PROVISION", "start_char": 15553, "end_char": 15562, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "article 13", "label": "PROVISION", "start_char": 16120, "end_char": 16130, "source": "regex", "metadata": {"linked_statute_text": "the Constitution of India", "statute": "the Constitution of India"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 16148, "end_char": 16169, "source": "regex", "metadata": {}}, {"text": "High Court of Bombay", "label": "COURT", "start_char": 16328, "end_char": 16348, "source": "ner", "metadata": {"in_sentence": "We may note in passing that during the pendency of the p10ceedings before the lligh Court, the respondent was wound up by an order of the High Court of Bombay and necessary substitution was made."}}, {"text": "Sanghi", "label": "OTHER_PERSON", "start_char": 16681, "end_char": 16687, "source": "ner", "metadata": {"in_sentence": "Since there had been n;, appeal by the appellant against that part of the order of the single judge with regard to the importation of 8 oscillating rock shafts, Mr. Sanghi has, rightly, not addressed us in respect of the same.", "canonical_name": "Sanghi"}}, {"text": "B. C. Cycle Company", "label": "ORG", "start_char": 17671, "end_char": 17690, "source": "ner", "metadata": {"in_sentence": "The Division Bench further rightly helcl as follows :-\n\n'It was never the contention of the Customs authorities that the importation of the goods was not done by the petitioner and that though everything is ostensibly done by the petitioner the real importer is B. C. Cycle Company."}}, {"text": "B. C.\n\nCalcutta Cycle Co.", "label": "ORG", "start_char": 17871, "end_char": 17896, "source": "ner", "metadata": {"in_sentence": "In the show cause notice there is no allegation made on the part of the Customs that the contract with the Japanese supplier was a sham or that the petitioner's contract with the B. C.\n\nCalcutta Cycle Co., was also a sham transaction.\""}}, {"text": "Bombay & Calcutta Cycle Co.", "label": "ORG", "start_char": 18661, "end_char": 18688, "source": "ner", "metadata": {"in_sentence": "We may even quote what was stated in the additional show cause A notice:\n\n• A \"Thus it appears that the sale contract which purports\n\nto be an 'agreement to sell' is actually a sale and that the property in the subject goods vested with M/s Bombay & Calcutta Cycle Co., at the time of importation.\""}}, {"text": "section 20", "label": "PROVISION", "start_char": 19013, "end_char": 19023, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 19031, "end_char": 19048, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "sections 18, 19 and 20", "label": "PROVISION", "start_char": 19551, "end_char": 19573, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act, 1930", "label": "STATUTE", "start_char": 19581, "end_char": 19604, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Japan", "label": "GPE", "start_char": 22450, "end_char": 22455, "source": "ner", "metadata": {"in_sentence": "It is clear that the respondent had a valid import Iiceuce under the cover of which 1t imported the goods from Japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customs auhorities."}}, {"text": "February 20,", "label": "DATE", "start_char": 22902, "end_char": 22914, "source": "ner", "metadata": {"in_sentence": "The entire controversy before the adjudicator was with reference to the importation of the goods by the Cycle Company which fact was sought to be established against the respondent from the legal position urged with regard to the passing of property to the Cycle Company at the time the contract had been made on February 20,\n\n1959."}}, {"text": "article 226", "label": "PROVISION", "start_char": 23360, "end_char": 23371, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 20", "label": "PROVISION", "start_char": 24129, "end_char": 24139, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay. & Calcutta Cycle Co.", "label": "ORG", "start_char": 24271, "end_char": 24299, "source": "ner", "metadata": {"in_sentence": "Even the Customs Authority in its additional show cause notice made particular reference to section 20 of the Said of Goods Act and pointed out that:-\n\n\"the ownership in the goods under consideration appears to have passf'd on to M/s Bombay. &"}}, {"text": "section 20", "label": "PROVISION", "start_char": 24520, "end_char": 24530, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 24538, "end_char": 24555, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "article 226", "label": "PROVISION", "start_char": 24678, "end_char": 24689, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Sangbi", "label": "OTHER_PERSON", "start_char": 24893, "end_char": 24899, "source": "ner", "metadata": {"in_sentence": "In the view we have taken regai:ding passing of property in the goods we need not d'al with Mr. Sangbi's submllision with reference to the provisions of warranty under section 12, of the Sale of Goods Act.", "canonical_name": "Sanghi"}}, {"text": "section 12", "label": "PROVISION", "start_char": 24965, "end_char": 24975, "source": "regex", "metadata": {"statute": null}}, {"text": "Sale of Goods Act", "label": "STATUTE", "start_char": 24984, "end_char": 25001, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_3_980_982_EN", "year": 1976, "text": "STATE OF MAHARASHTRA v.\n\nNARAYAN VYANKATESH DESHPANDE\n\nMarch 31, 1976\n\n[P. N. BHAGWATI, A. C. GUPTA ANDS. MURTAzA FAzAL ALI, JJ.]\n\nBombay Paragana. and Kulkarni Watans (Abolition) Act, 195omf.ensa~ tion payable on resu1nption of land under s. 6(2)-Whether the wllt'!n was in respect of the soil or the watan was of land revenue-Construction of \"Sanad\" granted by the British Governnient in tertns \"The Exemption From Land Revenue (No. I) Bombay Act 2 of 1863.\n\nThe respondent by virtue of the sanad granted to his ancestors by the British Government, claimed, in respect of certain lands situated in village Shiramba Taluka Koregaon, District North Satara, compensation under s. 6(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, for the resumption of the lands by the appellant. The suit claim of Rs. 15,074-4-0 being \"a sum equal to ten times the amount of such land revenue\" was decreed by the trial court.\n\nOn appeal by the State, the High Court affirmed the same, after construing the sanad granted by the British Government in favour of the respondents' ancestors and other relevant records. as it was a watan of land revenue and not in respect of the soil.\n\nDismissing the State's appeal by special leave to this Court,\n\nHELD : (I) The High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the watan held by the respondent at the date of the coming into force of the .Act was a watan of land revenue, the respondent was entitled to con1pensation in the sum of Rs. 15,074-4-0 under s. 6(2) of the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950.\n\n[982B-C]\n\n(2) The sanad undoubtedly used the words \"lands\" to describe the subject matter of the grant. but the word \"land\" is defined in Bombay Act II of 1863 [The Exemption From Land Revenue (No. 1) Act 1863, l to include share of land revenue and this meaning would apply in the construction of the word \"land\" in the sanad since the sanad was apparently granted pursuant to the enquiry made under Bombay Act II of 1863. The description of the sUbjectmatter would not, therefore, necessarily indicate that it was a grant of the son.\n\nIn fact, this_ description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accom panied by words such as 'Darobast' or 'Jal', 'Tarn', 'TruDa', 'Kastha' and 'Pashan'. [981F-H]\n\n[Their Lordships deprecated the litigious approach adopted by tbe State Government and observed \"State Governments which have public accountability in respect of their actions should not lightly rush to this , Court to challenge a JUdgme'!t of the igh Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense.]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1381 of • 1968. ,,,\n\n(Appeal by Special Leave from the Judgment and Decree dated the 22-2-1967 of the Bombay High Court in First Appeal No. 12/1960).\n\nM. N. Phadke, M. N. Shroff and S. P. Nayar, for the appellant.\n\nV. S. Desai and D. Goburdhan, for the respondent.\n\nMAHARASHTRA v. N. v. DESHPANDE (Bhagwati, J.) 981\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal by special leave raises a short ques- • tion as to whether the Watan held by the respondent at the date of coming into force of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 was .a Watan of the soil, or a Watan of land revenue ouly, in respect of certain lands situate in village shirambe, Taluka Koregaon, District North Statara. If the Watan was in respect of the soil, the respondent would not be entitled to any compensation for the resumption of the Watan lands, but if it was a Watan of land revenue only, the respondent would have a claim for compensation for a \"a sum equal to ten times the amount of such land revenue\" under s. 6(2) of the Act.\n\nThe respondent claimed that the Watan was of land revenue only and not of the soil and he was, therefore, entitled to compensation as provided in s. 6(2) of the Act and filed a suit for recovery of Rs. 15,074-4,0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, r Satara. The claim was decreed by the learned Civil Judge, Senior Division and on appeal by the State of Maharashtra the High Court affirmed the view taken by the learned Civil Judge, Senior Division.\n\nThe High Court construed tl1e Sanad granted by tl1e British Government in favour of the ancestors of the respondent in the light of the surrounding circumstances and particularly the entries contempmaneously made in the alienation register and came to the conc!tision that the grant embodied in the Sanad was not a grant of the soil but was merely a grant of land revenne and the respondent was, threfore, entitled to claim compensation the basis laid down in s. 6(2) of the Act.\n\nThe State of Maharashtra being aggrieved by the decree passed by the learned Civil Judge, Senior Division and affirmed by the High Court preferred the present appeal with special ;/ leave obtained from this Court.\n\nWe have carefully gone through ,!he judgment of the High Court and we find ourselves completely in agreement with the conclusion reached there.\n\nThe judgment of the High Court is a well reasoned judgment and the learned counsel appearing on behalf of the State of Maharashtra has not been able to show any infirmity in it. The opening part of the Sanad clearly shows that it was issued in recognition of a grant which was already made in favour of the ancestors of the respondent.\n\nThe Sanad 'undoubtedly used the word 'lands' to describe the subject-matter of the grant, but the word 'land' is defined in Bombay Act 2 of 1863 to include share of land revenue and this meaning should apply in the construction of the word 'land' in the Sanad, since the Sanad was apparently granted pur$nant to the enquiry made under Bombay Act 2 of 1863.\n\nThe description of the subject matter of the grant as 'lands' in the Sanad would not, therefore, necessarily indicate that it was a grant of the soil.\n\nIn fact, this description standing alone would rather indicate that it was a grant of land revenue only, since grant of the soil would ordinarily be accomoanied by words such as 'Darobast' or 'Jal', 'Taru', 'Truna', 'Kastha' and 'Pashan.' Moreover, the entries contemporaneously made in the alienation register also showed that the grant referred to in the Sanad was\n\na grant of land revenue only and not a grant of the soil.\n\nThe High\n\nSUPREME COURT REPORTS\n\n(1976) 3 S.C.R.\n\nA Court has discussed these entries and it is not necessary for us to reiterate what has been so ably said by the High Court. The earlier documents relied upon by the respondent have also been referred to by the High Court and they clearly go to show that the grant was of >--• land revenue and not of the soil. This position was in fact accepted by the Revenue Officers all throughout and that is evident from the order of the District Deputy Collector, Satara dated 19th August, 1937 B (Ex. 28) and the decision dated 28th February, 1951 (Ex. 331) given by the Collector of North Satara allo_wing_ an appeal filed by the respondent.\n\nWe are, therefore, of the view that the High Court was right in holding that the grant in favour of the ancestors of the respondent was a grant of land revenue only and not a grant of the soil and since the Watan held by the respondent at the date of the coming into force of the Act was a Watan of land revenue, the res- C pondent was entitled to compensation in the sum of Rs. 15,074-4-0 under s. 6(2) of the Act.\n\nIt is indeed difficult to understand as to why the State of Maharashtra should have preferred the present appeal at all. The judgment of the High Court was pre-eminently a correct judgment based on a careful appreciation of the evidence on record and it did no more than adopt a construction of the grant which had throughout been accepted as the correct construction by the Revenue Officers over the last 7 5 years.\n\nThe learned counsel appearing on behalf of the State of Maharashtra in fact found it impossible to assail the reason ing of the judgment. It is evident that the appeal was filed by the\n\nState of Maharashtra without giving much thought to the question and caring to enquire whether the judgment of the High Court suffered from any errors requiring to be corrected by a superior court.\n\nWe do not think it is right that State Governments should lightly prefer an appeal in this Court against a decision given by the High Court unless they are satisfied, on careful consideration and proper scrutiny, that the decision is erroneous and public interest requires that it should be brought before a superior court for being corrected.\n\nThe State Governments should not adopt a litigious approach and waste pnblic revenues on fruitless and futile litigation where there are no chances of success. It is unfortunately a fact that it costs quite a large sum of money to come to d1is Court and this Conrt has become untouchable and unapproachable by many litigants who cannot afford the large expense involved in fighting a litigation in this Court.\n\nIt is, therefore, all the more necessary that State Governments, which have public accountability in respect of their actions, should not lightly rush to this Court to challenge a judgment of the High Court which is plainly and manifestly correct and drag the opposite party in unnecessary expense, part of which would, in any event, not be compensated by award of cost.\n\nThe present appeal is an instance of the kind of unnecessary and futile litigation which the State Governments can and should avoid.\n\nWe accordingly dismiss the appeal with costs.\n\nS.R.\n\nAppeal dismissed.", "total_entities": 26, "entities": [{"text": "STATE OF MAHARASHTRA", "label": "PETITIONER", "start_char": 0, "end_char": 20, "source": "metadata", "metadata": {"canonical_name": "STATE OF MAHARASHTRA", "offset_not_found": false}}, {"text": "NARAYAN VYANKATESH DESHPANDE", "label": "RESPONDENT", "start_char": 25, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "NARAYAN VYANKATESH DESHPANDE", "offset_not_found": false}}, {"text": "March 31, 1976", "label": "DATE", "start_char": 55, "end_char": 69, "source": "ner", "metadata": {"in_sentence": "STATE OF MAHARASHTRA v.\n\nNARAYAN VYANKATESH DESHPANDE\n\nMarch 31, 1976\n\n[P. N. BHAGWATI, A. C. GUPTA ANDS."}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 72, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. C. GUPTA ANDS. MURTAzA FAzAL ALI, JJ.", "label": "JUDGE", "start_char": 88, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 240, "end_char": 247, "source": "regex", "metadata": {"statute": null}}, {"text": "Satara", "label": "GPE", "start_char": 649, "end_char": 655, "source": "ner", "metadata": {"in_sentence": "The respondent by virtue of the sanad granted to his ancestors by the British Government, claimed, in respect of certain lands situated in village Shiramba Taluka Koregaon, District North Satara, compensation under s. 6(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, for the resumption of the lands by the appellant."}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 676, "end_char": 683, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 1617, "end_char": 1624, "source": "regex", "metadata": {"statute": null}}, {"text": "Bombay Act II of 1863", "label": "STATUTE", "start_char": 1829, "end_char": 1850, "source": "regex", "metadata": {}}, {"text": "Bombay Act II of 1863", "label": "STATUTE", "start_char": 2092, "end_char": 2113, "source": "regex", "metadata": {}}, {"text": "M. N. Phadke", "label": "LAWYER", "start_char": 3030, "end_char": 3042, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, M. N. Shroff and S. P. Nayar, for the appellant."}}, {"text": "M. N. Shroff", "label": "LAWYER", "start_char": 3044, "end_char": 3056, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, M. N. Shroff and S. P. Nayar, for the appellant."}}, {"text": "S. P. Nayar", "label": "LAWYER", "start_char": 3061, "end_char": 3072, "source": "ner", "metadata": {"in_sentence": "M. N. Phadke, M. N. Shroff and S. P. Nayar, for the appellant."}}, {"text": "V. S. Desai", "label": "LAWYER", "start_char": 3094, "end_char": 3105, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and D. Goburdhan, for the respondent."}}, {"text": "D. Goburdhan", "label": "LAWYER", "start_char": 3110, "end_char": 3122, "source": "ner", "metadata": {"in_sentence": "V. S. Desai and D. Goburdhan, for the respondent."}}, {"text": "BHAGWATI", "label": "JUDGE", "start_char": 3240, "end_char": 3248, "source": "ner", "metadata": {"in_sentence": "MAHARASHTRA v. N. v. DESHPANDE (Bhagwati, J.) 981\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J.-This appeal by special leave raises a short ques- • tion as to whether the Watan held by the respondent at the date of coming into force of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 was .a Watan of the soil, or a Watan of land revenue ouly, in respect of certain lands situate in village shirambe, Taluka Koregaon, District North Statara."}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 3915, "end_char": 3922, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 4082, "end_char": 4089, "source": "regex", "metadata": {"statute": null}}, {"text": "State of Maharashtra", "label": "ORG", "start_char": 4184, "end_char": 4204, "source": "ner", "metadata": {"in_sentence": "15,074-4,0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, r Satara."}}, {"text": "Court of Civil Judge, Senior Division, r Satara", "label": "COURT", "start_char": 4212, "end_char": 4259, "source": "ner", "metadata": {"in_sentence": "15,074-4,0 by way of compensation against the State of Maharashtra in the Court of Civil Judge, Senior Division, r Satara."}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 4914, "end_char": 4921, "source": "regex", "metadata": {"statute": null}}, {"text": "19th August, 1937", "label": "DATE", "start_char": 7087, "end_char": 7104, "source": "ner", "metadata": {"in_sentence": "This position was in fact accepted by the Revenue Officers all throughout and that is evident from the order of the District Deputy Collector, Satara dated 19th August, 1937 B (Ex."}}, {"text": "28th February, 1951", "label": "DATE", "start_char": 7139, "end_char": 7158, "source": "ner", "metadata": {"in_sentence": "28) and the decision dated 28th February, 1951 (Ex."}}, {"text": "North Satara", "label": "GPE", "start_char": 7195, "end_char": 7207, "source": "ner", "metadata": {"in_sentence": "331) given by the Collector of North Satara allowing an appeal filed by the respondent."}}, {"text": "s. 6(2)", "label": "PROVISION", "start_char": 7651, "end_char": 7658, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_3_983_991_EN", "year": 1976, "text": "UNDAVILLI NAGARATHNAM & ANR. v.\n\nREDDI SATYANARAYANA MURTHI & ORS.\n\nApril I, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nTransfer of Property Act 1882-Secs. 76 (a)(e), 105-Meaning of lease- Distinction between lease & settlement-Whether recital in a document conclugive-Andhra Pradesh (Andhra Area) Tenancy Act 1956 Secs. 2(/)(e) 16, 17-\n\nMeaning of Landlord and Tenant-Bar of ; urisdiction.\n\nOne Mr. Subbarayudu had no male issue. He had his wife, plaintiff No. 2, and two daughters, one of whom is plaintiff No. 1 and another defendant No. 4.\n\nThe defendant No. 1 is the son of defendant No. 4.\n\nMr. SubbaraYudu and plaintiff No. 2 made various gifts in favour of their daughters. Shri Subbarayudu\n\nmade a settlement in the year 1955 whereby he gave the properties in Schedules A and B to the first plaintiff. The properties were to be enjoyed by Subbarayudu and plaintiff No. 2 during their life time and after the death of Subbarayudu plainti:ffi No. 1 was to get property mentioned in Schedule A and after the death of plaintiff No. 2 she was to get property mentioned in Sche-' dule B.\n\nIn 1958, Subbarayudu was alleged to have executed 4 documents including a Deed of Revocation revoking the settlement of 1955.\n\nIn 1958 Subbarayudu entered into a document with defendant No. 1 giVing him possession of the property in which he had life interest. The document provided that defendant No. 1 should deliver 43 bags of paddy every year to Subbarayudu and take a receipt.\n\nAfter the death of Subbarayudu plaintiffs Nos. 1 and 2 basing their claim on the settlement of 1955 called upon the defendant No. 1 to deiiver the possession of the property. The two issues which now survive are whether defendant No. 1 is entitled to any protection under the Andhra Tenancy Act and secondly whether the deed executed by Subbarayudu in favour of first defendant is a settlement deed or a lease. The Trial Court found that the settlement deed of 1955 was valid and that the subsequent deed of revocation was invalid. The High Court confirmed the said findings.\n\nThe same are not under challenge. The Trial Court, however, held the document to be a settlement deed and not a lease and that. therefore, the first defendant was not entitled to any protection under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956.\n\nAccordingly, the Trial Court decreed the suit of posses_sion in favour of the plaintiffs.\n\nThe High Court in appeal came to the conclusion that the document satisl fied all the conditions of the definition of lease under section 105 of the Transfer of Property Act and could not b~ treated as settlement,\n\nThe appellant-plaintiffs contended\n\n( 1) That the High Court was wrong in holding the document to be a lease and not a settlement.\n\n(2) Subbarayudu had re_served only life interest in Schedule A and B (j Properties and after he gifted the same to the plaintiff No. 2 he could not in , law imperil her right to possession of the same after his death by leasing out \"\\ the same property .\n\n. (3) In. any case it was .not. an act of pruden.t l!lanagement of the proper .. ttes in .which he. had only hfe .interest and the pnnc1ples applicable to a mort ..\n\ngagee m possession under section 76(a) and (e) of the Transfer of Property Act would. b~ applicable in the present caseand the lease would not be binding on the plambffs.\n\n( 4) Plaintiffs are not landlords within the meaning of Section ct and the defendant No. 1 is not a cultivating tenant under tiffs.\n\n2(f) of the the plain-\n\nDismissing the appeal,\n\nHELD : 1. The document is described as Settlement Deed but that recital is not decisive of the real intent of the document. The document makes it clear that the possession was handed over to defendant No. 1; that the defendant No. 1 was to give 43 bags of paddy every year and it further mentioDs \"without subjecting me to do any expense \\.vhatsoever and obtaining proper receipts from me\". The document does not disclose the disposition of the pro~\n\n'.B perty by a grandfather to a grandson but a business-like instrument. [988C-E]\n\n2. Subbarayudu was old and the Settlement Deed made it clear tltat during his life time he would enjoy the produce of the land. and therefore, he was keen to have at least some paddy from the land during his life time as a source of income and perhaps thought that his grandsonwould faithfully carry out the conditions without creating any difficulties.\n\n[699CDJ\n\n3. Assuming without deciding that the principles under section 76(a) &\n\n(e) of the Transfer of Property Act might be applicable, it cannot be said that granting of the lease to defendant No. 1 in the entire circumstances of the case was not a prudent act of management of the properties. In view of the relationship of the parties that was a natural arrangement for cultivation of the land.\n\n[989E-FJ\n\n4. When a person with fu11 knowledge of the Jaw, ignorance of which is no excuse, enters upon a lawful transaction or executes a valid docnrnent, the rights flowing from the ]a\\v cannot be denied to those who are entitled to their benefit on the supposed theory of estoppel or a plea of contracting out by implication. [990A-BJ\n\n5. Section 2(f) defines a landlord to mean the owner of holdin1! or part thereof who is entitled to evict the cultivating tenant from such holding and includes the heirs and assigns, legal representatives of such owners. <tr per sons deriving rights through him. Section 2 ( c) defines cultivating tenant to mean a person who cultivates by his own Jabour or by hired labonr under his supervision and control any land belonging to anq_ther under a tenancy agreement, express or implied. The High Court has found that defendant No. 1 was a cultivating tenant of the landlord. In view of the conclusion that the instrument is of lease there is no difficulty in holding that Subbarayudu was the, landlord and on the death of Subbarayudu plaintiffs are landlords. Section 16 of the Act provides for a special forum for adjudication of disputes under the Act including eviction of cultivating tenants and under section 17 of the Act the provisions of the act override anything inconsistent there\\vith contained in any preexisting law, custom, usage, agreement or decree or order of a Court.\n\n[990C-F, 991E-FJ\n\nCIVIL APPELLATE JURISDICTION 1968.\n\nCivil Appeal No. 1048 of\n\nAppeal from the Judgment and Decree/Order dated the 26th April 1967 of the Andhra Pradesh High Court in Appeal No. 64 of 1962.\n\nM. Natesan, K. Jayaram and R. Chandrasekar, for the Appelhnt.\n\nB. V. Subramanyam, I. Balaiah and G. Narasimhulu, for Respondent No. 1.\n\nEx-parte for Respondents 2-4.\n\nH The Judgment of the Court was delivered by\n\nGOSWAMI; J .-This is an appeal on certificate from the judgment of the Andhra Pradesh High Court.\n\n) ;\n\nu. NAGARATHNAM v. R. s. MURTH! (Goswami,!.)\n\n98S.\n\nThe two plaintiffs in the original suit are the appellants.\n\nThey brought a suit in the court of the Subordinate Judge, Rajahmundry, for evicting defendants. 1 to 3 from the properties in Schedule A, B and C and for delivery of possession of A and C Schedule properties to the first plaintiff and of the B Schedule properties either to the first plaintiff or to the second plaintiff. The suit properties were owned and possessed by Meenavalli.\n\nSuhbarayudu of Vedurupaka (hereinafter to be described as Subbarayudu). Subbarayudu was the husband of the second plaintiff and .father of the first plaintiff. He had no male issue. He had only two daughters, plaintiff No. I and defendant No. 4,, who was the older of the two.\n\nSubbarayudu made various dispositions of his property by executing several documents during his life time in favour of his daughters.\n\nSo did bis wife, the second plaintiff. While making such dispositions he was careful enough to make provision for himself and for his wife during their life time.\n\nThe fourth defendant was married in 1923 and defendant No. 1 is her son.\n\nThe first plaintiff was married in 1935.\n\nAfter the marriage of the first plaintiff the mother executed a deed of gift (Ex. B-6) on February 13, 1935 in her favour in respect of certain land.\n\nOn the same day her father also executed in her favour of deed of gift (Ex. B-7) in respect of some other land.\n\nOn Jnne 7, 1935, Subbarayudu executed anothe.r deed of gift ii1 favour of his first daughter, defendant No. 4, giving her also some land (Ex. B-8).\n\nAll the three documents were registered on the same day, namely, on June 11, 1935.\n\nAfter about nine years the mother executed a settlement deed (Ex. B-5) dated Jnne 7, 1944, in respect of her joint 1/3 share in certain properly in favour of her two daughters to be shared by them equally reserving life interest for herself.\n\nThen followed a settlement deed (Ex. A-4) of Januarv 8, 1950, executed by Subbarayudu in favour of the first plaintiff gi'ving her ten acres of pasture land as mentioned in C Schedule.\n\nSubbarayudu further executed a registered deed dated January 23, 1950\n\n<Ex. A-B), described as will, whereby he gave to his daughters all the properties barring a few mentioned therein and stating that after his own life time and after the life time of his wife all his movable and immovable properties would be taken in equal shares by his two daughters.\n\nOn April 14, 1955, he executed a settlement deed (Ex. A-\\) whereunder he gave A and B Schedule properties to the first plaintiff, his second daughter. By this document the A Schedule property was to be enjoyed by the first plaintiff after his life time and B Schedule property after the life time of her parents.\n\nThree years later on August 4, 1958, Subbarayudu executed four more documents including a deed of revocation. Ex. B-10 is the document by which the earlier document Ex. A-1 was revoked stating that the earlier one had been brought about by fraud and misrepresentation.\n\nEx. B-11 was exec';'ted P';'rporting to settle his property on both the daughters to be en1oyed m equal shares after the life time of their parents. Ex. B-12 was executed in favour of his wife and the elder daughter giving them a certain extent of the land in Mellore village ?esides the house sites and houses in Vedurupaka. It was mentioned m Ex. B-12 that after his life time his wife would be in possession without powers of alianation and that thereafter the elder daughter\n\nwould be entitled to possession and enjoyment of the property as an absolute owner.\n\nEx. B-13 was executed in favour of the first defendant, namely, grandson of Subbarayudu through his first daughter, giving him possession of the properties in which he had life interest stipulating at the same time that he (the first defendant) should deliver forty three bags of paddy and obtain receipt from him every year during his life time.\n\nThe plaintiffs' case is that Subbarayudu had leased out A and B Schedule properties mentioned in Ex. A-1 on August 16, 1958, to the third defendant, the son of the second defendant and that both these defendants were in possession of the properties as tenants from that time.\n\nSubbarayudu died on May 5, 1960.\n\nAfter his death plaintiffs 1 and 2 basing their claim on Ex. A-1 respectively gave notice to the third defendant on June 14, 1960 and on July 11, 1960, to deliver back the lands in their possession.\n\nThe third defendant replied that he was only working as a farm servant under the first defendant and the latter was the lessee under a deed dated August 4, 1958 and that the settlement deed in favour of the plaintiffs had been removed by late Subbarayudu.\n\nThe firs\\ plaintiff also had trouble with the first defendant when the latter drove away his watchman and lodged a complaint with the police claiming that he was in possession of the lands.\n\nThe first plaintiff thereupon sent a notice on August 20, 1960, to the first defenc, lant who, on the other hand, asserted his rights in the lands under a deed of settlement (Ex. B-13) dated August 4, 1958. That led to the institution of the present suit by the plaintiff out of which this appeal has arisen.\n\nThe first daughter of Subbarayudu was impleaded as defendant No. 4 in the plaint.\n\nThe first and the fourth defendants filed separate written statements. Defendants Nos. 2 and 3 filed a memo adopting the written , statement filed by the first defendant.\n\nAll of them repudiated the .plaintiffs' claim for possession of the lands.\n\nSeveral issues were raised, but we are concerned in this. appeal only with Issue No. 5 and the additional Issue No. 1 which are as follows :-\n\n\"Issue No. 5.\n\nWhether defendant No. 1 is entitled to any protection under the Andhra Tenancy Act ?\n\nAddition\"'! Issue No. 1 \"Whether the deed dated 4-8-1958 executed by late Meenavalli Subarayudu in favour of the !st defendant is a settlement deed or a lease ?\"\n\nIt may be mentioned that issue were raised regarding the validity Of Ex. A-1, Ex. B-10, Ex. B-11 and Ex. B-13. The trial court held that Ex. A-1 on which the plaintiffs based their suit was a valid document.\n\nThe trial court further held that the deed of revocation (Ex. B-10) and deed of settlement (Ex. B-11) were invalid.\n\nThe High Court affirmed these findings of the trial court and that con- troveTsy is closed.\n\n/ I\n\nWith regard to Ex. B-13, the trial court held it to be a true document and that it was a settlement deed and not a lease and that the first defendant was not entitled to any protection under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (briefly the Andhra Act) and tha! defendants 2 and 3 were not tenants in possession of the land at the time of institution of the suit. In the view it took the trial court decreed the suit for possession of A and C Schedule properties in favour of the first plaintiff and directing that the future profits, which would be payable. by the first defendant, were to be determined in separate proceedings.\n\nThe suit was also decreed in favour of the second plaintiff for possession of the B Schedule properties with similar orders regarding future profit>.\n\nOn appeal by the defendants the High Court, after hearing the parties, remanded the matter for a finding under order 41, rule 25.\n\nCivil Procedure Code, by framing the following issue :\n\n\"Whether the plaintiffs accepted the gift of A and B Schedule properties by late Subbarayudu before its revocation on 4-8-1958 by late Subbarayudu\"?\n\nThe subordinate judge returned a finding that the gift had been D accepted prior to the execution of the deed of revocation (Ex. B-10) .\n\nThe High Court thereafter heard the appeal and partly allowed the same.\n\nThe High Court, in disagreement with the trial court, came to the conclusion that the document Ex. B-13 satisfied all the conditions of the definition of lease under section 105 of the Transfer of Property Act and could not be treated as a settlement. The High Court further observed :\n\n\"The term of lease is co-terminus with the life of the lessor with the result that as soon as the life of Subbarayudu ended, the term of lease automatically expired.\n\nOn the death of Subbarayudu the property would pass to the persons specified in Ex. A-1. That must be the normal incidents of the transaction under the ordinary Jaw. At the time of the transaction of lease was entered into the Andhra Tenancy Act had already come into force. Subbarayudu was\n\nthe landlord and the 1st defendant was the cultivating tenant within the meaning of those terms in the Andhra Tenancy Act.\n\nOn the death of Subbarayudu his heirs, assignees and successors would likewise be landlords and they are entitled to evict the cultivating tenants\".\n\nRepelling the contention of the plaintiffs that the first defendant was not the tenant of Subbarayudu at all, but only a trespasser, the High Court held, on the oral and documentary evidence as well as on the admissions of defendants 2 and 3 with regard to the possession of defendant No. 1 as a lessee, that the defendant No. 1 was a cultivating tenant under the plaintiffs on the death of Subbarayudu. The High Court having come to that conclusion further held that the plaintiffs could evict the defendants only under the provisions of the\n\nAndhra Act by making an appropriate application to the Tehsildar and not in the present sit in the civil court. The High Court, therefore, .grnted. all the reliefs prayed for by .the plaintiffs except that \\., __ .,\n\nof eviction from A and B Schedule properties which was directed to be obtamed by due recourse to the provisions of the Andhra Act.\n\nThe High Court accordingly partly allowed the appeal refusing the prayer for eviction from A ;µid B Schedule properties but at the same e declaring that. the plaintiffs were entitled to the suit properties m terms of Ex. A-1. The C Schedule property was not the subject matter of appeal before the High Court and the decree in relation to that property was unaffected.\n\nMr. Natesan, the learned counsel appearing on behalf of the appellants, submits that the High Court is wrong in holding that Ex. B-13 is a lease and not a settlement.\n\nWe have perused tl1e document (Ex. B-13). It is true that it is described in the very opening words of the document as \"settlement deed\". But that recital is not decisive of the real intent of the docu- 1' ment.\n\nUnder section 105 of the Transfer of Property Act, a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or inlplied, or in perpetuity, m consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.\n\nThe necessary ingredients mentioned 1mder section 105 of the, Transfer of Propertv Act are found in the document (Ex. B-13). It is clear from the recitals that possession of the land was handed over by Subbarayudu to the first defendant for enjoying the same during the life time of Subbarayudu in consideration of \"!ortythree weighed bags of paddy worth Rs. 800/-\n\n.... every year commencing from 15-1-1959\". The document does not disclose a disposition of the property by a grandfather to a grandson out of love and affection but is a business-like instrument. To illustrate, the document refers to paddy to be delivered to Subbarayudu \"without subjecting me to any expenses whatsoever and obtaining proper receipts from me\".\n\nIt goes on to say that \"payment no,'. borne by receipt need not be given credit to you\". We are satisfied that the document (Ex. B-13) fulfils the ingredients of a lease. under section 105 of the Transfer of Property Act.\n\nThe submission of Mr. Natesan, therefore, cannot be accepted.\n\nMr. N atesan next contends that Subbarayudu reserving only \"life interest\" in the Schedule A and B properties after he had gifted the same to the plaintiffs by Ex. A-1 on April 14, 1955, could not in law 1 imperil their rights to possession of the same a1ter his death by .,- leasing out the same properties in 1958 in the manner done in view / of the provisions of the Andhra Act which had already come into force in 1956. At any rate, says Mr. Natesan, it was not an act of prudent management of the properties in which he had only life interest and the principles applicable to a mortgagee in possession under section 76(a) and (e) of the Transfer of Property Act would be applicable in the present case and the lease will not be binding on the plaintiffs.\n\nIn Ex. A-1 itself, which is the sheet-anchor of plaintiffs' claim, A there was reference, inier alia, to two things relevant for consideration on this aspect of the matter.\n\nFirstly, it is stated there :\n\n\"I and my wife, Bapanamma, who is your mother shall during our life time, be in enjoyment of the A Schedule mentioned property and B Schedule mentioned property respectively without powers of disposition by way of gift, sale, B etc., but only enjoying the produce got there by paying all Government taxes\".\n\nSecondly, further :\n\n\"After my life time you take possession of the A Schedule mentioned property and after your mother's life-time the B Schedule mentioned property\".\n\nIn the first extract just set out, Subbarayudu made it clear that during his life he would enjoy the produce of the land \"got there by t paying all Government taxes\". Subbarayudu was a1ready an old man in 1955 and was apparently unable personally to look after cultivation of the land. His wife and younger daughter were also, perhaps, considered by him no better for the purpose. Besides, it appears D that he was keen to have at least some paddy to come to him from the land during his life time as a source of income and perhaps thought that his grandson, the -first defendant, would faithfully carry out the conditions without creating difficulties. This position does not appear to have been disapproved even by the plaintiffs during the life time of Subbarayudu.\n\nAssuming, but not deciding, that the principles under section 76(a) and (e) of the Transfer of Property Act may even be applicable in this case, we are unable to hold that granting of the lease to defendant No. 1 in the entire circumstances of the case was not a prudent act of management of the properties.\n\nIn view of the relationship of the parties, that was a natural arrangement for cultivation of the land.\n\nMr. Natesan drew our attention to several decisions of this Court dealing with section 7 6 of the Transfer of Property Act and in particular to the decision in Prabhu v. Ramdev & Ors. (1), wherein this Court held that-\n\n\"evcn in regard to tenants inducted into the laud by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing np of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether\".\n\n(I) [1966] 3 S.C.R. 676.\n\nI 3-725SCI/76\n\nA Counsel submits that the present case is clearly distinguishable from the above case since prior to the execution of Ex. B-13 in 1958 the Andhra Act had already come into force and it was not a case :- . where certain special rights were created \"in the meanwhile\". •\"'\n\nWhen a person with full knowledge of the law, ignorance of which is no excuse, enters upon a lawful transaction or executes a valid B document, the rights flowing from the law cannot be denied to those who are entitled to their benefit on the supposed theory of estoppel or a plea of contracting out by implication. Prabhu's case (supra) is not an authority for such a proposition which counsel seeks to spell out. The provisions of the Andhra Act will, therefore, be attracted to the tenancy created by Ex. B-13. c\n\nIt is further contended by Mr. Natesan that the plaintiffs are not landlords within the meaning of section 2(f) of the Andhra Act.\n\nHe also submits that defendant No. 1 is not a cultivating tenant under the plaintiffs.\n\nBy section 2(f) of the Andhra Act, \"'landlord' means, the owner of a holding or part thereof who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such owner, or person deriving right5 through him\".\n\nBy section 2(c) of the said Act, \"'cultivating tenant' means a person who cultivates by his own labour or by that of any other member of his family or by hired Jabour under his supe.rvision and control, any land belonging to another under a tenancy agreement, express or implied, but does not include a mere intermediary\".\n\nThe High Court has found that defendant No. 1 was a cultivating tenant of the landlord under Subbarayudu relying on Ex. B-13 and also on admissions by the defendants 2 and 3 who conceded possession of the land by defendant No. 1 as a lessee under Subbarayudu and their own possession as farm servants under the first defendant.\n\nWe have no reason to take a contrary view.\n\nIn view of our conclusion that Ex. B-13 is an instrument of lease, there is no difficulty in holding that Subbarayudu was the quondam landlord of the first defendant within the meaning of section 2 (f) of the Andhra Ac, t.\n\nOnce tbat is established, section 10 of the Andhra Act takes care of the tenancy that has been.created under Ex. B-13. .\n\nSection 10 of the Andhra Act at the relevant time reads as under:-\n\n\"10(1) \"The minimum period of every lease entered into between a landlord and his cultivating tenant on or after the commencement of this Act, shall be six years.\n\nEvery such lease shall be in writing and shall specify the holding, its extent and the rent payable therefor, with such other particulars, as may be prescribed. The stamp and registration charges for every such lease shall be borne by the landlord and the cultivating tenant in equal shares.\n\n(2) Notwithstanding anythnig contained in sub-section (1 ) all tenancies subsisting on the date of promulgation of the Andhra Cultivating Tenants' Protection Ordinance, 1956 ( Andhra Ordinance 1 of 19 5 6) , and protected by that Ordinance, and all subsequent tenancy agreements entered into up to the commencement of this Act, shall continue for a period of five years from the 1st June 1956 or until the expiry of the lease in the normal course, whichever is later, on the same terms and conditions as before, bnt subject to the determination of fair rent in case of dispute.\n\n(3) After such termination, the landlord may resume the land from the cultivating tenant without any notice, and if the tenant does not surrender possession, the landlord may\n\nby an application before the Tahsildar obtain an order for C delivery of possession in the prescribed manner\".\n\nThus under section 10 ( 1) when Ex. B-13 was executed on August f 4, 1958, the lease created would by statute continue upto August 4, 1964 and even for further periods by later amendments of the Act.\n\nTaking the original section 10(1) itself, the landlord Subbarayudn died in May 1960 and there is no question of the lease ceasing on his D death in view of the clear provision under section 10 ( 1) . As assignees by gift the plaintiffs are landlords on the death of Subbarayudu.\n\nUnder section 11, the ownership thus being changed on the death of the landlord, the tenancy, which subsists by operation of law, will continue on the same terms and conditions for the unexpired portion of the lease under the scheme of the ct as amended. The expression \"currency of the lease\" in section 11 will include the E statutory extension of the lease under the provisions of the Andhra , t Act.\n\nTermination of tenancy under the Andhra Act is provided for under section 13. Under section 16, there is a special forum for adjudication of disputes under the Act including eviction of cultivating tenants.\n\nUnder section 17 the provisions of the Andhra Act over- F ride anything inconsistent th'erewith contained in any pre-existing law, custom, usage, agreement or decree or order of a Court.\n\nIt is, therefore, clear that the civil litigation between the parties having established their respective rights based on the two documents, Ex. A-1 and Ex. B-13, and the plaintiffs being landlords and defendant No. 1 being a cultivating tenant, eviction will have to be sought for in accordance with the provisions of the Andhra Act.\n\nThe High Court is right in refusing eviction through the process of the civil court.\n\nIn the result we are unable to interfere with the decree of the High Court.\n\nThe appeal is dismissed. however, no order as to costs.\n\njudgment and There .will be,\n\nP.H.P.\n\nAppeal dismissed.", "total_entities": 88, "entities": [{"text": "UNDAVILLI NAGARATHNAM & ANR", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "UNDAVILLI NAGARATHNAM & ANR", "offset_not_found": false}}, {"text": "REDDI SATYANARAYANA MURTHI & ORS", "label": "RESPONDENT", "start_char": 33, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "REDDI SATYANARAYANA MURTHI & ORS", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 84, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 101, "end_char": 119, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Transfer of Property Act 1882", "label": "STATUTE", "start_char": 122, "end_char": 151, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Tenancy Act 1956", "label": "STATUTE", "start_char": 300, "end_char": 316, "source": "regex", "metadata": {}}, {"text": "Subbarayudu", "label": "RESPONDENT", "start_char": 402, "end_char": 413, "source": "ner", "metadata": {"in_sentence": "One Mr. Subbarayudu had no male issue.", "canonical_name": "Subbarayudu"}}, {"text": "Tenancy Act, 1956", "label": "STATUTE", "start_char": 2287, "end_char": 2304, "source": "regex", "metadata": {}}, {"text": "section 105", "label": "PROVISION", "start_char": 2528, "end_char": 2539, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1956", "statute": "Tenancy Act, 1956"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 2547, "end_char": 2571, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 76(a)", "label": "PROVISION", "start_char": 3192, "end_char": 3205, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1956", "statute": "Tenancy Act, 1956"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 3221, "end_char": 3245, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Subbarayudu", "label": "RESPONDENT", "start_char": 4057, "end_char": 4068, "source": "ner", "metadata": {"in_sentence": "Subbarayudu was old and the Settlement Deed made it clear tltat during his life time he would enjoy the produce of the land.", "canonical_name": "Subbarayudu"}}, {"text": "section 76(a)", "label": "PROVISION", "start_char": 4473, "end_char": 4486, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 4501, "end_char": 4525, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Section 2(f)", "label": "PROVISION", "start_char": 5152, "end_char": 5164, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 2", "label": "PROVISION", "start_char": 5412, "end_char": 5421, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 16", "label": "PROVISION", "start_char": 5908, "end_char": 5918, "source": "regex", "metadata": {"statute": null}}, {"text": "section 17", "label": "PROVISION", "start_char": 6054, "end_char": 6064, "source": "regex", "metadata": {"statute": null}}, {"text": "M. Natesan", "label": "LAWYER", "start_char": 6443, "end_char": 6453, "source": "ner", "metadata": {"in_sentence": "M. Natesan, K. Jayaram and R. Chandrasekar, for the Appelhnt.", "canonical_name": "M. Natesan"}}, {"text": "K. Jayaram", "label": "LAWYER", "start_char": 6455, "end_char": 6465, "source": "ner", "metadata": {"in_sentence": "M. Natesan, K. Jayaram and R. Chandrasekar, for the Appelhnt."}}, {"text": "R. Chandrasekar", "label": "LAWYER", "start_char": 6470, "end_char": 6485, "source": "ner", "metadata": {"in_sentence": "M. Natesan, K. Jayaram and R. Chandrasekar, for the Appelhnt."}}, {"text": "B. V. Subramanyam", "label": "LAWYER", "start_char": 6506, "end_char": 6523, "source": "ner", "metadata": {"in_sentence": "B. V. Subramanyam, I. Balaiah and G. Narasimhulu, for Respondent No."}}, {"text": "I. Balaiah", "label": "LAWYER", "start_char": 6525, "end_char": 6535, "source": "ner", "metadata": {"in_sentence": "B. V. Subramanyam, I. Balaiah and G. Narasimhulu, for Respondent No."}}, {"text": "G. Narasimhulu", "label": "LAWYER", "start_char": 6540, "end_char": 6554, "source": "ner", "metadata": {"in_sentence": "B. V. Subramanyam, I. Balaiah and G. Narasimhulu, for Respondent No."}}, {"text": "GOSWAMI", "label": "JUDGE", "start_char": 6656, "end_char": 6663, "source": "ner", "metadata": {"in_sentence": "H The Judgment of the Court was delivered by\n\nGOSWAMI; J .-This is an appeal on certificate from the judgment of the Andhra Pradesh High Court."}}, {"text": "Subordinate Judge, Rajahmundry", "label": "COURT", "start_char": 6912, "end_char": 6942, "source": "ner", "metadata": {"in_sentence": "They brought a suit in the court of the Subordinate Judge, Rajahmundry, for evicting defendants."}}, {"text": "Meenavalli", "label": "OTHER_PERSON", "start_char": 7243, "end_char": 7253, "source": "ner", "metadata": {"in_sentence": "The suit properties were owned and possessed by Meenavalli."}}, {"text": "Suhbarayudu", "label": "RESPONDENT", "start_char": 7256, "end_char": 7267, "source": "ner", "metadata": {"in_sentence": "Suhbarayudu of Vedurupaka (hereinafter to be described as Subbarayudu).", "canonical_name": "Subbarayudu"}}, {"text": "Vedurupaka", "label": "GPE", "start_char": 7271, "end_char": 7281, "source": "ner", "metadata": {"in_sentence": "Suhbarayudu of Vedurupaka (hereinafter to be described as Subbarayudu)."}}, {"text": "February 13, 1935", "label": "DATE", "start_char": 8039, "end_char": 8056, "source": "ner", "metadata": {"in_sentence": "B-6) on February 13, 1935 in her favour in respect of certain land."}}, {"text": "Jnne 7, 1935", "label": "DATE", "start_char": 8216, "end_char": 8228, "source": "ner", "metadata": {"in_sentence": "On Jnne 7, 1935, Subbarayudu executed anothe.r deed of gift ii1 favour of his first daughter, defendant No."}}, {"text": "June 11, 1935", "label": "DATE", "start_char": 8430, "end_char": 8443, "source": "ner", "metadata": {"in_sentence": "All the three documents were registered on the same day, namely, on June 11, 1935."}}, {"text": "January 23, 1950", "label": "DATE", "start_char": 8928, "end_char": 8944, "source": "ner", "metadata": {"in_sentence": "Subbarayudu further executed a registered deed dated January 23, 1950\n\n<Ex."}}, {"text": "April 14, 1955", "label": "DATE", "start_char": 9235, "end_char": 9249, "source": "ner", "metadata": {"in_sentence": "On April 14, 1955, he executed a settlement deed (Ex."}}, {"text": "August 4, 1958", "label": "DATE", "start_char": 9567, "end_char": 9581, "source": "ner", "metadata": {"in_sentence": "Three years later on August 4, 1958, Subbarayudu executed four more documents including a deed of revocation."}}, {"text": "Mellore village", "label": "GPE", "start_char": 10076, "end_char": 10091, "source": "ner", "metadata": {"in_sentence": "B-12 was executed in favour of his wife and the elder daughter giving them a certain extent of the land in Mellore village ?"}}, {"text": "August 16, 1958", "label": "DATE", "start_char": 10837, "end_char": 10852, "source": "ner", "metadata": {"in_sentence": "A-1 on August 16, 1958, to the third defendant, the son of the second defendant and that both these defendants were in possession of the properties as tenants from that time."}}, {"text": "May 5, 1960", "label": "DATE", "start_char": 11026, "end_char": 11037, "source": "ner", "metadata": {"in_sentence": "Subbarayudu died on May 5, 1960."}}, {"text": "June 14, 1960", "label": "DATE", "start_char": 11156, "end_char": 11169, "source": "ner", "metadata": {"in_sentence": "A-1 respectively gave notice to the third defendant on June 14, 1960 and on July 11, 1960, to deliver back the lands in their possession."}}, {"text": "July 11, 1960", "label": "DATE", "start_char": 11177, "end_char": 11190, "source": "ner", "metadata": {"in_sentence": "A-1 respectively gave notice to the third defendant on June 14, 1960 and on July 11, 1960, to deliver back the lands in their possession."}}, {"text": "August 20, 1960", "label": "DATE", "start_char": 11735, "end_char": 11750, "source": "ner", "metadata": {"in_sentence": "The first plaintiff thereupon sent a notice on August 20, 1960, to the first defenc, lant who, on the other hand, asserted his rights in the lands under a deed of settlement (Ex."}}, {"text": "4-8-1958", "label": "DATE", "start_char": 12621, "end_char": 12629, "source": "ner", "metadata": {"in_sentence": "1 \"Whether the deed dated 4-8-1958 executed by late Meenavalli Subarayudu in favour of the !"}}, {"text": "Meenavalli Subarayudu", "label": "OTHER_PERSON", "start_char": 12647, "end_char": 12668, "source": "ner", "metadata": {"in_sentence": "1 \"Whether the deed dated 4-8-1958 executed by late Meenavalli Subarayudu in favour of the !"}}, {"text": "Tenancy Act, 1956", "label": "STATUTE", "start_char": 13384, "end_char": 13401, "source": "regex", "metadata": {}}, {"text": "order 41, rule 25", "label": "PROVISION", "start_char": 14067, "end_char": 14084, "source": "regex", "metadata": {"linked_statute_text": "Tenancy Act, 1956", "statute": "Tenancy Act, 1956"}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 14087, "end_char": 14107, "source": "regex", "metadata": {}}, {"text": "section 105", "label": "PROVISION", "start_char": 14670, "end_char": 14681, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 14689, "end_char": 14713, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "At the time of the transaction of lease was entered into the Andhra Tenancy Act", "label": "STATUTE", "start_char": 15124, "end_char": 15203, "source": "regex", "metadata": {}}, {"text": "Natesan", "label": "LAWYER", "start_char": 16791, "end_char": 16798, "source": "ner", "metadata": {"in_sentence": "Mr. Natesan, the learned counsel appearing on behalf of the appellants, submits that the High Court is wrong in holding that Ex.", "canonical_name": "M. Natesan"}}, {"text": "section 105", "label": "PROVISION", "start_char": 17174, "end_char": 17185, "source": "regex", "metadata": {"linked_statute_text": "Schedule properties which was directed to be obtamed by due recourse to the provisions of the Andhra Act", "statute": "Schedule properties which was directed to be obtamed by due recourse to the provisions of the Andhra Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 17193, "end_char": 17217, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 105", "label": "PROVISION", "start_char": 17649, "end_char": 17660, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Propertv Act", "label": "STATUTE", "start_char": 17669, "end_char": 17693, "source": "regex", "metadata": {}}, {"text": "15-1-1959", "label": "DATE", "start_char": 18005, "end_char": 18014, "source": "ner", "metadata": {"in_sentence": "800/-\n\n.... every year commencing from 15-1-1959\"."}}, {"text": "section 105", "label": "PROVISION", "start_char": 18513, "end_char": 18524, "source": "regex", "metadata": {"linked_statute_text": "Transfer of Propertv Act", "statute": "Transfer of Propertv Act"}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 18532, "end_char": 18556, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "N atesan next", "label": "OTHER_PERSON", "start_char": 18626, "end_char": 18639, "source": "ner", "metadata": {"in_sentence": "Mr. N atesan next contends that Subbarayudu reserving only \"life interest\" in the Schedule A and B properties after he had gifted the same to the plaintiffs by Ex."}}, {"text": "section 76(a)", "label": "PROVISION", "start_char": 19235, "end_char": 19248, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 19264, "end_char": 19288, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Bapanamma", "label": "OTHER_PERSON", "start_char": 19604, "end_char": 19613, "source": "ner", "metadata": {"in_sentence": "Firstly, it is stated there :\n\n\"I and my wife, Bapanamma, who is your mother shall during our life time, be in enjoyment of the A Schedule mentioned property and B Schedule mentioned property respectively without powers of disposition by way of gift, sale, B etc.,"}}, {"text": "section 76(a)", "label": "PROVISION", "start_char": 20889, "end_char": 20902, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 20918, "end_char": 20942, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 7", "label": "PROVISION", "start_char": 21328, "end_char": 21337, "source": "regex", "metadata": {"statute": null}}, {"text": "Transfer of Property Act", "label": "STATUTE", "start_char": 21347, "end_char": 21371, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "[1966] 3 S.C.R. 676", "label": "CASE_CITATION", "start_char": 22009, "end_char": 22028, "source": "regex", "metadata": {}}, {"text": "Prabhu", "label": "OTHER_PERSON", "start_char": 22635, "end_char": 22641, "source": "ner", "metadata": {"in_sentence": "Prabhu's case (supra) is not an authority for such a proposition which counsel seeks to spell out."}}, {"text": "section 2(f)", "label": "PROVISION", "start_char": 22935, "end_char": 22947, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(f)", "label": "PROVISION", "start_char": 23059, "end_char": 23071, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2(c)", "label": "PROVISION", "start_char": 23340, "end_char": 23352, "source": "regex", "metadata": {"statute": null}}, {"text": "section 2", "label": "PROVISION", "start_char": 24222, "end_char": 24231, "source": "regex", "metadata": {"statute": null}}, {"text": "section 10", "label": "PROVISION", "start_char": 24284, "end_char": 24294, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 10", "label": "PROVISION", "start_char": 24380, "end_char": 24390, "source": "regex", "metadata": {"statute": null}}, {"text": "Protection Ordinance, 1956", "label": "STATUTE", "start_char": 25052, "end_char": 25078, "source": "regex", "metadata": {}}, {"text": "1st June 1956", "label": "DATE", "start_char": 25284, "end_char": 25297, "source": "ner", "metadata": {"in_sentence": "(2) Notwithstanding anythnig contained in sub-section (1 ) all tenancies subsisting on the date of promulgation of the Andhra Cultivating Tenants' Protection Ordinance, 1956 ( Andhra Ordinance 1 of 19 5 6) , and protected by that Ordinance, and all subsequent tenancy agreements entered into up to the commencement of this Act, shall continue for a period of five years from the 1st June 1956 or until the expiry of the lease in the normal course, whichever is later, on the same terms and conditions as before, bnt subject to the determination of fair rent in case of dispute."}}, {"text": "section 10", "label": "PROVISION", "start_char": 25783, "end_char": 25793, "source": "regex", "metadata": {"linked_statute_text": "Protection Ordinance, 1956", "statute": "Protection Ordinance, 1956"}}, {"text": "August f 4, 1958", "label": "DATE", "start_char": 25829, "end_char": 25845, "source": "ner", "metadata": {"in_sentence": "B-13 was executed on August f 4, 1958, the lease created would by statute continue upto August 4, 1964 and even for further periods by later amendments of the Act."}}, {"text": "August 4, 1964", "label": "DATE", "start_char": 25896, "end_char": 25910, "source": "ner", "metadata": {"in_sentence": "B-13 was executed on August f 4, 1958, the lease created would by statute continue upto August 4, 1964 and even for further periods by later amendments of the Act."}}, {"text": "section 10(1)", "label": "PROVISION", "start_char": 25993, "end_char": 26006, "source": "regex", "metadata": {"linked_statute_text": "Protection Ordinance, 1956", "statute": "Protection Ordinance, 1956"}}, {"text": "Subbarayudn", "label": "RESPONDENT", "start_char": 26028, "end_char": 26039, "source": "ner", "metadata": {"in_sentence": "Taking the original section 10(1) itself, the landlord Subbarayudn died in May 1960 and there is no question of the lease ceasing on his D death in view of the clear provision under section 10 ( 1) .", "canonical_name": "Subbarayudu"}}, {"text": "section 10", "label": "PROVISION", "start_char": 26155, "end_char": 26165, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 26259, "end_char": 26269, "source": "regex", "metadata": {"statute": null}}, {"text": "section 11", "label": "PROVISION", "start_char": 26550, "end_char": 26560, "source": "regex", "metadata": {"statute": null}}, {"text": "Termination of tenancy under the Andhra Act", "label": "STATUTE", "start_char": 26658, "end_char": 26701, "source": "regex", "metadata": {}}, {"text": "section 13", "label": "PROVISION", "start_char": 26724, "end_char": 26734, "source": "regex", "metadata": {"linked_statute_text": "Termination of tenancy under the Andhra Act", "statute": "Termination of tenancy under the Andhra Act"}}, {"text": "section 16", "label": "PROVISION", "start_char": 26742, "end_char": 26752, "source": "regex", "metadata": {"linked_statute_text": "Termination of tenancy under the Andhra Act", "statute": "Termination of tenancy under the Andhra Act"}}, {"text": "section 17", "label": "PROVISION", "start_char": 26872, "end_char": 26882, "source": "regex", "metadata": {"linked_statute_text": "Termination of tenancy under the Andhra Act", "statute": "Termination of tenancy under the Andhra Act"}}]}
{"document_id": "1976_3_992_997_EN", "year": 1976, "text": "INDIAN ALUMINIUM CABLES LTD. v.\n\nSTATE .OF HARYANA\n\nApril 2, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nExemption froni tax liability-General Tax exemption--Central Sales Tax .A.ct (74 of 1956)-Section 8(2A) and Explanation thereto-Meaning of \"exempt from tax geenrally\".\n\nPunjab Sales Tax Act-Section 5(2) (a) (iv) -Nature of exemption granted under the Section-Whether in specified circuni stances or under specified conditions.\n\nUnder section 5(2)(a)(iv) of the Punjab Sales Tax Act \"taxable turnover\" meant that part of a dealer's gross turnover during any period which remains after deducting therefrom, his turnover during that period on sales to any undertaking supplying electrical energy to the public under a licence or sanction. granted under the Indian Electricity Act, 1910. of goods for use by it in the generation or distribution of such energy.\n\nUnder section 8 of the Central Sales Tax, every dealer~ who in the course 4t of inter state trade or commerce sells to the Goernment any goods; or sells to a registered dealer other than the Government goods of the description referred to in sub section ( 3) shall be liable to pay tax under the Act, which shall be three per cent of his turnover. Section 8(2A) reads as follows:-\n\n\"Notwithstanding anything contained in sub-section (IA) of section 6 or sub section (1) or sub section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the §ale or, as the case may be, the purchase of which is. under the sales tax law of the appropriate state, exempt, from tax generf!llY, or subject to tax\n\nenerally at a rate which is lower than three per cent, (whether called a tax or fee or by any other name), shall be riil or, as the case may be, shall be calculated at the lower rate.\n\nExplanation : For the purpose of this sub-section or sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate state, if under the law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or vurchase of such g_9ods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.\" The appellants were suppliers of poles and cables to the Delhi Electric Sup_ply Undertaking and the sales were in the course of inter state trade or commerce and admittedly exempt under the state sales tax u/s 5(2)(a)(iv)'.\n\nThe state assessed tax u/s 8 of the Central Sales Tax Act, 1956 on the ground that the exemption granted ufs 5(2)(a)(iv) of the state Act fell under Explanation to s. 8(2A) of the Central Sales Tax Act. The High Court held that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of section 8 ( 1A) of the Central Act read with section 5(2)(a)(iv) of the State Act.\n\nDismissing the appeal, by special leave, the Court.\n\nHELD : (1) General exemption means that goods should be totally exempt from tax before similar exemption from the. levy of central ses .tax can become available. Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exe1nDtion from tax generally.\n\nSection 6 of the State Act does not speak of exemption but deals with tax free goods. Section 6 deals with specified goods on '\\Vhich no tax is: payable~\n\nINDIAN ALUMINIUM CABLES v. H\"-RYANA (Ray, CJ.) 993\n\nSection 5 of the State Act deals with what has to be excluded from taxable turnover of the dealer. Both the sections deal with goods which do not sulfer from sales tax. Section 8(2A) of the Central Act exempts goods from inter state sales tax where a tax law of the state has exempted them from sales tax.\n\nThe explanation to section 8(2A) of the Central Act takes away the exemption where it is not general and has been granted in specified circumstances or under\n\n•pecified conditions. The provisions contained in section 5(2)(a)(iv) of the state Act exclude sales which are made under specified circumstances or specified conditions. The specified circumstances are that the sale ml!St be to an undertaking engaged in supplying electrical energy to the public under a licence or sanction granted under the Indian Electricijy Act,. 191-0. The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy.\n\nIf the circumstances do not exist or if the conditions are not performed then the sales of goods cannot be exempted from tax. The expression \"generation or distribution of such energy\" specifies the condition under which exemption is granted.\n\n[996H,\n\n997A-D]\n\nCommissioner of Sales Tax, M.P. v. Kapoor Dari Niwar &: Co., Gwalior 22 STC p. 152; Hindustan Safety Glass Works (P) Ltd. v. The State of U.P. and j Anr. 34 STC 209, discusse<l-\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 68 of 1974 and 936 of 1975.\n\nAppeals by Special Leave from the Judgment and Order dated D 5-11-1973 of the Punjab & Haryana High Court in Sales Tax Reference Nos. 12 and 11 of 1969.\n\nR. S. Desai, (In CA No. 936/75), P. C. Bhartari, R. Narain, K.\n\nJ. John, 0. C. Mathur for the Appellants.\n\nB. Sen, (In CA No. 68/74), and R. N. Sachthey for the Respondent.\n\nP. C. Bhariari for Applicant/Interveners (In CA No. 68/74).\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal by special leave is on the question whether the appellant is exempt from inter-State tax on the sales of poles and cables to the Delhi Electric Supply Undertaking by reason of the provi- F sions contained in section 5 (2)(a)(iv) of the Punjab Sales Tux Act hereinafter referred to as the State Act.\n\nSection 5(2)(a)(iv) of the State Act is as follows:\n\n\"5 (2) In this Act the expression \"taxable turnover\" means that part of a dealer's gross turnover during any period which remains after deducting therefrom- G\n\n(a) his turnover during that period on-\n\n(iv) sales to an~ undertaki\".g supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910, of goods for use by it in the generation or distribution of such energy.\" H\n\nUnder section 8 of the Central Sales Tax Act hereinafter referred to as the Central Act, every dealer, who in the course of inter-State\n\n99~\n\nSUPREME COUR'J: REPORTS\n\n[1976] 3 S.C.R.\n\ntrade or commerce sells to the Government [lny goods; or sells to a registered dealer other than the Government goods of the desciption referred to in sub-section (3) shall be liable to pay tax under this Act, which shall be three per cent of his turnover.\n\nThe provisions in section 8(2A) of the Central Act are as follows:-\n\n\"Noitwithstandrng anything contained in sub-section (IA) of section 6 or sub-section ( 1) or sub-section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as t_he case may be, the purchase of which is, under the sales t'ax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than three_ per cent, (whether called a tax or fee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate.\n\nEXPLANATION: For the purposes, oL this sub-section a sale or purchase of any goods shall not be deemed to be . . exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of_ such goods is exempt only in SJl_ecified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the tnrnover of the goods.\"\n\nThe contention on behalf of the appellant is that by reason of the Explanation to section 8 (2A) of the Central Act read with section 5 (2)(a) (iv) of the State Act the appellant is exempt from payment of inter-State sales tax. The words \"goods for use by it in the generation or distribution of such energy\" occurring in section 5(2)(a)(iv) of the State Act are said by counsel for the appellant to be descriptive of the goods. fa short, the appellant's contention is that goods for use by the undertaking supplying electrical energy are generally exempt from taxation, and, therefore, they should not be included in the turnover.\n\nThe contention on behalf of the State is that the exemption granted under sectio.:i. 5(2)(a)(iv) of the State Act is exemption in specified circumstances and under specified conditions. The specified circumstances are said to be sales to an undertaking supplying electriC'al energy to the public under the Indian Electricity Act, 1910. The specified conditions are that the goods are for use by the undertaking in the generation or distribution of such energy.\n\nThe answer to the question in this appeal is whether the exemption mentioned in section 5(2) (a) (iv) -0f the State Act is in specified circumstances or under specified conditions, as the c-ase may be, or it i£ a general exemption as the appellant contends in cases of sales of goods to an Electric Supply Undertaking for use by it in the generation or distribution of such energy.\n\nINDIAN ALUMINIUM <; A1JJ, ES V. HARYANA (Ray, C.J.) 995\n\nThe appellant referred to Schedule B read with section 6 of the State Act iiad in particular Items 33 and 46 to illustrate what would be exemption under specified circumstances or specified conditions. In Scbedule B there are two columns.\n\nThe first column describes the goods.\n\nThe second cofomn describes the conditions which make the goods tax free. In Item 33 in Schedule B \"Photographs including Xrays photographs\" mentioned in the first column are tax free \"when sold by photographers and radiologists preparing them\" as mentioned in the second column. In Item 46 \"hand spun yarn\" mentioned in the first column becomes tax free \"when sold by oae who deals in hand spun yarn exclusively\" as mentioned in the second column.\n\nSection 5 (2) of the State Act deals with taxable turnover. There is no dispute that electricity poles and cables sold to the undertakingi supplying electric energy are exempt under the State Act from beil1g included within the taxable turnover. The question is whether such S'ales made in the course of inter-State trade are also exempt from the levy of Central Sales Tax.\n\nThe appellant contends that the exemption in the State Act is general because exemption applies in respect of goods without iiay enumeration or classification of goods. Further, it is said that exemp- D lion is general because the sales are for use in generation and distribution of electrical energy. According to the appellant sales of all goods to the undertaking supplyiiag electrical energy are exempt from being included in the taxable turnover as long as the goods answer the description that they are for use in the generation or distribution of electrical energy.\n\nThe appellant relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Kapoor Dori Niwar & Co., Gwalior(') ill support of the meaning of the expression \"exempt from tax generally\". In the Madhya Pradesh case (supra) the State Government issued a notification in the year 1959 exempting from the payment of sales tax for a period of one year sales of niwar by a dealer registered under the 1958 relevant State Act. The exemption was later on extended up to 31 March, 1963. The assessee a registered dealer claimed exemption on rater-State sales of niwar. The Madhya Pradesh High Court held that during the period of the exemption, the sales of niwar by a registered dealer were exempt from tax generally within the meaning of section 8(2A) of the Central Act, and, therefore, the assessee's inter-State sales of niwar were exempt from tax under the Central Act.\n\nThe expression \"exempt only in specified circurustances or under specified conditions\" occurring in the Explanation to section 8 (2A) of the Central Act was held to mean such circumstances or conditions the n1?U-existence or non-performance of which precludes the grant of exemption. In other words, if those circumstances do not exist or those conditions are not performed then the sales of goods cannot be exempted from tax even if they are effected by a class of dealers to whom exemption is granted and durrag the period for which exemption is granted.\n\n(l) 22 S.T.C. 152.\n\nSUPREME COURT REPORTS\n\n\nIn the Madhya Pradesh case (supra) there was no dispnte that the sales effected by the assessee fell under section 8 ( 1) of the Central Act. The State Act granted exemption from sales_ tax on sales of l!iwar ' ~- • effected by a registered dealer. The. exemption granted to sales by a registered dealer under the notificatidil was without any restriction or limitation so far as sales by a registered dealer were concerned. Though the period of exemption was fixed, it was. not regarded as a condition imposed in relation to the exemption. It was also contended there that because the exemption was granted to the registered dealers the exemp- B\n\ntion was granted to a class of dealers, and, therefore, it should be construed to be an exemption in specified circumstances or under specified conditions. The Court repelled the contention by stating that the exemption was to all registered dealers without any restriction or condition.\n\nThe other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. v. The State of Uttar Pradesh & Anr.(') In the Safety Glass Works case (supra) the company manufactured toughened glasses and mirrors in its factories.\n\nUnder a notification issued by the State Governme1,1t under the State Act sales of mirrors and safety glasses were liab)e to sales tax either at the point of sale by the importer of such gcoos or at the point o~ sale by the manufacturer thereof.\n\nSubsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years. The company claimed that the turnover of sales of toughened glasses and mirrors manufactured by E it, being generally exempt from tax under the State Act, was also not liable to Central Sales Tax because of the provisions contained in section 8(2A) of the Central Act. It was held that for purposes of sectidn 8 ( 2A) of the Central Act, sale of mirrors and toughened glasses manufactured by the company was under no condition and in no circumstance liable to be taxed in the hands of the company. The reasons given were that normally it will be taken that the sale of mirrors and toughened glasses by the company was exempt from tax generally unless it could be shown , that such goods belonged to the F\n\nclass specified in the Explanation to section 8(2A) of the Central Act.\n\nAs the toughened glasses and mirrors manufactured by the company did not fall in such a category the turnover of the sales of those goods in the hands of the company was not liable to tax under the Central Act.\n\nThe stipulation in the notification in the Safety Glass Works case '(supra) that the turnover of such sales would fpr a period of three years be exempt from payment of sales tax did not amount to exempt- 'ing the turnover of such goods from tax under specified circumstances or specified conditions.\n\nSection 6 of the State Act does not speak of exemption, but deals with tax free goods. In other words, section 6 deals with specified goods on which no tax is payable. Section .5 of the State Act deals with what has to be excluded from the taxable turnover of the dealer.\n\n(1) 34 S.T-C. 209.\n\nJNDIAN ALUMINIUM CABLES V. HARYANA (Ray, C.J.) 997\n\nBoth the sections deal with goods which do not suffer from.. sales tax.\n\nSection 8(2A) of th Central Act exempts goods from inter-State sales\n\n• A tax where a tax Jaw of the State has exempted them from sales tax. The Explamtion to section 8(2A) of the Central Act takes' away the exemption where it is not general and has been granted jn specified circumstances or under specified cdnditions. The provisions contained in section 5 ( 2) (a) (iv) of the State Act exclude sales which are made under specified circumstances or specified conditions.\n\nThe specified circumstances are that the sale must be to an undertaking engaged in supplying electrical energy to the public under a licence or sa'ilction granted under the Indian Electricity Act, 1910. The specified condition is that the goods purchased by the undertaking must be used for the generation or distribution of electrical energy. If the circumstances do not exist or if the cdnditions are not pedormed then the sales of goods cannot be exempted from tax.\n\nGeneral exemption means that the goods should be totally exempt from tax before similar exemption from the levy of Central sales tax can become available. Where the f exemption from taxation is conferred by conditions or in certain circumstances there is no exemptio,1 from tax generally.\n\nThe contention of the appellant that the words \"in the generation or distribution of such energy\" in section 5 (2)(a)(iv) of the State Act are descriptive of goods is unacceptable. The expq:ssion \"generation or distribution of such e'aergy\" specifies the condition under which , exemption is granted. -\n\nFor these reasons we are of opinion that the High Court was correct in holding that the sales by the undertaking supplying electrical energy were not exempt from tax generally within the meaning of E\n\n.1 sectioo 8 ( 2A) of the Central Act read with setion 5 ( 2 )(a)( iv) of the State Act. The appeal is cjismissed. In view of the fact that the High Court directed the parties to pay and bear their own costs, similar order is made here.\n\nS.R.\n\nAppeal dismissed .", "total_entities": 69, "entities": [{"text": "INDIAN ALUMINIUM CABLES LTD", "label": "PETITIONER", "start_char": 0, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "INDIAN ALUMINIUM CABLES LTD", "offset_not_found": false}}, {"text": "STATE .OF HARYANA", "label": "RESPONDENT", "start_char": 33, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 68, "end_char": 83, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 85, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "M. 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S. Desai", "label": "OTHER_PERSON", "start_char": 5310, "end_char": 5321, "source": "ner", "metadata": {"in_sentence": "R. S. Desai, (In CA No."}}, {"text": "P. C. Bhartari", "label": "LAWYER", "start_char": 5343, "end_char": 5357, "source": "ner", "metadata": {"in_sentence": "936/75), P. C. Bhartari, R. Narain, K.\n\nJ. John, 0.", "canonical_name": "P. C. Bhartari"}}, {"text": "R. Narain", "label": "LAWYER", "start_char": 5359, "end_char": 5368, "source": "ner", "metadata": {"in_sentence": "936/75), P. C. Bhartari, R. Narain, K.\n\nJ. John, 0."}}, {"text": "K.\n\nJ. John", "label": "LAWYER", "start_char": 5370, "end_char": 5381, "source": "ner", "metadata": {"in_sentence": "936/75), P. C. Bhartari, R. Narain, K.\n\nJ. John, 0."}}, {"text": ". C. Mathur", "label": "LAWYER", "start_char": 5384, "end_char": 5395, "source": "ner", "metadata": {"in_sentence": "936/75), P. C. Bhartari, R. Narain, K.\n\nJ. John, 0."}}, {"text": "B. Sen", "label": "LAWYER", "start_char": 5417, "end_char": 5423, "source": "ner", "metadata": {"in_sentence": "B. Sen, (In CA No."}}, {"text": "R. N. Sachthey", "label": "LAWYER", "start_char": 5448, "end_char": 5462, "source": "ner", "metadata": {"in_sentence": "68/74), and R. N. Sachthey for the Respondent."}}, {"text": "P. C. Bhariari", "label": "LAWYER", "start_char": 5484, "end_char": 5498, "source": "ner", "metadata": {"in_sentence": "P. C. Bhariari for Applicant/Interveners (In CA No.", "canonical_name": "P. C. Bhartari"}}, {"text": "RAY", "label": "JUDGE", "start_char": 5589, "end_char": 5592, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal by special leave is on the question whether the appellant is exempt from inter-State tax on the sales of poles and cables to the Delhi Electric Supply Undertaking by reason of the provi- F sions contained in section 5 (2)(a)(iv) of the Punjab Sales Tux Act hereinafter referred to as the State Act."}}, {"text": "Delhi Electric Supply Undertaking", "label": "ORG", "start_char": 5741, "end_char": 5774, "source": "ner", "metadata": {"in_sentence": "The appellants were suppliers of poles and cables to the Delhi Electric Supply Undertaking and the sales were in the course of inter state trade or commerce and admittedly exempt under the state sales tax u/s 5(2)(a)(iv)'."}}, {"text": "section 5", "label": "PROVISION", "start_char": 5820, "end_char": 5829, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 5(2)(a)(iv)", "label": "PROVISION", "start_char": 5912, "end_char": 5931, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 6316, "end_char": 6344, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 8", "label": "PROVISION", "start_char": 6429, "end_char": 6438, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Central Sales Tax Act", "label": "STATUTE", "start_char": 6446, "end_char": 6467, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 8(2A)", "label": "PROVISION", "start_char": 6883, "end_char": 6896, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "section 6", "label": "PROVISION", "start_char": 6994, "end_char": 7003, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "section 8", "label": "PROVISION", "start_char": 8082, "end_char": 8091, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 8126, "end_char": 8135, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5(2)(a)(iv)", "label": "PROVISION", "start_char": 8322, "end_char": 8341, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 8939, "end_char": 8967, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 9175, "end_char": 9187, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "V. HARYANA", "label": "JUDGE", "start_char": 9507, "end_char": 9517, "source": "ner", "metadata": {"in_sentence": "INDIAN ALUMINIUM <; A1JJ, ES V. HARYANA (Ray, C.J.) 995\n\nThe appellant referred to Schedule B read with section 6 of the State Act iiad in particular Items 33 and 46 to illustrate what would be exemption under specified circumstances or specified conditions."}}, {"text": "section 6", "label": "PROVISION", "start_char": 9582, "end_char": 9591, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}, {"text": "Section 5", "label": "PROVISION", "start_char": 10264, "end_char": 10273, "source": "regex", "metadata": {"statute": null}}, {"text": "Madhya Pradesh High Court", "label": "COURT", "start_char": 11257, "end_char": 11282, "source": "ner", "metadata": {"in_sentence": "The appellant relied on the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Kapoor Dori Niwar & Co., Gwalior(') ill support of the meaning of the expression \"exempt from tax generally\"."}}, {"text": "31 March, 1963", "label": "DATE", "start_char": 11716, "end_char": 11730, "source": "ner", "metadata": {"in_sentence": "The exemption was later on extended up to 31 March, 1963."}}, {"text": "section 8(2A)", "label": "PROVISION", "start_char": 11985, "end_char": 11998, "source": "regex", "metadata": {"statute": null}}, {"text": "State sales of niwar were exempt from tax under the Central Act", "label": "STATUTE", "start_char": 12056, "end_char": 12119, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 12241, "end_char": 12250, "source": "regex", "metadata": {"linked_statute_text": "State sales of niwar were exempt from tax under the Central Act", "statute": "State sales of niwar were exempt from tax under the Central Act"}}, {"text": "section 8", "label": "PROVISION", "start_char": 12831, "end_char": 12840, "source": "regex", "metadata": {"linked_statute_text": "State sales of niwar were exempt from tax under the Central Act", "statute": "State sales of niwar were exempt from tax under the Central Act"}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 13720, "end_char": 13740, "source": "ner", "metadata": {"in_sentence": "The other decision on which the appellant relied is of the Allahabad High Court in Hindustan Safety Glass Works (P.) Ltd. v. The State of Uttar Pradesh & Anr.(')"}}, {"text": "Allahabad", "label": "GPE", "start_char": 14318, "end_char": 14327, "source": "ner", "metadata": {"in_sentence": "Subsequently, a notification was issued by the State Government exempting toughened glasses and mirrors manufactured by the company at Allahabad from payment of sales tax for a period of three years."}}, {"text": "section 8(2A)", "label": "PROVISION", "start_char": 14618, "end_char": 14631, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8(2A)", "label": "PROVISION", "start_char": 15127, "end_char": 15140, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 6", "label": "PROVISION", "start_char": 15675, "end_char": 15684, "source": "regex", "metadata": {"statute": null}}, {"text": "section 6", "label": "PROVISION", "start_char": 15778, "end_char": 15787, "source": "regex", "metadata": {"statute": null}}, {"text": "JNDIAN ALUMINIUM CABLES V. HARYANA", "label": "JUDGE", "start_char": 15968, "end_char": 16002, "source": "ner", "metadata": {"in_sentence": "JNDIAN ALUMINIUM CABLES V. HARYANA (Ray, C.J.) 997\n\nBoth the sections deal with goods which do not suffer from.. sales tax."}}, {"text": "Section 8(2A)", "label": "PROVISION", "start_char": 16093, "end_char": 16106, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8(2A)", "label": "PROVISION", "start_char": 16252, "end_char": 16265, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 16442, "end_char": 16451, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Electricity Act, 1910", "label": "STATUTE", "start_char": 16741, "end_char": 16769, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5", "label": "PROVISION", "start_char": 17429, "end_char": 17438, "source": "regex", "metadata": {"linked_statute_text": "the Indian Electricity Act, 1910", "statute": "the Indian Electricity Act, 1910"}}]}
{"document_id": "1976_3_998_1004_EN", "year": 1976, "text": "UNION OF INDIA v.\n\nOM PARKASH\n\nApril 2, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]\n\nArbitration Act, 1940-Secs. 8, 20, 30, 32, 33-Whether court appointing an , urbitrator can further make an order referring disputes to arbitrator-/llvard can be set aside on the ground of invalidity of reference--Whether \"otherwise in~ valid' includes invalid reference.\n\nThe respondent, a contractor, entered into 7 agreements with the Union of India for the construction of a hospital. some buildings and tubewells. In each one of these agreements there was a clause providing that any dispute arising between the parties would be referred to an arbitrator. The designations of the arbitrators were also mentioned in 4 agreements as Director of Farms, in two agreements as the Officer Commanding, Lucknow. and in one agreement as the Quartermaster General at Delhi. The offices by reference to which the arbitrators were mentioned in the agreement were abolished. The respondent, therefore, made 7 applications in the court of Civil Judge at Meerut under section 8(2) of the Aribtration Act, 1940, praying for appointment of an arbitrator. The Trial Court appointed Col. Ranbir Singh to act as an arbitrator in all the 7 cases and further directed the papers to be sent to him asking him to give his award within 2 months from that date.\n\nWith the consent of both the parties the arbitrator made some progress.\n\nHowever, the Government counsel submitted before the arbitrator that he should not proceed further since he was not competent to deal with the questions of law arising for decision. Thereafter the, District Judge Meerut transferred the cases to the Judge of the Small Causes Court at Meen1t presumably on the assumption that the respondent's application for the appointment of arbitrator were pending.\n\nThe learned Judge of Small Causes Court appointed Director of Farms, General Headquarters, to act as arbitrator in all the' 7 cases and he was further directed to file his award within one month of the said order. The papers were then sent to Brig. Bhandari assuming that he was the Director of Farms. Later on, the respondent applied to the court for review of its order alleging that the office of the Director of Farms was abolished and, therefore, Brig. Bhandari could not be the officer mentioned in the order. The respondent did not take part in the arbitration proceedings but before the respondent could obtain a stay the arbitrator filed his award in the Court.\n\nThe respondent made 7 applications for setting aside the award before the Small Causes Court, Meerut, which were rejected. Against that. the respond ent preferred 7 appeals to the Allahabad High Courf. The High Court allowed the appeals accepting the contention of the respondents that the court was functus officio after appointing the arbitrator under section 8(2) and had no jurisdiction to refer the cases to the arbitrator. The High Court held that it was for the parties to refer the disputes to the arbitrator after he was appointed\n\nby the court and the reference by the court being without jurisdiction the awards were invalid. The High Court also held that when the court made the order of. reference there was no post of Director of Farms and as such, Brig.\n\nBhandari was not competent to act as an arbitrator on the basis of the order of the Court.\n\nIn these appeals by certificate, the appellants challenged the findings of the High Court.\n\nH Dismissing the appeals,\n\nHELD : An agreement to submit differences to arbitration implies an agreement to. refer the differences to the arbitrator. Section 8 only empowers the\n\nCourt to appoint an arbitrator where the parties do not concur in the appointment.\n\nSection 20 contains provisions for arbitration with the intervention of a Court where there is no suit pending. This section confers lJOWer on the court to order the agreement to be filed and further to make an order of reference to_ the arbitrator appointed by the parties or where the parties cannot agree upon an appointment, to an arbitrator appointed by the court. On the other band, section 8 does not contain any provision empowering th~ court to make a reference to the arbitrator as one finds in section 20.\n\nTherefore. the Small Causes Court at Meerut had no jurisdiction after appointing an arbitratorunder section 8 (2) to proceed further to make an order referring the disputes to the arbitrator. [1002DE, IOOJC.E]\n\n2. Section 30 of the Act sets out the grounds for setting aside an award.\n\nSection 30(c) provides that an award shall not be set aside except when it has been improperly procured or is otherwise invalid.\n\nThe decision of the Privy Council in the case of Chhabbe Lal v. Kallu Lal and Others holding that an objection to the validity of a reference to the arbitration did not come within the provisions of para 15 of the second schedule to the Code of Civil Proce~ dure which provided that no award was to be set aside except on the specific . groundsmentioned therein or the award being otherwise invalid cannot apply to the present case because in the second schedule to the Code of Civil Procedure which was repealed bv Arbitration Act of 1940. there was no provision like section 32 or 33 of the Act.\n\nSection 32 bars the institution of suits concerning arbitration agreements or awards and provides that no arbitration agreement or award shall be set aside. amended, modified or in any way affected otherwise than as provided in the Act.\n\nSection 33 provides that a party to an arbitration agreement seeking to challenge the agreement or the award must do so by making an application to the court. When the second schedule to the Civil Procedure Code was in force an a\\vard made on an invalid reference could be set aside by filing a suit which was then the appropriate proceeding but no\\v the appropriate proceeding is the filing of an application to the court as has been made in the present case.\n\nThe words 'of is otherwise invalid' in clause (c) in section 30 are wide enough to cover all forms of invalidity including invalidity of the reference.\n\n[1003E, H, 1004A-F]\n\nC1v1L APPHLATE JURISDICTION : Civil Appeal Nos. 1284 to 1290 of 1968.\n\nAppeals from ,'.he Judgments and Decrees dated the 30th July 1962 of the Allahabad High Court in F.A.F.O's Nos. 220 to 226 of 1952.\n\nL. N. Sinha, Solicitor General, G. L. Sanghi, (In CA 1284/68) and Girish Chandra, for the Appellants.\n\nS. L. Bhatia and N. K. Puri, for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J.\n\nThese seven appeals by certificate have bee,1 preferred by the Union of India against a common judgment of the Allahabad H~ Curt disposing of seven appeals under section 39(1)(vi) of the Arbitration Act, 1940. The appeals turn on the true meaning and scope of sections 8 and 30 of the Act. Section 8 is in these terms :\n\nPower of Court to appoint arbitrator or umpire\n\n\"8. ( 1) In any of the following cases- ( a) where an arbitration agreement provides tlmt the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the partes do not, after differences have arisen concur in the appointment or appointments; or \"\n\n(b) if any appointed arbitrator or umpir1: neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or\n\nB ·(c) . where the parties or the arbitrators are required to appoil:It an umpire and do not oappoint him;\n\nally party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy.\n\n(2) lf the appointment is not made within fifteen clear days after the service of the said 'notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire, as the case may be, who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties.\"\n\nThe question that arises for consideration is whether the court !raving appointed an arbitrator under sub-section (2) of section 8 can proceed further to make an order of reference to the arbitrator. According to the respondent the court becomes functus officio after appointing an arbitrator and has no jurisdiction to refer the matter to him.\n\nThe facts leading to the appeals are these. During the last world war the respondent, a contractor, entered into seven agreements with the military department of the {ioverament of India for the construction of a hospital,. three other buildings and three tubewells. In each of these agreements there was a clause providing that any dispute arising between the parties would be referred to an arbitrator. In four cases the agreements provided for arbitration by the Director of Farms, General Headquarters, Simla, in two cases the' Officer Commanding, Luck'now, was to be the arbitrator, and in the. remaining other case, a Quarter-Master at Delhi was chosen as the arbitrator. Disputes having arisen between the parties, the respondent made seven applications in the court of the First Civil Judge, Meerut, under section 8(2) of the Act stating that the offices by reference to which the arbitrators were selected in the agreements had been abolished and it was therefore necessary to appoint new arbitrators. In the applications the respondent named several officers praying that ono of them be appointed . to act an arbitrator \"who shall have like power to act in the reference and to make an award as if he has been appointed by the consent of the parties\". It will be noticed that the prayer repeats the material portion of sub-section (2) of section 8.\n\nOn February 13, 1950 the court appointed Col. Ranbir Singh whose name was not in the respondent's list, to act as arbitrator in all the seven cases oand further directed the papers to be sent to him, asking; him to give his award within\n\nUNION V. OM PARKASH (<!_up~, J.)\n\nI OIH\n\ntwo months from that date. If the respondel11t's contention in. these appeals is correct that after appointffig an arbitrator under section 8 ( 2) the court ceases to have jurisdiction and cannot make an order of reference, the further directions given in the order of February 13, 1950 were invalid. However, the question did •not assume importance at that singe because both sides agreed to submit the disputes to Col.\n\nRanbir Singh for arbitration.\n\nAfter the arbitration had made some progress, Col. Ranbir Singh rtiturned the papers to the court on being asked not to proceed further by the Government CO)lnsel who thought that the arbitrator was not competent to deal with the questions of law arising for decision. After this the District Judge, Meerut, transferred the cases to the Judge of the Small Cause Court, Meerut, presumably on the assumption that the respondent's applications for the appointment of an arbitrator were pending. If the respondents contention is right, this was an erroneous assumption, but no objection was raised at the time and the Judge of the Small Cause Court by his order dated February 13, 1951 appointed Director of Farms, General Headquarters, Simla, to act as arbitrator in all the seven cases. In that order the conrt further directed as follows :\n\n\"All these cases should be referred to him for arbitration.\n\nHe must file his award within one month of this order.\" D\n\nThe papers were then sent to Brigadier H. L. Bhandari who was said to be the officer concerned. The respondent applied to the court on March 8, 1951 for review of the order alleging tha, t the office of the Director of Farms, General Headquarters, Simla, had been abolished and as such Brig. H. L. Bhandari could not be the officer mentioned E in the order. The respondent did. not take part in the proceedings before Brig. Bhandari, but before he moved the court on May 4, 1951 for stay of the proceedings before the arbitrator, the latter had made his awards which were filed. in court on that very day.\n\nThe review application was ultimately dismissed on May 12, 1951.\n\nThe respondent made seven applications urging several grounds for setting aside the awards, but the Judge of the Small Canse Court, Meerut, overruled all objections and confirmed the awards, and a decree in terms of the award in each C'ase was passed on May 26, 1952.\n\nAgail1st that order the respondent preferred seven appeals to the Allahabad High Court. The High Court allowed the appeals accepting the contention that the court was functus officio after appointing the arbitrator nnder section 8 (2) and had rio jurisqiction to refer the cases to the arbitrator. The High Court was of the view that it was for the parties to refer their disputes to the arbitrator after he was appointed by the court, and the reference by the court beinµ: without jurisdiction the awards were invalid. The High Court further held that when the court below made the order of reference there was no post of Director of Farms, General Headquarters, .Simla in existence and, as such, Brig. Bhandari was not competent to act as' arbitrator on the basis of the order dated February 13, 1951. The Union of India questions the correctness of the High Court's decision in .these appeals.\n\nThe validity of the order of reference depends upon the scope of section 8 which deals with the power of the court to appoint an arbitrator or umpi_re.\n\nSulrsecticin (1) of section 8, so far as it is relevant for the present purpose, provides that if any appointed arbitrator is incapable of acting, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, any party to the agreement may serve the other parties with a writtei,1 notice to concur in sullplying the vacancy. Sub-seeition (2) of section 8 lays down that if no appointment is made within 15 days after the service of the said notice the court may, on the application of the party who gave the notice and after giving the o!her parties an. opportunity of b'eing heard,, appoint an arbitrator or arbitrators \"who shall have like powers to act in the reference and to make an award as if he or they had been appointed by consent of all parties\".\n\nThe question is whether, having made the aJ:>poinlment, the court acting sub-section (2) can also make an order oCreference to the arbitrator.\n\nThe Act contemplates three kinds of •arbitration: (i) arbitration without intervention of a court, dealt with in chapter II of the Act which includes section 3 to sectio,1 19; (ii) arbitration with interventon of a court where there is no suit pending, dealt with in chapter III which consists of only . one section, viz. section 20; and \\iii) arbitration in suits, which is covered by chapter IV. It is clear from the provisions of chapter II that after the appointment of arbitrator, the proceedings are to be outside court, and up to the stage of filing. the award intervention. of court is nOtt contemplated unless any oc.casion arises requiring the court to remove the arbitrator under section 11. An agreement to submit differences to arbitration implies an agreement to refer the differences to the arbitrator.\n\nSection 8 only empowers the court to appoint an arbitrator where the parties do not concur in the appointment. Section 20 occurring in chapter III _contains provisions for arbitration with the intervention of a court where there is no suit pending. Sectioln 20 reads: ·\n\nApplication to file in Court arbitration agreement.\n\n\"20 (1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject-matter of the agreement or any part of it, and where a differeru:e has arisen to which the agreement apPlies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in court.\n\n(2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants.\n\n• \\\n\n(3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed.\n\n( 4) Where no sufficient cause is shown, ihe Court s!iall order the agreement to be filed, and shall make an order of B reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot . agree upon an arbitrator, to an arbitrator appointed by the Court.\n\n(5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act, so far as they can be made applicable.\" C\n\nThis section confers power on the court to order the agreement to be filed and, further, to make an order of reference to the arbitrator appointed by the parties, or, where the parties cannot agree upon an appointment, to an arbitrator appointed by the court.\n\nSub-section ( 1) of section 20 makes it plain that the provisions of the section can be availed of only if no proceeding under chapter II has been initia:'.-\n\ned. Section 8 does not contain any provision empowering the court to make an order of reference to the arbitrator as one finds in subsection ( 4) of section 20.\n\nThus it seems clear that the court in the instant cases had no jurisdiction, after appointing an arbitrator under section 8(2), to proceed further to make an order referring the disputes to the arbitrator.\n\nThe question which now arises is whether the awards could be set aside as invalid because the reference was incompetent.\n\nSection 30 of the Act which sets out the grounds for setting aside an award is in these terms:-\n\nGrounds for setting aside award.\n\n\"30. An award shall not be set aside except on one or F more of the following grounds, namely :\n\n(a) that an arbitrator or umpire has misconducted him-\n\n. self or the proceedings;\n\n(b) that an award has been made after his issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid G under section 35;\n\n( c) that an award has been improperly procured or is otherwise invalid.\"\n\nAccording to the respondent an award obtained on an invalid reference is also invalid and is covered by clause ( c) of section 30.\n\nIt was argued on behalf of the appellent, on the authority of the H Privy Council in Chhabbe La~ v. Kallu Lal and others('), that the\n\n(I) 73 I.A. 52.\n\nwords \"otherwise invalid\" in section 30(c) did not cover a case where the award was challenged on the gronnd of some invalidity attaching to anything ontside the award itself. In Chhabbe Lat's case the Privy Council held that an objection to the validity of a reference to arbitration did not come within the provisions of paragraph 15 of the 2nd schedule t<;> the Code of Civil Procedure, 1908, which provided that no award was to be set aside except on the specific grounds men- B tioned therein, or the award \"being otherwise invalid\". This view which affirms that of Iqbal Ahmed J. in his dissenting judgment in a Full Bench decision of the Allahabad Hii:h Court, Mt. Mariam v.\n\nMl. Amisa(') was taken in relation o an award on a reference .made in a suit.\n\nTheir Lordships observed :\n\n\" ...... all the powers conferred on the court in relac tion to an award on a reference made in a suit presuppose a valid reference on which an award has been made which may be open to question. If there is no valid reference, the purported award is a nullity, and can be challenged in any appropriate proceeding.\"\n\nThere was no provision in the 2nd schedule to the Code of Civil Procedure, which was repealed by the Arbitralion Act, 1940, like section 32 or section 33 of the Act.\n\nSection 32 bars the institution of suits concerning arbitration agreements or awards and provides that no arbitration agreement or award shall bet set aside,, amended, modified or in anyway affected otherwise than as provided in this Act; section 33 says that a party to an arbitration agreement seeking to challenge the agreement or the award must do so by making an application to the court. When the 2nd schedule to the Code of Civil Procedure was in force, an award made on an invalid reference could be set aside only by filing a sui, t which was then the \"appropriate proceeding\", but now the proceeding appropriate for the same purpose is an application to the court as the respondent in these cases has done.\n\nAlso, these are cases of arbitration without the intervention of court, and the observation from the judgment in Chhabe Lal' s case, quoted above, that a reference in a suit should be presumed to be a valid reference, does not apply to these cases.\n\nThe words \"or is otherwise invalid\" in clause ( c) of section 30 are wide enough to cover all forms of invalidity including invalidity of the reference. We do not find any reason why the general and unqualified language of clause ( c) should not include l!n award on an invalid reference which is a nullity.\n\nThe cases cited at the Bar show that all the High Courts with only one or two exceptions have taken this view.\n\nWe hold therefore that the awards challenged in~ these appeals are nnllities and have been rightly set aside by the High Court. In the view we have taken it is not necessary to consider the other quetion, whether Brig.\n\nBhandari who made tbe awards was the officer answering the description of Director of Farms, General Headquarters, Simla, to whom the court had referred the disputes.\n\nIn the result the appeals fail and are dismissed with costs.\n\nOne set of hearing fee.\n\nP.H.P.\n\nAppeals dismissed.\n\n(!} A.LR. 1937 All. 65.", "total_entities": 92, "entities": [{"text": "UNION OF INDIA", "label": "PETITIONER", "start_char": 0, "end_char": 14, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "OM PARKASH", "label": "RESPONDENT", "start_char": 19, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "OM PARKASH", "offset_not_found": false}}, {"text": "April 2, 1976", "label": "DATE", "start_char": 31, "end_char": 44, "source": "ner", "metadata": {"in_sentence": "UNION OF INDIA v.\n\nOM PARKASH\n\nApril 2, 1976\n\n[A. C. 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["}}, {"text": "section 8", "label": "PROVISION", "start_char": 4308, "end_char": 4317, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 4422, "end_char": 4432, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30(c)", "label": "PROVISION", "start_char": 4494, "end_char": 4507, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Civil Procedure which was repealed bv Arbitration Act of 1940", "label": "STATUTE", "start_char": 5094, "end_char": 5163, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 32", "label": "PROVISION", "start_char": 5193, "end_char": 5203, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940", "statute": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940"}}, {"text": "Section 32", "label": "PROVISION", "start_char": 5223, "end_char": 5233, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940", "statute": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 5461, "end_char": 5471, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940", "statute": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940"}}, {"text": "section 30", "label": "PROVISION", "start_char": 5976, "end_char": 5986, "source": "regex", "metadata": {"linked_statute_text": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940", "statute": "the Code of Civil Procedure which was repealed bv Arbitration Act of 1940"}}, {"text": "Girish Chandra", "label": "LAWYER", "start_char": 6367, "end_char": 6381, "source": "ner", "metadata": {"in_sentence": "L. N. Sinha, Solicitor General, G. L. Sanghi, (In CA 1284/68) and Girish Chandra, for the Appellants."}}, {"text": "S. L. Bhatia", "label": "LAWYER", "start_char": 6404, "end_char": 6416, "source": "ner", "metadata": {"in_sentence": "S. L. Bhatia and N. K. Puri, for the Respondent."}}, {"text": "N. K. Puri", "label": "LAWYER", "start_char": 6421, "end_char": 6431, "source": "ner", "metadata": {"in_sentence": "S. L. Bhatia and N. K. Puri, for the Respondent."}}, {"text": "GUPTA", "label": "JUDGE", "start_char": 6498, "end_char": 6503, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J.\n\nThese seven appeals by certificate have bee,1 preferred by the Union of India against a common judgment of the Allahabad H~ Curt disposing of seven appeals under section 39(1)(vi) of the Arbitration Act, 1940."}}, {"text": "Union of India", "label": "ORG", "start_char": 6572, "end_char": 6586, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J.\n\nThese seven appeals by certificate have bee,1 preferred by the Union of India against a common judgment of the Allahabad H~ Curt disposing of seven appeals under section 39(1)(vi) of the Arbitration Act, 1940."}}, {"text": "Allahabad", "label": "GPE", "start_char": 6620, "end_char": 6629, "source": "ner", "metadata": {"in_sentence": "The Judgment of the Court was delivered by\n\nGUPTA, J.\n\nThese seven appeals by certificate have bee,1 preferred by the Union of India against a common judgment of the Allahabad H~ Curt disposing of seven appeals under section 39(1)(vi) of the Arbitration Act, 1940."}}, {"text": "section 39(1)(vi)", "label": "PROVISION", "start_char": 6671, "end_char": 6688, "source": "regex", "metadata": {"statute": null}}, {"text": "Arbitration Act, 1940", "label": "STATUTE", "start_char": 6696, "end_char": 6717, "source": "regex", "metadata": {}}, {"text": "sections 8 and 30", "label": "PROVISION", "start_char": 6769, "end_char": 6786, "source": "regex", "metadata": {"linked_statute_text": "the Arbitration Act, 1940", "statute": "the Arbitration Act, 1940"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 6799, "end_char": 6808, "source": "regex", "metadata": {"linked_statute_text": "the Arbitration Act, 1940", "statute": "the Arbitration Act, 1940"}}, {"text": "section 8", "label": "PROVISION", "start_char": 8309, "end_char": 8318, "source": "regex", "metadata": {"statute": null}}, {"text": "Simla", "label": "GPE", "start_char": 9041, "end_char": 9046, "source": "ner", "metadata": {"in_sentence": "In four cases the agreements provided for arbitration by the Director of Farms, General Headquarters, Simla, in two cases the' Officer Commanding, Luck'now, was to be the arbitrator, and in the."}}, {"text": "Luck'now", "label": "GPE", "start_char": 9086, "end_char": 9094, "source": "ner", "metadata": {"in_sentence": "In four cases the agreements provided for arbitration by the Director of Farms, General Headquarters, Simla, in two cases the' Officer Commanding, Luck'now, was to be the arbitrator, and in the."}}, {"text": "First Civil Judge, Meerut", "label": "COURT", "start_char": 9315, "end_char": 9340, "source": "ner", "metadata": {"in_sentence": "Disputes having arisen between the parties, the respondent made seven applications in the court of the First Civil Judge, Meerut, under section 8(2) of the Act stating that the offices by reference to which the arbitrators were selected in the agreements had been abolished and it was therefore necessary to appoint new arbitrators."}}, {"text": "section 8(2)", "label": "PROVISION", "start_char": 9348, "end_char": 9360, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8", "label": "PROVISION", "start_char": 9882, "end_char": 9891, "source": "regex", "metadata": {"statute": null}}, {"text": "February 13, 1950", "label": "DATE", "start_char": 9897, "end_char": 9914, "source": "ner", "metadata": {"in_sentence": "On February 13, 1950 the court appointed Col."}}, {"text": "UNION V. OM PARKASH", "label": "JUDGE", "start_char": 10132, "end_char": 10151, "source": "ner", "metadata": {"in_sentence": "Ranbir Singh whose name was not in the respondent's list, to act as arbitrator in all the seven cases oand further directed the papers to be sent to him, asking; him to give his award within\n\nUNION V. OM PARKASH (<!_"}}, {"text": "section 8", "label": "PROVISION", "start_char": 10305, "end_char": 10314, "source": "regex", "metadata": {"statute": null}}, {"text": "Ranbir Singh", "label": "RESPONDENT", "start_char": 10595, "end_char": 10607, "source": "ner", "metadata": {"in_sentence": "Ranbir Singh for arbitration.", "canonical_name": "Ranbir Singh"}}, {"text": "District Judge, Meerut", "label": "COURT", "start_char": 10910, "end_char": 10932, "source": "ner", "metadata": {"in_sentence": "After this the District Judge, Meerut, transferred the cases to the Judge of the Small Cause Court, Meerut, presumably on the assumption that the respondent's applications for the appointment of an arbitrator were pending."}}, {"text": "Small Cause Court, Meerut", "label": "COURT", "start_char": 10976, "end_char": 11001, "source": "ner", "metadata": {"in_sentence": "After this the District Judge, Meerut, transferred the cases to the Judge of the Small Cause Court, Meerut, presumably on the assumption that the respondent's applications for the appointment of an arbitrator were pending."}}, {"text": "February 13, 1951", "label": "DATE", "start_char": 11290, "end_char": 11307, "source": "ner", "metadata": {"in_sentence": "If the respondents contention is right, this was an erroneous assumption, but no objection was raised at the time and the Judge of the Small Cause Court by his order dated February 13, 1951 appointed Director of Farms, General Headquarters, Simla, to act as arbitrator in all the seven cases."}}, {"text": "H. L. Bhandari", "label": "OTHER_PERSON", "start_char": 11625, "end_char": 11639, "source": "ner", "metadata": {"in_sentence": "D\n\nThe papers were then sent to Brigadier H. L. Bhandari who was said to be the officer concerned."}}, {"text": "March 8, 1951", "label": "DATE", "start_char": 11721, "end_char": 11734, "source": "ner", "metadata": {"in_sentence": "The respondent applied to the court on March 8, 1951 for review of the order alleging tha, t the office of the Director of Farms, General Headquarters, Simla, had been abolished and as such Brig."}}, {"text": "May 4, 1951", "label": "DATE", "start_char": 12053, "end_char": 12064, "source": "ner", "metadata": {"in_sentence": "Bhandari, but before he moved the court on May 4, 1951 for stay of the proceedings before the arbitrator, the latter had made his awards which were filed."}}, {"text": "May 12, 1951", "label": "DATE", "start_char": 12244, "end_char": 12256, "source": "ner", "metadata": {"in_sentence": "The review application was ultimately dismissed on May 12, 1951."}}, {"text": "Small Canse Court, Meerut", "label": "COURT", "start_char": 12372, "end_char": 12397, "source": "ner", "metadata": {"in_sentence": "The respondent made seven applications urging several grounds for setting aside the awards, but the Judge of the Small Canse Court, Meerut, overruled all objections and confirmed the awards, and a decree in terms of the award in each C'ase was passed on May 26, 1952."}}, {"text": "May 26, 1952", "label": "DATE", "start_char": 12513, "end_char": 12525, "source": "ner", "metadata": {"in_sentence": "The respondent made seven applications urging several grounds for setting aside the awards, but the Judge of the Small Canse Court, Meerut, overruled all objections and confirmed the awards, and a decree in terms of the award in each C'ase was passed on May 26, 1952."}}, {"text": "Allahabad High Court", "label": "COURT", "start_char": 12594, "end_char": 12614, "source": "ner", "metadata": {"in_sentence": "Agail1st that order the respondent preferred seven appeals to the Allahabad High Court."}}, {"text": "section 8", "label": "PROVISION", "start_char": 12749, "end_char": 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null}}, {"text": "Section 20", "label": "PROVISION", "start_char": 15456, "end_char": 15466, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 17502, "end_char": 17512, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 8", "label": "PROVISION", "start_char": 17645, "end_char": 17654, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 17790, "end_char": 17800, "source": "regex", "metadata": {"statute": null}}, {"text": "section 8(2)", "label": "PROVISION", "start_char": 17917, "end_char": 17929, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 30", "label": "PROVISION", "start_char": 18132, "end_char": 18142, "source": "regex", "metadata": {"statute": null}}, {"text": "section 35", "label": "PROVISION", "start_char": 18606, "end_char": 18616, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30", "label": "PROVISION", "start_char": 18813, "end_char": 18823, "source": "regex", "metadata": {"statute": null}}, {"text": "section 30(c)", "label": "PROVISION", "start_char": 19007, "end_char": 19020, "source": "regex", "metadata": {"statute": null}}, {"text": "Chhabbe Lat", "label": "OTHER_PERSON", "start_char": 19157, "end_char": 19168, "source": "ner", "metadata": {"in_sentence": "In Chhabbe Lat's case the Privy Council held that an objection to the validity of a reference to arbitration did not come within the provisions of paragraph 15 of the 2nd schedule t<;> the Code of Civil Procedure, 1908, which provided that no award was to be set aside except on the specific grounds men- B tioned therein, or the award \"being otherwise invalid\".", "canonical_name": "Chhabbe Lat"}}, {"text": "Code of Civil Procedure, 1908", "label": "STATUTE", "start_char": 19343, "end_char": 19372, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Iqbal Ahmed", "label": "JUDGE", "start_char": 19549, "end_char": 19560, "source": "ner", "metadata": {"in_sentence": "This view which affirms that of Iqbal Ahmed J. in his dissenting judgment in a Full Bench decision of the Allahabad Hii:h Court, Mt. Mariam v.\n\nMl."}}, {"text": "Allahabad Hii:h Court", "label": "COURT", "start_char": 19623, "end_char": 19644, "source": "ner", "metadata": {"in_sentence": "This view which affirms that of Iqbal Ahmed J. in his dissenting judgment in a Full Bench decision of the Allahabad Hii:h Court, Mt. 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{"document_id": "1976_1_101_109_EN", "year": 1976, "text": "SRIDRAR SUAR & ANR.\n\nSHRI JAGAN NATH TEMPLE & OTHERS\n\nApril 21, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nTransfer of Property Act, l.882-Sec. 105-lndian Easenzent Acr, 1882, Sec. 52-Distinction between lease and licence Lis Pendens-Puri Shri Jagan .. .... • not.It Ten1ple (Administration) Act 1952--Sec. 2(d)~.eaning of.\n\nHindu Law-Whether i.\\1ohant of a Hindu Te1nple can grant a Vl!.*!id pcnnanent lease. ,\n\nThe appellant's great grandfather was granted a Sanad in respect Of 2 rooms in the J agannath temple by the Superintendent of temple at the annual rent of Rs. 7 /-. The Sanad provided that the grantee wo1d be entitled to enjoy the said 2 rooms from generation to generation and iu case a permanent structure was constructed thereon the rent \\vould be enhanced to Rs. 14/- per year.\n\nAfter the death of great-grand-father of the appellant the grand father and thereafter the father of the appellant continued storing and selling dry 'lvfahaprasad' in the said property and continued to pay Rs. 14/- per year.\n\nThe respondents who have the management of Jagannath temple at present under the Puri Jagannath Temple (Administration) Act, 1952, called upon the appellants' father to close and to hand over the possession of the two rooms to the management on the ground . that the storage and sale of Mahaprasad in the Bihar Bedha of the temple affected adversely the discipline and dignity of the temple. The appellant's father was threatened with imposition of a penalty of Rs. 100/- per day in case he did not vacate the premises in question. The appellant's father, therefore, filed the suit in the CiVil Court which after his death has been continued by the present appellant for permanent injunction restraining the respondents fron1 interfering with his right of storing and selling dry Mahaprasad in the suit premises. According to the plaintiff the permanent lease was grahted to him by the Raja DibyaSingba and tnat since he was continuing to pay the rent regularly he was entitled to continue in the suit premises from generation to generation. The respondents contested the suit o~\n\nthe ground that it was beyond the eompetence' of Raja of Puri as, Manager ot the temple to grant a permanent lease and that, therefore, the Sanad was ineffectual, invalid and inoperative. and conferred no rights on the appellant and his ancestors which W<Juld bind the present respohdents.\n\nSecondly, since the act of storing and selling Mahaprasad at the suit premises constitute a breach of order and discipline, the respondents under the above statute had right to ask the appellant to vacate. Thirdly what was granted by the Sanad was a licence and not a lease.\n\nThe triai court dismissed the suit. However, an appeal was allowed.\n\nThe High Court accepted the second appeal and dismissed the suit.\n\nIn an appeal by special leave it was contended by the appellants :-\n\n(!) The suit property did not form part of the temple.\n\n(2) The Sanad granted a permanent lease of the suit property and not merely a licence, and therefore the _appellant had an indefeasible right of storing and selling Mahaprasad.\n\nDismissing the appeal,\n\nHELD : (1) Section 2(d) of the Puri Sri Jagannath Temple (Administra tion) Act, 1952, defines temple as including the temple of Lord Jagannath of Puri, other temples within its premises and all other appurtenants and subordinate shrines, other sacred places and tanks and any additions which may be •\n\nmade thereto after commencement of the Act. Records of ri&hi! prepared under the said Act also include the suit premises within the meaning of temple.\n\n[!04 HJ\n\n(~) .It is ow ':\"ell settle<:\\. by a ctea of decisions of the Supre111e Court that 1t is the creation of an interest 1n immovable property that distinguishes a lease from a licence. The intention of the parties is the real test for ascertaining the character of a document. At one time it was thought that the test of exclusive possession was infallible and if a person \\Vas given exclusive possession of a premises it would conclusively establish that he was a lessee.\n\nHowever, the result of the subsequent cases is that although a person who is let into exclusive possession in prima facie to be considered to be a tenant. nevertheless he will not be held to be so if the circumstances negative anv intention to create a tenancy. To ascertaih whether a document creates a. licenc.e or lease the substance of the document must be preferred to the form (Entire English and Indian case. Law reviewed).\n\n[105 D.H, 106.A, D]\n\n(3) A careful perusal of the recital in the Sanad, which does not reveal the identity of the plot with precision~ would show that the Sanad did not create any interest in the rooms in question in favour of the grantee.\n\nThe Sanad also did not confer the right of exclusive possession of the premises. It is also evident from the right of \"Oak.hale Khas\" of the respondents in the suit property as also from the proved facts that the Sarghara was not kept open by the temple authorities from midnight to 6 a.m. during which interval the\n\nplaintiff could in no case occupy it nor could he have access to it. It is proved that the employees of the Raja of Puri used to clean the refuse etc., which got accumulated in the suit premises.\n\nThe Sanad, therefore, created a licence and not a lease. [107 E-Hl\n\n( 4) Even if it i<; assumed that the Sanad created a lease it could not be a valid lease since the Mohant or manager of a Hindu temple is prohibited from grantinp-, a p.:rmanent lease except far legal necessity or benefit of the, estate.\n\nIn the present case ho such legal necessity or benefit of estte has been: proved.\n\n[108 B-E]\n\nClV!L APPELLATE JURISDICTION : Civil Appeal No. 491 of 1975.\n\n, v\n\nAppeal by Special Leave from the Judgment and Order dated the 1 24th June 1974 of the Orissa High Court in Second Appeal No. 8 of 1971.\n\nGobind Das and B. Parthasarthi, for the Appellant.\n\nSantosh Chatterjee and G. S. Chatterjee, for the Responde!Jit.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-'-This appeal by special leave which is directed against the judgment and decre~ dated June 24, 1974, of the High Court of Orissa at Cuttack reversing the judgment ane decree dated September 23, 1970, of the first appellate court which in turn reversed the judgment and decree dated April 10, 1970, of the Trial Court relates to the controversy regarding the appellants' right to store and sell dry 'Mahaprasad' in the suit premises consisting of two pucca rooms standing on plot No. 167 in 'Bihar Bedha' (outer compound) of the Hoary Holy public temple of Lord Jagannath Ji in Puri (hereinafter referred to as 'the Temple'), which to use the ianguagc of the illum; nating and instructive preamble of Shri Jagannath Temple Act, 1954 (Orissa Act No. 11 of 1955) (hereinafter referred to as 'the Act') has ever since its inception been an institution of unique national importance, in which millions of Hindu devotees from regions far and\n\nwide have reposed their faith and belief and have regarded it as the A epitome of their tradition and culture.\n\nThe facts giving rise to this appeal are : On August 7, 1969, one Gopal Suar, since deceased, who was the father and predecessor-ininterest of the present appellants describing himself as sevak of the Temple brought a suit in the C?u!'.1 of. the Mush!, Puri, being suit No. 160 of 1969, for permanent m1unctlon restrammg the respondents herein from interfering with his nght of storing and selling dry 'Mahaprnsad' in the suit premises.\n\nThe case of the original plaintiff was that by means of 'Sanand' (Exhibit I) Raja Sri Dibyasingha Deb, the then Superintendent of the Temple, granted to his great grandfather, Gangadhar Suar, a permament lease of the site on which the two suit rooms stuod on an annual rent of Rs. 7 /-; that it was provided in the 'Sanand' that the grantee or lessee would be entitled to enjoy the site from generation to generation and in case a permanent structure was constructed thereon, the rent would be enhanced to Rs. 14/- per year; that as a result of the\n\ndea:th of his great grandfuther, Gangadhar Suar, of his grandfather,.\n\nBela Suar, and of bis father, Chakhi Suar, he had become the sole owner of the property; that a few days after the commencement of the lease, two permanent pucca rooms for storing and selling 'Mahaprasad' were constructed by his great grandfather, Gangadhar Suar, who according to the stipulation contained in the aforesaid 'Sanand' became liable to pay an annual rent of Rs. 14/-; that since the commencement of the lease, his ancestors had from generation to generation been using the suit property as a store room and as a shop ior selling dry 'Mahaprasad' in their capacity as tenants of the Raja of Puri who was the Superir; tendent of the Temple and the said right of his had been acknowledged and duly recorded in the record of rights; that ever since the taking over of the management of the Temple by the Government, he had been paying annual rent as per terms of the lease to the resrondents who had accepted him as a tenant; that he had been occupying and enjoying the suit property as before without any Jet or hinderence either by the respondents or by their predecessor-in-interest; that on August 1, 1969, his son intimated to him that respondent No. 2 had, by means of notice dated July 31, 1969, called upon him to close the shop on pain of daily fine of Rs. 100/-, as in tbc opinion of the respondent, he had been using the land in inner Bedha of the Temple for storage and sale of 'Mahaprasad' which adversely affected the discipline and dignity of the Temple; that on being so informed, he personally approached respondent No. 2 and represented to him that he was the permanent lessee of the suit property and had acquired indefeasible right of storing and selling 'Mahaprasad' thereon and the respondents could not interfere with that right but his representation fell /lat and respondent No. 2 threatened to close his shop forcibly, to impose penalty on him, and to dismiss him from the 'seva'; that after sometime, respondent No. 2 served him with another notice iJnposing an accumulated penalty of Rs. 4.600/- at the rate of Rs. 100/-\n\nper diem and that there being no provision in the Act empowering the respondents to do any of the aforesaid things, '.he<r action was arbitrary, illegal and without jurisdiction.\n\nThe rnit was_ vigorously contested by the respondents. While denying the grant of the open site to the plaintiff's ancestor, Gangadhar Suar, as alleged, as also the construction of two pucca rooms by the latter and the storage and sale thereon of 'Mahaprasad' by the plaintiffs' ancestors, the respondents averred inter alia that the Raja of Puri bcmg merely a Superintendent or a Manager of the Temple, it was beyond his competynce to transfer a portion of the Temple permanently in favour of any individual and the 'Sanand' set up by the plaintiff was ns such ineffectual, invalid and inoperative and did not confer any right, title or interest on him or his ancestors ana was not binding on the respondents; that according to the established custom and\n\nusae oi the Temple, 'Mahaprasad' could not be stored and sold in a 'Saraghara' but was to be sold in Anand Bazar--thc place specifically set apart for the purpose, and that since the plaintiff had been committing a breach of discipline and violating the orders of the respondents by storing and selling 'Mahaprasad' in the 'Saragharn' standing on plot No. 167 (which had been recorded in the record of rights as 'khas dakhali' land of the respondents and was never intended for storage and sale of 'Mahaprasad') and was thus acting in a manner derogatory to the dignity of the Temple, the respondents in whom the governance and administration of the Temple and its endowments vested under section 5 of the Act were competent to take action under sections 21 (A) and 30(A) of the Act.\n\nAfter framing the necessary issues and recording the evidence adduced by the parties, the Trial Court dismissed the suit holding that as sections 15 and 30(A) of the Act cast statntory obligation on the respondents to ensure maintenance of order and discipline and proper hygienic conditions in the Temple and proper standard of cleanliness and purity of the offerings made therein, they could not be restrained by a permanent injunction from stopping the plaintiff to sell 'Mahaprasad' at a place other than the one specified for the purpose.\n\nOn appeal, however, the Sub-Judge (Additional District Magistrate) Puri, decreed the suit. Aggrieved by this decision, the respondents preferred an appeal to the High Court which accepted the same and dismissed the suit\n\nConnsel for the awellants has nrged before us that the suit property did not form part of the Temple; that the transactions evidenced by 'Sannnds' (Exhibits I & II) issued by the Raja of Puri as Superintendent of the Temple in exercise of his right of superintendence and management of the Temple amounted to a permanent lease of the suit property and not merely to a licence, a•nd that the appellants had an indefeasible right of storing and selling Mahaprasad in the suit Sarag11ara.\n\nWe shall deal with these contentions seriatim.\n\nRegarding the first contention raised on behalf of the appellants, we may observe that according to section 2(d) of Act No. XIV of 1952 called the Puri Shri Jagannath Temple (Administration) Act,\n\n• ..\n\nH 1952, 'Temple' means \"the Temple of Lord Jagannath of Puri, other temples within its premises, all their appurtenant and subordinate .,,.~ shrines, other sacred places and tanks and any additions which may be made thereto after the commencement of the Act\". It may also be\n\n} '\n\nmentioned that pursuant to section 3 of that . .\\ct, a Special Officer A with prescribed qualifications was appointed by the State Government for preparation of the consolidated record of rights nd duties of different sevaks and pujaries and other persons connected with the seva, puja or management of the Temple as also for preparation of a list of the immovable properties endowed to Lord Jagannath Temple and the extent of the premises of the Temple and what it comprises.\n\nIn the report prepared by the said Officer which was published in the B Orissa Gazette (Extraordinary) and is final and entries whereof cannot be questioned except in the manner provided in section 5 of that Act, it is recorded that the Temple of Lord Jagannath occupies an area of\n\n10 acres and its premises include all appurtenant and subordinate shrines and the outer and inner compounds and that the suit plot No. 167 lies in the 'Baisi Pahacha' area in between the inner and outer compounds of the Temple and that access to it is through the main C gate i.e. 'Singhadawara' (lion's gate) of the Temple. It is, therefore, clear beyond any manner of doubt that the suit premises form part of the Temple.\n\nThe first contention of counsel for the appellants is, therefore, repelled.\n\nFor a proper appreciation of the second contention, it is necessary to bear in mind the essential difference between a lease and a licence.\n\nIt is now well settled by a catena of decisions of this Court that it is the creation of an interest in immovable property tbat distinguishes a lease from a licence. Reference in this connectiot1 may be made with advantage to the decision of this Court in Associated Hotels of India\n\nLtd v. R. N. Kapoor(') where Subba Rao, .J. (with whom Das, J. agreed) observed as follows :-\n\n\"If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, bis occupation would be unlawful. It does not create in his favour any estate or interest in the property.\n\nThere is, therefore, clear distinction between the two concepts.\n\nThe dividing line is clear though sometimes it becomes very thin or even blurred.\n\nAt one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee.\n\nBut there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington 1952-1 All ER 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155 :\n\nThe result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be sa\n\n(1) A. I. R. 1959 S. C. 1262\n\nA if the circumstances negative any intention to create a tenancy\".\n\n\"The Court of Appeal again in Cobb v. Lane 1952-1 All ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell L.J., stated :\n\n\" .... the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the par.ties\".\n\nDenning L.J. said much to the same effect at p. 1202 :\n\n\"The question in all these eases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?\"\n\nThe following propositions may, therefore, be taken as •veil-established : (I) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the forms; (2) the real test is the intention of tlie parties-whether they intended to create a lease m a licence; ( 3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, 'pnma facie' he is considered to be a tenant but circumstances may be established which negative the intention to create a lease\".\n\nAgain in Qudrat Ullah v.\n\nMunicipal Board, Bareiliy(') this Court observed :-\n\n\"There is no simple litmus test to distinguish a lease as defined in s. 1 05, Transfer of Property Act from a licence as defined in s. 52, Easements Act, but the character of the transaction turns on the operative intent of the parties.\n\nTo put it pithily, if an interest is immovable property; entitling the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is alone granted, a licence is the legal result.\"\n\nThen again in Board of Revenue v. A. M. Ansari(') this very Bench while approving the observations made by Lord Shaw while delivering the judgment of the Board in Kauri Timber Company Limited v. The Commissioner of Taxes(') held that in order that an\n\n(1) [197412 S. C.R. 5.10.\n\n(2) [1976] 3 S. C. R. 661.\n\n(3) [1913] A. C. 771 (776).\n\nSRIDHAR v . . TAGAN NATH TEMPLE (Jaswant Singh,!.)\n\nI 0 7\n\naoreement can be said to partake of tjle character of lease, it is necess; ry that the grantee should have obtained an interest in and possession of land. The following observations made therein are apposite :-\n\n\"A lience does not create an interest iu the property to which it relate.s while a lease does. There is in other words\n\ntral!lsfer of a right to enjoy the property in case of a lease.\n\nAs to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances. of each case.\n\nFor the purpose of deciding whether a particular grant amounts to a lease or a licence, it i~ essential, therefore, to look to the substance and essence of the agreement and not to its form.\"\n\nBearing in mind the above observations, let us now scrutinize the terms of Sanand (Exhibit-I) which reads thus :-\n\n\"Order hereby is issued to the Parichims Karjees ( Officers) of the temple as follows :-\n\nOne Gangadhara Suar of Kundhaibenta Sahi has filed an application before the Raja for opening a 'Sera Ghara' t store room of Mahaprasad) at the top step of twenty two steps adjoining the inner compound of the temple and the Eastern Gate Way having space of 10 cubits of length toward.s south and width of '10 cubits.\n\nIt is ordered that he is permitted to open the said store room with hereditary right on payment of one gold Mohara as Salami and rupees seven as annual rent. If he at any time constructs a pucca house, he shall P<ll' rupees fourteen as annual rent.\"\n\nA carefu1 persual of the recitals in the Sanand (which does not reveal the identity of the plot with precision) would show that the Sarranu did not create any interest i'1 the sLe in question in favour of the plaintiff's great grandfather. It -merely permitted him to open a\n\n'Sarnghara' which meant a room for storing articles for the sole purpose of preparing Bhog for the three presiding deities.\n\nThe Sanand did not also con.fer the right of exclusive possession of the suit property on the grantee. This is evident from the right of 'dakhale khas' of the respondents in the suit property as also from the proved fact that 'Saraghara' was not kept open by the Temple authorities from midnight to 6.00 A.M. during which interval, the plaintiff could in no case occupy it nor could he have access to it. ft has also been found to have been established from the plaintiff's evidence itself that the employees of th.e Raja of Puri used to clean the refuse etc. which got accumulated before the suit 'Saraghara'.\n\nThus none of the elements of lease can .be said to be present in the instant case.\n\nIn M. N.\n\nChubwala v. Eide Hussain Sahib(') this Court rejected the claim of holdern of certain stalls in a nmrket that they were lessees and not\n\n(I) A. I. R. 1965 S. C. 610.\n\nlicencees thereof on the ground that they had no right to us them after the closure of the market at night and the responsibility of cleaing and disinfecting the stalls and closing the market at night lay on the landlord and not on the stall holders.\n\nNo help can be derived by the appellants from Exhibit-II which relates to a quarrel in 'Kotha Bhog Nities' and is not relevant for the purpose with which we are concerned at the present stage.\n\nNow assuming without holding that the Sanand amounted to a lease, it cannot even then be held to be valid as permanent alienation of the temple debutter property is prohibited.\n\nThe position is stated thus at page 489 of Mulla's Treatise on Principles of Hindu Law (11th Edition) :-\n\n\"The Rower of a shebait or a mohunt (..) alienate debulter property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman\n\nPershad v. Mussamat Babooee 6 M.I.A. 393.\n\nAs held in tba t case, he has no power to alienate debutter property except in a case of need or for the benefit of the estate. He is not entitled to sell the property for the purpose of investing the price of it so as to bring in an incoine larger than that derived from the property itself.\n\nNor can he, except for legal necessity grant a permanent lease of debutter property, though he may create proper deri\\ative tenures and estates conformable to usage.\"\n\nJn the present case, the position of the Raja of Puri who granted the Sanand (Exhibit-I) was merely that of a shebait.\n\nHe could not. have granted a permanent lease of the property in question to the great grandfather of the plaintiff without necessity or without benefit to the estate which have not at all been made out in this case.\n\nAgain th(> lease being a permanent one for a fixed rent cou!d not have been grant.ed at all by the Raja of Puri. Reference in this connection may usefully be made to page 931 of Mayne\\ Treatise on Hindu Law (1 lth Edition), where the position 1s stated a< follows\n\n\"It is beyond the powers of a manager to grant a pcrmanrnl lease at a fixed rent in the absence of unavoidable necessi•y; for, to fix tbe rent, though adequate at the time, in oerpetuity in lieu of giving the endowment the benefit o[ an augn~.entation of a variable rent fro1n time to time \\Vould be a breach of duty on the part of the manager.\n\nIn Pala11iappa Chetty v. Streemath Deivasikamony (1917) 44 I.A. 147.\n\nLord Atkinson observed: \"Three authorities have been cited which establish that it is a breach of duty on the part of a shebait, unless constrained thereto by unavoidable necessity, lo grant a lease in perpetuity of debutter lands at a fixed rent. however adequate that rent inay be at the time of granting, by reason of the fact that, by this means, the debutter estate\n\nCl) 44 I. A. 147.\n\n' '\n\n, - '' ', <\n\n' •\n\nj, > ..\n\n) -\n\nis deprived of the chance it would have, if the rent were A variable, of deriving benefit from the enhancement in value in the future of the lands leased.\"\n\nIn Palaniappa Chetty & Anr. v.\n\nDeivasikamony Pandara(') alluded to in the above quoted passage, it was also held :-\n\n'A permanent lease of temple lands at a fixed rent, or rent free for a premium, whether the lanc!s are agricultural !ands or a building site, is valid only if made for a necessity of the institution. It is not justified by a local custom, or by a practice of the institution, to grant lands in that manner .\n\nThe phrase \"benefit of the estate'', as used in the decisions with regard to the circumstances justifying an aliena- C tinn by the manager for an infant heir or by the trustee of a reiigious endowment cannot be precisely defined. but includes the preservation of the estate from extinction, its defence against hostile litigation, its protection from inundation, and similar circumstances.\"\n\nThe present case is, in our opinion, fully covered by the decision D in Shibessouree Debia v. Mothooranath Acharjo( 2 ) where it was laid down a~ a general rule that apart from unavoidable necessity to create a new and fixed rent for all time,. though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty in the mohunt.\n\nThus viewed from any angle the 'Sanand' could not be held to be E any more than a licence and could not clothe the ancestors of the jllaintiff or the plaintiff with the status of a lessee.\n\nThis takes us to the last contention .raised before us by counsel for the appellants which is also devoid of substance. A bare perusal of Exhibit-I is enough to show that it does not confer any right of selling 'Maha; irasad' on the plaintiff or on his legal representatives. Exhibit- F II cannot also be usefully pressed into service by the appellants as it relates to the sale of 'Rahani Bhog', and not of 'dry Mahaprasad'.\n\nTims all the contentions raised by counsel for the appellants fail.\n\nFor the foregoing reasons, we affirm the judgment of the High Court and dismiss the appeal with costs.\n\nThe appellants are, however, as mutualy agreed to between the parties, given one month's time to vacate the premises.\n\nThe cumulative penalty of Rs. 4,600/· to which the appellants have been subjected also being excessive is reduced to Rs. 500/·.\n\nP.H.P.\n\nAppeal dismissed.\n\n(I) 44 I. A. 147\n\n(2) 13 M. I. 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{"document_id": "1976_1_110_120_EN", "year": 1976, "text": "I I 0\n\nRAM KANAI JAMIN! RANJAN PAL PVT. LTD. v.\n\nMEMBER BOARD OF REVENUE, WEST BENGAL\n\nApril 23. 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.J\n\nBengal Finance (Sales Tax) Act, 1941-S. 20(3)-Scope o/-Adt!itio!!al Commissioner reassessed turnover taking into consideration 111ateriaf not a1•ailable to assessing authority-if co1npetent.\n\nSection 20(3) of the Bengal Finance (Sales Tax) Act, 1941 provide' that the Commissioner, upon application or of his own motion, may revise ahy assessment made or order passed under the Act or the Rules thereunder by a person appqinted under s. 3 to assist him and the Board of Revenue may, in like manner, revise any order passed by the Commissioner.\n\nAt the time of asses_smcnt of the. appellant's sales tax return, the OJ.mn1tT~ cial Tax Officer enhanced the gross turnover and charged the enhanced amount to tax and in addition impod a penalty. On appeal under s. 20(1) or the Act, the Assistant Commissioner reduced the enhancement of gross turnover as well as the penalty. The appellant filed a revision application before the Comn1issioner of Comn1ercial Taxes.\n\nBefore the filing of revision application, under orders of the Additional Commissioner, an enquiry was conducted by a Commercial Tax Officer who detected numerous discrepancies of a serious nature in the accounts. On the basis of this report, the Additional Commissioner enhanced the assessment by a huge sum and charged the entire enhanced amount to tax.\n\nOn further revision to the Board of Revenue, the appellant contended that while exercising his power of revision under s. 20(3) of the Act, the Commissioner had to confine himself to an examination of the material before the assessing officer and could not take additional facts into consideration which plea was rejected by the Board.\n\nThe High Court held that ( i) under s. 20 ( 3) the Additional Commissioner was competent to reassess the gross turnover by taking into consideration additional material which had not been made available to the assessing officer and\n\n(ii) the Additional Commissioner was vested with authority under s. 20(3) read with r. 80A to rely on the report under s. 14(1) initiated long before the filing of the revision petition.\n\nDismissing the appeal,\n\nHELD : The Commissioner or Additional Commissioner can. in exercise of his revisional power, re-asSess the turnover a'hd while doing &o, rope in the escaped items of turnover ah<l thereby enhance the gross turnove-r. [l 16 Cr]\n\n(1) The word \"Revise\", the dictionary meaning of which is \"to re-examine, to review, to correct or to amend the fault\", is not hedged or qualified by any condition or limitation.\n\nThe controlling expressions like \"for the purpose of satisfying himself as to the legality or propriety of the order passed\" or \"regularity of the proceedings'' which. are susceptible of being construed a~ restricting the revisional power to rectification of an illegality or impropriety of the order or or irregularity in the prdilJlgs are also not to be found. therein.\n\nThere is alsq nothing in the Bengal Sales Tax Rules. 1941 to circumscribe or limit the p0¥/er.\n\nIt is not, therefore, unreasonable to infer that the amplitude of the power conferred on the Commissioner or the Additional Con1missioner is more extensive than the power exerciseable by the High Court under s. 115 of the Code of Civil Procedure. It can be ea:\\i1y equated with tli..e power exercise.able by the appellate authority in an appea'. under sub. s. 2 ol s. 20 of the Act.\n\n[IJ5 F-HJ\n\n' '\n\n- • •\n\n) •\n\nRAM KANAI v. BOARD OF REVENUE (Jaswant Singh, J.) 111\n\nIndira Solianlal v. Custodian of Evacuee Property Delhi and Otliers A,.I.R.\n\nA 1956 S.C. 77 : East Asiatic Co. (India) Ltd. v. The State Qf Ml!dra, 7 S.T.C. 299, State of Kerala v. K. M. Cheria Abdulla & Co. [1965] 16 S.T.C. 875, Saastik Oil Mil~ Ltd. v. H. B. Munshi Deputy Cornniissioner of Sc•!es Tax, Bombay [i968] 2 S.C.R. 492, State of Madras v. The A1adura K11itti12g Co. Ltd.\n\n(1959) JO S.T.C. 155, referred to.\n\nDeputy Co1nmissioner of Agricultural I1u:pnzetax and Sales Tax, Qui/011 and Anr. v. Dhanalakshmi Vilas Cashew Co. (1969) 24 S.T.C. 491, The State B of Kera/Av. M. Appukutty (1963) 14 S.T.C. 242 and Commi.\"ioncr of lncomctax, Bombay v. Shapoorji Pallonji Mistry (1962) 44 I.T.R. 891, distinguished.\n\n(2) On a combined reading of s. 20(3) and rule 80A of the Rules it is immaterial whether the Commissioner proceeds to make the enquiry before or after tire filing of a revision petition so Jonras he affords to tho pefiOn li.kel Y to bei advenely affected by his actio'n an opportunity of beingi heani. [l 19 H]\n\nJn the instant case, the Commercial Tax Officer called upon to make an enquiry, gave adequate opportunity to the appellant to explain the di.sa'epancies and the suspicious circumstances, relating to the alle&ed. iuppressi.on of the turnover and the Additional Commissioner gave notice to the former and furnished him with a full copy of the report. It cannot be said that the Com mercial Tax Officer and Additional Commissioner committed any illegality or breach of any statutory provision or rule or transgressed the limiti of their jurisdiction. [120 A-CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 669 and 670 of 1971.\n\nAppeal by Special Leave from the Judgment and Order dated the I Ith June, 1970 of the Calcutta High Court in Sales Tax Reference No. 395 of 1969.\n\nS. T. Desai, H. S. Parihar and I. N. Shroff, for the Appellant.\n\nE !\n\nL. N. Sinha, Solicitor General, Sukumar Basu and G. S. Chatterjee, for Respondent in C.A. 669 /71.\n\nLeila Seth, Sukumar Basu, G. S. Chatterjee, for Respondent in\n\nC.A. 670/71.\n\nThe Judgment of the Court was delivered by F\n\nJASWANT SINGH, J.-These two appeals Nos. 669 and 670 o~ 1971 by special leave from the common judgment dated June I I, 1970, of the High Court at Calcutta in Sales Tax References Nos. 395 of 1965 and 521 of 1967 which raise important questions as to the scope and extent of the revisioual power of the Commissioner, Commercial G Taxes, lb1dec section 20(3) of 'the Bengal Finance (Sales Tax) Act 1941 (Act VI of 1941) (hereinafter referred to as the Act'), and f shall te disposed of by this judgment.\n\nThe fact:; giving rise to these appeals are : The appellant which is a Private Limited Company, incorporated under the Indian Companies Act, 1913, and is registered as a dealer under the Act sub H milted a return for 4 quarters ending with the last date of Chaitra, 1364 B.S. (corresponding to the period commencing with April 1-4, 1957, and ending with April 13, 1958) showing a gross turnover of\n\nsales of Rs. 35,93,402/-. By his order dated December 7, 1959, the Commercial Tax Oflicer, Rajakatra Charge, rejected the appellant's books of accounts on the ground of absence of purchase and sale vouchers and of stock statements and enhanced the gross turnover shown by the appellant by Rs. 50,000/- and charged the entire enhanced amount to tax subject to deduction under section 5(2) (b) of the Act.\n\nHe also imposed a penalty of Rs. 1,000/- under section 11(1) of the Act.\n\nOn appeal under section 20(1) of the Act, the Assistant Commissioner, Commercial Taxes, Burrabazar Circle, by his order dated. September 10, 1960, reduced the enhancement of gross turnover from Rs. 50,000/- to Rs. 25,000/- and the penalty from Rs. 1,000/- to Rs. 500/-. Not satisfied with this reduction, the appellant moved the Commissioner, Commercial Taxes, West Bengal, in revision under section 20(3) of the Act on November 10, 1960.\n\nBefore the filing of the said revision petition, the Commercial Tax Officer, Central Section, to whom power under section 14 (1) of the Act has been duly delegated started an enquiry on January 20, 1960 and served on the appellant a notice dated October 25, 1960 to the following effect :-\n\n\"You are hereby directed to furnish the undersigned with the serial Nos. of the cash memos printed by you in 1363 B.S., 1364 B.S., 1365 B.S., 1366 B.S. and 1367 B.S.\n\nThe names of the suppliers of these memos relevant bills Nos. and dates, amount, dates of payment and modes of payment also are to be indicated.\n\nThe information may be supplied to the undersigned on 31st October, 1960 at 4 p.m. positively.\"\n\nIn response to the notice, the appellant appeared before the Commercial Tax Officer, who after hearing the former and examining the cash memos and other material submitted a report of the investigation made by him to the Assistant Commisioner, Central Section, observing inter alia that two original cash memos issued by the appellant bearing serial No. 30727-26 dated January 24 for Rs. 69.50 in respect of sale of Banarsi Saree and No. 31310-37 dated December 25, 1966 for Rs. 62.20 in respect of sale of ready-made garments were not properly recorded in the appellant's books of accounts and records and that on reference to the appellant's books of accounts and cash memos, it had been found that cash memo No. 30727-26 was issued in respect of mill-made cloth for Rs. 11.75 on August 18, 1964 and not in respect of Banarsi saree for Rs. 69 .50 n January 24 and cash memo No. 31310-37 was issued in respect of sale of mill-made cloth for Rs. 9.37 and not in respect of sale of ready-made garments for Rs. 62.20 on December 25, 1966. He also observed in his report that in cash memo No. 31310-37, the date appeared to have been tampered with by subsequent insertion of the numerals \"66\" after the date of issue and that the actual date appeared to be December 25 and that the appellant had not been able to furnish a satisfactory explanation with regard to these discrepancies.\n\nThe Commercial Tax Officer further stated in his report that his investig:ition revealed that the appellant got duplicate sets of 1,00,000\n\n' I\n\n...,.,\n\nI •· ..\n\nRAM KANAI v. BOARD OF REVENUE (laswant Singh, J,) 113\n\ncash memos bearing serial Nos, 2850 to 29500 and 30501 to 31500 printed and supplied by M/s Blackwoods India Limited and did not record sales to the extent of Rs. 30,00,000/- which in the absence of any evidence to the contrary appeared to be entirely taxable, This report was received by the Additional Commissioner, Commercial Taxes, while the aforesaid revision petition was still pending before him, He, thereupon gave the following notice to the appellant :-\n\n\"On discovery of fresh materials, as reported by the Commercial Tax Officer, Central Section, in his report dated 27-12-60 (copy enclosed), it appears that you have suppressed sales \"estimated to be Rs. 30,00,000 in respect of the assessment of four quarters ending Chaitra 1364 B.S,\n\nThe above revision petition which has been filed before me is against the appellate order in respect of the assessment for the said period . . . . . . . . It also appears that sales to the extent of Rs. 30,00,000 (estimated) escaped taxation from the original assessment and consequently from the Assistant Commissioner's appellate order.\n\nThe above , revision petition wiUbe heard by me on 5-10-61 at 11.30 a.m. and the report dated 27-12-60, submitted by the Commercial Tax Officer, Central Section, will be considered at the time of hearing of the revision petition.\n\nYou should, .therefore, appear before me on that date at the hour fixed either in person or by a duly instructed agent to represent your case, failing which the matter will be decided ex-parte without any further reference to you.\"\n\nIn reply to the notice, the appellant wrote back denying that it had any transaction with M/s Blackwoods India Ltd. in relation to the printing of the duplicate sets of the cash memos in question and stating inter alia that on the matter being referred to the later, they could not say from whom actually, the order in question was received nor could they give any relevant particulars. It was further added by the appellant that the proposed enhancement of gross and taxable sales by Rs. 30,00,000/- was unjustified and unwarranted.\n\nThe Additional Commissioner disposed of the revision petition by enhancing the assessment by Rs. 20,00,000/- a~ against the admitted gross turnover of Rs. 35,93,402/- and cha.rged the entire enhanced amount of Rs. 20,00,000/- to tax subject to deduction under section 5 (2)(b) of the Act. ·\n\nThe appellant thereupon took the matter in further . rev1S1on to the Board of Rvenue, West Bengal contending that the conclusions arrived at by the Additional Commissioner, Commercial Taxes were wholly unwarranted and that while exercising his power of revision under section 20(3) of the Act, the Commissioner had to confine himself to the examination of the material before the Assessing Officer and could not take additional facts into consideration.\n\nThe Board negatived both the contentions and rejected the revision application.\n\nThereupon the appellant made an application to the Board under section 21 (1) of the Act requesting that the points of law arising\n\nI0-833SCI/76\n\nfrom its decision be referred for decision to the High Court. Although at the hearing of the application, the appellant stressed that reference be made on three points, the Board allowed the application in part and re(e1red only the following question of law for decision to the High Court :-\n\n''Whether on the facts and circumstances of the case, in exercise of his powers under section 20(3) of the Bengal Finance (Sales Tax) Act, 1941, the Additional Commissioner was competent to reassess the gross turnover of the petitioner by taking into consideration additional material which had not been made available to the assessing officer\"\n\nThe appellant did not rest content with this limited reference and C made an application under sub-sections 2(b) and (3) of section 21 of the Act to the High Court which directed the Board to submit for its decision the following further question of law :-\n\n\"Whether on the facts admitted or found by the Tribunals below, the Additional Commissioner of Commercial Taxes was vested with the authority or jurisdiction, under sub-section (3) of section 20 of the Bengal Finance (Sales Tax) Act, 1941, read with rule SOA of the Rules framed thereunder to admit or rely on the purported report, dated December 27, 1960, of the Commercial Tax Officer of the Central Section, pursuant to the enquiry, under sub-section\n\n(1) of section 14 of the said Act, initiated long before the filing of the revision petition in question by the petitioner before the Commissioner of Commercial Taxes, West Bengal?\"\n\n, .\n\nThe Board thereupon referred the above quoted second question l of Jaw as well to the High Court for its decision.\n\nAfter hearing the appellant and the Revenue, the High Court by its common judgment dated Jnnell, 1970 answered both the aforesaid questions in the affirmative.\n\nAggrieved by this judgment of the High Court, the appellant applied for and obtained special leave to appeal to this Court.\n\nAppearing for the appellant, Mr. Desai has strenuously urged that the revisional power of the Additional Commissioner under section 20(3) of the Act was a limited one and he was not competent to act as an original assessing authority and reassess the gross turnover by taking into consideration the additional material comprising fresh sources of revenue which was not available to the Assessing Officer.\n\nHe has further urged that the Additional Commissioner, could not admit or rely on the report dated December 27, 1960, of the Commercial Tax Officer, Central Section, based on the enquiry under section 14 (1) of the Act which was initiated long before the filing of the revision application before the Commissioner, Commercial Taxes, West Bengal.\n\n• > ..\n\n•• -\n\n• ,\n\nRAM KANAI v. BOARD OF REVENUE (laswant Singh,!.) 115\n\nThough both these contentions are inextricably linked up, we -shall deal with them separately.\n\nTurning to the first contention, we wish to make it clear that the scope and ambit of the revisional jurisdiction varies from statute to statute and it is difficult to make general observations in regard thereto.\n\nFor ascertaining the true scope, .content and am.bit of the revisional jurisdiction of the Commissioner or the Additional Commissioner, as the case may be, of Commercial Taxes, under the Act, it is necessary to notice section 20 thereof which in so far as is material for the purpose of these appeals stood thus at the relevant time :-\n\n\"20(3). Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assessment made or order passed under this Act or the rules thereunder by a person appointed under section 3 to assist him, and subject as aforesaid, the Board of Revenue may, in like manner, revise any order passed by the Commissioner : Provided that before rejecting any application for the revision of any such order the Commissioner or the Board of Revenue, as the case may be, shall consider it and shall record reasons for such rejection. : Provided further that no application for revision shall lie to the Commissioner in respect of any assessment if an appeal lies under sub-section (1) to the Commissioner in respect of such assessment. ..... .\n\n(5) Before any order is passed under this section which is likely to affect any person adversely, such person shall be given reasonable opportunity of being heard.\" The section as extracted above is very widely worded.\n\nThe word 'revise' occurring therein (which in dictionary is described as meaning to 're-examine, to review, to correct, or to amend the fault') is not hedged or qualified by any condition or limitation.\n\nThe controlling expressions like 'for the purpose of satisfying himself as to the legality or propriety of the order passed' or 'regularity of the proceeding' which are susceptible of being construed as restricting the revisional power to rectification of an illegality or impropriety of the order or of irregularity in the proceeding are also not to be found therein. There is also nothing in the Bengal Sales Tax Rules, 1941 (hereinafter called 'the Rules') to circumscribe or limit the power.\n\nIt is not, therefore, unreasonable to infer that the amplitude of the power conferred on the Commissioner or the Additional Commissioner is more extensive than the power exercisable by the High Court under section 115 of the Code of Civil Procedure.\n\nIn fact, it can be easily equated with the power exercisable by the appellate authority in an appeal under sub-section (2) of section 20 of the Act.\n\nWe are fortified in this view by the following observations made by this Court in Indira Sohan/al v. Custodian of Evacuee Property Delhi and Others(').\n\n(1) <\\..I. R. 1956 S. C. 77.\n\n\"Section 27 is very wide in its terms and it cannot be construed as being subject to any limitation such as filing of an appeal.\n\nNor can the scope of revisional powers be confined only to matters of jurisdictfon or illegality, because under s. 27 the Custodian General, can exercise revisional powers for the purpose of satisfying himself as to \"the legality or propriety\" of any order of the Custodian.\" ·\n\nThe following observations made by Ramaswami, J, in Asiatic Co. (India) Ltd. v. The Staid of Madras(') are also vant :-\n\nEast\n\n\"The purposes of this Act are two fold, viz., the levy of a generaltax on the sale of goods to supplement the lost revenues and for promoting the general public good; and secondly, to see that this is done under the provisions of the Act and not by carrying out in a capricious or arbitrary manner. Therefore, a revisional authority has to be created.\n\nWhat is revision? The essence of revisional jurisdiction lies in the duty of the superior tribunal or officer entrusted with such jurisdiction to see that the subordinate tribunals or officers keep themselves within the bounds prescribed by law and that they do what their duty requires them to do and that they do it in a legal manner.\n\nThis jurisdiction being one of superintendence and correction in appropriate cases, it is exercisable even suo motu as is clear from the numerous statutory provisions relating to revision found in various Acts and Regulations such as the Civil Procedure\n\nCode, Criminal Procedure Code, Income Tax Act, etc.\n\nThe jurisdiction of suo motu revision is not cribbed and cabined or confined by conditions and qualifications.\n\nThe purpose of such an amplitude being given suo motu revisions appears to be as much to safeguard the interests of the exchequer as in the interests of the assessce.\n\nThe State can never be the appellant and if there is an order against the State to its prejudice, and naturally the assessee in whose favour the order is passed does not prefer an appeal, the State would suffer unless its interests are safeguarded by the exercise of such supervisory jurisdiction as the one given to the authorities above-mentioned.\"\n\nre le--\n\nThus the Commissioner or the Additional Commissioner can, in exe; cise of his revisional power, re-assess the turnover and while doing so rope in escaped items of turnover and thereby enhance the gross turnover.\n\nHaving found that the power of revision exercisable by the Commissioner, Commercial Taxes is not tramelled by any limitation, let us now sec whether the Commissioner while exercising the revisional power is confined to the order of assessment and the record of pro- --------\n\n(!) 7. S T. C. 299.\n\n~ •\n\n' . • j\n\n- •\n\nRAM KANAI v. !!OARD OF REVENUE (laswant Singh, l.) 11 7\n\n.ceedings of the Assessing Officer or can he travel outside the same and A ll'e-assess the gross turnover by taking additional material under con- --. , sideration. The following observations made in the majority judgment of this Court in the State of Kerala v. K. M. Cheria Abdulla &; Co.(') are helpful in deciding this matter :-\n\n\"The words of section 12 ( 2) of the Madras General Sales Tax Act, 1939, that the Deputy Commissioner 'may pass such order with respect thereto as he tl, links fit' means such order as may in the circumstances of the case for rectifying the defect be regarded by him as just. Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order, or irregularity in the proceeding. It is therefore not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the officer subordinate to him, and can never make enquiry outside that record.\n\nTherefore, conferment of power under rule 14-A of the Madras General Sales Tax Rules, 1939, to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does not amount to enlarging the jurisdiction conferred by section 12(2) .\"\n\nIt will also be apposite in this connection to refer to the following observations made by the Madras High Court in State of Madras v, The Madura Knitting Co. Ltd.( 2)\n\n\"The powers given to the revising authority under section 12 ( 2) were not confined to errors patent on the face of the record but would extend to probing further into the records like calling for despatch registers and other evidence.''\n\nIt will also be useful in this connection to refer to the decision of this Court in Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy Commissioner of Sales Tax, Bombay(') where this Court did not accept the principle laid down by the Andhra Pradesh High Court in State G of Andhra Pradesh v. T. G. Lakshmaiah Setty & Sons('), that the Deputy Commissioner of Sales Tax while exercising revisional powers under the Sales Tax Act of 1946 or of 1953 or of 1959 could not trav_el beyond the material or record that is availahk to the assessmg\n\nauthority and was not entitled to find data to institute an enquiry i; o as to include additional material in order to judge the correctness of 1he order sought to be revised and held : H\n\n(1) (1965) 16 S. T. C. 875.\n\n(2) (1959) to S. T. C. 155.\n\n(3) [1968] 2 S. C.R. 492.\n\n(4) 12 S. T. C. 663.\n\n\"Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pas such suitabl.e orders as the authority may think fit in the circumstances of the particular case before it.\n\nWhen exercising such powers, there is no reason why the authority should not be entitlecl to hold an enquiry or direct an enqmry to be held and, for that purpose, admit additional material.\n\nThe proceedings for revision, if started suo motu, must not of course be based on a mere conjecture and there should be some ground for invoking the revisional powers.\n\nOnce these powers are invoked, the actual interference must be based on sufficient grounds, and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be no bar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority.\n\nThis principle has been clearly recognised by this Court in the State of Kera/a v.\n\nAbdulla and Company (1965) 16 S.T.C. 875.\"\n\nThe decisions of this Court in Deputy Commissioner of Agncul-· tural Income-tax and Sales Tax, Quilon and Anr. v.\n\nDhanalabhmf Vilas Cashew Co.(') the State of Kerala v. M. Appukutty(') and Commissioner of Income-tax, Bombay v. Shapoorji Pallonii Mistry(') relied upon by Mr. Desai in support of his contention that while exercising his revisional power under section 20(3) of the Act, the Commissioner cannot travel ontside the return made by the assessee and the assessment order passed by the Sales Tax Officer with a view to finding out suppressed or escaped items of turnover and enhance the\n\nassessment are distinguishable as in all those cases. there were specific and separate provisions which enabled escaped turnover or incorr.e being brought to tax after following a special procedure. In Dhanclakshmi Vilas Cashew Co's case (supra), there was rule 33 of Kerala General Sales Tax Rules, 1950, in M. Appukutty's case (supra), there was rule 17 of the Madras General Sales Tax Rules, 1939; and' in Shapoorii Pallonji Mistry's case (supra) there were sections 3~ and' 33B of the Income Tax Act, 1922 which enabled escaped turnover or escaped income to be brought to tax. In the Act before us, however, there are no separate or specific provisions for assessment of escaped turnover which may, by implication, be said to exclude from the ambit of the revisional jurisdiction of the Commissioner the taking of additional facts into consideration and enhancing the gross turnover.\n\nIn view of the foregoing discussion. we have no hesitation in repelling the first contention raised on behalf of the appellant by Mr. Desai' and in holding that the High Court was right in answering the first question referred to it by the Board of Revenue in the affirmative.\n\nThis takes us to the second contention advanced on behalf 'of the appellant which is covered by the second question referred by the\n\n(I) (1969)24S.T.C.491.\n\n(2) (1963) 14S.T.C.242.\n\n(3) (1962) 441.T.R. 891.\n\n.. '\n\n• •\n\n. ~\n\n> '\n\n, ..\n\nRAM KANAI v. BOARD OF REVENUE (Jaswant Singh, J.) 119\n\nBoard of Revenue at the requisition of the High Court.\n\nFor effcc A tively dealing with this contention, it is necessary to advert to the following two provisions viz. section 14 of the Act and rule 80A of the Rules :\n\n\"14. (1) The Commissioner may, subject to such conditions as may be prescribed, require any dealer-\n\n(a) to produce before him any accounts, regiskrs or documents,\n\n(b) to furnish any information, relating to stock of goods of, or purchases, sales or deliveries of goods by, the dealer or relating to any other matter, as may be deemed necessary\" for the purposes of this Act.\n\n(2) (a) All accounts, registers and documents relating to the stocks of goods of, or purchases, sales and deliveries of goods by any dealer; and\n\n(b) all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection by the Commissioner.\n\n(3) If the Commissioner has reason to suspect that any dealer is attempting to evade payment of any tax under this Act, he may, for reasons to be recorded in writing, seize such accounts, registers or documents, of the dealer as may be necessary, and shall grant a receipt for t~ same, and shall retain the same only for so long as may be necessary for examination thereof or for a prosecution. . ..... \"\n\n\"Rule 80A. The appellate or revisional authority may, before finally disposing of the matter, make such inquiry or cause such inquiry to be made by such officer as it may think fit.\"\n\nA combined reading of the provisions of Section 20(3) of the Act aHiil rule 80A of the Rules would show that the Commissioner, Commerci::l Taxes is empowered to make or cause to be made such enquiry as he may think fit for proper exercise ol the revisional jurisdiction\n\ncotferred on him under section 20(3) of the Act. It would be further noticed that the Commissioner can, under section 14 of the Act, call upon any dealer to produce any accounts, registers or documents or\n\nto furnish any information relating to his business as may be deemed necessary for !he purpose of the Act whid1 include the exercise of revlsional jurisdiction. It would also be noticed that the powers under section 14 of the Act have been duly delegated to the Commercial Tax Officer. In this state of affairs, it is immaterial whether the Commissioner proceeds to make the enquiry before or after filing of a revi; ion petition so long as he affords to the person likely to be adversely affected by his action, an opportun\\ty of being heard. In the instant case, the whole thing was duly processed.\n\nAs already stated, the Commercial Tax Officer, Central Setion, by his notice dated\n\n120 SUPl\\EME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nOctober 25, 1960 gave adequate opportunity to the appellant to explain the discrepancies in its cash memos and books of accounts.\n\nAnother opportunity to explain the suspicious circumstances relatlng\n\nto the alleged suppression of the turnover as also to refute the material collected by the Commercial Tax Officer, Central Section, as a result of the investigation made by him and to show cause why action to subject the escaped turnover to tax be not taken was afforded to the appellant by the Additional Commissioner, Commercial Taxes, when on receipl of the aforesaid report dated December 27, 1960 of the Commercial Tax Officer, Central Section, he gave a notice to the former and furnished him with a full copy of the report. It cannot, therefore, be maintained with any show of force that, in admitting and relying on the aforesaid report dated December 27, 1960 of the Commercial Tax Officer, Central Section, the Additional Commissioner, Comrnerciai Taxes committed any illegality or breach of any statutvry provision or rule or transgressed the limits of his jurisdiction.\n\nIL will also not be out of place to mention that the contention which is the subject matter of the second question was never raised before the Board of Revenue as appears from the statement of the case drawn by it.\n\nWe are, therefore, clearly of the view that the High Court was right in answering the second question also in the aflirmalive.\n\nIn the result, the appeals fail and are hereby dismissed but in the circumstances of the case without any order as to costs.\n\nP.B.R. '.\n\nAppeals dismissed.\n\n. .", "total_entities": 61, "entities": [{"text": "I 0\n\nRAM KANAI JAMIN! RANJAN PAL PVT. 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{"linked_statute_text": "There is alsq nothing in the Bengal Sales Tax Rules", "statute": "There is alsq nothing in the Bengal Sales Tax Rules"}}, {"text": "s. 20", "label": "PROVISION", "start_char": 3484, "end_char": 3489, "source": "regex", "metadata": {"linked_statute_text": "There is alsq nothing in the Bengal Sales Tax Rules", "statute": "There is alsq nothing in the Bengal Sales Tax Rules"}}, {"text": "s. 20(3)", "label": "PROVISION", "start_char": 4335, "end_char": 4343, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 6032, "end_char": 6045, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Companies Act, 1913", "label": "STATUTE", "start_char": 6311, "end_char": 6337, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 5(2)", "label": "PROVISION", "start_char": 6966, "end_char": 6978, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "section 11(1)", "label": "PROVISION", "start_char": 7043, "end_char": 7056, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "section 20(1)", "label": "PROVISION", "start_char": 7086, "end_char": 7099, "source": "regex", "metadata": {"linked_statute_text": "the Indian Companies Act, 1913", "statute": "the Indian Companies Act, 1913"}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 7462, "end_char": 7475, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 7624, "end_char": 7634, "source": "regex", "metadata": {"statute": null}}, {"text": "section 5", "label": "PROVISION", "start_char": 12159, "end_char": 12168, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 12459, "end_char": 12472, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 12790, "end_char": 12800, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 13253, "end_char": 13266, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 2(b)", "label": "PROVISION", "start_char": 13612, "end_char": 13625, "source": "regex", "metadata": {"statute": null}}, {"text": "section 21", "label": "PROVISION", "start_char": 13637, "end_char": 13647, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 13955, "end_char": 13965, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 14233, "end_char": 14243, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 14940, "end_char": 14953, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 15415, "end_char": 15425, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20", "label": "PROVISION", "start_char": 16170, "end_char": 16180, "source": "regex", "metadata": {"statute": null}}, {"text": "section 3", "label": "PROVISION", "start_char": 16552, "end_char": 16561, "source": "regex", "metadata": {"statute": null}}, {"text": "is also nothing in the Bengal Sales Tax Rules, 1941", "label": "STATUTE", "start_char": 17908, "end_char": 17959, "source": "regex", "metadata": {}}, {"text": "section 115", "label": "PROVISION", "start_char": 18236, "end_char": 18247, "source": "regex", "metadata": {"linked_statute_text": "There is also nothing in the Bengal Sales Tax Rules, 1941", "statute": "There is also nothing in the Bengal Sales Tax Rules, 1941"}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 18251, "end_char": 18278, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 20", "label": "PROVISION", "start_char": 18407, "end_char": 18417, "source": "regex", "metadata": {"linked_statute_text": "There is also nothing in the Bengal Sales Tax Rules, 1941", "statute": "There is also nothing in the Bengal Sales Tax Rules, 1941"}}, {"text": "Section 27", "label": "PROVISION", "start_char": 18615, "end_char": 18625, "source": "regex", "metadata": {"linked_statute_text": "There is also nothing in the Bengal Sales Tax Rules, 1941", "statute": "There is also nothing in the Bengal Sales Tax Rules, 1941"}}, {"text": "s. 27", "label": "PROVISION", "start_char": 18856, "end_char": 18861, "source": "regex", "metadata": {"linked_statute_text": "There is also nothing in the Bengal Sales Tax Rules, 1941", "statute": "There is also nothing in the Bengal Sales Tax Rules, 1941"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 20102, "end_char": 20125, "source": "regex", "metadata": {}}, {"text": "Income Tax Act", "label": "STATUTE", "start_char": 20127, "end_char": 20141, "source": "regex", "metadata": {}}, {"text": "section 12", "label": "PROVISION", "start_char": 21723, "end_char": 21733, "source": "regex", "metadata": {"statute": null}}, {"text": "Madras General Sales Tax Act, 1939", "label": "STATUTE", "start_char": 21746, "end_char": 21780, "source": "regex", "metadata": {}}, {"text": "Madras General Sales Tax Rules, 1939", "label": "STATUTE", "start_char": 22595, "end_char": 22631, "source": "regex", "metadata": {}}, {"text": "section 12(2)", "label": "PROVISION", "start_char": 22910, "end_char": 22923, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Rules, 1939", "statute": "the Madras General Sales Tax Rules, 1939"}}, {"text": "section 12", "label": "PROVISION", "start_char": 23147, "end_char": 23157, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Rules, 1939", "statute": "the Madras General Sales Tax Rules, 1939"}}, {"text": "[1968] 2 S. C.R. 492", "label": "CASE_CITATION", "start_char": 24123, "end_char": 24143, "source": "regex", "metadata": {}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 25655, "end_char": 25668, "source": "regex", "metadata": {"statute": null}}, {"text": "Kerala General Sales Tax Rules, 1950", "label": "STATUTE", "start_char": 26161, "end_char": 26197, "source": "regex", "metadata": {}}, {"text": "Madras General Sales Tax Rules, 1939", "label": "STATUTE", "start_char": 26256, "end_char": 26292, "source": "regex", "metadata": {}}, {"text": "sections 3", "label": "PROVISION", "start_char": 26354, "end_char": 26364, "source": "regex", "metadata": {"linked_statute_text": "the Madras General Sales Tax Rules, 1939", "statute": "the Madras General Sales Tax Rules, 1939"}}, {"text": "Income Tax Act, 1922", "label": "STATUTE", "start_char": 26382, "end_char": 26402, "source": "regex", "metadata": {}}, {"text": "section 14", "label": "PROVISION", "start_char": 27518, "end_char": 27528, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 20(3)", "label": "PROVISION", "start_char": 28855, "end_char": 28868, "source": "regex", "metadata": {"statute": null}}, {"text": "section 20(3)", "label": "PROVISION", "start_char": 29109, "end_char": 29122, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 29196, "end_char": 29206, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 29500, "end_char": 29510, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_1_121_122_EN", "year": 1976, "text": ". ,,.\n\n' •\n\n' •\n\nR. DAY ANANDA SAGAR ETC.\n\nVATAL NAGARAJ ETC.\n\nApril 23. 1976\n\n(H. R. KHANNA, M. H. BEG AND V. R. KRISHNA !YER, JJ.]\n\nReview of judgn1t11t of Supreme Court should not be a routine sequel to a <defeat in Court-Cons1i1ution of India, Art. 137 and Order XL of the Supreme\n\nCourt Rules, 1966 rtad with Order XLVfl, Rule 1 of tlie Civil Procedure Code.\n\nThe petitioner filed a review petition on the ground that certain observa- 1ions in the judgment amounted to almost branding him as an unindicted crimi- C nal-2uilty of abetting forgery and perjury and they should be obliterated.\n\nDismissing the petitions and modifying the rigour of the observations, the Court, held :\n\n(1) A ill!l!onent of the final Court of the.land is final.\n\nA review of such a judgment is 8.n exceptional phenomenon, permitted only when n grave and ¥1aring error or other well-established ground is made out. Unfounded and indiscriminate petitions almost as a routine sequel to defeat in court should be D avoided dolpite the theoretical possibility of succeS>.\n\n[121 F.GJ\n\nObiter : Wisdom cannot be confounded with obstinacy and a charitable -.construction _of a situation cannot be excluded.\n\n(122 E]\n\nCrviL APPELLATE JURISDICTION : Review Petition Nos. 43 and 44 ()f 1975.\n\nApplication for review of this Hon'ble Court's Judgment dated 11th October 1974 in the matter of CM! Appeal No. 1738 of 1973.\n\nA. K. Sen, M. Veerappa and Altai Ahmed for the Petitioners in Review Petition No. 43 of 1975.\n\nV. S. Desai and R. B. Datar for the Petitioners in Review Petition\n\nNo. 44 of 1975.\n\nThe Order of the Court was delivered by\n\nKRISHNA !YER, J. A judgment of the final Court of the land is final.\n\nA review of such a judgment is an exceptional phenomenon, permitted only where a grave and glaring error or other welt-established ground is made out.\n\nUnfortunately, the theoretical possibility, successful in G a microscopic rarity of cases, has led to frequent, unfounded and indiscriminate petitions, almost as a routine sequel to a defeat in Court.\n\nThe present review petitions fall under the latter category and fail by the fonner test and are therefore dismissed.\n\nShri Asoke Sen made a limited submission on behalf of Dayananda Sagar in CMP 2095 of 1975 that certain observations in the judgment H almost branding his client as an unindicted criminal-guilty of abetting forgery land purjury-were altogether unmerited and should be obliterated.\n\nWhile we cannot agree to this course, we admit that these\n\nSUPREME COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nstrictures are in no way integral to the decision, although relevant if we take an overall view.\n\nIt is true that the words used are strong and we felt then tJ1at they were warranted.\n\nAfter hearing both sides we deem it meet to soften the judicial blow.\n\nShri Sen submits that we were misled in reaching the inference drawn.\n\nMaybe, we were.\n\nJudge Learned Hand once said that the spirit of liberty is 'the spirit which is not too sure that it is right'.\n\nThat great Judge was 'fond of recalling Cromwell's statement : 'I beseech ye in the bowels of Christ, think that ye may be mistaken'.' He told a Senate Committee, 'I should like to have that written over the portals of every church, every school and every court-house, and may I say, of every legislative body in the United States. I sbould like to have every court begin. 'I beseech ye in the bowels of Christ, think that we may be mistaken'. (Yale Law Journal: Vol. 71, 1961 November part).\n\nIn a sense, it is this likelihood of error that persuaded Jesus Christ to caution : 'Judge not, that ye be not judged'.\n\nOur search for truth sometimes reaches a blind aBey expressed by Bacon : \" 'what is truth?' said Jesting Pilato : and would not stay for an answer'.\"\n\nIn this conspectus of great sayings, we are inclined to be humble. in spirit and free to tone down the harshness of the characterisation to some extent.\n\nWe would content ourselves by saying that the materials placed before us in appeal, read in the light of the conclusions of the High Court, may well lead to the inference and justify the observations made by us, although it may not be ruled out that a more innocent inference exculpating any role for the petitioner is possible .. Thus far, we modify the rigour, but decline to cancel, as pleaded by the petitioner.\n\nWisdom cannot be confounded with obstinacy and a charita-- ble construction of a situation cannot be excluded.\n\nThat is whv we. liave consented to the dilution. ·\n\nS.R.\n\nPetitions dismissed.", "total_entities": 7, "entities": [{"text": "R. DAY ANANDA SAGAR ETC", "label": "PETITIONER", "start_char": 17, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "R. DAYANANDA SAGAR ETC", "offset_not_found": false}}, {"text": "VATAL NAGARAJ ETC", "label": "RESPONDENT", "start_char": 43, "end_char": 60, "source": "metadata", "metadata": {"canonical_name": "VATAL NAGARAJ ETC", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 80, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 94, "end_char": 103, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "Art. 137", "label": "PROVISION", "start_char": 248, "end_char": 256, "source": "regex", "metadata": {"statute": null}}, {"text": "Order XL of the Supreme", "label": "STATUTE", "start_char": 261, "end_char": 284, "source": "regex", "metadata": {}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 342, "end_char": 362, "source": "regex", "metadata": {}}]}
{"document_id": "1976_1_123_130_EN", "year": 1976, "text": "SMT. NAGAWWA A.\n\nVEERANNA SHIVALINGAPPA KONJALGI & ORS.\n\nApril 23, 1976 ' ,.. fA. C. GUPTA AND S. MURTAZA fAZAL ALI, JJ.]\n\nCOde of Crin1inal Procedure, ss. 202, 204-Enquiry under s. 202-Scope of ... . -Accused if had locus sta'ndi.\n\nThe appellant filed a complaint before the Magistrate alleging that the police did not deliberately charge-sheet respondents 1 and 2 despite the fact that they abetted in the murder of her son because they were influential persons.\n\nAfter the inquiry the Magistrate issued a process to respondents 1 and 2 under c s. 204(l){b) of the Code of Oiminal Procedure, 1973. Tho revision petition of respondents I and 2 filed under s. 482 Cr.P.C. was allowed by the High Court. Jn appeal to this Court it. was contended for the appellan? that the High Court was ih error in examining the order of the Magistrate on merits after taking j, nto consideration the doculll';::nts filed by the respondents, which did not form part af the complaint or evidence recorded in support thereof before tho Magistrate.\n\nAllowing the appeal, ))\n\nHELD : The order of the High Court suffers from a serious legal infirmity and. the High Court has exceeded its jurisdictiOn. in interfering in revision b-y\n\nqua; hing the order of the Magistrate.\n\n[129 H]\n\n( 1) In the following case! an order of the Magistrate can be quashed or liet aside :\n\n(a) Where the allegations made in the complaint or the statements of the witne\"S.scs recorded in supp0rt of the same taken at their face value make out absolutely no case against the accused or the COD\"Jplaint docs not disclose the essential ingredients of an offence which is alleged against the accused;\n\n(b) Where the allegation! made in the compiaint are patentiy absurd and ioh.erently improbable so that no prudent person ca\"n ever reach a conclusion that ijhere is sufficient ground for proceeding against the accused.\n\n(1:) Where the discrtion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materi~Is which are wholly irrelevant or inadmissible; and\n\n{d) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.\n\n(128 C-E]\n\n(2)(a) At the stage of issuing the process the Magistrate is n1ainly oon ccrned with allegations made in the complaint or the evidence led and he is onty to be. prima fade Satisfied whether there are sufficient grounds for proc:eedio.g against the accused. It is not the province of thti Magistrate to enter into a detailed discussion on the merits or demerits of the case. The scope of the\n\nin.qujry under s. 202 Cr.P.C. is extremely limited-lin1ited to the ascertainment of the truth. or falsehood of the allegations made in the complaint:\n\n(i) on the materials placed by the complainant before the court (ii) for the limited Purpose of finding out whether a prima facie case for issue of process had been made out and (iii) for deciding the question purely from the point of view .of the complainant without at all adverting to any defence that the accused may have. In prooeedings under s. 202 the accused has got absolutely llO focus standi and iSi not entitled to be heard on the question whether the process should be issued against him or not. (126 E; 127 E+l\n\nSUP!\\EME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nA Chandra Deo Sing/1 v. Prokas/i Chandra Bose, [1964] I S.C.R. 6l9 and Vadilal Panchal v.\n\nDattatraya Dulaii Ghadigaonker and Another, [19\"61] 1 S.C.R. I, followed.\n\n(_b) In coming to a decision as to \\Vhether a process should be issued the\n\n~:1ag1strate can take into consideration inherent improbabilities appearing on the face of the complaint or in evidence led by the complainant in support of the allegations.\n\nOnce the Magistrate has exercised judicially the discretion given to him it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complain!, if proved. would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of inquiry under s.. 202 of the Code of Criminal Procedure, which culminates in an order under s. 204\n\nof the Code.\n\n[1_27 G.H; 128 A-BJ\n\n(3) In the instant case the High Court should not have quashed the proceedings.\n\nThe order of the Magistrate was a reasoned one \\\\'hieb took into consideration the alle2ations in the complaint as also the evidence adduced in support of it.\n\nIt was not a case where the Magistrate had passedan order in a mechanical manner or just by way of routine.\n\nTh~ High Court could n6t go into this matter in its revisional jurisdiction which is a very limited on<.\n\n[128 F-G]\n\nCRIMJNAL APPELLATE JURISDICTION : Criminal Appeal No. 99 of 1976. '\n\nAppeal by Special Leave from the Judgment and Order dated 16-12-75 of the Karnataka High Court in Criminal Petition No. 50 of 1975.\n\nN. B. Datar and R. B. Datar for the Appellant.\n\nE M. C. Bhandare, (Mrs.) S. Bhandare, M. S. Narsimhan, K. JC\n\nSharma, and A. K. Mathur for Respondents 1 and 2.\n\nNarayan Nettar for Respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.\n\nThis appeal by special leave is directed against the judgment of the Karnataka High Court by which it set aside the crder of the Additional Judicial Magist, rate, First Class, Gokak issuing process against respondents 1 & 2 in exercise of his discretion under s. ~04 of the Code of Criminal Procedure.\n\nThe facts of the case lie within a very narrow compajs and although the High Court has taken great pains to write a laboured judgment the point involved. is short and simple and does not merit a detailed discus_sio_n.\n\nThe police ol Gokak Police Station submitted a charge-sheet against Nagappa Giddannavar -and seven others under ss. 302, 114, 148, 147 and other sections on the allegations that on July 19, 1973 the accused persons had wayh\\id and murdered one Nagappa son of the appellant in this Court. The appellant, who had filed the report before the police does not appear to have been satisfied with the investigation by the police which according to her was tainted and had suppressed some important materials, file_d a complaint before the Magistrate at Gokak on October 4, 1-973 alleging that _respondents 1 & 2 had in fact abetted the offence ?f murder committed by the other accused but as they were inll\\Jentrnl\n\n' ,--\n\n\" I\n\n' . t\n\n) '\n\n~). '\n\n. ,,. . '\n\n]'IAGAWWA V, V, s. KONJALG! (Fazal Ali,/,) 125\n\npersons their names were deliberately left out in the report as also in the dying declaration, On receiving the complaint on October 4, 1973 the Magistrate decided to hold an inquiry into the complaint himself and in pursuance of his decision he recorded some evidence on October 8, 1973, Thereafter the case was posted for October 10, 1973 for arguments and further evidence, if any, On October 10, 1973 the Magistrate observed that six witnesses had been examined and the evidence recorded so far was sufficient for the Court to determine the question as to whether or not process should be issued to respondents 1 & 2.\n\nHe then adjourned the case for argument for October 12, 1973. On that day arguments were heard but before any order could be passed the Magistrate who had recorded the evidence was transferred and therefore the case had to be adjourned.\n\nThe new Magistrate took up the matter on November 26, 1973 and after hearing the complainant he adjourned the case to December 3, 1973 and on this day he directed that further inquiry may be made by Superintendent of Police, Belgaum and he accordingly referred the matter for inquiry and report to the Superintendent of Police,' Belgaum asking him to submit his report within six weeks, It seems to us that in view of the change of the Magistrate the successor Magistrate was not able to grasp the implications of the proceedings which had been taken by his predecessor who had in fact first decided to hold an inquiry himself and after recording the evidence had decided to pass an order under s. 204 of the Code of Criminal Procedure.\n\nBefore however be could pass any order he was .succeeded by the present Magistrate. The appellant filed an application in revision to the High Court on December 11, 1973 against the order of the Magistrate dated December 3, 1973 referring the matter to the Superintendent of Police for inquiry and report.\n\nWhiie the application was pending before the High Court, respondents 1 & 2 filed a petition before the High Court praying for an early hearing of the revision and for vacation of the stay order.\n\nAlong with this petition the respondents filed a number of documents including the copies of the petitions sent by the appellant to the Chief Minister and the Speaker.\n\nWe might indicate here that there was absolutely no occasion for the respondents to have filed the documents before the High Court in a miscellaneous petition nor <lid they obtain any permission of the Court for filing those documents, The High Court, after hearing the revision application filed by the appellant, allowed the same mainly on the ground that as the Magistrate had ultimately decided to hold an inquiry into the trnth or falsehood of the complaint himself he had no jurisdiction to stop that inquiry and then make a reference to the police afresh.\n\nThe High Col!ft accordingly quashed the order of the Magistrate and directed him to decide the case in accordance with the law after recording further evidence, if any. It appears that the High Court did not give any directions to the Magistrate for considering the documents which had been filed by the respondents before it but by a subsequent order merely forwarded the documents to the Magistrate.\n\nThe papers were sent back to the Magistrate on January 7, 197 5 and by his order dated January 27, 1975 the Magistrate was informed tha.t the appellant did not want to adduce any further evidence.\n\nThe matter was accordingly posted for argument on February 7, 197 5 and after hearing the\n\n12 6\n\nSUPREME COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\narguments and . considering the evidence recorded by the Magistrate he by his order dated February 11, 1975 directed process to be issned against respondents 1 & 2 under s. 204( 1) (b) of the Code of Criminal Procedure.\n\nRespondents 1 & 2 then preferred a revision against this order to the High Court under s. 482 of the Code of Criminal Procedure praying that the order of the Magistrate may be quasbed.\n\nThis revision was allowed by the High Court by the impugned order against which special leave was granted by this Court at the instance of the appellant\n\nIn support of the appeal Mr. H. B. Datar submitted that the Magistrate had given cogent reasons for holding that there were sufficient grounds for proceeding against respondents 1 & 2 and the High Court was in error in interfering with the order of the Magistrate by examining the merits of the case after taking into consideration the documents filed by the respondents which could not be looked into by the Magistrate as they did not form part of the complaint or the evidence recorded in support thereof.\n\nIn our opinion the contention raised by the learned counsel for the appellant is well-founded and must prevail.\n\nMr. M. C. Bhandare sought to repel the argument of the appellant on the ground that the order of the Magistrate was perverse and as the case was full of patent absurdities and was politically motivated the prosecution of respondents 1 & 2 would amount to unnecessary harassment resulting in abuse of the process of the Court.\n\nIn the view we take in the instant case it is not necessary for us to enter into the merits of the case at this stage. It is well settled by a long catena of decisions of this Court that at the stage of issning process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima fade satisfied whether there are sufficient grounds for proceeding against the accused.\n\nIt is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one.\n\nIn Chandra Deo Singh v. Prakash Chandra Bose(') this Court had after fully considering the matter observed as follows :\n\n\"The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.\n\nThe learned Judges in some of these cases have been at pains • to observe that an enquiry under s. 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial.\n\nNo doubt, as stated in sub-s. (1) of s. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant --------\n\n(!) (1964) t S. C.R. 639 , 648.\n\n\" .\n\n• <\n\nI ,.. . ' +\n\n- I . ;.\n\nand the statements made before him by persons examined at the instance of the complainant.\"\n\nIndicating the scope, ambit of s. 202 of the Code of Criminal Procedure this Court in Vadilal Panchal v. Dattatrya Dulaji Ghadigaonker and Another(') observed as follows :\n\n\"Section 202 says that the Magistrate may, if he thinks lit, for reasons to be recorded in writing, postpone the issue\n\nof process for compelling the attendance of the person complained against and direct an inquiry for the pupose ?f ascertaining the truth or falsehood of the complamt; m other words, the scope of an inquiry under the section is limited to\n\nfinding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence i11 support of the complaint so as to justify the issue of process and commen.cement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take _place at that stage; for the person complained against can. be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial.\" lt would thus be clear from the two decisicms of this Court that the scope of the inquiry under s. 202 of the Code of Criminal Procednre is extremely limited-limited only to the ascertainment of the truth or falsehood, of the allegations made in the complaint-(!) on the materials placed by the complaint before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all ndverting to any defence that the accused may have.\n\nIn fact it is well settled that in proceedings under s. 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.\n\nMr. Bhandare laid great stress on the words \"the truth or falsehood of the complaint\" and contended that in determining whether the complit is false the Court can go into the question of !he broad prnbabiht!es of the ase or. intrinsic infirmities appearing\n\nrn the evidence. It is true that m .conung t\" a decision as to whether a pro\"ess should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but\n\nt~re apears. tC'. be .a very thin line of demarcation between a probability 01 _convit10n of the acused and establishment of a prima facie\n\ncas~ agrnst him.\n\nThe Magistrte has been given an undoubted discreh?n m the matter and the discretion has to be judicia ll v exercised 'by him. Once the Magistrate has exercised his discretion it is not for\n\n(l) (1961] l S. C.R. 1, 9.\n\nSUPREME COURT REPORTS (1976] SUPPLEMENfARY\n\nA the High Cour_t, or even this Co\\lrt, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a\n\nview to find out whetJ.ier or not the allegations in the omplaint, if proved, would ultimately end in conviction of the accused.\n\nThese considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under s. 202 of the Code of Criminal Procdure which culmir.ates into an order urider s. 204 of the Code. Thus it B may be safely held that in the following cases an order oi the Magistrate issuing process against the accused can be quashed or set aside :\n\n(1)\n\n(2)\n\nWhere the allegations made in tllll complaint or the statements of the witnesses recorded in support of the _same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingrediems of an offence which - is alleged against the accused;\n\nwhere the allegations made in the complaint are patently absurd and inherently improbabl~ so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; .\n\n(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbi:rary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and\n\n( 4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent auth0rity and the like.\n\n. , +\n\nI •\n\nThe cases mentioned by us are purely illustrative and provide sufficient . ._\n\nguidelines to indicate contingencies where the High Court can quash proceedings.\n\nApplying these principles to the facts of the present case it seems to us that the present case is not one in which th~ !-ligh Court should have quashed the proceedings.\n\nTo begin with, the order of the Magistrate dated February 11, 1975 issuing process against respondents l and 2 is a very well reasoned one which takes into consideration the allegations in the complaint as also th3 evidenc~ adduced in support of it.\n\nTile Magistrate clearly applied his mind anrl has analysecl the evidence into three categories-(i) those witnesses who have deposed as eye witnesses regarding the actual occurrence and the part attributed to respondents 1 and 2. The Magistrate then refers to other witnesses who cr, rroborated the evidence of the complainant; and thirdly the Magistrate relied on the evidence of witnesses who were admittedly signat<Jries to the dying declaration and had clearly stated on oath that the n.nnes of respondents 1 and 2 were mentioned in their presence by the deceased but were not recorded by the Police Patel in the dying decJ.aration and in spite of the protest by the wituesses they were made to sign the dying declaration as attesting witnesses under threat and duress. On a consideration of this evidew:c the Magistrate was satis-\n\n- I\n\nfied that a prima facie case against respondents 1 and 2 was made out and he accordingly issued process against them. It was not a case where the Magistrate had passed an order issuing process in a mechanical manner or just by way of routine. The High Court <.ppears to have gone into the whole h.istory of the cse, examined. the merits .o! the evidence, the contradictions and what 1t called the 1mprobab1h11es and aft<r a detailed discussion not only or the materials produced before t~ Magistrate but also of the doeument' which had been filed by the defence and which should uot have been looked into :; it the stage when the matter was pending under s. 202, has held that the order of the Magistrate was illegal and was fit to be quashed.\n\nIn the first place the High Court ought not to have considered the document' filed by respondents 1 and 2 in the_ previous revision with<'Ut obtaining the permission of the Court and particularly when the liigh Court itself gave no directions whatsoever to the Magistrate to consider those documents.\n\nIn fact the Magistrate considering the question a! to whether process should be issued against the accused or not cannot go into the materials placed by the accused and therefore the High Court could not have given any iuch directions while disposing of the previous rev!Slon.\n\nThe impugned order of the High Court prnceeds on the basis that it was incumbent on the Magistrate to have considered the documents and their effect on the truth or falsehood of the allegations made by the complainant. This was an entirely wrong approach.\n\nAs we arc clearly of the opinion that the Magistrate . was fully justified in completely excluding the documents from consideration, we refrain from making any observation regarding the effect of those documents.\n\nIn fact the documents filed by the respondents were mere copies and they were, therefore, not admissible. At any rate, at the stage of s. 202 or s. 204 ot the Code of Criminal Procedure as the accused had fl:) locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in 1 hem.\n\nIndeed if the documents or the evidence produced by the ,.ccuse<.i is ~!lowed to be taken by the .Magistrnte then an inquiry under s. 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted.\n\nI'he Hig:1 Court in quashing the order .c.f the Magistrate completely failerl to consider the limited s_cope of an inq1Jiry under s. 202. liaving one throu5h the order of the Magistrate we do not find any error of bw committed by him.\n\nThe Magistrate !las exercised his discretion nnd has given cogent reasons for his conclusion.\n\nWhether the reasons were good or bad, sufficient or insufficient, is not a matter which .could\n\nhae been examined by the J:Iigh Court in revision.\n\nWe ure eon~ tramed to o?serve that. the. Hih Court. went out of its way to wrilt a laboured Judgment h1ghbghting certam aspects cf the case of the\n\naccncd as appearing from the documents filed by them which they were. not entitled to file and which were not entitled in law 1e lte cmlS!dtred.\n\n-.,,.\n\nFr these reasons, therefore, we are satisfied that the order of the High Court suffers from a serious legal infirmity and the High Court\n\n11-833 SCl/76\n\n:w:\n\n13 0 SUPREME COURT j(EPORTS\n\n[1976) SUPPLEMENTARY\n\nA has exceeded its jurisdiction in interfering in revision by quashing the order of the Magistrate.\n\nWe, therefore, allow the appeal, set aside the order of the High Court dated December 16, 1975 and restore the order of the Magistrate issuing process against respondents 1 and 2.\n\nAt lhe time of granting the special leave, we had directed the Sessions Judge who was trying the 0riginal case resulting from the B F.I.R. lodged before the police to stay proceedings to the extent that the judgment was not to be pronounced untJl this appeal was disposed of.\n\nWe understand that the Sessions case is now concluded before the learned Sessions Judge and arguments haw also hee.n heart!.\n\nIn view of the order of the Magistrate issuing process against respont!ents l and 2 which has been confirmed by us, t!Je respondents will have to face a supplementary trial and it is 'not conducive in the interests of C justice to allow the other trial to be stayed any further. The Sessions Judge is therefore directed to dispose of the Sessions Case and the stay granted by this Court earlier is vacated.\n\n'< I", "total_entities": 38, "entities": [{"text": "NAGAWWA", "label": "PETITIONER", "start_char": 5, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "NAGAWWA", "offset_not_found": false}}, {"text": "VEERANNA SHIVALINGAPPA KONJALGI & ORS", "label": "RESPONDENT", "start_char": 17, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "VEERANNA SHIVALINGAPPA KONJALGI & ORS", "offset_not_found": false}}, {"text": "fA. C. GUPTA", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "S. MURTAZA fAZAL ALI, JJ.", "label": "JUDGE", "start_char": 95, "end_char": 120, "source": "metadata", "metadata": {"canonical_name": "S. 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{"document_id": "1976_1_131_144_EN", "year": 1976, "text": "I >'\n\n- I\n\nSTATE OF GUJARAT (COMMISSIONER OF SALES TAX,\n\nAHMEDABAD)\n\nM/S. VARIETY BODY BUILDERS\n\nApril 26, 1976\n\n(H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\nBon1bay Sales Tax Act-Contracts for sale of goods and works conrracts- J'ests for decidin!l works contracts.\n\nThe respondents entered into three written contracts with the Raihvays for the construction of railway coaches according to the design provided by them,\n\nOn the under-frames supplied by the Railways. The contractor was required C to make security deposit for the due fulfilment and completion of the contract which, in the event of breach, was liable to be forfeited and confiscated. Supply including n1anufacture, assembly, fitting, fixing and finishing of all constructional n1aterials and fittings including timber was by the contractor. The Railways were required to supply electric fitting~ Railway staff would work in association with the contractor's staff for installation of electrical equipment; Railway site was provided for the work and for no other purpose.\n\nThe_ Railways had the right of inspection at all times and of maintenance of control over standard D of workmanship requiring rectification of '\\Vork and replacement of materials when ordered.\n\nThe Sales Tax Officer, holding that the transactions were salCs, charged the1n to tax. The respondents' appeal to the Assistant Commi3sioncr of Sales Tax. as also a revision application before the Deputy Cornmisioner of Sales Tax :-ind the Tribunal were unsuccessful. On reference, the High Court held that the contracts were works contracts. ,\n\nDismissing the appeals,\n\nJJELD : (1) From the totality of the material terms and conditions in the agreement it is not possible to hold that the parties intended that the -contractor transferred the property in the railway coaches to the Railways after its coinpletion.\n\nThe essence of the contract or the reality of the transaction as a whole indicates that the contract was a contract for work and labour.\n\n[139FJ\n\n(2) The predominant element in the contract was the work and labour aspect and supply of materials was only accessory although the lnaterials \\Vere definitely necessary for the execution of the work. The term that if the con- tractor died, his legal representatives would have no interest whatsoever in the agreement save in respect of a claim for the money due nnd for the r return of the security deposit, clearly showed that the contract was n works contract. The unfinished work became the property of the Raih~'ays and the legal representatives were entitled only to claim for the value of the \\''Ork done.\n\nJn the event of the death of the contractor, there was no provision for the handing over of the unfinished coaches by the legal representatives to the Railways. In such an event the Railways automatically becaine the ov.ner\n\n, of the unfinished property. (140 E-G)\n\nT. Y. Sundaram Iyengar & Sons v. The State of Madras (1975) 35 STC 24 nd Patnoik and Company v. The State, of Orissa, (1965) 16 STC 364, di•ti1>. :uished.\n\nConimissioner of Con1mercial Taxes, Mysore v. Hindustan Aeronautics Ltd.,\n\n(1972) 29 STC 438; State of Gujarat v. Kaila1h Engineerin~ Co, (1967) 1'.\n\nSTC 13; State of Madra,~ v.r Richardson & Cruddas Ltd., (1968) 21 STC 245: Go.emment of Andhra Pradesh v. Guntur Tobaccos Ltd., (1965) 16 240 and\n\nCommissioner of &les Tax, M.P. v. Purshottani Premji, ( 1970) 16 STC 38, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1492 and 1493 of 1971.\n\nAppeals by Special Leave from the Judgment and Order dated the 7th and 9th November, 1970 of the Gujarat High Court at Ahrnedabad in Sales Tax Reference No. 5 of 1969.\n\nS. T. Desai and M. N. Shroff; for the Appellants.\n\nV. S. Desai!, Vimal Dave, Ram Phal, Ganpat Rai, (Mrs.) S/uif Sethi and (Miss) Kai/ash Mehta; for Respondent.\n\nC The Judgment of the Court was delivered by\n\nGOSWAMI, J.-This judgment will govern both the appeals.\n\nThese two apeals by special leave ar~ directed &gainst the common judgment of the Gujarat High Court in Sales Tax Reference No. 5 of J 969 relating to two periods, namely, (l) from 24th October, 1955 to 31st March, 1956 and (2) from 1st April, 1956 to 31st March, 1957.\n\nThe Tribunal had earlier delivered a common judgment in two revision applications No. 121 and No. 122 of 1961 and made a composite reference to the High Court under the Bombay Sales Tax Act stating the following question for answer :-\n\n\"Whether on the facts 1and in the circumstances of the case the three contracts for constmction of coaches on the under-frames supplied by the Railway Administration, the contracts containing similar terms were contracts for sale of goods and not works contracts?\"\n\nThe facts appearing from the statement of case are .as follows\n\nThe respondent, M/s: Variety Body Builders, Baroda, entered int•> three contracts with the Western Railway Administration for construction of railway coaches on the umler .. frames supplied by fl~ said rarlway Administration.\n\nThe three comracts were reduced into writing ancl contained the terms ancl conditim1s under which the eontracts were to be performed. The first agreement dated September 17, 1954 was for construction of 25 N.G. coaches.\n\nThe second agreement dated July 11, 1955, was in respet of construction of 6 T.L.R. coaches. The third agreement dated January 14, 1956, was for coos· truction of 25 N.G. coaches.\n\nThe Sales Tax Officer held that the transactions relating to the construction of the said coaches were transactions of sales of these coaches by the respondent.\n\nOn that basis the respondent was assessed at Rs. 2,72,803/8/- for the first period and at Rs. 3,82,820/- for the second period. The respondent's\n\nappeals to the Assistant Commissioner of Sales Tax were unsuccessful.\n\nThe re\\1sion applications of the respondent before the Deputy Commissioner of Sales Tax and later before the Tribunal met with the\n\n... '\n\n• \" '\n\noSame fate.\n\nThe Tribunal, however, referred the question of law as A\n\net out earlier to the High Court and the High Court answered the same in favour of the respondent and hence these appeals by special -leave.\n\nThe only question with which we are concerned in these appeals is whether the contracts entered into by the respondent with the Railway Administration for construction of railway coaches are contracts- B\n\nfor sak of goods or works contracts.\n\nSince the three contracts are substantially similar the High Court .and the authorities below took note of the recitals of the third contract dated Jarman 14, 1956, and we will also take the same into consideration. \"' ·\n\nMr. S. T. Desai appearing on behalf of the appellant and Mr.\n\nRam Phal appearing on behalf of the respondent took us through all the clauses of the agreement and pressed their rival viewpoints. Mr.\n\nDesai submits that from the totality of the conditions laid down in 1he agreement the contract is one for sale, being transfer of property\n\nin the railway bogies as a unit of goods and, therefore, the transaction is liable to Sales Tax. Mr. Ram Phal, on the other hand, relying on the same terms and conditions in the contract, submits that it is a pure 8nd simple worh contract and not a contract for sale of goods.\n\nIt is well-settled that when there is a written contract it will be 11ecessary for the Court to find out therefrom the intention of the parties executing the particular contract.\n\nThat intention has to be primarily gathered from the terms and conditiom which are agreed E upon by the parties. We will, therefore, immediately tum our attention to the agreement in question.\n\nThe preamble of the agreement shows that it is an agreement enterrd into between the Railway Administration and the respondent described as \"the contractor''.\n\nThe first clause describes the \"natu!'ll of work\". It states \"the contrnctor hereby agrees to undertake the building of 25 Nos. Narrow Gauge Third Class Bogie Coaches .... on I.R.S. under-frames to be provided by the Western Railway to the design indicated ...... at the rate of .... : . Rs. 19141/- only.\n\nThe said work of building bodies will be carried out by the contractor in the area of premises of the Western Railway Workshop at Pratapnagar, Baroda or at such other location as may be mutually agreed upon\". It also appears in the second part of clause (1) that each employee working under the contractor \"for this work\" will have a gate pass issued in his favour Qn a deposit of Rs. 5 /- for each gate pass. It is also stated in the -second part of clause ( 1) that \"all gate passes issued to the contractor are returnable within a week of termination of the contract\".\n\nClause (3) provides for security deposit \"for the due fulfllment and H -completion of this contract\".\n\nGause (3) further says that the security deposit will be retained by the Administration \"for the due performance of and observance of the terms and conditions of this contract\"\n\n!34\n\nSUPREME COURT REPORTS [1976] SUPPLl!MllNTARY\n\nA and the same is liable to forfeiture \"in !he event of any breach on the part of the contractor of the terms and conditions of this contract\".\n\nClause ( 4) provides for deduction of 10 per cent from each pro- . .,,- gressive bill submitted by the contractor and the security deposit shalt be refunded to the contractor \"only on successful completion or termi- 1rntion of this contract\". ' B- Clame (9) provides that constructionai material and fittings must be supplied by the contractor whkh should be ordinarily as per the\n\nRilway'o standard. \"The provision of the hand-brake arrangement~ in the Guard's compartment will be done by the Railway\",\n\n(Jame (11) says that the contractor is required to supply carpentry labour for equipping coaches with electric lights, fans switches ancl regulators.\n\nThe appropriate Railway stalf will work in association with the contractor's staff to an extent required for the installation of electrical equipment and all .electrical fittings will be supplied by the Railw\"y.\n\nClause ( 13) provides for removal of rubbish, debris or temporary structure at contractor's own cost on the expiration of the contract fir in tltc event of earlier termination of the contract.\n\nCfausc (14) says that the contractor shall provide all essential oquipment, tools and plant for satisfactory execution of the work.\n\nBy clause (15) \"The contractor is required to deliver a minimum\n\nnumer of two coaches per month starting from the expiry of six E month:-: fro1n the date of signing this agreen1ent\".\n\nClaus\" (16) says that \"in the event of the contractor failing to carry out and complete the work within the period stipulated as herein before provided the contractor shall be liable to pay to the Administration by way of ascertained and liquidated damages a sum equivalent tc on= per cent of the value of the work in arrears for each and every month or part of a month by which the contractor shall be in default upio <: maximum of 20% of the va!toc 0f the contract but the contractrr shall not by reason of the reco1cry by any means by the Administration of such damages be relieved from his other obligations and ii abilities under the contract. ..... The recoveries may be made from the security deposit or running bills or any sums due to the contractor\".\n\nClause (17) may be set out :\n\n\"The contractor shall be responsible for the safe custody o! carrias under construction as well as of the material supplied by the Administration for the purpose till the materiai or the carriages are taken over by the Administration.\n\nDaJes of completion of the building work will be deemed to be the respective dates on which the Chief Mechanical Engineer or his authorised representative certifies each coach as ha\\ing been built to his satisfaction\".\n\nI , J\n\nCiausc (18) provides that the Railway authorities are free to A inspect the work. \"The Chief Mechamcal Engineer or his authorised representative will be the sole judge t:> determine whether the standard of workmanship is according to the Railway's requirement and whether any part or parts of the carriage require replacement due to bad or indifferent workmanship.\"\n\nClause (19) provides that \"the contractor shall not under any cir- B cums1anccs sub-lS\"t this contract either in part or in full without the previous consent in writing of the Chief Mechanical Engineer .... \"\n\nClause (20) provides for termination of the contract by giving one month's notice to the contractor \"in the event of the contractor failing to execute the contractual dntie.s with diligence, competence and ex; iedition\".\n\nClause (21) provides for the duration of the contract which in the normal course be in force for a period of 16 months from the date of signing of the same. There is also provision therein for allowing such additional time as the Administration may consider to be justified by the circumstances of the case.\n\n(:J2usc (22) provide~ for contractor's liability for damages in the event of failure to execute the work with diligence and expedition or in complying with any orders given by the Chief Mechanical Engineer or his authorised representative from time to time.\n\nClause (23) provides that \"the contractor will present bill through District Mechanical Engineer, Partapnagar for payment on the basis of ce:tified completion in terms of coaches completed and handed over\n\nf<_1 hirri\".\n\nC!use (25) states that \"if during the continuance of this agreement the contractor shall die or be adjudicated insolvent or if the contractor being a company shall enter into liquidation whether rnluntary or compulsory. . . . this agreement ; hall absolutely cease and determine and the legal represntative of the contractor or.lhis assignee in insolvency or (in the case of a company) the liquidators shall liave no interest whatsoever under this agreement other than in respect of a claim for the money due for the work done under this contract und for the return of the security deposit subject to the provisions herein contained . ..... \"\n\nCiausc ( 30) makes provision for fair wage~ to the labourers engaged G by tl1e contractor.\n\nC!ause (31) says that the contractor shall have to abide by safety rules. ·\n\nClause (32) provides that the contractor shall not employ children under 15 years of age.\n\nClause (33) says that the contractor shall complv with the pro- H visions of the Payment of Wages Act and the rules made thereunder.\n\nClause (34) provides that \"the contractor shall pay a nominal rent of Re. 1 /- per mensem for the area which may be allotted to him for the purposes of building the coaches\".\n\nClo.use (35) provides for water and conservancy charges to be paid by the contractor.\n\nClame (36) provides for supply of electrical energy to the contractor on payment\n\nClause (38) says that certain conditions of Tender shall be deemed to l:>e incorporated in the agreement. These tenders are. however, not before us.\n\nBefore we proceed further we may. observe that for the meaning of the expression \"sale of goods\" we will have to deriv~ assistance for the legal connotation of those words from the prov1s10ns of the.\n\nSale •)f Goods Act, 1930. As has been held by a Constitution Bench of this Court in the Stat' of Madras v.\n\nGannon Dunkerley & Co. (Madri.uj Ltd.(') \"that, both under the common law and the statute ; aw relating to sale of goods in England and in India, to constitute a transaction of sale there should be an agreement, expres. or implied, relating to goods to be comploted by passing of title in those good~.\n\nIt is of the essence of this concept that both the agreement and the sale soould relate to the same subject matter ..... On the true interpretation of the expression 'sale of gooos' there must be an agreement between the parties for the ale of the very goods in which eventually property passes\". , 1 ·-c.,,,.., ..... ~-_,;,; r .-;_.'\"_. ,.,,...,.,,;.. ,.,,.\n\nBearing in mind the above legal concept of the sale of goods we will have to consider whether the terms oc the contract, which we have set out earlier, can be construed in favour of a contract for sale of the railway coaches which were constructed by the respondent.\n\nl\\k Desai is right when he submits that the word contractor appearing in the preamble is not decisive on the question. As we have stated earlier, the entire document with all the relevant and material clauses throwing light upon the real intention of the parties and the F real nature of the transaction must be given due weight in coming to a\n\nconclusion one way or the other.\n\nThe following material features in the agreement immediately draw our attention so far as may be releJant in considering whether the contract is one of sale or contract of work and labour :\n\n( 1) Undertaking by the Contractor work of building bodies on under-frames supplied by Railway according to design provided by a Railway (Cl. l (a).\n\n( 2) Security deposit by contractor for due fulfilment and completion of the contract (Clause 3).\n\n( 3) Confiscation or forfeiture of security deposit in the event of any breach by the contractor of termi and conditions of the contract (Clause 3).\n\n(I) 9 S.T.C. 353.\n\n' )\n\nI ,..\n\n( 4) Deduction of 10% from each progressive bill of contractor to cover any likely loss, damage etc. (Clause\n\n4) .\n\n(5) Import licence and foreign exchange arrangements by contractor (Clause 6).\n\n( 6) Supply, including manufacture, assembly, fitting, fixing and finishing, of all constructional materials and fittings including timber by the contractor (Clause 9).\n\nI ( 7) Provision of hand-brake arrangements in the Guard's compartment by Railway (Claus~ 9). ( S) Supply of electrical fittings by Railway (Cl. 11).\n\n(9) Railway staff working in association with contractor's staff for installation of ek; trical equipment. (Clause 11).\n\n(10) Use of Railway site provided for the work and for\n\nno other purpose. (Clause 12).\n\n(11) Removal of rubbish, debris, or temporary structure\n\nat contractor's O\\VIl cost. (Claus~ 13). •\n\n(12) Earlier termination of contract also envisaged. (Clause 1-3). (l 3) Essential equipment to be provided by contractor for execution of the work:. (Clause 14).\n\n(14) At least two coa_ches to be delivered per month after expiry of six months from the signing of the contract. (Clause 15).\n\nO 5) Contractor's liability to pay liquidated damages in the event of failure to carry out and complete the work within stipulated perlod. (Clause 16).\n\n(16) Provision for running bills. (Clause 16). ( 17) Re_sponsibility of contractor for safe custody of carriages under construction as well as of the materials supplied by Railway till they are taken over by Railway. (Clause 17). .\n\n(18) Date of completion of b'lilding work on the date of certification by Railway's representative to his satisfaction. (Clause 17). (! 9) Right of inspection of the work by Railway at all times and of maintenance of control over standard of workmanship requiring rectification of work: and replacement of materials whea ordered. (Clause 18).\n\n(20) No subletting of contract whoily or in part without\n\nthe previous written consent of Chief Mechanical Engineer. (Clause 19).\n\n(2i) Authority to terminate comract by one month's notice in the event of the contractnrs Jack of diligence, competence and expedit1on in executing contractual duties. (Clause 20).\n\n(22j Any losses incurred by Railway and occasioned through failure of coutractor to comply with con tractual obligations will be deducted from security deposit. (Clause 20).\n\n(23) Co11tract to be iu force [or 16 months unless extended\n\non reasonable ground subject to waiver of Joss or damage by Railway. (Cla.w; e 21).\n\n(24) Contractor's liability for damages for failure to execute the work with diligence an, J expedition or to comply with orders of Railway Administratio11. (Clause 22).\n\n(25) Bills to be submitted by contractor ow the basis of certified completion in terms of coaches completed and handed over to the District Mechanical Engineer. (Clause 23).\n\n(26) Contractor, his heirs, :xccut<Jrs or administrators to indemnify Railway Administration from and against all claims including claims under the Workmen's Compensation Act, Payment of Wages Act, Factory Act, etc. (Clause 24).\n\n( 2 7) In case of contractor's insolvcnc y or death, Rgreement\n\nshall absolutely cease and determine and the iegal representatives of the contractor or the liquidators shall have no interest whatsoever under the agreement other than in respeGt of a claim for the money due for the work done under the contract and for the return of the security deposit subject to the provisions of the agreement. (Clause 25).\n\n(28) Arbitration clause in the vent of any dispute in connection with the contract. (Clause 28).\n\n(29) Contractor to pay fair wages to labourers mployed.\n\n(Clause 30).\n\n(30) Contractor to abide by safety rules. (Clause 31).\n\n( 31) No employment of children under 15 year; by contractor. (Clause 32).\n\n(32) Responsibility of contractor under Payment of Wages\n\nAct. (Clause 33).\n\n(33) Norn~] rent of Re. 1/- per month for occupation of the Railway area for the purpc•se of building the coaches. (Clause 34).\n\n( 34) Contractor to pay to the llailwa y conservancy charges and for supply of electrical energy. (Clauses 35 and 36).\n\nReading the agreement as a whole and bearing in mind the above features, is it possible to conclude that what is contracted is to sell the railway coa.ch constructed by the contractor to the Railway ? In that event the railway coach when constructed must b~ as a unit the 1t property o( the contractor. But has the assessee alone contributed to the result? There were materials supplied by railway. There was labour supplied by Railway. It is differeut from the case of a bus-body fitted into the chassis with all materials supplied by the contrmtor and\n\nall skill and labour contributed by the contractor.\n\nA contricts to sell a certain article to B.\n\nA must be the owner C of the article and B must be at the re,:eiviH~ end having nn interest in the article prior to passing of the property therein. Is the contractor owner of the railway coach when it was completeJ'? The answer must be in the negative. Apart from the fact th\"t the under-frame is not of the contractor (which may in a given case be a neutral factor) not all his materials nor all his labour and skill contributed to the coach.\n\nThe Railway supplied men and material; although the substantial D portion is of the contractor. This goes to bring out the intention of the patties in that they were intent upon performance of the work, the manner of the work, the quality of the materials used in the work and upcn completion of the work in the most efficient way resulting ultimately in a completed coach.\n\nThe intention of the parties at the time of entering upon the contract was not to transfer any completed railway conch by the contractor \\o the Railway.\n\nThe cud-product, E being the railway coach, is the result of work, labour and materials of the contractor as well as of the Railway as also of the latter's constant supervision and control.\n\nFrom llte totality of the material terms aud conditions in the agreement set out above, it is not possible to hold that the parties intend that the contractor transfers the property in the railway coach to the Railway after its completion.\n\nThe essence o\" the contract or the reality of thr transaction as a whole indicates that the contract is a contract for work and labour.\n\nMr. Demi submits that clauses 15, 17 and 23 in particular make it absolutely clear that the property in a 1111it, in the shape of a completed railway coach, passes only on handing over of the same to the District Mechanical Engineer after the same has been completed and the specified authority certifies the coach as having been built to his satisfaction. He particularly draws our attention to the word ''deliver\"\n\nin clause 15 and the words \"taken over'' in clause 17 and \"handed over\" in clause 23. According to Mr. Desai these three clauses clearly disclose the intention o! the parties that a railway coach as a unit, after its compkt'tcn, is contracted to be han<led over by the respondent to the Administration.\n\nThe contract, therefore, that is entered in terms of the ngre.ement is one of contract of sale of goods and not a works contract, &ays Mr. Desai.\n\n; Jl\n\nAlthough the submission on the !irst blush is attracttve and appears to be of s0me force, it will not bear close scrutiny. Perusal of clause 17 itself upon which great reliance has been placed by Mr. Desai shows that \"dates of completion of the buiidi ng work will be deemed to be the respective dates on which the Chief Mechanical Engineer or his authrnised representative certifies et>ch coach as having been built to his satisfaction\".\n\nIt is also apparent from the contract that the contractor .has to complete two coaches each month after the expiry of the fiist six months of the contract. It is also clear that the contractor has to get payment by submitting running bills on completion of the coaches eyery month.\n\nIn the above context when clause 17 refers to a fictional completion of the building work on the date of certtfkate by the Chief Mechanical Engineer or his authorised representatl.vc there is no requirement for a further ritual of delivery or handing over to which reference is made in clauses 15 and 23 respectively.\n\nThe work is undertaken in the RailY'av premises.\n\nMaterials are brought to the Railway premises.\n\nPeople are admitted on gate passes for building the railway c.x1ches on the under.frames supplied by the Administration. Some materials, such as electrical goods, were supplied by the Railway.\n\nB0sidcs; there is cooperation of Railway's labour with the contractor's labour in construction of the coach The hand-brake arrangements in the Guard's compartment are also agreed to be done by the Railway.\n\nRegular inspection of the coutractcr's work is carried out at all times and instructions to rectify c1efects leave to be carried out immediately. Unless a close in; pection\n\nof the work is carried out from day to day, it may be ditlicult to rectify defects after the work progressc>.\n\nAll this would go to show that the predominant element in the contract is the work and labour aspe.; t and supply of materials is onlv accessory although the materials 'f\"erc definitely. necessary for execntion of the work.\n\nThere is yet another important clause which thr<iws a flood of light on this issue.\n\nClause 25 deals with the contractor's insolvency or death. Jt is agreed between the parties, as per clause 25, that if the contractor dies, his legal representatives shall have no interest whatsoever in this agreement save in respect of a claim for the money due for the work already done under the contract and for the return of the security deposit subject to other provisions.\n\nThis would also clearly show that the contract is a works contract and unfinished work would become the property of the Railway and the legal representatives will be entitled only to claim for the value of the work done. There is no provision in the a!!feement in that event for handing over of the unfinished railwny conch by the resppndent or hi~ JegaJ representatives or assignees to the Railway Administrntion. The Railway Admiliistration automatically becomes the owner of the unfinished property 'f\"hich was lying in its premises. This is another reason whv no exaggerated importanc can be assigned to the \\Vonis \"delivery\" and \"handed over'' in clauses 15 and 23 respectively ns urged by Mr. Desai.\n\nThis is. therefore, not a contract where it can be said that there is an ogreerncnt to supply a completed railway coach which when prodt•ced will be the propertv of the contraclor. Along with those of the i:ontractor's. materials and labour of R.aihvay are also required to be\n\nGUJARAT STATE v. VARIETY BODY BUILDINGS (Goswami, I.) 141\n\npnt in for production of the completed railway coach. It is contract primarily for work and labour and that clement predommantly runs through the entire document from the preamble to the end as seen\n\nabov~.\n\nMr. Desai very strenuously relies upon a recent decision of this Court in T. V. Sundaram Iyengar & Sons v. The State ofMadras( 1) B. to which my learned brother was a party.\n\nThat was a case relating to the contract for supply of bus bodies constructed and fitted to the chassis provided by the customer. This Court held that the rule laid down in Patnaik and Company v. The State of Orissa( 2) was applicable to the facts of the two cases that came up for consideration in the above decision. This Court held that the property in the material• used by the assessees in constructing the bus bodies never passed to C their customers during the course of construction and that it was only when the complete bus with the body fitted to the chassis was deli- ., vered to the customer that the property in the bus body passed to the customer. This Court, therefore, held that the supply of bodies consituted a sale and the assessees were liable to sales tax. The conclusion of this Court in T. V. Sundaram /yengar's case (supra) is brought out clearly in the following passage : D\n\n\"The salient features of the deaiirn'.s between the two assessees\n\nwir!t whom we are concerned and their customers as they emerge from the facts given a ove are that the property in tile material used by the assessees in constructing the bus {Jo, Ees never passed to their 'ustomcrs during the course of constrnction. It was only when the complete bus with _the body fitted to the chassis was delivere-0 to the cu; tomer that the property in the bus body passed to the customer. There \\vas nothing to prevent the assessees fron1 removing a piank,\n\nor other material after fixin1t it to a chassis, and using it for a different purpose or for a different bus body\".\n\nThts Cnmt in several decisions quoted with approval the followin~ I' passage from Halsbury's Laws of England, Third Edition, Volume 34, at page 6. with regard to the distincti•.m between a contract of sale and a contract for work and labour :\n\n\"A contract of sale of goods must be distinguished from a contract for work and labour.\n\nThe distinction is often a fine cne. A contract of sale is a contrat whose main object is the transfer of the property in, and t11e deliverv of the rosse'Sion of, a chattel as a chattel to the buyer.· Where the niain object of work undertaken by the payee of the price is not tl1e transfer of a chattel qua chattel. the contract is one f0f work and labour. The test is whether or not the work\n\nand labour bestowed end in anything that can properly bec:-mc the subject of sale; nei.ther the <'Wnership of the mate· m I; nor the value of the skill anu labour as compared with\n\n(1) (!q75) 35 S. T. C. 24.\n\n(2) (1965) 16 S. T. C. 364.\n\nthe value of the materials, ,, conch1sive, although such matters may be taken into considernti.on in determining, iu the circumstance of a particular case, whether the contract is i11 ml>stance one for work and labour or one for the sale of. a chatel\".\n\nIt can be treated as well-settled that there is no standard formula by which one can distinguish a contract of sale from a contract for work and labour.\n\nThere may be many common features in beth the contracts. some neutral in particular context, antl yet certain clinching tenns .in a given case may fortify a conclusio11 one way or the other.\n\nIt will depend upon the facts and circumstance' of each case.\n\nThe question is not always easy and has for all time vexed jurists ali over.\n\nIn Commissioner of Commercial Taxes, klysore v.\n\nHi11dusta11 Aeronautical Ltd.( 1) a bench of five Judges of this Court, to which my learned brother was a party, had to deal with a works contract with regard t,, manufacture and supply of railway coaches.\n\nThis Court after consideration of all the facts ill that case and the salient features 0f the contract came to the conclusion that it was a pure works contract.\n\nThe Court further held lhat the case was in line with the decision in State of Gujarat v.\n\nK,1i/ash Engineering Co.(').\n\nIndeed Kai/ash Engineering's case (supra) was relied upon by the respondent before us. It was held in that case that as the termr. 0f the contract indicated that the respondent was not to be the owner of tloe ready railway coaches and that the property in those bodies vested in the Rail\\'Vay eveu during the process of conslrL:ction, the transactior~ \\vas clearly a .works contract and did not involve any sale.\n\nMr. Desai. strenuously contends that clause (291 of the contract in Kailash Engineering's case (supra) distinguishes that case from the case at l; and.\n\nClause 29 was a specific provision for certain contingencies in case of loss, theft or destruction of the materials or plant.\n\nThis sperial provision was to the effect that the liability of the contractor was not to be diminished in any way notwithstanding the fact that the materials and plant became the property of the Raiiway as soon as they were brought to the Railway premises.\n\nWe, however, do no1 see much point in this sHbmi3sion. In that case since the piant an<l 111aterials were brought on the site , x, herc the coache3 \"·\"ere to be conmucted the ownership is said to h:ive vesterl in the Railway.\n\nIn the present case also substantially the same resnlt follows. The aree ment here shows that when the contractor dies, his Ieal representatives or assignees have no interest in the contract which terminates anct they will bt only paid for the value of the work done.\n\nThis would mean the property constructed uoto that point was impliedly agreed upon to be vested in the Railway as and when materials were worked into the chassis. This is the implication of the agreement and not merely on the theory of accretion. At ; my rate the passing of property in this case is ancillary to the primary contract for execution of the work.\n\n(I) (1972) 29 S. T. C. 438.\n\n(2) (1967) 19 S. T. C 13\n\nGUJARAT STATE v: VARIETY BODY BUILDINGS (Goswami, /.) 143\n\nIn the State of Madras v. Richardson & Cruddas L\"1.( 1) this Court was dealing with a contract for fabrication and installation of \"> steel structure for sugar factory in the State of Mysore. In the course of the judgment this Court obser\\'ed as follows :--\n\n\"lt had, therefore, to be estabEsheJ that the consideration was received under a contract to sell specific goods for a price, and property in the goods contracted to be sold passed to the society, when the goods were delivered in pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or executi<ln ol the\n\ncontn1ct as accessory to 'work and labour' the contract must be regarded as a works contract, and not <l contract for sale, even if the property in the goods ultuuately J .. asses as a result of the .contract\".\n\nThe Comt further observed at page 252 as follows :\n\n\"The contract _being one for supplying for an inclusive price \" specially designed fabricated unit to be assembled and installed by specially trained technicians in the premises of the customer, it was not a contract for sale of a unit or differem parts of the unit as specific goods, but works cuntract\".\n\nIn the Government of Andhra Pradesh. v.\n\nGuntur Tobaccos Ltd. (2) this Court dealing with an identical issue observed as follows , 'at page 255 :\n\n\"The fact that in the execution of a contract for work s0me materials are used and property in the goods so used passes to the other party, the comrcctor undertaking to do the work will not necessarily he deemed on that account to sen the materials\".\n\nAgain at page 258 :\n\n\"Whether a contract for service or for executioa of work, involves a taxable sale of goods must he decided on the facts and circumstances of the case, The burden in such a case lies upon the taxing authorities to show that there was a taxable sale, and that burden is not discharged by merely showing that property in goods which belonged to the party performing service or executing the contract stands transferred to the other party\".\n\nThis Court in Commissioner uf Sales Tax, M.P. v. Purshottam Premji(') dealt with the difference between a contract of work or senke and a contract for sale of goods in the fo!iowing passage :\n\n''The primary difference between a contract for work or service and a contract for sale of goods in that in the former\n\n(!) (1968) 21 S. T. C. 245.\n\n(2) (1965) 16 S. T. C. 240.\n\n(3) (1970) 26 S. T. C. 38.\n\nthere is in the person performing work or rendering service no property in the thing produced as a whoi.e notwithstanding that a part or even the whole of the materials used by him may have been his property. In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for prke. Mere transfer of property in goods used in the performanC'c of a contract is not sufficient; to constitute a sal• there must be an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in !_he very goods contracted to be sold. Ultimately the true effect of an accertion made pursuance to a contract has to be judged, not by an artitkial rule that the accretion may be presumed to have become by 'irtue o'. affixing to a chattel, part of that chattel, but from the intention of the partir;; to the c0ntract\". ·\n\nWe are fortified by all the above decisions of this Court in our conclusi.on in favour of the assessee.\n\nD We are, therefore, clearly of opinion that the contract in the pre1ent case is one of works contract and the High Court is right in answering • the question in favour of the assessee.\n\nThe appeals, therefore, fail and are dismissd with costs.\n\nOne hearing fee for counsel.\n\nP.B.R.", "total_entities": 48, "entities": [{"text": "I\n\nSTATE OF GUJARAT (COMMISSIONER OF SALES TAX,\n\nAHMEDABAD", "label": "PETITIONER", "start_char": 8, "end_char": 66, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT (COMMISSIONER OF SALES TAX, AHMEDABAD)", "offset_not_found": false}}, {"text": "S. VARIETY BODY BUILDERS\n", "label": "RESPONDENT", "start_char": 71, "end_char": 96, "source": "metadata", "metadata": {"canonical_name": "M/S. VARIETY BODY BUILDERS", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 114, "end_char": 126, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ.", "label": "JUDGE", "start_char": 131, "end_char": 149, "source": "metadata", "metadata": {"canonical_name": "P.K. 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{"document_id": "1976_1_145_157_EN", "year": 1976, "text": "TEA ESTATE INDIA (P) LTD. v.\n\nCOMMISSIONER OF INCOME-TAX\n\nApril 26, 1976\n\n[H. R. KHANNA AND P. K. GOSWAMI, JJ.]\n\n4 \" Income Tax Act 1922-Sec. 2(1), 2(4A), 2(6C), 2(3)(8) and 2(6A) C.\n\nIncon1e Tax Rules 1922-Rules 23 and 24-Dividends-Accumulated profits -Conzposite business activity including a!ricultural and non-agricul1ural- Exccss over book value on Land account-Profit and loss account-General restTve account and reserve created on revaluation whether accumulated profits -Interpretation of statutes-Whether court can add words to a section.\n\nThe assessee company held ertain shares in Dibru Darang Tea Co. Ltd. (D.D.T. Company) and Taikron Tea Company Ltd. (IT Company). Both the companies were companies growing, manufacturing and s~Uing tea and\n\nowned large tea estates consisting of land, building plant, machinery etc. In 1\n\n1947. both the said companies soid their entire tea estates including all assets !\" to Brooke Bond Estate India Ltd. Consequently DDT Company recived a surplus is R!;. 17,18,081/- over the book Value of its assets. 'fhe amount reialing to the land of D1DT Company was Rs~ 19,30,374/- and that retaang D to the T.T. company was Rs. 10,11,216/-. Both the companies went into voluntary liquidation in 1954. On account of the liquigation of the two companies tne assessee company became entitled to receive Rs. 57,69,186/- out of the total distributable assets of DDT Company Hlld Rs. 36,53,453/- out of the total distributable assets of T:f. Company,\n\nSection 2(1) defines agricultural income. Section 2(4A) defines capital asset to mean property ot any kind held by an assessee whether or not connected with his business, profession or vocation but does not include any E land from which the incon1e derived is agricultural income. It was defmed to include any distribution made to the shareholders of a co1npany on its liquidation to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not. Explanation provides that expression \"accumulated profits\" shall not include capital gain arising during certain periods. The income has been defined by s. 2(6C) to include dividend.\n\nSection 2(3)(8) provides that _agricultural income shall not be included in the total income chargeable to F tax under s. 3 of the Act. Rule 23 provides for assessment of income which is partly agricultural income and partly income chargeable to income tax.\n\nRule 24 provides that income derived\" from the sale of tea grown and manufactured by the seller in the taxable territories shall be computed as if it were\n\nincom:e derived from business and 40 per cent of such income shail be deemed to be income, profits and gains liable to tax.\n\nThe assessee contended before the Income Tax. Officer that apart from Rs. 2.47,921/- which had been assessed as capital gain under s. 12B of G Income Tax Act 1922 in respect of T.T. company, no other amount could be included in the computation of the accumulated profits available for distribution under s. 2(6A) (c) of the Act. The Income Tax Officer rejected the claim of the assessee.\n\nOn an appeal, the Appellate Assistant Commissioner rejected the main claim of the assessee.\n\nOn further appeal the Tribunal held as far as item I (land) and item 4 (reser\\\"e on revaluation) are concerned that since the lands of the two tea\n\nstates were utilised for producing and selling tea it cannot be said that the H said assets were lands Jrom which the income derived was agricultural income.\n\nA.t best, what could be said is that barring 40 per cent of such income the balance was agricultural incont.e.\n\nAs far as item 2 (profit and loss a/c) 12-833Sup Cl/76\n\n146 SUPREME COURT REPoRTS\n\n(1976] SUPPLEMENTARY\n\nan<l item 3 (general reserve) are concerned, the Tribunal held that the ratio of 60 : 40 as laid down in rule 24 of the Income Tax Rules, 1922 could not be applied for finding out the proportion of accumulated profits in a tea business and that profits whether capitalised or not did not admit of such a bifurcation for the determination of accumulated profits. The rribunal held that the general and taxation reserves were accumulated profits and the share received by the assessee compa!l-Y on the distribution of such accuµiulated profits was taxable as dividend within the maning of s. 2(6A)(c) of the\n\nAct. '\n\nBoth the assessee as well as Revenue approached the High Court in two references arising out of the judgment of the Tribunal.\n\nThe High Court held : •\n\n( 1) Regarding item No. 1 and 4 the excess of the prices is not profit 9f the businss, unless such apprec1at1on has been included in the capital gains. The High Court arrived at certain figures of excess profit which was included in the computation of capital gains and held that only that figure was iflcludible\n\nin the accumulated profits \\Vithin the meaning of s. 2(6A) (c).\n\n(2) Regarding items 2 and 3 the High Court held that the balance in the profit and losis account is arrived at after deducting or providing for all outgoings including the etimated liability for both the income tax and agricultural income tax. Therefore, the balance carried to the balance sheet is pure profit, l.e., the accumulated profit. The High Court negatived the contention that each item in the balance sheet contains in itself the proportion of the income attributable to business activity and to the agricultural activity of the companies or that they must be disintegrated into 6 components parts at the time of inclusion in dividends. Tea companies carry on a business activity though such activity may include agricultural operation as part thereof.\n\nOverall excess of incomings over outgoings as reflected in the balance of profit and loss account would represent the commercial profits of the business undertaking and though a bifurcation i~ necessary for the purpose of assess1nent and imposition of tax, no further bifurcation could be made once the balance of profit was finally detemined.\n\nin appeals filed by both the assessee and Revenue by special leave the assessee contended that 60 per cent of the amounts mentioned in items 2 and 3 were agricultural income and as such, were not income for the purpose of the Act. To that extent the said amount did not constitute accumulated profits \\Vithin the meaning of s. 2(6A)(c). Revenue contended that 40% of income de-rived in respect of item 1 not being agricultural should be held to be capital asset and, therefore, accumulated profits.\n\nDismissing both the appeals,\n\nHELD: (I) Clause 2(6A)(c) provides that dividend shall include any distribution made to the shareholders of a company on its liquidation to the extent to which the distribution is attributable to the accumulated profits of thecompany immediately before its liquidation whether capitalised or not. rhe proviso is, however, to the effect that only the accumulated profits so distributed which arise during the 6 previous years of the company preceding the date-of ]iquidation shall be so included. 60 per cent of the: profits made by both the companies by sale of tea grown and manufactured by them were not liable to be taxed in view of rule 24.\n\nHowever, once those profits got accumulated with the two companies they became accumulated profits 'vithin the meaning of s. 2(6A)(c). The contention of the assessee that only 40 per\n\n; ent of the profits which got accumulated were liable to be taxed and therefore only 40 per cent should be treated as accumulated profit for the purpose of\n\n! -\n\n•· 2(6A)(c) cannot be accepted. The assessee wants to add to s. 2(6A)(c) A the following words :\n\n\"as are liable to be taxed under the Act\" It is not permissible for us to construe the clause by adding those words. (152 F-G, 154 G-H, 155 A-Bl\n\n(2) The decision of the case in Mrs. Bacha F. Guzdar, Bombay v.\n\nCommissioner of Income Tax, ombay-27 I.T.R. 1, followed \\vith approval. (155 El B ( 3) The contention of the Revenue that the land in question to the extent of 60 per cent would not answer the description of capital asset, and as 40 per cent of the income derived from that land was not agricultural income\n\n40 per cent interest in that land should be held to be capital asset for the purpose of s. 2( 4A), is not well founded. The income which is realised by sale Of tea by a tea company which grows tea on its land and thereafter subjects it to manµfacturing process in its factory is an integrated incoine consisting of agricultural and non-agricultural components. Rule 24 prescribes the formula C which should be 3.dopted for apportioning the income realised as a result of the sale of tea after it is grown . apd subjected to manufacturing process in the factory. So far as the lands held by the company were concerned they yielded purely agricultural income in the shape of green tea leaves. 40 per cent of the income on sale of tea which was received by both the companies was not income from land. It was income which could be ascribed to manufacturing process to which the green tea leaves were subjected in the factories of those coljlpanies. As the lands held. by both the companies yielded agricultural D income it would follow that those lands did not constitute capital asset as defined in s. 2(4A). Section 2(4A) expressly states that capital asset does not include any land from which income is derived as agricultural income.\n\nAny gain arising from the transfer of such land would not constitute ca.ipital\n\ngain under the Act and consequently would not be liable to be taxed as such.\n\n[155 H, 156 A-D, 157 BD] CNIL APPELLATE JURISDICTION : Civil Appeal Nos. 1491 and 1693 of 1971.\n\nE Appeals by Special Leave from the Judgment and Order dlj,(ed the 13th January, 1971 of the Calcutta High Court in I.T. Reference No. 192 of 1966.\n\nK. Ray and D. N. Gupta, for the Appellant in CA No. 1491/71 for respondent in C.A. 1693/71.\n\nHardayal Hardy, B. B. Ahuja and S. P. Nayar for Respondent in CA1491/71 and for Appellant in 1693/71.\n\nThe Judgment of the Court was delivered by\n\nKHANNA, J .-This judgment would dispose of two cross civil appeals Nos. 1491 and 1693 of 1971 which have been filed by special l~~ by the assessee, M/s Tea Estate India (P) Ltd., and the Com- G m1Ss10ner of Income-tax. West Bengal respectively against the judgment of the Calcutta High Court answering the following question Nferrcd to it under section,66(1) of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act) partly in favour of the assessee and partly in favour of the revenue :\n\n\"Whether on the facts and in the circumstances of the H case, the balances in the undernoted accounts are includible in the 'accumulated profits' within the meaning of section 2(6A) (c) and if so, to what extent?\n\nLand A/o\n\nProfit & Loss Account\n\nGeneral Reseves and liabilities for taxation\n\nDibru Darang Tea Co. Ltd.\n\nRs. 19,30,374/-\n\n16,69,285/-\n\n3,50, 799/-\n\nReserve created on writing up the value of the assets of the ten estates 15,69,828/-\n\nTaikrong Tea\n\nC:o. Ltd.\n\nRs. 10,11,216/-\n\n18,73,125/-\n\n2,243/-\n\n58,772/-.\n\nThe matter relates to the assessment year 1956-57, the corresponding accounting year for which ended on Jnne 30, 1955.\n\nThe assessee company held 52,350 shares out of the total issued shares of 54,600 in Dibru Darang Tea Co. Ltd. (hereinafter referred lo as DDT Co.) and 22,998 shares out of the total issued shares of 23,000\n\nin Taikrong Tea Co. Ltd. (hereinafter referred to as TT Co.). DDT Co. and 1T Co. were tea companies growing, manufacturing and selling tea.\n\nFor this purpose, those two companies owned large1 tea estates consisting of land, buifding, plant and machinery. On August 11, 1947 the said tea companies sold their entire tea estates, including all the assets, to Brooke Bond Estate India Ltd_. As a result of these sales, DDT Co. received a surplus of Rs. 17,18,081 over the book value of its assets.\n\nLikewise, TT Co. received a surplus of Rs. 13,11,339 over the book value of its assets. The amount relating to the land of the tea estate of DDT Co. was Rs. 19,30,374 and that relating to TT Co. was Rs. 10,11,216.\n\nDDT Co. realized Rs. 2,12,313 less than their book value on the sale of the other assets.\n\nIt may also be mentioned that in 1936 the assets of the two companies were revalued.\n\nOn such revaluation the book value of the assets of DDT Co. apprcciat:xl. by an amount of Rs. 15,69,828 and those of TT Co. by an amount of Rs. 58,772. These amounts were carried to the respective reserves of the two companies.\n\nDDT Co. and TT Co. went into voluntary liquidation on October 29, 1954.\n\nOn account of the liquidation of the two companies, the assessee company became entitled to receive Rs. 57,69,186 out of the total distributable assets of DDT Co. and Rs. 36,53,453 out of the total distributable assets of TT Co.\n\nDuring the relevant accounting period the asscssce received Rs. 52,23,786 and Rs. 34,15,500 (in all Rs. 86.39,286) from the liquidators of DDT Co. and TT Co. respectively.\n\nOn behalf of the assessee company, it was urged before the lncome-tax Officer that apart from Rs. 2,47,921 which had been assessed as capital gain under section 12B of TT Co. for the assess- 1mnt year 1949-50, no other amount could be included in the computation of the accumulated profits available for distribution under section 2(6A) (c) of the Act.\n\nThe Income-tax Officer rejected this\n\n\" ;\n\n' .\n\ncontention and allowed only a deduction of Rs. 27,000 being payment on share premium account and included the balance of Rs. 86,11,986 (grossed up to Rs.\n\n9L64,075) as the assessee's dividend income under section 2(6A)(c) of the. Act.\n\nOn appeal the Appellate Assistant Commissioner allowed a further deduction of Rs. 1,77,964 representing pre-incorporation B advances in the case of TT Co. The Appellate Assistant Commissioner rejected all other contentions of the assessee, including the contention that 60 per cent of the amounts appearing under the head \"balance of appropriation account\" in the balance-sheets as also the general reserves and liabilities for taxation appearing in the books of the two tea companies should be excluded from the computation of accumulated profits.\n\nOn further appeal before the Tribunal, two main contentions were raised on behalf of the assessee : (I) that in determining the quantum of the accumulated profits, the surplus arising from sale of lands of the two tea estates as also the reserves created on the revaluation of the agricultural assets should be left out, and (2) that only 40 per cent of the balance in the profit and loss account and the D general reserves of the two companies should 'be included, as only 40 per cent of thes\" amounts had been assessed under the Act.\n\nRegarding the first contention. the Tribunal observed :\n\n\"In the case before us, since the lands of the two tea estates were utilised for producing and selling the tea, it cannot be said that the said assets could be termed as 1and from which the income derived was agricultural income'.\n\nAt best what can be said is that barring 40% of such income the balance was airricultural income.\n\nWe must, therefore, hold that only 40% of the profits derived on sale of the land of tea estates as also the reserves created on writing up the value of the assets of the land of the tea estates was referable to IRnrl from which income derived was agricultural income.\n\nTo that extent. therefore. the total of the profit on sale of the land of tea estates and reserves created on revafoation were to be excluded in comnuting the accumulated profits for finding out the section 2(6A)(c) dividend.\"\n\nDealing with the second contention of the assessee. the Tribunal observed that the ratio of 60 : 40 as lair! down in rule 24 of the Income-tax G Rules, 1.922 could not be anplied for finning out the nroportion of\n\nccumulated profits in a tea business and that profits, whether capital1serl or not. did not 3dmit of such a bifurcation for determinatio,., of accumulated profits.\n\nGenera! and taxation reserves having been inclutled in the pool of distributable surplus could. in the ooinion of the Tribunal, only be held to be excess provisions out of the profits of the two -tea cpmpanies which were not required to be oaid out in H discharge of anv 'liabilitv. The Tribunal accordingly held I.bat bafance left over. after making the deduction indicated above from the total distributable pool; was accumulated profits of the two tea companies\n\nA and the share received by the assessee on distribution of such accumulated profits was dividend within the meaning of section 2(6A)(c) of the Act.\n\nAccumulated profits in the case of two tea companies immediately before the liquidation were determined as under :\n\n\"DDT Co.\n\n40% of (Rs. 19,30,374+Rs. 15,69,828) +the whole of (Rs. 16,69,285+Rs. 3,50,799)=Rs. 34,20,165.\n\nTT Co.\n\n40% of (Rs. 10,11,216+Rs. 58,772) +the whole of (Rs. 18,73,125+Rs. 2,243)=Rs. 23,03,363.\" The Tribunal accordingly came to the conclusion that out of the distributable surplus, an amount of Rs. 57,23,528 was attributable to accumulated profits and hence was dividend within the meaning of section 2(6A)(c) of the Act. The assessee's appeal was allowed to that extent.\n\nBoth the assessee company as well as the Commissioner applied to the Tribunal for reference of certain questions arising from the order of the Tribunal to the Court.\n\nThe Tribunal thereupon referred the question reproduced above in a composite reference to the High Court.\n\nDealing with items 1 and 4 mentioned in the question, the High Court held as under : - ' E\n\n\"As both the learned counsel agree that the same treatment should be given to the reserves created on writing up the value of the assets as to the excess and/ or profit realised on sale either of the lands or of the assets of the tea estates, it should be sufficient to consider the case of such excess arising from the sale and/or transfer by the two tea companies. Whether the excess of the price realised over the book value of the lands as shown in the land account balance and as envisaged in the question referred or whether the excess on the sale of the entire tea estates over the book value of the assets are to be considered for inclusion in the 'accumulated profits' under section 2(6A)(c), there can be no doubt that such excess or profit is a realisation of capital rise and not profit of the business.\n\nAs according to the decision of the Supreme Court in Short Brothers'(!) case, unless such appreciation has been included in capital gains, distribution thereof by the liquidator will not be deemed to be divided for the purpose of the Income-tax Act, we have to find out how much of such excess or profit has been included in the computation of capital gains of the two tea comoanies on the transfer of the tea estates in 194 7.\n\nIn his order the Appellate Assistant Commissioner has recorded that for the assessment year 1949-50 the assessment order on Dibru Darang Tea Company Ltd. showed that the com-\n\n- ..\n\nI -\n\npany was not liable to capital gains tax, while the assessment order for that year of M/s. Taikrong Tea Co. Ltd. showed that a sum of Rs. 2,47,921 was brought nnder tax nnder the head of 'Capital gains.' It must, therefore, be held that it is only the sum of Rs. 2,47,921 which could be included in accumulated profits' for the purpose of determining the dividend under section 2(6A)(c). Mr. B. L. Pal contended that there was no conclusive finding in the order of the Appellate Asistant Commissioner as to the capital gains of the two tea companies in respect of the trausfer of the tea estates and the proper determination of capital gains payable in respect thereof had not been established.\n\nWe are unable to accept this contentions. Accordingly, so far as the first and last items in the referred question are concerned the answer would be that only the sum of Rs. 2,47,921 was incl4dible in the accumulated profits within the meaning of section 2(6A)(c) .\" Regarding items 2 and 3 in the question the finding of the High Court was as under :\n\n\"The balance in the profit and loss account is arrived at ater deducting or. providing for all outgoings including the estimated liability for both income-tax and agricultural income-tax. Therefore, the balance carried to the ba!ancesheet is pure profit, that is to say, the commercial profit of the undertaking. We are unable to accept Mr. Ray's contention that each item in the balance-sheet contains in itself the proportion of the income attributable to the business activity and to the agricultural activity of the tea companies and must be distintegrated into jts component parts at the time of inclusion in dividends.\n\nTea companies carry on a business activity though such activity may include agricultural operation as part thereof. Overall excess of incomings over outgoin!(S, as reflected in the balance of profit and loss account, wou1d represent the commercial profits of the business undrtaking of the tea companies and though a bifurcation is necessary for the purpose of assessment and imposition of tax no futrher bifurcation could be made once the balance of profit was finally determined of such balance it could not be said that a part represents agricultural income and the rest represents income from busines~. So far as the\n\neneral and taxation reserve is co11cerned, Mr. Ray agrees that such reserve is usually built up out of the profits to meet future liabilities but contends that ns in this case also such reserve had been built up of l)O per c~.nt. agricultural profit\n\nsuch reserve should again be disintegrated into the component pa~ .• We are entirely unable to accept this contention. As pomteo out by Mr. Pal, the Supreme Court in Girdhardas's(') case advocated disintegrath1n of the amount distributed into two components, namelv. capital and accumulated profits.\n\nThere is no scope for further distintegration of profits into its component parts.\"\n\n(I) 63 I. T. R. 300 . .\n\nThe amounts mentioned in terms 2 and 3 of the question were accordingly held to be wholly includible in the accumulated profits within the meaning of section 2 ( 6A) ( c) of the Act.\n\nBefore dealing with the contentions advanced by the counsel for the parties, it would be convenient to set out the relevant provisions of the Act.\n\nSection 2(1) defines \"agricultural income\" to mean, inter alia. \\ \"(a) any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land-revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such;\n\n(bj any income derivd from such land by-\n\n(i) agriculture, or\n\n(ii) the performance by a cultivator or receiver of rent-in-kind of any process ordinarily employed\n\nJ)y a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or\n\nfiii) the sale by a cultivator or receiver of rent-inkind of the produce raise:! or received by him, in respect of which IK> process has been performed other than a process of the nature described in sub-clause (ii);\n\n(c) ...... . . . . . . . . . . . . \"Capital asset\" in section 2 ( 4A) .nwns property of any kind held by an assessee, whether or not connected with his bµsiness, profession or vocation, but does not include-\n\n(i) . . . . . . . . . . . . . . . . . ...... . (ii)\n\n(iii) any land from which the income derived is agricultural income.\n\n\"Dividend\", according to section ~(6A)(c), includes \"any distribution made to the shareholders of a companv on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not\" The explanation to dause 2(6A) reads as under :\n\n\"Explanation.-The expression 'accutnu1ated profit~, wherever it occurs in this clause. shall not 1nclmle capital gains arising before the 1st day of April 1946, or after the 3 !st day of March 1948, and before the 1st day of April 1956.\"\n\n\"Income\" has been defined in section 2 ( C6) to include dividend. \"Total income\" has been defined in section 2(15) to mean the total amount of income, profits and ;; ains referred to sub-section (1) of section 4 computed in the matter laid down in the Act.\n\nSection 3\n\n1- ' •\n\n~ •\n\n\nI '\n\n• •\n\nprovides inter alia. that income-tax sall be charged for .a '.!er in respect of the total income of the prev10us year of every md1v1dual and company. . Section 4 relates to total inome of a previous year of :iny person.\n\nAccording to clause (8) of sub-section (3) of that section, agricultural income shall not be included in the total income chargeable to tax under section 3 of the Act.\n\nSectim1 6 enumerates the six heads of income to be :\n\n(i) salaries, (ii) interest on securities, (iii) income from property. (iv) profits and gains of business, profession or vocation, ( v l income from other sources, and (vi) capital gains.\n\nAccording to section 12(1A), in::ome from other sources shall include dividends. Under section 12B, as it stood at the relevant time, capital gains t2x shall be charged in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset affected after the 31st day of March 1946 and before the 1st day or Aj)ri! 1948 and such profits and gains shall be deemed to be income of the previous year in which the sale, exchan§:e, relinquishment or transfer took place.\n\nSection 59 empowers the Central Board of Revenue, subject to the control of the Central Government, to make rules for carrying out the purposes of the Act.\n\nIndirn1 Income-tax Rules, 19'.!2 were framed in pursuance of that section. Rule ?.3 of the said rules provides for assessment of income which is partly agricultural and partly income chargeable to income-tax. Rule 24, with which we\n\n'\"\"\" are concerned, reads as under :\n\n\"Income derived from the sale of tea grown and manu- E factured by the seller in the taxable territories shall be computed as if it were income derived from business, and 40 per cent., of such income shall be deef!led to be income, profits and gains liable to fax ...... \"\n\nThere is a proviso to this rule, but it is not necessary to reproduce the same.\n\nIn appeal filed by the assessee-company, its learned counsel, Mr.\n\nay, has contended before us in respect of items 2 and 3 of the quest10n that 60 per cent of the amounts mentioned in these items were agricultural income and as such were not income for the purpose of\n\nr the Act.\n\nTo that extent, it is urged the amounts did not constitute accumulated profits within the meaning of section 2(6A)(c) of the Act.. The High Court, according to the contention, was ih error in holdmg to the contrary. Tue above contentions has been controverted by Mr. Hardy on behalf of the revenue and, in our opinion, is not well founded.\n\nIn Inland Revenue Commissioners v. George Burrell(') it was held. that super-tax was not payable on the undivided profits, of past years ad _of the year in which the winding up of a company occurred were dJstnbuted among the shareholders, because in the winding up\n\n(!) [1924! 2 K. B. 52.\n\nthey had ceased to be profits and were assets only. It was further observed in Burrell's case that the only thing the liquidator of a company in liquidation may do is to tnrn the asset5 into money, and divide the money among the shareholder~ in proportion to their shares.\n\nSurplus of trading profit made in a particular year are distributable rateably among all the shareholders as capital, and it is not right to split up the sums received by the shareholders into capital and income, and thus disintegrate the sums received by the shareholders subsequently into component parts based on an estimate of what might possibly have been done, but was not done. A> the Indian Companies Act, l 913, closely followed the scheme of the English Companies Act, and the view expressed in Burrell's case (supra) applied to the Indian Income-tax Act, a special definition of \"dh, idend\" was devised by the legislature by the enactment of the Income-tax (Amendment) Act 7 of 1919 with a view to undo the effect of Burrell's (supra) case.\n\nClause (c) of sub-section (6A), as originally enacted, stood as follows\n\n\" 'Dividend' includes-\n\n( c) any distribution made to the shareholders of a com-· pany out of accumulated profits of the company on the liquidation of the company :\n\nProvided that only the accumnlated profits so distributed which arose during the six previous years of the company preceding the date of liquidati011 shall be so included.\"\n\nBy the Finance Act, 1955, the proviso to sub-clause (c) of clause (6A) was omited.\n\nThere was a further amendment made by the , Finance Act, 1956, and clause (c) to the amended section read as follows\n\n\" 'Dividend' includes- ( c) any distribution made to the shareholders of a com- . pany on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not.\" As a result of the abOV\\l, distribution which is attributable to the accumulated profits of the compauy immediately before its liquidation is deemed to be dividend and as such liable to be taxed.\n\nSixty per cent of the profits made by DDT Co. and TT Co. by sale of tea grown and manufactured by them were not liable to be taxed under the Act in view of rule 24 of 1922 Rules because they were to be treated as agricultural income of these two companies.\n\nThe question with which we are concerned, however, is that even though 60 per cent of the said profits constituted agricultural income in the hands of DDT Co. and TT Co., once these profits got accumulated with those two companies, did they answer to the description of \"accumulated profits\" as used in the definition of dividend in section 2(6A) (c)?\n\nThe answer to this question, in our opinion, should plainly be in the affirmative. We are unable to accede to the contention of Mr. Ray that as only 40 per cent of the profits which got\n\n. ,,\n\nIr\"\n\naccumulated were liable to be taxed in the hands of DDT and TT com- A panies under the Act and 60 per cent were not liable to be so taxed, only 40 per cent of the amount of accumulated profits should be treated as accumulated profits for the purpose of section 2 ( 6A)( c). The acceptance of the contention would necessarily postulate .reading in section 2(6A)(c) the words \"accumulated profits as are hable to be taxed under the Act\". The words \"as are liable to be taxed under the Act\" are not there in the definition and it would not, in our opinion, B be permissible to so construe the clause as if those words were a part of that clause.\n\nThere is also nothing in the language or context of that clause as would warrant such a construction. Acmmulated profits would retain their character as such even though a part of them were not taxed as profits under the Act. It is pertinent to mention in this connection that we are concerned in ihe appeal of the assessee with items 2 and 3 of the qnestion which relate to accumulated profits in C the ordinary sense and not to accumulated profits arising out of capital gains which are dealt with by the explanation to section 2( 6A) of the Act.\n\nThere can also be no doubt that whatever amount has been distributed to the assessee company and is attributable to accumulated profits in items 2 and 3 mentioned in the question would constitute dividend in the hands of the assessee and the whole of the amount so received would be liable to be taxed as such. This is clear from the Constitution Bench decision of this Court in the case of Mrs. Bacha F. Guzdar, Bombay v. Commission£r of Income-tax Bombay('). The\n\n~ assessee in that case was a shareholder in certain tea companies, 60\n\nper cent of whose income was exempt from tax as agricultural income under section 4(3) (viii) of the Indian Income-tax Act. The assessee claimed that 60 per cent of the divide.nd income received by her on her shares in those companies was also exempt from tax as agricultural income.\n\nThis claim wa.s rejected and it was held that the dividend inconie received by the assessee was not agricultural income but was income assessable under section 12 of the Act.\n\nAgricultural income as c!efined in the ct, according to that decision, was intended to refer to revenue received by direct association with the land which is used for agricultural purposes and not :, y indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise .\n\nMr. Ray has assailed the correctness of the view taken by the ' Constitution Bepch of this Court in tl1e above decision and bas submitted that the matter should be reconsidered. Apart from the fact that this Bench is bound by the decision of the Constitution Bench, we find nothing in that decision us warrnnts reconsideration of the matter.\n\nWe would, therefore, uphold the answer given by the High Court in re&pect of items 2 and 3 of the question.\n\nIn appeal by the Commissioner of Income-tax his learned counsel Mr. Hardy, ha~ submitted in respect of items 1 and 4 that as 60 pe; cent of the income from the land held by DDT Co. and TT Co. was H to be treated as agricultural income in view of rule 24 of 1922 Rules,\n\n(1) 27 I.T.R. 1.\n\n15 6\n\nSUPREME COURT REPORTS [l 976] SUPPLEMENT.\\RY\n\nthe said land to the extent of only 60 per cent would not answer to the description of capifal asset as defir.ed in section 2 ( 4A) of the Act.\n\nAs 40 per cent of the income derived from that Jami was not agricultural income, 40 per cent interest in that land, according to the submission, should be held to be cap; tal asset for the purpose of section 2( 4A) of the Act.\n\nForty per cent interest in that land, it is fnrther submitted, would not be taken out of t11e definition of capital by virtue of clause (iii) of section 2(4A) and any appreciation in the value of the land to the extent of 40 per cent would constitute capital gain. As such gain arose during the period from April 1, 1946 to March 31, 1948, the same, according to Mr. Hardy, would answer to the description of accumulated profits as mentioned in the explanation to section 2(6A) of the Act.\n\nThe above contention of Mr. Hanly, in our opinion, is not well founded.\n\nIncome which is realised by sale of tea by a tea company which grnws tea on its land and thereafter subjects it to manufacturing process in its factory is an integrated income. Such income consists of two elements or components.\n\nOne element or component consists of the agricultural income which is yielded in the form of green leaves purely by the land over which tea plants are grown. The second element or component consists of non-agricnlturnl income which is the result of subjecting green leaves which are plucked from the tea plants grown on the land to a particular manufacturing process in the factory of the tea company. Rule 24 prescribes the formula which should be adopted for apportioning the income realised as a result of the sale of tea after it is grown, and subjected to the manufacturing process in the factory.\n\nSixty per cent is taken to be agricultural income and the same consists of the first element or component, while 40 per cent represents non-agricultural income and the same comprises the second element or component.\n\nWe are fortified in the above conclusion by two decisions of this Court in the cases of Karimtharuvi Tea Estates Ltd. v. State of Kercila(') and Anglo-American Direct Tea Trading Co. Ltd. v.\n\nCommissioner of Agricultural lnC'Jmetax, Kerala( 2). In the case of Karimtharuvi Tea Estates Ltd. it was observed while dealing with the income derived from the sale of tea grown and manufactured by the seller in the context of rule 24 :\n\n\"Of the income so computed, 40 per cent is, under rule 24, to be treated as income liable to income-tax and it would follow that the other 60 per cent only will be deemed to be 'agricu1tural income' witl)_in the meaning of that expressiun in. the Income-tax Act.\"\n\nIn the case of Anglo-American Direct Tea Trading Co. Ltd. the Constituti0n Bench of this Court held that income from the sale of tea grown and manufa_ctured by the assessee is derived partly from business and partly from agriculture.\n\nThis income has to be computed as if it were income from business under the Central Income-tax Act H and the Rules made thereunder. Forty per cent of the income or com-\n\n(!) 48 I.T.R. 83\n\n(2) 69 I.T.R. 667,\n\n' I\n\nj •\n\n- '\n\npuled is Cieemed to be income derived from business and assessable to non-agricultural income-tax.\n\nThe balance of 60 per cent of the income , o comruted is agricultural income within the meaning of the Central Incomtax Act.\n\nSo far as the lands held by DDT Co. and TT Co. were concerned, they yieldec'i purely agricultural income in the shape of green tea leaves. Forty per cent of the income on sale of tea which was received by DDT Co. and TT Co. was not income from land. It was income which should be ascribed to manufactming process to which the green tea leaves were subjected in the factories of those companies. As the lands held by DDT Co. and TT Co. yielded agricultural iucome, it would follow th:J.t those lands did not constitute capital asset as defined in section 2(4A) of the Act. Clause (iii) appended to section 2(4A) expressly states that capital asset does not include any land from whicl1 income derived is agricultural income. Any. gain arising from the transfer of such land would not constitute capital gain under the Act and consequently would not be liable to be t_axed as such. The distribution of that amount on the liquidation of the companies would also not partake of the character of dividend. It may be apposite in th1q context to refer to the case of First Income-tax Officer, Salem v.\n\nShort Brothers (P.) Ltd. (supra) wherein this Court dealt with the sale of a coffee estate by a compa11y which went into liquidation. It was held by this Court that the capita! appreciation in respect of the lands lrorn which the income was derived as agricultural income and was not taxable in the hands of the company as capital gains would \" not on distribution be liable to be '° taxed as dividend under section 12 of the Act. We, therefore, see no reason to interfere in the appeat filed by the Commissioner of Income-tax with the answer given by the High Court in respect of items 1 ; md 1 of the question. It is the common case of the parties that items I and 4 share the same fate.\n\nAs a result of the above, we dismiss both the appeals.\n\nIn view of the divided success, we leave the parties to bear their own costs of both t1; e appeals.\n\nP.H.P.\n\nAppeals dismissed.", "total_entities": 72, "entities": [{"text": "TEA ESTATE INDIA (P) LTD", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "TEA ESTATE INDIA (P) LTD", "offset_not_found": false}}, {"text": "COMMISSIONER OF INCOME-TAX", "label": "RESPONDENT", "start_char": 30, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF INCOME-TAX", "offset_not_found": false}}, {"text": "H. R. 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{"document_id": "1976_1_158_165_EN", "year": 1976, "text": "COMMISSIONER OF SALES TAX, GUJARAT\n\nM/S. SABARMATI RETI UDYOG SAHAKARI MANDALI LTD.\n\nApril 26, 1976\n\n[H, R KHANNA AND P. K. GOSWAMI, JJ.J\n\nSales Tax-Works contract for manufacture and supply .of kiln burnt bricks -Bricks .tnanufactured and supplied according to contract and payment received-Contract whereby land is given free and the right to sell to third parties is subject to restrictions-Whether there is a transfer of chattel for co11sideration-Co11tract whether liable to sales tax on bricks supplied-Bombay Sales Tax A.ct. 1959.\n\nContract of sale and contract for work and labour-Distinction--Beneficial\n\n~.., elf are features in a contract do not negate the concept of a contract of sale.\n\nThe respondent manufactured and supplied kiln burnt bricks to the appellant as per the works contract dated 8/9th December, 1970, which provided (i) that land would be given free; (ii) that the material shall remain at the contractor's risk till the date of final delivery; and (iii) that the. contractor had a right to sell to the third parties bricks subject to payn1ent of 10% of the value of materials at the tender rates of the appellant. The respondent \\Vas assessed to sales tax under the Bombay Sales Tax Act, 1959, on the basis that'\" these supplies were sales. The Deputy Commissioner of Sales Tax on an application under s. 52 of the Bombay Sales Tax Act held the supplies as sales. On appeal the Sales Tax Appellate Tribunal confirmed it, following the ratio of the decision in 1964 (2) OCR p. 879 (C. B. Go, ain v.\n\nState of Orissa and Ors.) But, the High Oourt, on a reference ans\\vered it in favour of the assessee and against tb~ revenue.\n\nAllo\\ving the Revenue's appeal by special leave the Court,\n\nl:lELD : (I) .It is well settled '..ha• whether a partiiculal' transaction is a contract of sale or a works contract depends upon the tn1e construction of the terms and conditions of the document, when there is one. The question will depend upon the intention _of the parties executing the contract. There is no standard fonnula by whichi one con di!>tinguish a contract of ::sale from the contract for vvork or labour. The question is not always easy and has always vexed jurists all over. The distinction, between contract of sale: of goods and a contract for work and Jabour is often a fine one.\n\nA contract of sale is a contract whose main obiect is the transfer of property in and the delivery of the possession of, a chattel as a chattel to the buyer.\n\n[160 E-G]\n\nState of Guiarat v. Variety Body Builders, [1976]\n\n(3) SCR 131 applied.\n\nHalsbury's Laws of England, referred to.\n\n(2) As per terms and conditions of contract, the land was given free lor n1anufacture of bricks: the materials remained at the risk of the contractor till the date of :final delivery; the respondent could not sell the brir; ks to third parties but could do so under certain restrictions; the contracting parties have used the words as sale, purchase, delivery or rates of supply etc., in the contract. All these terms and conditions are almost identical to the conditions in Chandra Bhan Gosain's case and hence the decision in that case will govern the present case ns well. The various other terms in the contract, nnmely,\n\n1naintenunce o[ a qualified executive engineer for supervision of work, restriction on e1nploy1nent of children lnder 12 yers of age, lao.ur \\\\relfar~ provisions regnr<liing wages, workmen s con1pensat1on etc., _provLS1on relatlng to cruelty to t1nimals, non-payment of royaliy for excavating earth etc. releate to\n\n\" ;\n\n' .\n\na process of proper and efficient manufacturing of bricks and are not incon- A sistent in a contract of sale. These terms do not appear to impinJe on the character of the contract as one for sale of bricks manufactured. The Government in its overall interest and anxiety could insist on compliance of certain beneficial legal measures.\n\nProvision against sub-letting v.:hen the land was gi..-en free by the Government was also understandable. All these features do not negate the concept of a contract of sale of bricks that are ultimately manufactured. The true test in this case is whether in aking the contract. brick. produced was transferred as a chattel for consideration and this has B taken place in this case. The essence of the contract was, therefore. the delivery of the bricks after manufacturing.\n\n[164 A-H, 165 A-D]\n\n(3) The contra.ct in this case is contract of sale and not a works contract and the.i assest.ee is liable to sales tax.. [165E]\n\nC. B. Gosain v. State of Orissa and Ors. [1964] (2)i SCR 879, followed.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1512 of 1971. c\n\nAppeal by Special Leave from the Judgment and Order dated the Stl1/9th December, 1970 of the Gujarat High Court in Sales Tax\n\nRference No. 3/70. ·\n\n S. T. Desai and M. N. Shroff for he Appellant.\n\n · V. S. Desai, Vimal Dave and Miss Kai/ash Mehta,· for the Respaadent .\n\n. The Judgment of the Court was delivered by\n\n GosWAMI, J, This is an appeal by special leave against the Judgment of the Gujarat High Court dated 8th/9th December, 1970.\n\nThe respondent (hereinafter to be described as the assessee) entered into a contract with the Public Works Department of the Government of Gujarat on September 6, 1965 for manufacture and supply of kilil-burnt bricks to the said Department for the construction of the Capital Project, Gandhinagar. Large quantities of bricks were manufactured and supplied under the contract and the applicant received payment for the same in accordance with the agreed rates. The assessee made an application under section 52 of the Bombay Sales \"Tux Act, 1959, on November 19, 1967, to the Deputy Commissioner of Sales Tax, to de(ermi'ae the question whether the said supplies of bricks by the assessce to the Public Works Department were sales or works contract. The Deputy Commissioner held the supplied of bricks . by the assessee as sales. The assessee then appealed to the Tribunal against that order. The Tribunal following the ratio of the decision of this Court in Chandra Bhan Gosain v. The State of Orissa and others(') came to theo conclusion that the supplies of bricks were sales. At the instance of the assessee, the Tribu'aal referred the following question of Jaw to the High Court :- . . .\n\n\"Whether_o;,. the factS and in the circumstances of the case .the transaction envisaged by the contract entered into by the applicant with the Public Works Department of the Govern-\n\n(!) 14 S.T.C. 766 : [1964] 2 S.C.R. 879.\n\n16 0\n\nSUPREME COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nment of Gujarat on 6th September, 1965, for the manufacture and supply of kiln-burnt bricks to the said Department and e supply of bricks to the said Department in terms of their running Bill No. XI dated 28th October, 1967, is a sale or a works contract ?\"\n\nThe High Court answered the question in favour of the assessee holding that the transaction was •a works contract. In commg to that conclusion the High Court held as follows :- . ''In our opiaion, the decision of the Supreme Court in Chandra Bhan Gosain's case (supra) is clearly distinguishable on facts. The contract in that case, though prima facie worded as regards the relevant clauses in similar fashion as the contract in the instant case, is in fact cast in a different mould\n\nmid it would be difficult to hold in the light of the special features and characteristics of the contract with which we are concerned that the decision of the Supreme Court in that case would completely govern the facts of this case.\"\n\nMr. S. T. Desai, the learned counsel for the appellant, submits that the present case is squareli governed by the decision in Chandra Bhan Gosain's case (supra) and the High Court is wrong in holding to the contrary.\n\nMr. V. S. Desai, learned ccunsel appearing on belralf of the assesee, on the other hand, submits that the High Court is right in disti'nguishing the present case in view of certain distinguishing features of of the co'atract with which we are concerned.\n\nIt is well-settled that whether a particular transaction is a contract of sale or works contract depends upon the true construction of all the tenns and conditions of the document, when there is one. The question will depend upon the intention of the parties executing the contract.\n\nAs we have observed in our judgment in State of Gujarat v. Variety Budy Builders( 1) which we have just delivered there is no standard formula by which one ca11 distinguish a contract of sale from a contract for work and labour. The question is not always easy and has for all time vexed jurists all over. The distinction between a contract of sale of goods and a contract for work and labour is often a fin.e one. A contract of sale is contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel _to the buyer. (Halsbury's Laws of England, Third Editio'a, Volume 34, pl\\lle ,.. 6.)\n\nThe contract with which we are concerned in this appeal is found in a tender \"for the supply of materials\" containing a memorandum of the coaditions. The nature of work is described as \"manufacturing and supplying kiln-burn bricks for construction of gandhinagar\". The question will depend upon the true constrnction of the tender which, on acceptance, is treated here as the contract containi'ng all the terms and conditions agreed upon between the two parties. In the tender the assessee stated \"I/We chairman Sabarmati Rati Udyog Soahakari Mandli -------\n\n(1) [1976J 3 s.c.R. 131\n\n~-\n\n- ,\n\nc.s.T. v. SABARMA1'1 1'iANDALI (Goswami, !.) 161\n\nLtd., the undersigned do hereby tender for the supply of the materials A described in the Schedule attached herewith subject to the conditions . ,_. all\\lexed. The schedule described materials as bricks and also stated\n\n\"quantities to be delivered\", and \"rate at which to be supplied\". The tender is descbed as \"Supply of Materials Tender\".\n\nAlthough the above nomenclature, by itself, is not decisive, we find that the same i&\n\njustified by the principal terms governing the contract to which we will B presently refer.\n\nI r\n\n\"Clause 6 : The contractor shall give notice to the Executive\n\nEngineer or his Assistallt of his intention of mak- ,,.. ing delivery of materials and on the materials being approved, a receipt shall be granted to him by the Executive Engineer or by his Assistant and c no materials which is not so approved shall be considered to have been delivered.\n\nClause 7: On the completion of the delivery of materials,\n\nthe contractor shall be furnished with a certificate to that effect, but the delivery shall not be considered to be complete until the contractor D ,1 shall have removed all rejected materials, and shall have the approved materials, stacked or • placed in such position as may be pointed out to him.\n\n~ Clause 8 The materials to be supplied shall be of the best quality and in strict accordance with the specifi- E cation and the contractor shall receive payment\n\nfo~ such materials only us are approved and passed by the Executive Blgineer or his Assistaot.\n\nShould the Executive Engineer consider that any of the materials delivered arc not of the best quaJity are not in strict accordance with the specification but that they may be accepted and F made use of it shall be within bis full discretion - to accept the same at such reduced rate.s as he '\n\nmay fix thereon.\n\nClause 9 In the event of the material being co\\1sidered by \" the Officer in the charge of the work to be inferior to that described in the specifications, the con- G tractor shall on demand in writing, forthwith to remove the same at his own cost and in the event of his failure to do so, within such period as may be ilamed by lhe Executive Engineer or his\n\nAssistant~ the said ()fjlcer may have such rejected material removed at the contractor's risk and expense, the expense so incurred being deducted H r\n\nfrom any sums due or which may become due to the contractor. 1.l--333 Sup.CT/76\n\nSUPREME COURT REPORTS [1976) SlJPPLEMENtARY\n\nClause 11 The contractor shall supply at his own expense all tools, plants and implements required for the due fulfilment of his contract, a!ad µie materials shall remain at his risk till the date of final delivery, except such portion as shall have been in the meantime removed for use by the Executive Engineer or his Assistant.\n\nCause 13 This contract shall not be sublet without the written permission of the Executive Engineer.\n\nIn the event of the contractor subletting his contract without such permission he shall be considered to have thereby committed a breach of the contract and shall forfeit his security deposit, and shall have no claim for any compensation for any loss that may accrue on accou,1t of the collection of the materials or engagements entered into.\n\nClause 16 No guarantee can be given that the total number of quantities of material indicated in the Schedule of the contract will be ordered during the period of the contract.\n\nBut, the Executive Engineer shall purchase from the contractor all such materials as ure detailed in the Schedule which he may require to purchase during the period of the contract.\n\nClau3c 17 No claim or claims made by the contractor for iacreased rates on the grounds that the market or other rates included in the contract, have risen during the period of his contract, will be recognised, that is to say, the contractor is bound to complete the wrok! and or to supply materials at F the rates mentioned in the contract.\n\nClause 22 All rates quoted by the contractors are inclusive of sales tax and the contractor will pay the same himself,\n\nClause 24 The c<Yatraetor hereby declares t!rat the articles sold to the buyer under this contract shall be of the best quality (and workmanship) and shall be strictly in accordance with the specifications and particulars contained in the Schedule and accompaniments hereof and the contractor hereby guanmtees that the said articles would continue to conf9rm to the description and quality aforesaid for the period shown in the Schedule from the date of delivery of the said articles to the purchaser and that notwithstanding that fact tlrat\n\nI r\n\nthe purchaser may have inspected and approved the said articles if during •the aforesaid period stated in the Schedule the said articles be discovered not to conform to the descnption and quality aforesaid or !iave deteriorated alld. the decision of the purchaser in that behalf shall be final and conclusive.\n\nThe purchaser will be entitled to reject the said articles on such portion thereof as may be discovered not to conform to the said description and qtrality on such rejection the articles \\j'ill be at the 'Sellers' risk and all the provisions herein contal,1ed relating to rejection of goods, etc. shall apply.\n\nThe contractor shall if so called upon to do, replace the articles etc. or such portion thereof as is rejected by the purchaser otherwise the contractor shall pay to the purchaser such damages as may arise by any of the breach of the condition herein contained, nothing herein contained shall prejudice any other right of the purchaser in that behalf under this contract or otherwise.\"\n\nAmongst some of the general conditions of the contract, we find the ., following :\n\n\"Clause 3 : All the necessary arrangemeats of raw materials, equipment water, coal, labour etc. required for supply and manufacture of bricks shall have to be made by the cont, actor at his own cost. The Government shall give only land for ell; cavating soil for manufacture of bricks to the contractors free of rent from the land reserved by the\n\nGovernme, lt for this purpose. The land shall have to be !randed over back to the Government after the manufacturing of the brick work is completed.\n\n* * *\n\nClause 10 The contractor shall have no right to sell these bricks, brick bats, chharas or any other materials mam1factured on this site to any other private parties.\n\nIf, however, it is found tlmt the materials have been sold by him to private parties or other bodies, he shall have to pay to Department at the rate of 10% of the value of materials at the tender rates.\"\n\nWhile giving the specificatiol1s Item No. 1 herein refers to \"manufacturing and supplying of 1 Class kim-burnt bricks of standard size including stacking in regular consignments etc. camp. as directed\".\n\n164 SCPREME cot; RT REPORTS (1976] SUPPLn1E:<TARY\n\nA Mr. v . S. Desai bring& to our notice the conunon as well as the\n\ndistinguishr11g features of this case and of Chandra Bha11 Gosain's case\n\nlsupra). According to him the common features arc the following:-\n\nThe land was given free for manufacture o[ bricks in both the cases.\n\nThe materials shall remain at the contractor's risk till the date of final delivery. Jn Chandra Bhan Gosain's case (supra) the contractor could not sell the bricks to third parties without previous permission of the comp:rny. Here also the contractor has no right to sell the bricks etc. but if he does sell he will have to pay 10 per cent of the value of the materials at the tender rates. Both the clauses arc, therefore, penniss1ve clauses and are substantially the same. In both the contracts the contracting parties have used the words such as sell, purch'ase, deliver or rate of supply etc. in the contract.\n\nIn Chandra Blum Gosai11's case (supra) dealing wilh those very common features this Court observed as follows :-\n\n'It may be presumed that it was understood that in quoting his rate for the bricks, the appeJla:,1t would take intr• accowit the free supply of earth for making the bricks. Again what was supplied to the company by the appellant was not the earth which he got from it but bricks, which, we think, are something entirely different. It could not have been intended that the property in the earth would continue in the compa11y in spite of its conversion into such a different thing as bricks. Further we find that the contract provided that the bricks would remain at the appellant's risk till delivery to the company. Now, pbviously bricks could not remain at the appellant's risk unless they were his property. Another clause provided that the appellant would not be able to sell the bricks to other parties without the permission of the company. Apparently, it MIS contemplated that without such a provision the appellant could have sold the bricks to others.\n\nNow he could not sell the bricks at all unless they belonged to him. Then we find that in the tender which the appellAnt submitted Md the ac;.ceptance of whih made the contract, he stated, \"I/we hereby tender for the supply to the Hindusthan Steel Private Ltd. cl the materials described in the undermentioned memoriindurn .. The memorandum described the materials as b.ricks, and also stated the 'qual>tities to be delivered' and the 'rate at which materials are to be supplied'.\n\nAll these provisions p!Wnly show that the contract was for sale of bricks. If it were so, the property in the bricks must have been in the appellant and passed from him to the subject-matter.\n\nFrom the above extract, it is clear that the decision in Chandra Bhan Gosain's case (supra) will govern the present case where terms and conditions are almost identical so far as relating to the relevant subject-matter.\n\n' '\n\nI '\n\nC.S.1'. v. SABAP.MATI MA1''DALl (Goswami, /.) 165\n\nMr. Desai, however, took pains to point out certain distinguishing features of the present case such as maintellllllCe of qualified Executive Engineer for supervision of work subject to removal at the Instance of the Government; restriction on employme!ilt of children under 12 years; labour welfare provisions regarding wages; workmen's compellS'ation, etc.; provisions in relation to prevention of cruelty to animals; nonpayment of royalty for excavati'ag earth; use of tube-wells standing on the Government site manner of execution of the work re!(arding moulding and drying and provision against subletting which shall constitute a breach of the contract resulting In forfeiture of security deposit.\n\nAll the above tenns relate to a stage 1'.1 the process of proper and efficient manufacturing of bricks and are not inconsistent in a contract\n\nof sale. These terms do not appear to impinge <1.1 the character of the C contract as one for sale of the bricks manufactured. The Government in its overall interest and anxiety for general welfare could insist on compliance with certain beneficial legal measures. It could also insist on certain terms which will ensure efficient production of the material.\n\nProvision against subletting when the land was given free by Government is also understa'.1dable. All the above features do not negate the concept of a contract of sale of the bricks that are ultimately manumc- D lured. The true test in this case is whether in makinl! the contract to brick produced was transferred as a chattel for consideration alld we\n\nar~ clearlv of opinion that this has taken place in this case. The property in the bricks was e1.1tirely of the assessee. He had not onlv to manufacture that but also to stack them for facilitating delivery. The essence of the contract was, therefore, the delivery of the bricks after manufacture. The present case cannot be distinished from the deci- E sion of the Chandra Bhan Gosain's case (supra).\n\nWe are, therefore, clearly of opinion that the contract in this case is a contract of sale and not a works contract. The assessee is, therefore, liable to sales tax. The question is answered accordin2lv. The Hi2h Court was not right in lll!swering the question in favour of the assessee .\n\nTe decision of the High Court is set aside. The appeal is allowed F with costs.\n\nS.R.\n\nAppeal allowed.", "total_entities": 20, "entities": [{"text": "COMMISSIONER OF SALES TAX, GUJARAT", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF SALES TAX, GUJARAT", "offset_not_found": false}}, {"text": "M/S. SABARMATI RETI UDYOG SAHAKARI MANDALI LTD", "label": "RESPONDENT", "start_char": 36, "end_char": 82, "source": "metadata", "metadata": {"canonical_name": "M/S. SABARMATI RETI UDYOG SAHAKARI MANDALI LTD", "offset_not_found": false}}, {"text": "R KHANNA", "label": "JUDGE", "start_char": 105, "end_char": 113, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "P. K. GOSWAMI, JJ", "label": "JUDGE", "start_char": 118, "end_char": 135, "source": "metadata", "metadata": {"canonical_name": "P.K. GOSWAMI", "offset_not_found": false}}, {"text": "Vas assessed to sales tax under the Bombay Sales Tax Act, 1959", "label": "STATUTE", "start_char": 1160, "end_char": 1222, "source": "regex", "metadata": {}}, {"text": "s. 52", "label": "PROVISION", "start_char": 1332, "end_char": 1337, "source": "regex", "metadata": {"linked_statute_text": "Vas assessed to sales tax under the Bombay Sales Tax Act, 1959", "statute": "Vas assessed to sales tax under the Bombay Sales Tax Act, 1959"}}, {"text": "section 52", "label": "PROVISION", "start_char": 5594, "end_char": 5604, "source": "regex", "metadata": {"statute": null}}, {"text": "Tux Act, 1959", "label": "STATUTE", "start_char": 5626, "end_char": 5639, "source": "regex", "metadata": {}}, {"text": "[1964] 2 S.C.R. 879", "label": "CASE_CITATION", "start_char": 6491, "end_char": 6510, "source": "regex", "metadata": {}}, {"text": "Clause 6", "label": "PROVISION", "start_char": 10122, "end_char": 10130, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 7", "label": "PROVISION", "start_char": 10473, "end_char": 10481, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 8", "label": "PROVISION", "start_char": 10835, "end_char": 10843, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 9", "label": "PROVISION", "start_char": 11405, "end_char": 11413, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 11", "label": "PROVISION", "start_char": 12041, "end_char": 12050, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 16", "label": "PROVISION", "start_char": 12819, "end_char": 12828, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 22", "label": "PROVISION", "start_char": 13522, "end_char": 13531, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 24", "label": "PROVISION", "start_char": 13642, "end_char": 13651, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 3", "label": "PROVISION", "start_char": 15284, "end_char": 15292, "source": "regex", "metadata": {"statute": null}}, {"text": "Clause 10", "label": "PROVISION", "start_char": 15788, "end_char": 15797, "source": "regex", "metadata": {"statute": null}}, {"text": "S.1", "label": "PROVISION", "start_char": 19293, "end_char": 19296, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_1_166_171_EN", "year": 1976, "text": ",._...... __ . __ .\n\n.. D\n\n. ,1~6\n\n. ' f'\n\n. ~,\n\nUNTON OF INDIA\n\n, I v.\n\nPREM: KUMAR' JAIN & ORS. ETC ..\n\n April 28. 1976 [A. N. R; y,'. C.i., R. S. SARKARIA P. N. SHlNGlTAL\n\nAND JASWANT SINGH JJ.l\n\nC01wiwrion of India A rtld~ 312--A/1 l11dia Sen• ice Act, 1951-IYhnlter Union . Turitoriu ar~ 'State•.<' for.. thr pmposc of.\n\nA new. c.odre of the ln<iinn Administrntiv.: Scrvic.: w:t• con<titute<l for Dtlhi . nod. Himachnl Pra<le, h, and recruitment to it was made dirtctlv without followinl! the normal method prc.<crihcd by Rule 4( I) of the J.A.S. !Recruit- . m<llt) Rule•. 1954.\n\nThese Rule' were nmendc<.l, to provide for n ioint c3<1re for the Union Territories and the North East Frontier Agcncv. and the Central GO\\-eroment formul:ttecl a scheme for extcndinl': the Ddhi-Himachal Pradesh Cadre to all the Union Territories bl( 'lb<orbin!! its officers an.l nr>PQintin~ of]'icers from. the Todian Frontier Adrnii, trative Service and all other Union Territorie• initiallv. The ioint cndre wn~ brouht into e xistence bv the Central Government's onier4 notified under S.:e. 3 (I ) of the T.A.S. (Cadre) l!ul<5.\n\n1954, !'Uhlished in the G; w.:ue of India, F.traordinary. The creation of tiK new joint cadre nnJ th~ anpointmcnt of. some of the respondents threto. were chnllcnged in. the llit•h Court on the cround that they were contrary to Art. 312 of the Con\"itution nnLI the All India Services Act. 1951. as the joint carlrc \\\\'a.S not common to the Union nnd the States inasmuch as a.\n\nUnion Territory Wft5 not a Stnte, nnd the recruitment of the resoondent• concerned, Wi!Jl illeal. The Hich Court quash•<.! the Central Gover11mcnt's ordu< and the scheme for the formation of a ioint cadre of the J.A.S. nr.d\n\nh~J , J lhat !h•.=atic>n of. the Delhi H imachal Pra.te,; h Cadre was al-; o ultra virci lhc Con, lttutJOn.' t..., stlon of law which came up before thi.• cOurt \"':\\.' weth:r _1Jnton Terntor.,, aro 'Stole~' for tho purpose of Art. 311 of &e Con, lilut•un. llnd lhc all Jndia Service Rule•. 195 L 7\n\n}, llowing the apf>el• the Cottrt, ·\n\nI' Hf'f.O: Section 3~58) of the cneral ChHJSCS Act. 1897, provid., inter\n\n•.~1 • lhnt. tbe expresstn 'Stale' shall me; m ~:1 state spccifid in th• fir<;, ~.hed!tle . to. t.he. Con•t•rutlon nnd hall include. n U nion Terirtorv. nv VIrtU~ or Arttcl.- 372-A or th-.\n\nConstitution. which wa~ inel\\ed bv tM Co•~•tltutton tS.:vnth Amendmcn\\) Ac 1956 becou<e of the fact that th~ ne.r. of ndaJ>t.hon un<lr nrticle 372'(2) h:W con•o to ntl ~\"'1. it -..·:~~ thJt c lllttln of the exnre..,.ion 'Stull'' which haJ eiTect frorn th~ t st <lav of h ovem e.r. 195~. Vld Inc C'on<tltution expresly orovidcd th,1t it caul.! not\n\ne. que<tloned '\" unv COull of btw.\n\nT• Wll$ a ·c!al nrovi•ion \\\\'nkh \\\\111 . me, Jnt (0 '<fVl' fhr (lllr11i>'e (\n\nI.' L I bl~ Artide 37' A 1 \" ma•mP t., e s.-,••nth Arncn.!m••nt Al '\"\"•l analc>r•nn• in ~~u,:; v<' n ~<''h wr rn th .. Pr.-<id••nt which \"\"'< ual \";~' th• Pr\"'iJrnt th•rdor er 11\" er nrllcll 37212\\.\n\nA• from Novrmt..•r I. 19. hrineinJ: tne provj<lo~. h.tt the flOV.('l : (O nd:, nJ th• bw~ ror tho• nttre of l\"rovi, fon• of thl' Con<li~ t' ony law '\" force in ln<lia in ~, c•\"'l' <'tth. th~ i•urd the Adurl'ltion of l' ron. ~I ,..,,, lln•lrr !hat powr thnt th<\" Pr.stJ(O dnu!lt' (~R) In .::ctinn 3 0~h ( G 0 • I 1 O\"l'f. 1911i, whi<\"h uh<ritnt., l thr nt~• 'f1,,. llih Court W<'nl wr \": .trnrat Clause• Act. 1 ~97. ,...r\"rr\"l \"' ahrW i \"llnion Tc-rritori-\"\"'1\" w on~ \\~ ttku., t! \" rnhtrarv vi.-w nnft irt hll1dio~ chr~ ere 0 \" 1 Stut~ (l6Mf';, 169.\\G. 1710!\n\n\"'''\"'If'~\"\"\"'\"' nf A I 1 fl'l70J 3 S r R ·~1 'r:r\"''u, 11' 11'\"\"ct Co. Ltd. v . . %ri Gmudaui!l ~- ()rr .• · • \"\" • 1 .:rreu tn.\n\noft~~~~.'- Ar>PrtLATP. JURI'mtcno~: Civil Appeals Nos. 218~~~99\n\n.~· (From the iudl!mc t 1 d D !hi Hil'h Court in Writ p ~} 0 ( ~~ et dated the 25-9-1969 of tbll c ' e 1 100~ 1{o~. <405 nncl 4 7R to 487 of 1 961!) •\n\n-r--\n\nI .-\n\nUNION v, P. K. JAIN (Shinghal, !.) 167\n\nV. P. Rama11, Addl. Sol. General with P. P. Rao, and S. P. Nayar, A for the appeUant.\n\nR. B. Datar, for the respondents.\n\nThe Judgment of the Court was delivered by\n\nSHINGHAL, J.\n\nThese appeals by certificate are directed against the B judgment of the Delhi High Court dated September 25, 1969, allowing Civil Writ Petition No. 405 of 1968 and connected petitions Nos. 478 to 487 of 1968.\n\nThe High Court has quashed the orders of the Central Government notified in GSR 42 to 49, published in Gazette of India, Extraordinary, dated January 13, 1968, as well as the scheme for the formation of a joint cadre of the Indian Administrative Service, hereinafter referred to as the Service, for the Union Territories, and C has held that the formation of the Delhi-Himachal cadre of the Service was also ultra vires the Constitution.\n\nAs we shall show, the decision has turned on a short point of law, and it will be enough to refer to those facts which bear on it.\n\nA new cadre of the Service was constituted for the Union Territories of Delhi and Himachal Pradesh, and recruitment to that cadre was made directly without complying with the requirement of rule 4 ( 1) of the Indian Administrative Service (Recruitment) Rules, 1954, hereinafter referred to as the Recruitment Rules, which prescribed the normal method of recruitment to the Service.\n\nThe Rules were amended (\\n December 21, 1967, by providing for a Joint Cadre in relation to the Union Territories and the North East Frontier Agency, and the Central Government formulated the aforesaid scheme to extend the Delhi-Himachal Pradesh Cadre to all Union Territories by absorbing the officers of that cadre and by appointing to it officers of the Indian Frontier Administrative Service and all other Union Territories at its initial constitution. The Joint Cadre for all the Union Territories was hrought into existence from January 1, 1968, by GSR 42 under rule 3 (1) of the Indian Administrative Service (Cadre) Rules, 1954, hereinafter referred to as the Cadre Rules, published (along with certain consequential changes in the other rules of the Service) in Gazette of India, Extraordinary, dated January 13, 1968.\n\nThe petitioners in the High Court challenged the creation of the new Joint Cadre for all the Union Territories, and the appointment of some of the respondents thereto.\n\nIt was urged in the High Court that the constitution of the new Joint Cadre was illegal as it was contrary to the provisions of article 312 of the Constitution and the All India Services Act, 1951. as it was not common to the Union and the State inasmuch as a Union Territory was not a State. and the recruitment of the respondents concerned to the Joint Cadre was contrary to the provisions of section 3 of the AU India Services Act, 1951, and the Cadre Rules.\n\nThe High Court examined the question whether the Union Territo n ries were States, and reached the conclusion that this was not so. It therefore held that rule 4(5) of the Recruitment Rules was ultra vires the Constituion n~ the All Tnc_ti~ Services Act, fo~ the Cadre in ques~\n\nSUPREME COURT REPORTS\n\n(1976) SUPPLEMENTARY\n\nti?n could not be said to be common to the Union and the States.\n\nThe High Court also observed that as the Central Government was itself the State Government for purposes of a Union Territory, the Central Governmen~ could. not consult itself within the meaning of section 3 of the All Ind1a SerVlces Act and the Recruitment and the Cadre Rules.\n\nIt therefore quashed the orders and the scheme mentioned above.\n\n. It appears, ho:vever, that it was not brought to the notice of the H1gh Court that, m so far as the Service was concerned, it was not necessary for Parliament to make a Jaw providing for its creation as a service common t? t~ Union and the States, under clause (1) of article 312 ?f the Constttutmn, because clause (2) of that article expressly provtded as follows,-\n\nC \"312. (2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.\"\n\nThe Service did not therefore have to be create-d under the provisions of clause ( 1} of article 312 of the Constitution, or section 2A of the All India Services Act. Section 3 ( 1) of that Act however made prcr vision for the making of rules for the regulation of recruitment and conditions of service of persons appointed to an All-India Service \"after consultation with the Governments of the States concerned.\" It was under that provision that the Cadre Rules were made by the Central Government, and the question which engaged the attention of the High Court was whether the Union Territories could be said to be States for purposes of such consultation.\n\nIn that connection the High Court examined the question whether the Union Territories could be said to be States merely because rule 2(c) f the Cadre Rules defined a uState\" to mean a State specified in the First Schedule to the Constitution and including a Union Territory, and answered it in the native.\n\nThe expression ''State\" has not been defined in the Constitution, but it has been defined as follows in section 3 (58) of the General Clauses Act (Act X of 1897) ,-\n\nustate\"-\n\n(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or n Part C State; and\n\n(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include n Union Territory.'' This was however not the original definition, for it wa<> substituted by the Adaptation of Laws (No. 1) Order, 1956. Before that Order, the expression \"State\" meant ''a Part A State, a Part B tate or a Part C State!' That definition was, in its turn, brought in by adaptation under article 372 of the Constitution by the Adaptation of Law!! Order, 1950, for the purpose of bringing the provisions of any law in force in\n\n--..\n\n.. '\n\n}- .\n\n) .,\n\nU~IOJ\\ , ., P. K. JAIN (5MnilWI, f.) lGO\n\nthe territory of India in accord with the provisions of the Constitution.\n\nThe original definition has thus been adapted twice to suit the require~ ments of the Constitution.\n\nClause ( 1) of anicle 367, which deals with \"interpretation'' of the Constitution, provides as follows,-\n\n\"367(1) Unless the context otherwise requires, the Gene~ ral Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372 apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of tht\n\nDominion of India.\"\n\nA crossreference to article 372(2) shows that while the purpose of the adaptation was to bring the provisions of any law in force in the country \"into accord with\" the provisions of the Constitution, clause\n\n(3) thereof expressly stated, inter alia, as follows,-\n\n\"(3) Nothing in clause (2) shall be deemed-\n\n( a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution;\"\n\n; \"'\" The power of adaptation or modification was therefore spent after the expiry of three years, and the High Court has taken the view that as it were only the adaptations made in the General Clauses Act under article 372(2) which applied to the interpretation of the Constitution in view of article 367 (1). the adaptations made later, by article 372A, were not so applicable.\n\nA comparison of the provisions of articles 372 and 372A shows, however, that while the purpose of both the articles was to bring the provisions of any law in force in India \"into accord\" with the provi~ sions of the Constitution, article 3 72 was a general provision enabling the making of adaptations.and modifications in such laws by an order of the President. whereas article 372A was a special provision which\n\nwas made specifically for purposes of the Constitution (Seventh Amendment) Act. 1956. inasmuch as clause ( 1) thereof provided as\n\nfollows.-·-·\n\n\"37'2/\\ (l) For the purposes of bringiog the. provisions of any law in force in India or in nny part thereof, immc~ diately before the commencement of the Constitution\n\n(Seventh Amendment) Act, 1956, into accord with the pr~ visions of this Constitution as amended by {hat Act, the President may by order made before the 1st day of November, 1957, make such adaptations and modifications of the law, whether by way of repeal or amendment, 'fls may be necessary or expedient, and provide that the law shall, a.s from such <; late as may be specified te order, have effect subject to . '\n\n170 SUl'REM.E COURT ~El'OKIS LEJ76j SUl'PLEMBNTARY\n\nthe adaptations and modifications so made, and any such actaptatwn or modification shall not be questioned w any court of law\" (Emphasis added)\n\nIt is obvious therefore that as the power of the President to make any adaptation or moomcauon of any 1aw under clause (2J of article 3N.\n\nwas spent atter three years, .Parliament telt the necessity ot grving such a power to the Pres1oent once again for the purpose ot bnnging the provisiOns ot any law m force Immedrately before tht;; commencement of the Constituuon (Seventh Amendment) Act, 1956, into accord wrth tl1e provisions ot the ConstitutiOn as amended by that Act.\n\nThat was theretore a necessary power as it was meant to make the amended Constttutwn workable. .t-or instance, sectron 3 (58) of the General Clauses Act, 1 'l597, as it stood before the coming into force of the Seventh Amendment Act, defined a \"State\" to mean ·•a Part A State,\n\na P-art B State or a Part C State.\" As has been stated, that definition had Itself been substituted by the Adaptation of Laws Order, 1950, to make it workable, and it served the purpose, for the country had those three types of States at that time.\n\nBut an important change was made by the Constitution (Seventh Amendment) Act, 1956, which abolished the distinction of Part A, Part B and Part C states and provided, inter alia, that the territory of the country shall comprise the territories of the States and the Union Territories specified in the First Schedule.\n\nThe definition of the expression \"State\" as it stood before November 1, 1956, became unsuitable and misleading on the coming into force of the Constitution (Seventh Ame.ndment) Act, 1956, from November 1, J 956, and it will, for obvious reasons, be futile to contend that it should have continued to be applicable for all time to come and remained \"the final definition of \"State\" \" merely because the period of three years provided by clause (3) (a) of article 372 of the _Constitution expired and was not extended by an amendment of that clause, or because article 367 (I) was not amended by the Seventh Amendment Act \"to say that adaptations made in the General Clauses Act otherwise than those made under article 372(2) would be applicable to the interpretation of the Constitution.\" The High Court also erred in thinking that such \"abstention seems to be deliberate.\" On the other hand, it is quite clear from the fact that Parliament inserted article 372A by the Constitution (Seventh Amendment) Act, 1956, that . it was aware that the power of adaption under article 372(2) had come to an end, and was alive to the necessity of giving a similar power of adapting_ the laws once again to the President for the purposes of bringing the provisions of any law in force in the country immediately before the commencement of that Act \"into accord\" with the provisions of the Constitution, It is therefore futile to contend that the definition of the expression \"State\" which was applicable upto November 1, 1956, remained the final definition for all time to come.\n\nThat view is incorrect, for it overlooks or ignores the anxiety of the Parliament to remove any such misapprehension by inserting article 372A. It was a special provision, and it was meant to serve the purpose of making tl1e Seventh Amendment Act workab!e.\n\nAs has been held by this Court inManagement of Advance Insurance Co. Ltd. v, Shri Gurudas-\n\n... 1\n\nUNION V. P. K. JAIN (Shinghal, J.) 171\n\nmal and others(1), article 372A gave a fresh power to the President )-- which was equal and analogous to the power under article 372(2).\n\nIt follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into torce, the President had the power to adapt the laws for the purpose of bring- ; ,. ing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No_ lf Order, 1956, which, as has been shown, substituted a new clause (58) in section 3 of the General Clauses Act providing, inter alla, that the expression \"State\"\n\nshall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean \"a State specified in the First Schedule to the Constitution and shall include a Union Territory.\" It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable.\n\nBv virtue of article 372A(l) of the Constitution, it was that definition of the expression \"State\" which had effect from the 1st day of November, 1956, and the Constitution expressly provided that it could \"not be questioned in any court of law.\" The High Court therefore went wrong in taking a contrary view and in holding that \"Union Territories are not 'States' for purposes of Article 312(1)\" of the Constitution and the preamble to the Act of 1951.\" That was why the -High Court erred in holdinf!; that the definition of \"State\" in the Cadre Rules was\n\n;.ultra vires the AU India Services Act, 1951 and the Constitution, and that the Union Territories Cadre of the Service was \"not common to the Union and the States\" within the meaning of article 312(1) of the Constitution, and that the Central Government could not make the Indian Administrative Service (Cadre) Rules, 1954 in consultation with the State Governments as there were no such governments in the\n\nUnion Territories.\n\nThe High Court has held further that section 3 of the All India Services Act, 1951 and rule 5 of the Cadre Rules have been contravened bv the \"direct appointment of respondents 2 to 37 to the Union Territories Cadre and by their being not recruited first to the IAS.\" But no such ground appears to h, ave been taken in the writ petition.\n\nMoreover, the validity or rule 4(5) of the Rcruitriient Rules, which ,..- rontained a TWn-nbstrmte clause providing for recruitment to t11e Joint • Cadre of the Union Territories on its initial constitution by such method\n\n~1.f: the Central Government may, after consultation with the Union Pnblic Service Commission prescribe was not examined by the Hhrh Court. · ~-· - -- - ,.\n\nFor the reasons mentioned above. the appeals are allowed. the impuQ\"ned judgment of the Hih Court datect September 25, 1969 is Ret aside and the writ petitions are dismissed.\n\nThere will however be no orders as to tl)e costs.\n\nM.R Appeals allowed,\n\n(t) (1970] 3 S.C.R. 881.", "total_entities": 56, "entities": [{"text": "UNTON OF INDIA", "label": "PETITIONER", "start_char": 49, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "PREM: KUMAR' JAIN & ORS. 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{"document_id": "1976_1_172_477_EN", "year": 1976, "text": "ADDITIONAL DISTRICT MAGISTRATE, JABALPUR\n\nS. S. SHUKLA ETC. ETC.\n\nApril 28, 1976\n\n[A. N. RAY, C.1., H. R. KHANNA, M. H. BEG, P. N. BHAGWATI AND Y. v. CliANDRACHUD, JJ.]\n\nLocus standi to move habeas corpus petition under Article 226 of the > Constitution of lndia-Ef]ect of the l'residtntial Order dat<ti June 21 1915- \\ Constitution of India, Articles 19, 21, 25, 226 and 359(1A) read wiih Maintenance \"f lnternal Security Act (Act 26 of 1971), 1971, \"ctlon 3-Remedy .by way of writ petition to challenge the legality of an order of detention undtr r/Je Maintenance of lnttrnal Secunty Act is not open to a detenu during the en1ergency.\n\nMaintenance of Internal Security Act (Act 26 of 1971), 1971-Section 16A(9) is a rule of e1ddence and constitutionally valid-Not open to challenf!e\n\non the ground of a1iv viola'ion of Part Ill of the Constitution In view of tlJe provisions of Article 359(1A).\n\nMaintenance of lnternal Security Act (Act 26 of 1971), 1971-Section 18 applies to all orders of detention, a valid piece of legislation and does not suffer from the vice of excessive delegation-Not open to challenge on the ground of the theory of basic structure.\n\nConstitution of India-Article 21 is the sole repos1°tory of rights ro life and-. liberty. ' l •\n\nE Constitution of India, Articles 358 and 3S9-Dlstlnctlon between.\n\nConstitution of India, Articles 20 and 21-Dlf]erence between.\n\nDisclosure to court-Whether section 16A(9) of the Maintenanct of lntenJal Security Act (Act 26 of 1911), 1971 Is an exception and constitutes an e11croachment on the con.rtltutlonal jurisdiction of the High Court.\n\nEclipse, theory of-Applicability to the enforcement of Fundamental Rights under Art. 359( I).\n\nGood return, theory of-Not applicable io the practlct! of lndlan courts.\n\nObiter dictum-When a decision becomts an obittir dictum.\n\nConstitution of lndia, Article 256-Nonco1npllar1ce with Article 23'6 by the \"T\"• State-GrleYanct at the Instance of a prlva1e party not tnttrtalnabft by courts.\n\nRule v/ Law-Constiuuion Itself is the rule of la1l--' and tht mandate.\n\n/udiclal review-Scope of, during t/le period of tmergc11cy.\n\nConstitution of India, Article 12-Whether \"State\" Includes Judiciary.\n\nConstitution of India-Article 372-Laws In force wh.iher Includes law• Included In Part l/l of the Con!!tltr1tlon-Scope of Article 372.\n\n.Maintenance of Internal Security Act (Act 26 of 1971), 1971-Stetlon 16 leaves open a remedy by way of a su/1 for damage> for wrongful conflnemeTll- Scope of Section. I~.\n\nAODL. DIST. MAGISTMT!l v. S. S. SHUKLA 173\n\nBasic structure tlwory-Constitution of India. Article 368--Emergency provi sions themselves are to be regarded as the basic structure of the Constitution.\n\n> Objects of the Maintenance of Internal Sec11rity Act (Act 26 of 1971), 1971 and the Amending Acts 31 of 1975 and 14 of 1976 thereto.\n\nPresidential Order under Art, 359( I) and Martial Law under Articles 23 and 73 of the Constitution-Distinction-Constitution of India Art. 359(1), 359(1A), 53 and 73 read with Art. 355-Scope of.\n\n1 ' Constitution of India, Article 226-Extent of the powers of inquiry by the B High Courts in a pet/lion for writ of habeas corpus when once a prinia facie valid detention order is shown to exist.\n\n~ Rule of law, Concept of is inapplicable to enrergeney provis/.ons since the\n\n~ emergency provisions themselves contain the rule of law for such situations.\n\nSeparation of powers-Principles of-Preventive detention being placed exc[u. sively within the control of the Executive authorities of the State for the duration C of the emergency, does not violate any principle of separation of powers.\n\n- Basic structure theory is nothing niore t11an a mode of construction of docu\n\n1nents of the Constitution. ·\n\nlurisdiction of courts under Articles 136 and 226-Nature of.\n\nConstitution of India, Articles 34 and 359, effect of-Whether powers of the courts to issue lvrit of habeas corpus during the period of Martial Law are taken away.\n\nJ Rule of construction-Decisio11s of the Supreme Court and the other high ituilcial authorities-Constitution of lluiia, Article 141 explained.\n\n#\"\" Rights under s. 8 of the }.falntenance of Internal Security Act (Act 26 of\n\n• 1971 ), 1911-Nature of, vis--a-vis rights under Constitution of India, Article 22(5)-Rights under Article 22(5) do not bar the enforcement of right 11nder s.\n\n_,_ Refl.ection, theory of is not applicable to s. 8 of tile Maintenance of Internal Security Act (Act 26 of 1971), 1971.\n\nPractice-Place of dissent in the court of last resort-Desirability of unanimity among J11dges-Constltution of India, Article 141.\n\nFundamemal Rights-Object of guaranteed Fur1dammtal Rig/it.\n\nNatuwil justice, Rules of l9w, being on the sa1ne footing as Fundcunental Rights do not overide the express tenns of a statute.\n\nMa.1ims:\n\n1~ (i)\n\n11Expressuni facit cessare tacit1u11 11-Applicability to Art. 21 of the Constitution.\n\n(ii) \"Ut res magls va/eat quan1 pereat\".\n\n(iii) \"Salus populi est supren1e le\".\n\nWords and phrases :\n\n(a) .. Purported to be made under s. 3\" in s. 18 of the Mai11tc11ance of Internal Security Act (Act 26 of 1971), 1971.\n\n\n(b) \"For any other purpose\" in Art. 226 of tlze Constitution-n1eaning H of.\n\n(c) \"Conferred by Part 111'' of tlic Co11Stit11tio11 in Art. 359(1)-Tntem.\n\nIn exercise of the powers conferred by clause (i) of Art. 352 of the Constitution, ihe Pn:sident of India, by proclamation dated December 23, 1971 declared that a grave emergency exists whereby the security of lndia is threatened by external aggression and the Maintenance of Internal Security Act . ~\n\n(Act 26 of 1971), 1971 was published on July 2. 1971, for eftcctivl!ly dealing with the emergency.\n\nOn November 16, 1974, the President of India, in exercise of the powers conferred by clause (1) of Art. 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or \\.Vhich may hereafter be made under s. 3(1)(c) of the Mainten~ ..,_ t ance of Internal Security Act, 1971 (as amended by Ordinance 11 of 1974) lor the enforcement of the rights conferred by Articles 14, 21 and clauses (4), (5), (6) and (7) of Article 22 of the Constitution; and (b) All proceedings pending in any court for the enforcement of any of the atoresaid rights Vi'ith ,. respect to all orders of detention made under the said section 3 ( 1) (c) shall > remain suspended for a period of six months from the date of issue of the order or the period during which the proclamation of emergency issued under clause (1) of Art. 352 of the Constitution of India on December 3, 1971, is in .force, \\Vhichever period expires earlier.\n\nThe order stood extended to the whole of the territory of India.\n\nOn June 20, 1975, the President of India, amended the above order by substituting 12 months for \"6 months\" in the order.\n\nOn June 25, 1975, the President, in exercise of his powers conferred by clause (2) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances.\n\nOn June 27, 1975, in exercise of powers conferred by clause (1) of Art. 359, the President declared that the right of any person (including a foreigner) to 1nove any court for the enforcement of the rights conferred by Articles 14. 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Art. 352' of the Constitution on December 3, 1971, and on June 25, 1975, are both in • force.\n\nThe Presidential order of June 27, 1975, further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause ( 1) of\n\n0Art. 359 of the Constitution.\n\nOn June 29, 1975, by another order, the President made the Ordinance of June 27, 1975, applicable to the State of Jammu and Kashmir as well.\n\nOn September 25, 1975, the last paragraph in the Presidential Order dated June 27, 1975, was omitted.\n\nThe President promulgated the amending Ordinances No. 4 and 7 of 1975, now replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act introducing a new section 16i\\, and giving a deemed effect to s. 7 of the Act as on from June 25, 1975, \\\\hile the rest having a deemed effect from June 29, 1975.\n\nBy the same Act a new section 18 was also inserted with effect from June 25, 1975.\n\nBy the Constitution (Thirty-eighth Amendment) Act, 1975, Articles 123, Zll, 239(b), 352, 356, 359 and 368 were amended, Clauses (4) and (5) were added in Art. 352 of the Constitution.\n\nBroadly stated, the Thirty-eighth Constitution (Amendment) Act renders the satisfaction of the President or the ~· Governor in the relevant Articles final and conclusive and to be beyond any • question in any court on any ground.\n\nThe power conferred on the President by Art. 352 shall include the power to issue different proclamations on different grounds, being war or external aggression or internal disturbances or imminent danger of war or external aggression or interal disturbance weter or ot thre is a proclamation al ready issued by the President.\n\nBy Constitution Thirty-eighth Amendment ~A.ct 197 5, a new clause (1A1 was also added after clause (1) of Article 359.\n\nThe Constitution Thirty-ninth Amendment Act was published on August 10, 1975 amending Articles 71, 329 and 329(A) and added Entries after Entry 86 in th'e 9th Schedule and the Maintenance of Internal Security Act (Act 26 of 1971), 1971 as item 92 in the said Schedule.\n\nAbbL. iJISt. MAGISTRATE V. S. S. SHUKLA 1 75\n\nOn October 17, 1975, an Ordinance 16 of 1975 was issued making further amendments in s. 16A of the 1'1aintenance of Internal Security Act introducing\n\nub-clauses (8) and (9) to s. 16A.\n\nOn November 16, 1975, Ordinan.; e 22 of 1975 ~Was issued making certain amendments in the Maintenance of Internal\n\nSecurity Act inserting also sub-section 2A in s. 16A.\n\nAH the an1endments made by the Ordinance were given retrospective effect for the purpose of validating all acts done previously. The said Ordinances were published as the Maintenance of Internal Security (Amendment) Act 1976 (Act 14 of 1976) on January 25, 1976.\n\nI '\n\nThe respondents rletained under s. 3 {ia) (ii) read with s. 3 (2) of the A1aintenance of Internal Security Act (Act 26 of 1971) as amended by the 1'1aintenance of Internal Security Act (Amendment Act 39 of 1975), 1975 challenged_ in several High Courts, the vires of the Ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative in law and prayed for (a) the setting aside of the said order and (b) for directing their release forthwith.\n\nIn some cases, they challenged the validity of the Thirty-eighth and fhirty-ninth Constitution Amendment Acts. •\n\nWhen these petitions came up for hearing, the appellants raised the preliminary objection to the maintainability on the ground that in asking for releat: by the issuance of a writ of habeas corpus, the respondents were, in :n!b'iranc;.:, claiming that they have been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Art. 21 of the Constitution only and in view of the Presidential Order dated June 27, 1975, suspending the right to move for enforcement of the right conferred by that Article, the petitions were liable to be dismissed at the threshold.\n\nWhile the High Courts of Andhra Pradesh, Kenda and 11adras have upheld Lhe preliminary objection, this contention did not find favour with the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi. Karnataka, l\\.1adhya Pradesh, Punjab and Haryana respectively. These High Courts broadly took the view that (a) despite the Presidential Order. it is open to the detenus to challenge their detention on the ground that it is ultra vines, as for example, by showing that the order, on the face of it, is passed by an authority uot • empowered to pass it or it is not in exercise of the power delegated to the authority or that the power has been exercised in breach of thei conditions prescribed in that behalf by the Act under which the order is passed, or that the order is not in strict conformity with the provisions of the Act. Some of these High Courts have further held that the detenus can attack the order of tletention on the ground that it is 1nala fide, as for example, by showing that the detaining authority did not apply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations or that the authority was actuated by improper motives. The Nagpur Bench of the Bombay High Court read down s. 16A(9) of the Maintenance of Internal Security Act, 1971, implying an exception in favour of disclosure to the Court. The High Court did not decide about the validity of the Thirty-eighth and 'fhirty-ninth Constitution Amendment Acts .\n\n-,. .... _ Accepting the States' appeals, some by certificates granted by the 1--figh Courts and some by special leave, the Court by majority (Khanna, J. dissenting),\n\nHELD: (Per majority A. N. Ray, C.l., M. H. Beg. Y. V. Chandrachud and P. N. Bhagwati, JJ.) ·\n\n(1) In view of the Presidential Order dated June 27, 1975, under clause (1) of Art. 359. no person has any locus standi to move any writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides, factual or legal or is based on extraneous considerations.\n\n[477 E-F]\n\n-\"'/.\n\n(2) Section 16A(9) of the ~1ainte_nancc of Jnternal Security A.ct, 1971 is constitutionally valid.\n\n[477 F]\n\n(3) Section 18 of the Maintenance of Internal Security Act, 1971 is not invalid.\n\n[240 A-D, 342 F-G, 414 DJ\n\n( 4) Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State. [246 BJ\n\nPer A. \"fo,, r. Ray, CJ.\n\nIn view of the Presidential Order dated June 27, 1975, under clause (1) of Art. 359, no person has locus standi to move writ petitions under Art 226 of the Constitution before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Maintenance of Internal Security Act, 1971 on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male fodc.\n\n[245 H, 246 A]\n\nArticle 21 is the sole repository of rights to life and personal liberty against a State.\n\nAny claim to a \\\\Tit of habeas corpus is enforcement of Ali. 21 and is, therefore, barred by the Presidential Order.\n\n[246 B]\n\nGiri11dra f\\'ath Banerice v. Birendra Nath Lal, ILR 54 Cal. 727; Kittg Emperor v. Shib Nath Ba11erjee 1972 Indian Appeals 241 and Mak/ran Singh\n\nv. State of Pu11jab [1964] (4) SCR 797, referred to.\n\nScope of judicial rcvieH' in c111crge11cy.\n\nIn times of emergency the executive safeguards the life of the nation aild. therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of •.he fa<:t that comiderations of security forbid pooof of the evidence upon \\Vhich the detention \\l.'3S ordered.\n\n[219 B-E]\n\nLivcrsidge v. Sir John Anderson [1942] ,'\\C 206; Greene v. Secretary of State for Home Affairs [1942] AC 284; Mohan Chaudhary v. Chief Commissioner, Union 1 crritory of Tripura [1964] 3 SCR 442 and Makhan Singh v.\n\nState of Pu11jab [1964] 4 SCR 797, followed.\n\nQueen '\" Halliday Ex l'arte Zadiq [1917] AC 210, referred. to.\n\nLiberty is confined and controlled by la\\v, whether comn1on law or statute.\n\nThe safeguard of liberty is in the good sense of the people and in the system of representative and responsible Governinent \\t,.hich has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limiled to the period of emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged. [222 D, G]\n\nZamora's case [1916] 2 AC 107 and Livasidge v. Sir John Anderson [1942] AC 206, referred to. .\n\nThe vital distinction bcl\\\\cen Arts. 358 and 359 is that Art. 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening Art. 19 during the operation of a Proclamation of emergency and the Exeeutive can take action \\\\•hich the E-xecutive is competent to take tmder such laws. Article 358 does not suspend any Fundamental Right.\n\nWhilo a proclamation of emergency is in operation, the Presidential Order under Art. 359( 1) can suspend the enforcement of any or all Fundamental Right~. Article 359( l) also suspends 3.ny pending proceedings for t11e enforcement of such Fundan1ent..'l.l Right or Rights.\n\nAnother important distinction between the two Articles is that Art. 358 provi_des for indemnity; whereas Article 359(1) does not; Article 359(!A) is on the same lines as Art. 358, but Article 359(1Al includes all Fundamental Rights which may be mentioned in a Presidential Order and is. therefore, much wider than Art. 358 \\vhich includes Art. 19 only. [223 EGl\n\nThe purpose and object of Art. 359(1) is that the enforcement of any Fundamental Right mentioned in the Prcsi<lcntiat Order is barred or it remains suspended during the emergency. 111e scope of Art. 359(1) is not only to restrict the application of the Article to 1hc legislative field, but also to, the\n\nact'i o( thC Executive. 1'h~ object of Article 359(1) is not only that the right\n\n• > -\n\n. \\<-\n\n,. •.\n\n_,,\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 177\n\nto move this Court only is barred but also the right to move any High Court.\n\nA The bar created by Art. 359( I) applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential Order whether by way of an application under Art. 32 or by way of application under Art. 226.\n\nAn application invoking habeas corpus under s. 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court.\n\n{223 H, 224 D, 229 Fl\n\nShri Mohan Chaudhary v. Chief Co1nn1issioner, Union Territory of Tripura [1964] 3 SCR 442; Makhan Singh v. State of Punjab [1964] 4 SCR 797 and B Dr. Ram Manohar Lohia v. State of Bihar & Ors. [1966] 1 SCR 709, applied.\n\nThe argument that jurisdiction and powers of this Court under Art. 32 and •DI the High Courts under Art. 226 are virtually abolished by the Presidential Order without any amendment of the Constitution is incorrect. No amendn1ent to the Constitution is necessary because no jurisdiction and power either of this Court or of the .High Court is taken away.\n\nWhen a Presidential Order takes away the locus standi of the detenu to move any court for the enforcen1ent of Fundamental Rights for the time being, the jurisdiction and powers of tills C Court and of the High Courts remain unaltered.\n\n[224 E-F]\n\nArticle 359(1) is not directed against any court, it is directed against an individual and deprives him of his locus standi. If courts will in spite of the Presidential Order entertain the applications and allow the detenu to enforce, to start or to continue proceedings or enforce Fundamental Rights, Article 359(1) will be nullified and rendered otiose.\n\n[224 F, 227 C-D]\n\nUnlike the 1962 Presidential Order, in the 1975 Order, the suspension is not D\n\nheded with any condition of enforcement of any right under Articles 21 and\n\n22. The Presidential Order is, therefore, a bar at the threshold.\n\n[228 D-E]\n\nMakhan Singh v. State of Punjab [1964] 4 SCR 797 and State of Maharashtra\n\nv. Prabhakar Pandurang SanRzgiri & Anr. [1966] 1 SCR 702, distinguished.\n\nThere are no natural rightSi.\n\nFundamental Rights in our Constitution are interpreted to be what is commonly said to be natural rights.\n\n[229 C-DJ\n\nH. H. Kesvananda Bharti Sripadagalavaru v. State of Kera/a [1973] Supp. 1 SCR 702, followed.\n\nLaw means law enacted by the State. Law means positive State made law.\n\nThe phrase \"Predure established by law\" in Art. 21 includes substantive and procedural law. A law providing for the procedure depriving a person ef liberty must be a law made by statute.\n\n[229 D-E]\n\nA. K. Gopalan v. State of Madras [1950] SCR 88; P. D. Shamdasani & Ors.\n\nv. Central Bank of lndia Ltd. [1952] SCR 391; Smt. Vidya Verma through next friend R. V. S. Mani v. Dr. Shiv Narain Verma [1955] 2 SCR 983, applied.\n\nThere is no difference between the expression \"except according to procedure esta'hlished by law\" in Art. 21 and the expression \"save by the authority of law\" in Art. 31 ( 1) or the expression \"except by authority of law\" in Art. 265.\n\nIt is incorrect to suggest that when Art. 21 was enacted, the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the con5titutional mandate tha• personal liberty could not be taken except G according to law.\n\n[232 B-D] Part III of our Constitution confers Fundamental Rights in positive as well as negative language. A Fundamental Right couched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasize the immunity from State action as a Funda~ mental Right. Fundamental Rights have the texture of Basic Human Rights. [229 G, 230 A-Bl\n\nState of Biliar v. Malwraja Dhiraia Sir Kameshwar Singh of Darhhanqa & H Ors. (1952] SCR 889 at 988, 989; A. K. Gopalan v. State of Madras [1950] SCR 88; Rustom Cavasjee Cooper v. Union of India [1970] 3 SCR 578, 571 and 576 to 578: Shambliu Nath Sarkar v. The State of West Bengal & Ors. [19741 14-833SupCl/76\n\n1 SCR; Haradahan Saha & Anr. v. State of West Bengal [1975] l 3CR 778 and Khudiram Das -v. State of West Bengal & Ors. [1975] 2 SCR 832, referred to.\n\nArticle 21 is our Rule of Law regarding life and liberty.\n\nNo other Rule of Law can have separate existence as a distinct right. The negative language of Fundamental Right incorporated in Part III imposes limitations on the l'OWer of the State and declares the corresponding guarantees of the individual to that Fundamental Right.\n\nLimitation and guarantee are complementary. The limitation of State action embodied in a Fundamental Right couched in a negative forrn is the measure of the protection of the individual. [230 C-D]\n\nRusto1n Cavasji Cooper v. Uniofl of India [1970] 3 SCR 568, applied. . '\n\n• Personal liberty in Article 21 includes all varieties of rights which go to make persqnal liberty other than those in Art. 19(1) (d). [230-D]\n\n.Kharak Singh v. State of U.P. and Ors. [1964] l SCR 332 and Rustom Ca\\'asiee Cooper v. Union of India [1970] 3 SCR 530, referred to.\n\nIf any right existed before the commencement of the Constitution and the sa1ne right with its content is conferred by Part Ill as a Fundamental Right the source of that right is in Part III and not in any preexisting right. Such preconstitutional rights have been elevated in Part Ill as Fundamental Rights.\n\nIf there is a preconstitution right which is expressly embodied as a Fundamental Right under our Constitution, the common law right has no separate existence under our Constitution. If there be any right other than and more extensive than the Fundamental Right in Part Ill, such right may continue to exist under Art. 372. f230 F-Hl\n\nDhirubha Devi Singh Gohil v. State of Bombay [1955] l SCR 691-693,\n\nref1rred to.\n\nB. Shankara Rao Badami and Ors. v. State of Mysore and Anr. [1969] 3 SCR l @ ll-13, applied.\n\nApart from the remedy under the common law of torts, by way of suit for false imprisonment and claim for damages, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Con stitution. Even this remedy, after the amendment of s. 491 of the Cede of Criminal Procedure became a statutory right in the nature of a habeas corpus.\n\nThe provisions of s. 491 of the Criminal Procedure Code have been repealed by Act IT of 1974 as being superfluous in view of Art. 226.\n\n[231 C-D]\n\nWaghela .Rajsanji v. Sheik Masludin and Ors. 14 IA. 89 @ 96; Sal/sh Chandra Chakravarti v. Ram Dayal De I.L.R. 48 Cal. 388 @ 407-10, 425-426; Baboo S/o Thakur Dhobi v. Mst. Subanshi w/o Mangal Dhobi AlR 1942 Nagpur 99; Makhan Singh v. State of Punjab [1964] 4 SCR 797; District Magistrote Trivandrum v. K. C. Mammen Mappillai I.LR. [1939] Mad. 708; Matthen v . . District Magistrate, Trivandrum L.R. 66 I.A. 222; Girindranath Banerjee v . . Virendranath Pal ILR 54 Cal. 727 and King Emperor v. Sibnath Banerjee 72\n\nI.A. 241, referred to.\n\nThere was no statutory right to enforce the right to personal libertYofue'r than that in s. 491 of the Criminal Procedufe Code before the commencement of the Constitution which could be carried over after its commencement under Art. 372.\n\nLaw in Art. 21 will include all post-constitutional statute. law including Maintenance of Internal Security Act, 1971 and by virtue of Art. 372 all pre-constitutional statute law, including the I.P.C. and the Cr.P.C. [231 F-G]\n\nH The present appeals do not touch any aspect of Art. 20. Article 20 is a\n\n'J' -4 constitutional mandate to the judiciary and Art. 21 is a constitutional mandate to the Executive. The expression \"no person shall be prosecuted for the same effence more than once\" in Art. lO would apply only to the E.x:ecutive. It is\n\nl •\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA 17 9\n\nincorrect to say that \"State\" in Art. 12 will also include the Judiciaiy and A Art. 20 is enforceable against the Judiciary in respect of illegal orders.\n\n[232 E-F, G-HJ\n\nMakhan Singh v. State of Punjab [1964J 4 SCR 797 and Narayan Singh v.\n\nState of Delhi and Ors. [1953J SCR 652, not applicable.\n\nArticles 256, 265 and 361 have no relevance to displace the proposition that , Art. 21 is the repository of rights to life and liberty. Nor does an appeal in B a criminal proceedings have anything to do with Art. 21.\n\n[233 C-DJ\n\nGarikapatti T'ccrayya v. N. Subbiah Choudhury [1957]\n\nSCR 488 and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Rafn Tahal Ramnand and ors . [1973J 1 SCR 185, referred to.\n\nThe right arising from a decree is not a Fundamental Right and, therefore, will not be prima facie covered by a Presidential Order under An. 359(1). ~33m\n\nFundamental Rights including the right to personal liberty are conferred by the Constitution. Any pre-constitution rights which are included in Art. 21 do not after the Constitution remain in existence which can be enforced, if Art. 21 is :suspended.\n\nIf it be assumed that there was any pre-constitutional right to personal liberty included in Art. 21 which continued to exist as a distinct and separate right then Art. 359(1) will be an exercise in futility.\n\n[234 A-BJ\n\nMakhan Singh v. State of Punjab [1964J SCR 797 explained.\n\nThe theory of eclipse is untenable. The theory of eclipse refers to pre- 11:onstitutional 1aws which were inconsistent \\vith Fundamental Rights. By reason of Art. 13 (I) such laws did not became void but became devoid of Jegal force.\n\nSuch laws became eclipsed for the time being. The theory of .,.. eclipse has no relevance to the suspension of the enforcement of Fundamental Rights under .Art. 3 59 ( 1 ) . The constitutional provisions conferring Fundamental Rights cannot be said to be inconsistent with Art. 13 (1 ).\n\n[234 B-DJ\n\n.P. D. Shamdasani v.\n\nCentral Bank of India Ltd. [1952J SCR 391 and E Snit. Vidya Verma through next friend R. V. S. Mani v. Dr. Shiv Narain Verrna [1955J 2 SCR 983, reiterated.\n\nThe Act in the present case is valid law and it has laid down procedure of applying the law. The validity of the Act has not been challenged and cannot be challenged. The Legislature has competence to make the law. The procedure, therefore, cannot be challenged because Art. 21 and 22 cannot be enforced.\n\nThe suggestion that the power of the Executive is widened is equally untenable .. ~\n\n[235 E-FJ F The fact that s. 491 of the Criminal Procedure Ccxle has been abolished in he new Code estblishes that the pre-existing right was embodiei as a Fundamental Right in the Constitution. The right to personal liberty became identified with Fundamental Right to personal liberty under Art. 21. [236 Al The Presidential Orders does not alter or suspend any law. The rule of law is not a mere catchword or incantation. The certainity of law is one of the elements in the concept of the rule of law. The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature. [236 B-CJ It is not correct to argue that if pre-existing law is merged in Art. 21, there \\vill be conflict in the Article 372. The expression \"law in force\" in Art. 372 cannot include laws which are incorporated in the Constitution, viz. in Part ITT.\n\nThe expression \"law\" in Articles 19(1) and 21 takes in the statute law.\n\n[235 BJ The Presidential Order under Art. 359(1) is not a law.\n\nThe order does\n\nnot repeal any law either. The contention that permanent law cannot be H repealed by temporary law is misplaced. [235 CJ The tntire concept in Art. 21 _is against Executive action. There is no ques~ tion of infringement of Fundamental Right, under An. 21 where the detention\n\ncomplained of is by a private person and not by a State or under the authority or orders of a State.\n\n[235 DJ .\n\nThe Executive cannot detain a person otherwise than under valid legislation.\n\nThe suspension of any Fundamental Right does not affect this rule of the Constitution. Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law.\n\n[237 A-F]\n\nRai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab [1955J 2 SCR 225; M.P. State v. Bharat Singh [1967J 2 SCR 454; Dy. Collector v. Ibrahim & Co. [1970] 3 SCR 498; Benn</ Coleman & Co. v. Union of India [1973J 2 SCR\n\n757 and Meenakshi Mills v. Union of India [1974J 2 SCR 398, discussed ond distinguished.\n\nThe Constitution is the mandate.\n\nThe Constitution is the rule of lav,1.\n\nNo aine can arise above the rule of law. The suspension of right to enforce Fundamental Rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency.\n\nThere cannot be any rule of la\\v other than the constitutional rule of law. There ca:Rnot be any pre-constitution or post-constitution rule of law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the timeS of emergency. [224 B, 238 D-E]\n\nEshugbayi Eleko v. Officer Ad1ninistering tlie Govt. of Nigeria [1931J AC 662 and Christie and Anr. v. Leachinsky [1947J AC 573, not applicoble.\n\nThe expression \"for any other purpose\" in Art. 226 means for any purpose other than the enforcement of Fundamental Rights.\n\nA petition for habeas corpus by any person under Art. 226 necessarily invokes a question whether the detention is legal or illegal. An executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.\n\n[23~ D-E]\n\nThe expression \"purported to be made under s. 3 of the Act\" in s. 18 \\viU include an Executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is ma/a fide.\n\n[240 A-BJ\n\nHari Ram Singh v. The Crown [1939J F.C.R. 159; Bhagchand Dagadusa v.\n\nThe Secretary Df State for India L.R. 54 I.A. 338 @ 352; Albert West Meade v.\n\nThe King AIR 1948 P.C. 156 at 157-59; Anisminic v. Foreign Compensation etc. [1969] 1 All E.R. 208 at 212, 213 and 237 and Dakshina Ranjan Ghosh v. Omar Chand Oswal l.L.R. 50 Cal. 992 at 995, 1003, applied.\n\nPoona Municipal Corporal.ion v. D. N. Deodhar [1964J, 8 SCR 178; Kala Bhandar v. Municipal Comn1ittee [1965] 3 SCR 489 and Indore Municipality v.\n\nNiyamutulla AIR 1971 SC 97 and Joseph v. Joseph [1966J 3 All. E.R. 486, not applicable.\n\nThere is no question of excessive delegation in s. 18 which lays down the law. To contend that s. 18 applies only to post-detention challenge is wrong.\n\nSection 18 applies to all orders of detention. Section 18 of Maintenance of Internal Security Act, 1971 is only an illustration of the Act by the officers authorised by the Act. [240 C-E]\n\nSection 16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or the Court to ask for the grounds of detention.\n\n[246 CJ\n\nMaterials and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosures would impair the proper functioning of public service and administration. [242 Dl\n\nLiversidge v. John Anderson [1942J AC 206 at 221, 253, 254, 266, 267, 279, 280 and Roger's case [1973J AC 388 @ 400, 401, 405, applied.\n\n. ;\n\n. '\n\n• i\n\n~ ..\n\n- \"\n\ny. -\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA !8 1\n\nLegisJature has enacted S. 16A(9) providing for a gn:ral exclusio_n fr?m evidence of all such material as would properly fall w1th1n the classification instead of forcing the State to claim in individual cases privilege under ss. 123, 162 of the Evidence Act or under Art. 22(6) of the Constitution. [242 E-FJ\n\nSection 16A cannot be said to be an amendment tO Art. 226. The jurisdiction to issue writs is neither abrogated nor abridged. Section 16A(9) enacts J>rOvisoins analogous to a conclusive proof of presumption. Such a provision is a genuine rule of evidence.\n\nIt is in the nature of an explanation to ss. 123 and 162 of the Evidence Act. Section 16A(9) is a rule of evidence. When the detaining authority is bound by s. 16A(9) and forbidden absolutely from disclosing such material no question can arise of adverse inference against the authority. [242 G-HJ\n\nSection 16A(9) cannot be read implying an exception in form of disclosu!\"e to the Court. Such disclosure to the Court alone and not to the detenu will\n\nintrcxluce something unknown to judicial procedure and will bring in an element of arbitrariness and preclude both the parties from representing their C respective cases. The View of the detaining authority is not to be substituted by the view of the court. [243 A-CJ\n\nState of Bombay v. Atma Ram Sridhar Vaidya [1951) SCR 167; Slziban Lal Saksena v. State of Uttar Pradesh and Ors. [1954J SCR 418; Rameshwar Shaw v . . District Magistrate Burdwan and Anr. [1964] 4 SCR 921; Jaichand Lal v.\n\nTV. Bengal [1966] Supp. SCR 464 and Dr. Ran1 Manohar Lohia v. State of Bihar [l966J I SCR 709, referred to.\n\nThe theory of good return mentioned in the English decisions is based on Hie language of Habeas Corpus Act and the Rules of the Supreme Court of England. The practice of our Court is different.\n\n[243 C-DJ\n\nM. M. Damnoo v. J. K. State [1972] 2 SCR 1014 and A. K. Gopalan v. \"' State of Madras [19521 SCR 391, distinguished .\n\nTt is .not competent for any court to go into questions of malafiJ.es of the order of detention or ultra vires character of the order of detention or that E the order was not passed on the satisfaction of the detaining authority.\n\nSection l 6A of the Act contains definite indications of implied exclusion of judicial review on the allegations of mala fide.\n\nThe reason why s. 16A has been enacted is to provide for periodical review by Government and that is the' safeguard against any unjust or arbitrary exercise of power. The production of the order which is duly authenticated constitutes a peremptory answer to the challenge.\n\n[243 GH. 244 A, 245 BJ\n\nIn view of the inability of the court to grant any relief on the basis \\Vhether order of detention is the result of malice or ill will, the detention of malafides is not only ineffective but also untenable. [244 DE]\n\nLa1vrence /oachin1 Joseph D's Souza v. The State of Bombay [1956] SCR\n\n~ 382 @ 392, 393; Smith v. East Elloc Rural District Council & Ors. [1966] AC 136 at 776 and Dr. Ran1 Manohar l..ohia v. State of Bihar and Ors. [19661 1 SCR 709, referred to.\n\nA decisio!1 on .a point no~ .necessary for the purpose or which does not fall to be determined 1n that dec1s1on becomes obiter dictum.\n\n[227 F]\n\nMaharaia Dhira, ia .'Madhav Rao Jivaji Rao Scindia Bahadur & Ors. v. Union\n\nt India [1971J 3 SCR 9 at pages 97 to 98 and 193 to 194, referred to.\n\nPer M. H. Beg, !.\n\n• G\n\nA prima facie valid detention order, that is to say, one duly authenticated H and pased by an. <;>fficer authorised to .mftke it rcording a purported satisfaction\n\no detain. the {'et1ttoner under the Maintenance of Internal Security Act, which\n\nis operative either before or after its confirmation by the Government, is a\n\n• G\n\ncomplete answer to a petition for a writ of habeas corpus. Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala tides of any kind or of non-compliance \\Vith any provision of the Maintenance of Internal Security Act in habeas corpus proceedings.\n\n[371 G-H, 372 A]\n\nThe fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of a11 other laws.\n\nIt seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial function. though \\vider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is nlso suspended during the current e.mergenc.y. is especially constricted by the elaborate provisions of Articles 21 and 22, which deal \\Vith personal liberty and preventive detention. The wider the svveep ot the yrovisions of Articles 21 and 22 the more drastic must be the effect of suspending their enforcement. Suspension does not and cannot mean retention under a disguise. (312 F-Hl\n\nMarbury .v . . Madison [1803] 1 Cranch 137; A. K. Gopalan v. State of Madras [1950] SCR 88 @ p. 109, referred.\n\nThe only Rule of Law which can be recognised by courts of our country is what is deducible from our Constitution itself. The Constitution is an embodiment of the highest \"positive law\" as well as the reflection of all the rules of natural or ethical or common law lying behind it which can be recognised by courts. The spirit of law or the Rule of Law cannot hover ominously around like some disembodied ghost serving as a substitute for the living Constitution.\n\nIt has to be found always within and operating in harmony with nnd never outside or in conflict with what our Constitution enjoins.\n\n[313 A, D-E]\n\nThe most important object of making certain basic rights fundamental by \"(.\n\nthe Constitution is to make them enforceable against the State and its agencies ;.. through the Courts. (329 Fl\n\nUnder our constitutional jurisprudence courts cannot, during a constitutionally enjoined period of suspension of tho enforceability of fundamental rights through courts, enforce hat may even be a Fundamental Right sought to be protected by Part III of the Constitution, [314 C-D]\n\nThe enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfilment of two conditions : firstly, its recognition by or under the Constitution as a right; and, secondly, possession of the power of its enforcement by the judicial organs.\n\nArticle 226 of the Constitution is not meant for futile and unenforceable declarations of right.\n\nTI1e whole purpose of a writ of habeas corpus is to enforce a right to personal freedom after the declaration of the detention as illegal when it is so found upon investigation. Enforceability of rights, whether they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs is governed solely by the terms of the written instrument in a Constitution such as ours. The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers.\n\nIt is difficult to see any such scope when enforcement itself is suspended. [314 E-F, 315 B-C]\n\nWhat is suspended is really the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure. If the enforcement of a right to be free, resulting derivatively frofn both the constitutional and statutory provisions based on an infraction of the procedure, which is statutory in cases of preventive detention, is suspended, it is impossible to lay down that it becomes enforceable when that pa'rt of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory.\n\nSuch a view would introduce al distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential Order of 1975.\n\n[315 F-G]\n\n_, '\n\n)'.\n\n\\ -\n\n• '\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 183\n\nIf the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the courts will have nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them.\n\n[329 G]\n\nA court cannot, in exercise of any supposed inherent or implied or unspecified power, purport to enforce. or, in substance enforce, a right the enforcement of which is suspended. To permit such circun1vention of the suspension is to authorise doing indirectly what law does not allow to be done directly .\n\n[317 E-F]\n\n[His Lordship felt that it was unnecessary to consider \"any oth\\r purpose\" in Art. 226 of the Constitution in view of the fact that each of detenus asked for a writ or habeas corpus and for no other kind of writs or orders.]\n\nThe Constitution given unto themselves by the people, is legally supren1e.\n\nA notional surrender by the people of India of control over their several or individual rights to a Sovereign Republic by means of a legally supreme Constitution only means that the Constitution is supreme and can confer rights C and powers. One has to look to it alone and not outside it for 1lnding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms. A satisfactory explanation of the !anguage of conferment used with reference to rights is that there has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of \"licence\" to all, which ends in the exploitation and oppression of the many weak by the few strong, into the actuality of a freedom for all regulated by law Or under the law D applicable to all.\n\n[318 F-HJ\n\nSn1t. Indira Nehru Gandhi v. Raj Narain [1976] 2 SCR referred to.\n\nRules of natural justice, which are impliedly read into statutes from the nature of functions imposed upon statutory authorities or bcxlies have sometimes been placed on the same footing as \"Fundamental Rights of meni which are directly and absolutely safeguarded\" by written Constitutions. The implied rules of natural justice do not override the express terms of a statute. They are only implied because the functions which the statute imposes are presumed E to be meant to be exercised in accordance with these rules, and therefore, treated as though they were parts of enacted law. The principles of natural justice which are so implied must always hang, if one may so put it. on pegs of statutory provisions or necessarily flow from them and have no independent existence. [319 G-H. 320 Al\n\nState of Orissa v. Dr. Miss Binapani Dei & Ors. [1967] 2 SCR 625, applied.\n\nFundamental Rights are basic aspects of rights selected from what may F previously have been natural or common law rights. These basic aspts of rights are elevated to a new level of importance by the Constitution. Any other co-extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights.\n\n[329 B]\n\nThe object of making certain general aspects of rights fund::irnental is to guarantee them against illegal invasions of these rights by executive, Legislative. or judicial organs (i.e. Article 20) of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional G or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences. The intention was to exclude all\n\nother control or to make the Constitution, the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part Ill.\n\n[319 A-C & 329 CJ\n\nArticle 21 of the Constitution bas to be interpreted comprehensively enough to include, together with Art. 19. practically all aspects of personal freedom.\n\nH I! embraces both procedural and substantive rights.\n\nArticle 22 mmiy makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in \"procedure established by law\" and indicates what that procedure should be. In that sense, it could be viewed as, sub-\n\nstantially, an elaboration of what is found in Article 21, although it also goei beyond it inasmuch as it imposes limits on ordinary legislative power. [329 D-EJ\n\nTaken by itself, Art. 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State's agents or officials, although, read with other Articles, it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom. [329 E-Fl\n\nArticle 21 was only meant, on the face of it, to keep the exercise of executive power, in ordering deprivations of life or liberty, within the bounds of powt!r prescribed by procedure established by legislation. Article 21 furnishes the guarantee of \"Lex\", which is equated with statute Jaw only, and not of \"jus\"\n\nor a judicial concept of what procedural law ought really to be. 111.e whole idea in using this expression was to exclude judicial interference with executive aiction in dealing with lives and liberties of citirens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law which meant only statute law.\n\nAccording to well established canons of statutory construction, the express terms of \"Lex\" (assuming, of course, that the \"Lex\" is otherwise valid), prescribing procedure, \\Vill exclude \"Jus\" or judicial notions of \"due process\" or what the procedur.: ought to be.\n\n[321 H. 322 A-CJ\n\nA. K. Gopalan v. State of Madras [1950] SCR 88. referred to.\n\nThe suggestion that \"jus\", which has been deliberate_ly excluded from the purview of \"procedure established by law'', can be introduced by courts, through a back door, as though it was an independent right guaranteed by Chapter 111 or by any other part of the Constitution, cannot be acceded to.\n\n[322 E-F]\n\nR. C. Cooper v. Union of India [1970] 3 SCR 530, 578, distinguished.\n\nNeither rights supposed to be recognised by some natural lav.' nor those assumed to exht in some part of Comn1on Law could serve a5 ubstituics for\n\ntho~ conferred by Part III of the Constitution. They could not be, on any principle of law or justice or reason, virtually added to Part III as complete replacements for ri!rhts whose enforcement is suspended, and the\"n be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights.\n\n[325 B-D]\n\nHis Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala (1973] Supp. SCR @ I; Salish Chandra Chakraworti v. Ram Dayal De !LR 48 Cal. 388 @ 407-410, 425 and 426; Waghela Raisanii v. Sheikh Masludin and Ors. 14 Indian Appeals p. 89 and Baboo Seo Thakur Dhabi v.\n\nMst. Subanshi wl o Mangal Dhobi, AIR 1942 Nagpur 99, referred to.\n\nNot only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom. by implication, is covered by Article 21 of the Constitution. [328 E-Fl\n\nI. C. Golaknath & Ors. v. State of Punjab and Another [1967] 2 SCR 762.\n\nEven if Art. 21 is not the sole repository of all personal freedom, it will be clear, that all aspects of freedom of person are meant to be covered by Articles\n\n19, 21, and 22 of thei Constitution. If the enforcement of these rights by Courts is suspended during the emergency •. an inqury by a court into the question whether any of them\n\n1 is violated by an illeQ!ll deprivation of it by exe{'utive authorities of the State seems futile.\n\n[328 H, 329 A]\n\nA. K. Gopalc:n '\" State of Madras [1950] SCR 88 and Kharak Singh v.\n\nH State of UP & Ors. [1964] I SCR 332, applied.\n\nThe power to issue a writ is conferred up0-n courts exclusively by our Constitution.\n\nAH the powers of our courts ft.ow fro~ the Constittio-n whic~ is the source of' their jurisdiction. If any provision of the ('onstitut1on aurhonses the\n\n., ..\n\n. '\n\n• '\n\n.. •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 18 5\n\nsuspension of the right to obtain relief in any type of cases, the power of courts A is thereby curtailed eveh though a general jurisdiction to afford the relief in other cases n1ay be there. If they cannot issuie writs of habeas ccrPUSi to enforce a right to personal freedom against executive authorities during the emergency, the original nature of this writ issuing power comparable to a \"prerogative\" power cannot help the detenu.\n\n[330 G-H]\n\nlt is a well-recognised principle of law that v.hatever could be formerly even said to be governed by a common Jaw prerogative power becomes merged B in the Constitution as soon asthe Constitution takes it over and regulates that., subject. [331 Al\n\nPrinciple in Attorney-General v. De KeySier's Royal Hotel Limited, [1920] A.C. 508 @ 526 applied.\n\nJf there is no enforceable. right either arising under the Constitutioh or otherwise, it is useless to appeal to any general poweri of the court to issue a writ of habeas corpus. If the effect o.f sus.pension of the right to move the C court for a writ of habeas corpus is that no inquiry can take place beyond :finding out that the cause is ohe ccvered by the prohibiti.on, mere posses'sion of general power will not assist the detenu.\n\n[331 C-D]\n\nJf the right to enforce personal freedom. through a writ of habea5 corpus is suspended, it cannot be said that the enforcement can be restored by resorting to .. any other purpose\". That other purpose could not embrace defeating the effect of suspension of the enforcement of a constitutional guarantee and if held so would be making a mockery of the Constitution.\n\n[331 D-E] D\n\nNcthing in the nature of a writ o~ habeas corpUt.; or any power of a High Court under Art. 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be. prot-ected by the Constitution, is suspended.\n\n[331 E-F]\n\nProvision for preventive detention ih itself aptly described as \"jurisdiction of suspicion\" is a departure from ordinary norms, and rc:sorred to either illl times E of war or of apprehended internal disorders and disturbances of a serious nature, with the object of preventing a greater <lager to national security and integrity' than any claim which could be based upoh a right, moral or legal, to individual liberty. [332 B-C]\n\nHaradhan Saha\\& Anr. v. The State of West Bcngai and Ors. [1'975] l SCR 778; Khudiram Das v. State of West Bengal [1975] 2 SCR p.1832 @ p, 842; State of Mcdras v. V. G. Raw AIR, 1952 SC 197 @ 200 ancl Rex v. Halliday [1917] A.C. 260 @ 275, referred to.\n\nIt is true that the Presidential Order of 1975 like the Presidential Order of 1962, does not suspend the general power of this Court uhder Art. 32 or the general powers of High Courts under Art. 226, but the effect of taking away enforceability of the right of a detenu to personal freedom against xecntive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential Order. Cou11s, even ih habeas: corpus proceedings, do not grant relief independent of the rights of the person deprived of liberty. If the locus standi of a detenu is suspended, no one cani claim to get his right enforced.\n\n[338 E-F]\n\nIf a case so patently gross a'nd clear of a detention falling, on the face of the order of detention or the return made to a notice from the court, outside the provisions of the Act o_n the ground of personal ma1ice of the detaining authority, or, some other ground utterly outside the Act, arises so that no further\n\ninvtigation is called for, it may be possible to cobtend that it is not Pr<M tected by the, Presidential Order of Jun~ '27, 1975, and by the provision, of Art.\n\nH 359(1) of the Constitution at all.\n\nThe mere presence of an official sea\\ or siwiature on a detention order, in such a purely hypothetical case, may hot be enough to convert it into a detention by the State or its ageu.ts or officers. That is the almost utterly inoonivable situation or type of case which could still\n\nbe covered by the general power to issue writs of habeas corpus. The remedy by .way of a. writ of habas C?rpus is more general than relief against official action. It ~1es ev!!n ga1nst illegal detentions by private persons although not under Art. 32 which 1s confined to enforcement of Fundamental Rights. [339 A-El\n\nShri1nati Vidya. Vern1a, though next friendJ R. V. S. Mani v. Dr. Shiv Narain Verma [1955] 2 SCR p. !'83, referred to.\n\nB Courts 1;1l!-1st presume that executive authorities are actingi in conformity \\Vith .. both the spirit and the substance of the law : The maxim \"Oninia praesuniuntur\n\nrite esse actus'' means that all official acts are presumed to have been rightly and regularly done.\n\nIf the burden to displace that presumption is upon detenu, he cannot, in a habeas corpus petition under Art. 226 of the Constitutin, ask the court to embark upon an inquiry, during the emergency, and allow him to lead evidence. to rebut this presumption.\n\nTo do so would be plainly tocounienance a violation of tho Constitutional mandate suspehding the procedure. c\n\n[340 A-CJ\n\nEshughayi Eleko v. Officer Administering the Governn1ent of i\\'igeria & A nr. [1931] A.C. 622 @ 670; Liversidge v. Sir John Anderson and Anr. [1942] A.C. p. 206 @ 217 and 219 and 273; I?.ex v. Secretary of State for Horne Affairs, Ex [Hirte Lees [19411 1 K.B. 72 and Gree1z v. Secretary of Stare of Home Affairs, [1942] AC 284 @ 293, discussed.\n\nDecisions on what restraints should be put and on which persons during a hational emergency, in the interests of national security, are matters of policy which are outside the sphere of judicial determination. [344 G] ·\n\nLiversidge v. Sir John Anderson [1942] AC 206 and Rex v.\n\nHalliday Ex Parle Zadiq [1917] AC 260, refererd to.\n\nUnder our Constitution, there is no distinction between the effects of a decla1atio11 of en1ergency under Art. 352( 1) whether the threat ro the1 security of the Sta e is from internal or external sources. Pre&idential declarations under Art. 352(1) and 359(1) of our Constitution are immune from challenge in courts even when the en1ergeny i~ over. A noticeable feature of our Cohstitutions is that, whereas the consequences given iili Art. 358 as a result of a Proclamation under Art. 352(1) are automatic, Presidential Orders under Article 359( 1) may have differing consequehces, from emergency to emergency, depending upon the terms of the Presidential Orders involved. And then, Article 359{1A) made operative retrospectively by the 38th Constitutional amendment of 1st August 1975, makes it clear that both the legislative and executive organs of the State are freed for the duration of the emergency from the limits imposed by Part III of the Constitution.\n\n[348 A-DJ\n\nThe striking differences in the terms of the two Pre5idential Orders are :\n\n(i) The Presidential Order of 1962 did not specify Article 14 of the Constitution, but Art. 14, guaranteeing equality before the law and equal protection of Ja\\1.rs to all persohs To India, is mentioned in the 1975 Order. This does make some difference between the intentions behind and effects of the two Presidential Orders.\n\n[352 B-C] .\n\n(ii) The President'., al Order of 1962 expressly hedges the suspensiorJ of.the specified Fundamental Rights with the condition, with regard to deprivauons covered by Articles 21 ahd 22 of the Constitution that the detenu should be deprived of his rights' \"under the Defence of India Act, 1962 or any rules or order n1ade thereunder\"''.\n\nIn other words~ on the terms of the 1962 Pres:dential Order, the courts were under a duty to see: whether a deprivation satisfies these conditions or not. They could adjudicate upo the question whether a detention was \"under \" the Act or a rule \"made thereunder\".\n\nOn the other hand the Presidential Order of 1975 unconditionally suspends tile enforcement of the rights conferred upon \"any person includin0 a foreigner\" to move ahy court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Con>; titution.\n\nThe Courts are, therefore, no longer obliged or able to test the v:i:Iidity of a detentioh by examining whether they conform to statutOry\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 187\n\nrequiren1ents. They will have to be content with compliance shown with forms A of the law. [352 C-El\n\n(iii) Presidetial Order of 1962 makes no mention of pending proceedings, but the 1975 Order suspends aU pending proceedihgs for the enforcement of the rights mentioned therein. This further clarifies and emphasizes that the intention behind the Presidential Order of 1975 was tQ-:tctually affect the jurisd'.ction of courts in which proceedings were actually pendihg. The inference frOm this feature also is that all similar proceedin~ in future will similarly be .iffected.\n\n[352 E-F] B\n\nThere can be no doubt whatsoever that the Presidential Order of June 27,\n\n1975. was a part of a unmistakably expressed intention to suspend the ordinary processes of law ih those cases where persons complain of infring\\!ment of their fundamental ri.Q-hts by the executive authorities of the State. The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under Articler 226 in this particular type of cases, is itself affected for the duration of the emergency, seems clear enough from the provisLons of S. 16A(9) of the Act, introduced by Act No. 14 of 1976, which received C Presidehtial assent on January 25, 1976, making s. 16A(9) operative retrospectively from June 25, 1975.\n\n[352 F-H]\n\nThere is no doubt that the object of the Presidential Order of June 27, 1975, by suspending the enforcement of the specified rights, ¥tas to affect the po\\vers of courts to afford relief to those the enforcement of whose rights was suspended.\n\nThis was within the purview of Article 359(1). Hence. objections that powers; of the courts under Art. 226 may indirectly be affected is ho answer to D the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases. [353 AB]\n\nThe term Rule of Law isi hot a magic wand which can be waved to dispel \"' every difficulty.\n\nIt is not an Aladin's lamp which can be scratched to invoke ...., a power which brings to any pe-rson in need whatever he or she may desire to have.\n\nTt can only mean what the law in a particular State or country is and what it enjoins. This means that the Rule of Law must differ in shades of E meaning and emphasis from time to time and country to country, It could not be rigid, unchanging, and immutable like the proverbial Jaws of the Medes and Persians. It cannot be like some brooding omnipotence in the skies. Its\n\nmeaning cannot be what anyone wants to make it. It has to be, for each particular situation, indicated by the courts as to what it means.\n\n[353 F-H, 354 A]\n\nThe Rule of Law include~ the cohcept of determination by courtr of the question whether an impugned executive action is within the bOunds: of law.\n\nIt pre-supposes, firstly, the existence of a fixed or identifiable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute: conferring_ a discretioilary power to act. nhd secondJv the power of thecourts to test the action by reference to the rule. [354 E-Fl\n\nEven in emergencies, provided the power of the court to so test the JegaUty, of some executiV'e act is not curtailed, courts will apply the test of legality \"if the person aggrieved brings the action in the competent court\". But, ii' the locus standi of the person to move the court is'. gone and the competnce. of the G court to enquire into the grievahce is a1so impaired by inability to peruse the grounds of executive action or their relationship with the powerlto act, it is no use appealing to this p_articular concept of the Rule of Law.\n\nIt is just inapplicable to the situation wh!, Ch arises here. Such a s\"ituation is g0verned by the emergency provisions of the Constitution. [354 PH]\n\nYoungs Town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 and Chief Settlement Con1n1issione.r, Rehabilitation Department Punjab & Ors. etc. v. Om Parkash & Ors. etc. [1968] 3 SCR 655 @ 661, referred to.\n\n'Vhereas_ Art. 358, by its own force, suspends the guarantees of A.rt. 19, Article 359(1) has the effect of suspending the operation of specified Fundamental Rights.\n\nIf, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended i~ is impossible to say that there is a Rule of La\\v found there which is a_vailable for the courts to apply during the emergency to test the legality o~ executive action.\n\n[355 A-CJ\n\nMohd. Yaqaob etc. v. The State of Jammu & Kashmir [1968] 2 SCR p, 227 @ 234, referred to. 1\n\nThe suggestion that a common Jaw remedy by way of writ of habeas corpus exists) even after s. 491 was introduoed in the Criminal Procedure Code. in 1923, is incorrect, The sweep of Art. 359(1) of the Constitution taking ih the jurisdiction of \"any court\" is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundan1ental Right.\n\n[355 D-E]\n\nPleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of the Presidential Order of June 27, 1975 read with the amended provisions of s. 16A(9} of the Act.\n\nIn a case in \"vhich the officer purporting to detain had, in fact, not been invested at all \\Vith any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain.\n\n[357 C-E]\n\nMt1khan Singh v. Stare of.Punjab [1964] 4 SCR 797 @ 821-822 aml S. Pratap Singh v. State of Punjab [1964] 4 SCR 733, referred to.\n\nThe suspension of enforcement of specified Fundamental Rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act, in official capacitieS' which they could and do hold.\n\nA clain1 to an order of release from such a patently illegal detention, which is riot by the State or on its behalf, could be enforced even during the curren~ emergency.\n\n[357 G]\n\nThe presu1nptio'n of validity of a duly authentiicated order of an officer authorised to pass it is conclusive in habeas corpus proceedings during the current emerQency.\n\nBy means of a differently phrased Presidential Order of June 17, 1975 and the amendments in the Act, intrOducing rather drastic provis'.o'ns of s. 16A of the Act, the intention has been made clear that preventive detention should be a matter controlied exclusively by the executiv~ dep<1rtments of the State. [358 B, 361 B-C]\n\nState of Madhya Pradesh and Anr. v. Thakur Bh,, tat Singlo [1967] 2 SCR 454; State of Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr. [1966) 2 SCR 702; D1'. Ram ManoharLohia v. :State of Bihar c•nd Ors. [!966)\\! SCR 709; K. Anandan Nembiar and Anr. v. Chief Secretary, Gorernment of Madras llnd Ors. r19661 2 SCR 406; Durga Das Dhirali v. Union of India and Ors.\n\n[1966] 2 SCR 573; Jai Lal v. State of West Bengal [1966] Supp. SCR p. 4, 64, ditcussed and distinguished.\n\n1t is very difficult to See the bearing of any such doctrine that the Rule of Law under our Constitution is embodied ih the principle of Separation of Powers on a pure and simple questio111 of determination of the meaning of constitutional and statutory provisions couched in vvords ¥.1hich leave few doubts unresolved.\n\n[361 C-DJ\n\nG If ah order of preventive detention is not quasi-, judicial, as it cannot be because of the impossibility of applying any objective standards to the need for it in a particular case, there could be no question of violating any principle of .Separation of Powers by placing preventive detention exclusively within the. control of executive authorities of the State' for the duration of the en1ergency.\n\n[361 H, 352 A]\n\nRai Sahib Rain Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 ff SC 549,, referred to.\n\nMeans of redress in cases such as those of mistaken identity or 1nisapprehension of facts or of detenus due to false and malicous reports circulated by enemies a1'e still open to detenu by approachinQ1 executive authorities. TheTe\n\n' .\n\n• -\n\n- '\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 189\n\nis no bar against that. What is hot possjble i_s to secure a r&leaseby an order in habeas corpus proceedings after taking the courts behind a duly authenticated prima facie good return.\n\n[366 B-C]\n\nIf the 1neaning of the emergency provisions in our Constitution and the provisiohs or the Act is clearly that what lies .in the executive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness, the courts cannot anogate unto themselves a power of judicial superintendencei which they do not, under the law during the emergency, possess.\n\n[362 H]\n\nIt does not follow from a removal of the normal judicial superinte'ndence, even over questions of vi, res, of dietention orders, which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires aro not 1 to be applied at all by ahy authority except \\Vhen, on the face of the return itself, it is demonstrated in a court of\n\nla\\V that thei detention does-not even purport to be in exercise of the executive power or <'.Uthority or .is patently outside the law authorising detention. The\n\nihtention behind emergency provisions and _of the Act is that although such C executive action as is: not susceptible to judicial appraiSement, should not be subjected to it, yet, it s]}ould be honestly supervised and controlled by the hierarchy of executive authorities themselves. It enhances the powers and, therefore, the respons:bilities of lhe Executive.\n\n[363 F-H]\n\nIn actual practice, the grounds supplied always operate as an objective test for determining the questioh whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities bad crept in.\n\nThe reasonableness of the detention became the justiciable issue D because it related to the decision. It is doubtful whether this could be said to be an object of preventive detention authorised by the Constitution and en1bodied in the Act. (334 D-E]\n\n1he object of the amending Acts 39 of 1975 and 14 of 1976 was to affect the manner in \\Vhich jurisdiction of courts .n constldering claims for reliefs by detenus oh petitions for writs of habeas corpus was being exercised w that the only available means that has been developed for such cases by the courts, that\n\ni'.'1 to say. the scrutiny of grounds supplied under s. 8 of the Maintenance of E Internal Security Act may be removed from the judicial armoury, for the duration of emergency. (336- C-D]\n\nPrabhu. Dayal Deorah etc. v. District Magistrate Kamrup and Or.f. AIR 1974 SC 183, referred to.\n\nThe cohtention that s. 16A(9) affects the jurisdiction of High Courts under Art. 226 which an order under Art. 359(~) could not do, is untenable.\n\nA Presidential Order which prevents a claim for the enforcement of a Fundamental F Right from being advanced in a court, during the period of an emergency. could possibly be said not to be intended to affect the exercise of jurisdiction of courts at all, is not correct. (336 F-0]\n\nThat s. 16A(9) amounts to a general legislative declaration in place of judicial decisions which courts had themselves to gie f!_fter considering, on the facts of each case, whether Art. 226 could be applied, is also not acceptable.\n\nThe result of s. 16A(9) to be valid would be to leave tq the pre9Umphon of correctness of an order under s. 3 of the Act untouched bY any investigation G relating to its correctness. Now if th!s be the object and effect of lhe amehd.\n\nment, it could not be said to: go beyond it to rebut a presumptien of legality and validity of a.n order under s. 3 of the Act, if prima facie case is made out~\n\n[336 G-H, 337 Al\n\nObservation :\n\n[The same result could have been achieved by enacting that a detention_ order under s. 3, prima facie good, will operate as \"conclusive proof\" that the H requirements of s. 3 have been fulfill\"!. But, as the giving of grounds is not entirely! dispensPd with under the Act even as it now exists, this may have left the question in doubt, whether courts could call upon the detaining _authoritie!t\n\nto produce the e:rounds.\n\nEnactment of a rule of conclusive proof is a well established folll): . of enactments determining substantive rights in the form of procedural provmons]. [337 A-BJ\n\nSection 16A(9) makes it impossible for courts to investigate quesdons relating to the existence1 or absence of bona fides at least 1n proceedings under , Art. 226, It is clear that the validity of s. 16A(9) cannot be challenoeJ. on the ground of any violation of Part III ofl the Constitution in vie.w of the° provisions of Art. 359(1) (A). [353 C-Dl\n\nA challehge to the validity o.f s. 16A(9) based either on the submission that grounds' for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even ill) an emergency, is not wellfeunUed.\n\nThere is ho such strict separation of power under our Constitution. No part~ cuJar provision of the Constitution couJd be pointed out in 9upport 01' the pro ... position that preventive detention is a matter in \\vbich judicial superintendence must necessarily be preserved as a part! of the doctrine of separation of powers.\n\n[365 E-FJ\n\nRai Sahib Ram Jawaya Kapur and Ors. v. State of Punjab AIR 1955 .SC 549, referred to.\n\nSection 16A(9) imposes a bar which cannot be overcome in habeas corpu~ proceedings during the Emergency. In addition, a specific suspension or enforcement of t~ right of personal freedom aQ'ainst executive authorities places the presumption arisi'ng from a duly authenticated order of a legally authorised detaining officer on a higher footing than merely ordinary rebuttable presumption for purposes of proceedings under Art. 226 of the Constitution. [367 F-G]\n\n[His Lordship felt it unnecessary to consider the validity of s. 16A(9) if it was to be applied at a time not covered. by the emerge'ncy, or whether it should. be read down for the, purposes of a suit for damages where the issue. is. \\Vhethet1 the detention was ordered by a particular officer out of malice in fact and for reasons completely outside the purview of the Act itself.]\n\n[337 C-D]\n\nSection 16 of the Act seems to leave open a remedy by way of suit for damages for wrongful imprisonment in a possible case of what may he called \"malice in fact\". In the cases for habeas corpus, proceedings ubder Art. 226 of the Constitution where \"malice-in-fact\" could not be investigated, as it is bound to bp an allegation subsidiary to a claim for the enforcement of a rij!jht to personal liberty, a Fundamental Right which cahnot be enforced during:' the Emergency. [337 G-Hl\n\nSree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura [1%4] 3 SCR 442 @ 450, followed.\n\nEven the issue that the detention order is_ vitiated by \"malice in fact'' will not be justiciable in habeas c<>rpus proceedings during the emergebcy although it may be in an ordinary suit which is not filed for enforcing a Fundamental Right but for other reliefs'. The question of bona fides seems tobe left open for decision by such suits on the language of s. 16 of the Act itself.\n\n[368 D-E]\n\nIn the case of preventive detention, placing the burden upon the executive authorities ot' prOll'ing the strict leity and correctnes9 of every step in the procedure adopted in a case of deprivation of personal liberty, and asking the executive authorities to satisfy such a requirement, in accordance with what has been called the principle in Eschugbayi Eleko's case, [1931] A.O. 662 @ 670, would be to nullify the effect of the suspension of the enforceability of the procedural protection to the right of personal freedom. To do so is really to make the Presidential Order under Article 359( 1) of the Constitution ineffective.\n\n[368 B-C]\n\nNo question of \"malice in law\" can arise in 'habeas corpus proceedings when such a protection is suspended. M regards the issue of \"malice in fact\" it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of whch is not to enforce a right to pei'sonal freedom but only to obtain damages for a wrong done which is not\n\n• •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 191\n\nprotected by the terms of s. 16 of the Act. The po\"'ibility oti such a suil A should be another deterrent against dishonest use of these powers by detaining officern.\n\n[368 D-EJ\n\nSection 18, thouQh unnecessary, appears to have been added by way ot abundant caution. It cannot be assailed on the grouhd o.f vLolation of basic structure. [342 F-GJ\n\nThe theory of basic structure oi' the Constitution cannot oe used to build into the Constitution an imaginary part which may be in co'nflicr with the: cons~ B titutiona1 provisi, ons, The Constitution cannot have a base cut away from the superstructure. Jndeed, the emergency provisions could themselves be regarded as part of the basic structure of the Constitution.\n\n[3 66 E-FJ\n\nThe theory of basic sitructure of the constitution c_annot be considered as anything n1ore than a part of a well recognised mode of constn1cting a document. The Constitution like any, othet documeht has to be read and construed as a whole.\n\nThe theory was nothing 111ore than a method of detern1ining the intenV behind the constitutional Rrovisions. It could not ahd did not build and add a new part to the constitution. It cannot imply new tests outside he Constitution or be used to defeat constitutional provisions.\n\n[366 G, 367 A]\n\nHis Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973] Supp. SCR 1, applied,\n\nThere is no provision in our Constitution for a declaration of Martial Law except Art. 34 of the Omstitution which recognises the po8'ibility of Martial D Law in this country. There is ho separate indication in the Constitution of conditions in whichl Martial Law could be. \"proclaimed\". A Presidential Order -. under Art. 359(1) of the Constitution would, ordinarily, have a wider range and effect throughout the country than the existence of Martial Law in ahy particular part of_the country. The Presidential Proclamations are meant generally to cover the country as' al whole. Martial Law is t?enerally of a locally res.tricfl- ed appJication. 1be conditions in which what is called \"martial Ia:w'' may\n\n.ti prevail result in takihg Military Courts of .powers even to try offenc_es; and, the ordinary or civil courts will not interefere with this special juriOOiction under E extraordinary conditions. Such a taking over by Military courts is certainly , outside the provi>ions of A.ti. 359( 1) of the Constitution taken by itself. It could perhaps fall under Presidential powers under. Articles 53 and 73 read with Art. 355. [368 F-H, 369 A-CJ\n\nJudicial proceedings in criminal courts, not meant for the enforcement of Fundamental Rights, are not either at the initial or appellate or revisional stages, covered by the Presidential Order of 1975. Habeas corpus petitions are not maihtainablei in such cases since the prisoner is deemed to be in proper F custody under orders of a cqµrt.\n\n[371-F-GJ\n\nNeither Article 136 nor Art 226 of the Constitutio!j is meant for the exer cise of an advi.Sory jurisdiction. Attempts to lay down the law in an abstract form, unrelated to the lac~ of particular cases, not only do not appertain to the • kihd of jurisdiction exercised by this Court or by the High Courts under the provisions of Art. 136 and 226 respectively, but may result in misapplications of the law declared by cOUrts to situations' for which; they were not intended at all. !306 D-E] .\n\nPer Clia11drachud, J.\n\nThe Order issued by the President on June 27, 1975, under Article. 359(1) does not suspend the fundamehtal principle that all executive action must have the authority of law to support it. Nor does the Presidential Order give to the executive a charter to disobey the laws made by the Parliament which is the supreme Jaw making authority.[413 B-C]\n\nThe aforesaid Presidential Order, however, deprives a person of his locus stlJlllli to move any court, be it the Supreme Court or the High Court, for enforcement of his Fundamental Rights which are mentioned l'.n the Order.\n\nSuch deprivation or suspension enures during the period that the proclamation of emergency is in force or for such shorter period as may be specified in the Order. [413 C-Dl The dominant purpose of the present petitions is to obtain an order of release i'.rom detention by enforcing the. right to personal liberty. The purpose is.not to obtain a mere declaration that theiorder of detention is ultra vires the Act under which it is passed. The former plea iSi barred by reason of the Pre£i .. dential Order. The latter is also barred because regard must be had to the substance of the mat~ and hot to the form in which the relief is asked, for.\n\n[413 E-F] The Pre.sidential Order dated June 27, 1975, bar51 any investigation or inquiry into the question whether lhe -order of detention is vitiated by niala fideSi, factual or legal, or \\vhether it is based on extraneous considerations or whether the detaihing authority had reached his subjective satisfaction validly on prGper\n\nand releYant material.\n\n[413 F-G] Whether or not Art. 21 of the Constitution is the sole repository. of the rght to personal liberty, in a petition filed in the High Court under Art.:226 for the release of a person detained under the faintenanoo of Tuternal Security Act~ 1971, noi relief by way of releasing the detenu can 00 granted because no person has a legal Ca-!Jacity to move any court to ak for such relief. The Presidential Order takes away such legal capacity by includihg Art. 21 within it.\n\nThe source of the right to personal liberty is immaterial because the words 'conferred by\" which occur in Art. 359(1) and in the Presidential Order are not words of limitation.\n\n[413 G-H, 414 A] The. P1esidential Order does not bring abou~ any amendment of A.rt. 226 and is not open to challenge on that ground. [414 B] The contention that Art.. 226 V>'hich occurs in Chapter V, Part VI of the Constitution is an entrenched provision and, therefore, under Art. 368 no amendment can be made to Art. 226 without ratification by the Legislatures of not less than one-half of the States is untenable. It is true that Art. 226 is an \" entrenched provision which cannot suffer an amendn1ent except bv fol}owihg tbe procedure prescribed by the proviso to Art. 368(2). But the -Presirtential E - Order is i&Sued under the Constitution itself and if its true construction produces a certain result, it cahnot be said that some other Article of the Constitution stands thereby amended. Article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcement of Fundamental Rights mentioned in the Order shall be suspended. That may, i'h. effect, affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas carpus.\n\nBut, that does not bring about any amendment of Article 226 within the meaning of Art. 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its consti- F tutional po\\Ver.\n\nArticle 226 and Article 359(1) are parts of the same fundan1ental instn1ment and a certaih interpretation of_ one of these Articlesi canilot amount to an amendment of the other. [385 G-H, 386 A-B] The Presidential Order neither bars the right of an accused to defend his personal liberty in the court of first instance or ih a higher conrt nor does it bar the execution of decrees: passed against the Government, nor dos it bar the grant of relief other than or les9 than the release of the detenu from detention_ [414 B-Cl G Detention without trial is a serious inroad on personal freedom but it\n\nbears the sanction of our Constitution. The \"clear and present danger test'' evolved by' Justice Holmes in Schenck v. United States, 249 U.S. 1919may wetl be extended to cases where there is a threat of external aggression.\n\n[384 D-E] The object of Art. 359 is: to confer wider Power~ on the Presideht thari the power rrlerely to suspend the right to file a petition for the writ of habeas corpus. Article 359 aims at empawer,:ng tha: President to suspend the right to enforce all or any of the Fundamental Rights conferred bv Part III.\n\nIt iS in order to achieve that object that Article' 359 doeS<- not provide that the Proesident may dec1are that the remedy by way of habeas corpus shall be suspeded during emergency. Personal liberty is but one of the Funda:rpental Rights conferred by Part Ill and the writ of habeas corpus i5 peculiar to the enforcement of the\n\n• -\n\ny .,\n\nADDL. DIST. MAGISTRATE V, S. S. SHUKLA 193\n\nright to pmonal liberty and, therefore the suspension of the right to enforce the right conferred by Art. 21 meahs and implies the suspension of the tight to file a habeas cerpus petition or to take any other proceeding to enforce thci right to personal liberty conferred by Article 21.\n\n[384 G-H, 385 A-BJ\n\nThe true implication of the Presidential Order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the Order. In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential Order merely take!il away the locus, standi of a person to move these courts for the ehforcement pf certain Fundamental Rights during the. operation:; of the Proclamation of Emergency. 1ho drive of Article 35g(l) is not against the courts but is against individuals, the object of the Article being to deprive the\n\nJ.ndividual concerll'ed of his normal right to move the Supreme Court or the High Court for the enforcement of the Fundamental Rights conferred by Part Ill of the Constitution. [386 C-EJ\n\nSree Mohan howdhury v. The Chief Commissioner, Union Territory of C Tripura (1964] 3 SCR 442; .451, referred to. -.\n\nThe argument that the limited object of Art.. 359( 1) is to remove restrictions\n\non the power of the Legislature so that during the operation of the Emergency it would be free to make laws in _violation of the Fundamental .Rights sPecified in the Presidential Order loses sight of the distibction between the provisions of Art. 358 and Art. 359' (!A) on the one hand and of Art. 359(1) on the other. Article 358, of' its own force~ removes the restrictions' on the power of _, the legislahlre to make laws inconmstent with Art. 19 and on the power of Executive to take actioh under a Jaw which may thus violate Art. 19. Article 358 does not suspend any right which _was available under Art. 19 tq any person prior to the Prc:lamation of Emergency. Anicle 359(1) is wider in scope than Art. 358. In view of the language of Art. 359(1) and considering the\n\ndistintion between it and the provisions of Art. 358, there is no justification for ricting the operation of Art. 359(1) as against ]aWs made by the Legis-\n\n4 lature in violation of the Fundamental Rights, [386 G-H, 387 A-El\n\nSre.e Mohan Choudhury v. 1'he Chief Comnlis.sfoncr, Union Territory of Tripura [1964] 3 SCR 442 and Makhan $ingh v. State of Punjab [1964] 4 SCR 797, referred to.\n\nArticle 359(1) is as much a basie1 feature or the Cohstitution as any other, and it would_ be inappropriate to hold that because in normal times the: Consti~ tution requires' the Executive to obeY the laws made by the Lej!islature, there~ fore, Article 359(1) which is a.n emergency measure, must be1 construed con..i sistently with that position. The argument of basic feature is wrong for yet another reason that Art. 359(1) doe. hOt provide that the Executive is fre.e ro disobey the_ laws made (by the Legislature. To permit a challenge in a court of law ta an order of detention, which is an Executive action, on the ground that the order violates a Fundamental Right mentioned in the Preside'ntiaI Order, isi to permit the detenu to enforce a Fundamental Right during emergency in a manner plainly contrary to Art. 359(1). [388 E-H, 389 A]\n\n1\" All eXecutive actioh which operates tci thei prejudice of any person must have G the authority of law to support it. Art. 358 doe• not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and other.\n\nIt provides that so long as the Proclamation of Emergency subsists, laws may be enacted and exccutiVCJ action may be taken in purSuance of such laws, which\n\nif the prilvisions of Art. 19' were operative wauld have been ihva!id. Article 359(1) bars the enforcement of any Fundamental Right mentioned ill the Presi• dential Order, thereby rendering it incompetent for any persOh to C{lmplain of its violation, whether, the violation is by the Legislature or by the Executive. -\n\n[389 H, 390 A, 391 EFJ H Srate of Madhya Pradesh and Anr. v. Thakur Bharat Singh [1967] 2 SCR 454; District Collector of Hydtrabad &: Ors. v. Mis. Ibrahim & Co. etc. [1970] 3 SCR 498; Bennett Coleman &: Co. and Ors. v. Union of India &: Ors. [1973]\n\n833SCif76 .\n\nA 2 SCR 757, 773, 775 and Shree Meenakshi Mills Ltd. v. Union of Jndico [1974] 2 SCR 398, 405, 406 and 428, dfr1tinguished.\n\nThe }{uh: of L::nv rejects t_he. conception of the dual State in whi.ch govern- 111-ehtal action is placed in a privileged position of immunity from con:rol by law.\n\nSuch a notion is foreign to our basic constitutional concept<;. [392 Fl\n\nChief Seit ft n101t Conunissioner, Rehabilitation Departnwnt, Punfab rnd Ors.\n\nv. Om Parkash & Ors. (1968] 3 SCR 655, 660-661 and Eshugbayi Eleka v, Offjcc>r Adn1inis:eri11g the Governn1e11t of J\\ligeria [1931] AC 662, 670. distinguished. ' ...\n\nThe Rule of La\\v argument like the \"basic feature\" argument is intractable.\n\nEmergency provisions contained in Part XVIII of the Constitution which a:c designed to protect the security of the State are as in1portant as any other provision of the Constitution. The Rule of La\\\\-', during an emergency,_ is as one finds it in th.e provisions contained in Chapter XVIII of the Constitution..\n\nThere cannot be a brooding and omnipotent Rule of Law dr0\\\\1ning in its effervescence the emergency provisions of the Constitution.\n\n[393-B-D1\n\nArticle 359 ( l) neither compels nor condones the breaches by the executive of the laws made by the Legislature. Such condonation is the function of an act of indemnity.\n\n[3 9 3 G]\n\nThe obiect of empowering the President to issue an order under Art. 359( 1 l suspending the enforcement of the right to personal liberty conferred by Part Ill of the Constitution cannot be to save all other rights to personal 1ibe1ty except •( the one conferred by Part III, which 5eems tctany devoid of n1;::aning and putpose. Therei: is no'thing peculiar in the content of the right to personal liberty conferred by Part lII w that the ConStituticn should provide only for the suspension of the right to enforce that particular kind or right, leav.inQ'. all other rights to personal liberty i'ntact and untouched.\n\nThis purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to petfonal\n\n\"'IJ liberty shall be enforceable and every proceeding involving the enforcement of > suCh r:.ght shall eontinue during the emergebcy, except to the extent to which the right is conferred by Part 111 of the Constitution. The existence of the right to personal libert~ in the pre-constitution period was s't.11eJy known to the makers of the Constitution.\n\nUJ95 H, 396 A-DJ\n\nThe right to persohal liberty is the right of the individual to personal. free .. dom, nothjnQI more and nothing less. That right along with certain other ri8hts was elevated to the status of a Fundamental Right in order that it may not be tinkered \\Vith and in order that a mere majority should not be able to trample over it.\n\nArticle 359( l) ehables the Preside ml to suspend the enforcement eYen of those rights which were sanctified by being lifted out of the common morass\n\nof ht.unan rights. If the enforcement of the _Fundamental Rights can be .sus pended during an emergency, it isi hard to accept that the right to enforce nob~ Fundamental Rights relating to the same subject matter should remain alive.\n\n[396 G-H, 397 A]\n\nThe \\vords \"conferred by Part TIL' which occur in Art. 359( 1) are ot intended to exclude or except from the purview of the Pres'idehtial Order, rights of the same variety or kind as are mentioned in Prat III but whiCh were ifl existence prior to the Constitution or can be said to be in existence in the .post- Constitution era, apart from the Constitution. The words \"conferred by Part flt are nsed onJy in order to identify the particuhi.r rights the enforcement of which can -be suspended by the President and not in order to impose a limitation the .power o: the President so as' to put those rights v.hich exist or \\Vhich e; itisted apart -fron1 the Constitution beyond the reach Of that pO\\\\r. It, theref<>.re. does not n1ake any <lift'erence whether any right to personal llherty Wt\\.'i in exi<\"ll:ehce prior to the enactment of the Constituiion, either by wav of a natural right, statutory right, common law right or a right available under the faw of 1:orts.\n\nWhatever may be the source of the right and whatever ma:y be its justification. the right in essence <ind sub:.1ance i'.\"i the right to peronal Jil-.eity. That\n\n...\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 195\n\nTight having been included in Part III, its enforcement \\vill stand suspended if it is mentioned in the Presidential Order issued under Article 359(1).\n\n[397 E-H, 398 A-CJ\n\nThe rights conferred by Art. 21 and 19 cannot be treated as mutually exclusive. But the suspehsion oi' the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one, Article to another. The ''ri.ght conf'.;:rred hy\n\nArticle 21\" is only a deScription Of the right of personal liberty in order 10 B facilitate itsi exact idehtification and such a description cannot li1n:t the op.:ration of. the Piesidential Order to those cases only \\\\'here the right to personal liberty is claimed under Article 21.\n\n[398 F-G]\n\nl?uston1 Cavasajee Cooper v. Union of India [1970] 3 SCR 530, 578, referred to.\n\n'fhe circumstance that the pre-Constitution rights continued in force afler the enactment of the Constitution in view of Art. 372 does hot make any difference to thiS' position because even assuming that\" certain rights to P.!fsonal liberty existed before the Constitution and continud thereaf1er <Is they were not repugnant to any provision of the Constitution, all rights to personal liberty. having the same content as the. right conferred by Art. 21, would fall within the mischief of the Presidential Order.\n\n[398 G-H, 399 A]\n\nThe theory of \"eclipse\" has no application to such cases because that theory applies only when a pre-Constitution law becomes devoid of legal force on the\n\nenactmenti of the Constitution by reason of its repugnancy to any provision o[ D the Constitution. Such laws are not void but they arei under an eclipse sc) long aSi th~ repugnancy lasts. 'When the repugnancy is re;.novd. th~ cdip::.e also is removed and the law becomes vµlid. [399 A-Bl\n\nAs regards the dpctrine of \"n1erger\", every prior right to p.::rsonal lib;;'.rl} merged in the right to personal liberty c; onferred by Part Ill.\n\nBut v.hcther it n1erged or not, it cannot survive the, declaration of su:.pensiol\\ if the true effect of the Presidential Order is the Sl, J.Spension of the right to enforce aH and every right to per!£>nal liberty. lh that view, it would also inake no <lifference \\Vhether the right 10 personal liberty arises fron1 a statute or fron1 a contract or from a constitutional provision contained in son1e Part other than Prut III. [399 B-C]\n\nArticle 361(3) Speaks of' a \"process'' for the arrest or impri~; onrnent of a <Jovernor issuing. from ahy court. Fulldamental Rights can be cxerci:; ed as :against judicial orders but the circumstances in which such a process n1ay come\n\nto be issued, if at all, may conceivably affect the decision of the question F whether a Presidential Order issued under Article 359(i) can bar the rrmedy of an aggrieved Governor.\n\n()400 BC]\n\nA failure to comply with Article 256 may attract serious consequences\n\n~ but no court is likely to ehtertain a grievance at the instance of a private party that Art. 256 has not been complied with by a State Government. [400 DJ\n\n[As regards the claiµll to personal liberty foundetl on a challenge to an Qfder on the ground of excessive delegation. His Lordship preferred to cxpre&S no finn opinion though the greater probability is' that such a challehge may fail in face of a Presidential Order of the k:nd \\vhich ha~ been passed in the instant case.]\n\n[400 D-E]\n\nThe existence of common law rights prior to the Constitution \\Vill .not curtail\n\nte operation of the Presidehtial Order by excepting tile ri, Q'hts from the pur- •rew of the Order, [ 400 El • .\n\nD!iin1bha Devisingh Gohil v. The State of Bo111bc•y [19551 1 SCR 691 andi H J'vfai-:l1a11 Singh v~ State of Pu11jab [196AJ 4 SCR 797, 818-819, nppliec{\n\nThe Presidential Order dated June 27, 19\n\n175. does uot contain anv clause Jikc the one in the order dated Noven1ber 3, 1962. Article 359(1) is only an.\n\nenabling provision and the validity of a plea cannot be tested with reference to that Article. The right to move a cowt for the enforcement of the rights conferred by Part III is not taken away by Article 359(1). It i$ tho Presidential Order passed. in pursuance of the powers conferred by that Article by which such. a con~-equence can be brought about. The Presidential Order in the\n\ni~1stant case is not subj-ect to the pro.-conditions that the detenu should have been deprived of his right under any particular Act and; therefore, there is no scope for tre enquiry whether the order is consistent or in conformity with any particular Act. [405 B-H, 406 A, 407 B-CJ\n\nMakhan Singh v. State of Punjab (1964] 4 SCR 797; Dr. Rani Manohur ..., Loh; a v. Stt!fe of Bi/lar [1966] 1 SCR 709 1 ; K. Anand<M Nambiar'- and Anr. Chief Secretary, Govern111ent of Madras & Ors. [1966] 2 SCR 406; State of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr. [1966]\n\n1 SCR 702, discuss'ed and distinguished. 1 .-,\n\nA nzala lide exercise of power doesi not necessarily imply any moral turpitudeand may only inean that the statutory pO\\\\'e:rr is exercised for purposeS: otbe, r th-an those for whic_h the power was intended by law to be exercised. In view of the fact that ah unconditional Presidential Order of the present kind affects the locus sttindi of the petitioner to move any court for the enforcement of any of his Fundamental, Rights menti, oned in the Order, it would not be open to him to sho\\V that the statutory power has been exercised for a purpose other than the one duly appoihted: under the }a\\V. So Ion2 as '1he ')tatutory prescrip~ tion can be seen On the: face: of the order td have been complied with~ no further inquiry is pennis'sible as to whetbe, r the order is vitiated by legal mala fides. [409 E-Fl\n\nMakhan Singh v. State of Punjab (1964] 4 SCR 797; Jai Chand Lall Sethia v.\n\nState of West Bengal & Ors. L1966] Supp. SCR 464 and Durgadas Shirali v. • Union of India & Ors. [1966] 2 SCR 573, referred to.\n\nAs regards 1nala Ji.des in the sense of malice in fact, the same position must bo1d good because the Presidential Order operates as a blanket ban on any Jnd every judicial inquisition into the validity of the detention order. If ih any given case an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertake'n in such a case.\n\nBut, short of such ex facie vitiation, any challenge to a detention order on the ground of actual 1nala fides is aJsoi excluded under the Presidential Order dated June 27, 1975. [407 G-H, 408 A-BJ\n\nSection 16A (9) is not uhconstitutional on the ground. that it constitutes an encroachment on the writ jurisdiction of the High Court and Art. 226. There is no warrant for reading do~'n that section so as to allow the courts to inspect the relevant files, to the exclusion of all other parties.\n\n[409 D, 411 F, 414 DJ\n\nSection 16A (9) is ih aid of the constitutional power conferred by Art.\n\nJ 359(1) and further effectuates the purpose of the Presidential Order issued under that Article. If so, it cannot be declared unconstitutional. [410 A] G The rule enunciated in s. 16A(9) is a genuine rule of evidence.\n\n[410 B] •\n\nA. K. Gopalan V. State of Madras [1950] SCR 88 ahd Mohd.\n\nMaqboo/ Damnco v. State of Jammu & Kashmir [1972J 2 SCR, 1014, distinguished.\n\nThe principles of res judicata and estoppel, the conclusive presumptions of Jaw and various provisions of substantive law deny a tree play to courts. in the exercise of their jurisldiction. These are not for that reason uncohstitutional qua the High Court's jurisdiction under Art. 226.\n\n[410 FJ H The limits of judicial review have to be coextenS:ive and commensurate \\vith the right of an aggrieved person to complain of the invas.fon of his rights.\n\nSection I6A(9) can.hot be said to shut out an inquiry which is otherwise \\\\'ithin the jurisdiction of the High Court to make. [ 411 BJ\n\n• •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 19 7\n\nSection 18 does not suffer from the vice of excesive delegation and is a A valid piece of legisla!Ion. [414 DJ\n\nThat section only declares what was the true position prior to its enact. ment on June 25,, 1975. The amendm.eht of section 18 by the substitution of the words \"in respect of whom, an order is made or purported to be. n1ade under s. 3\", in place of the words \"detained under this Act'', does not render the section open to a challenge <;>n the grouhd of exciessive delegation.\n\nThe words \"purported to be made\" have been inserted in! order tOI obviate the chal.\n\nB Ienge that the detention is not in strict conformity with the Act.\n\nSuch a .challenge is even otherwise barred under the Presidehtial Order. The object of the said provision is not to encourage the passing of lawless orders of detention but to protect durinQI emergency orders which may happen to be in lesrs than absolute conformity with the Maintehance of Internal Security 1\\ct, 1971.\n\n[412 B-C]\n\nliis lloliness Kes_avananda Bharati Sripad(lga!arvaru v. State of Keralo [1973] Supp. SCR 1 and Makhan Singh v. State of Punj\"b [1964] 4 SCR 797, refened C to.\n\nA jurisdiction of suspicion is not a forum for objectivitY. The only arguL rnent which the court can entertaih is whether the authority which passed the order of detention is duly empowered to pas.s it, whether the detenu is properly identified and whether on the face of itsl order, the stated purpose of detention is within the terms of law. r.414 E-F]\n\nZamora's case [1916] (2) AC 77; Rex v. Halliday [1917] AC 260, 271; Liver- $fdge v. Sir John Anderson [1942] AC 206 and Greene v. Secretary of State,\n\n11942] AC 284, referred to.\n\nNo judginent can be read as if it is a statute. The generality of the expressions which may be found in a judgment arei not intended to. be expos.itiom. of the whole law, but are goyerned ahd qualified by the particular facts of the case i~ which such expressions are to be found. It is not a profitable task to\n\nextract a st':ntence here and there from a judgment and to build upon i.t becauso E 1he essence of the decision is its ratio and not every observation found therein. [401 C-El\n\nQuinn v. Leatham, [1901] AC 495, 506 and State of Orissa v. S11dhans11 Sekhar Misra & Ors. [1968) 2 SCR 154, 163, reiterated.\n\nPer P. lV. Bhagwati, J.\n\nTh~ Pre9identiaE Order dated June 27, 1975, bars tnaintaihability of a petition for a 'vrit of habeas corpus when an order of detehtion is challenged OnJ the F ground that it is vitiated by mala fides, legal, factual or ds based on extraneous considerations or is not under the Act or is not in compliance 'vith it. [ 477 B-C] The suspension of the privilege of the writ does not Je2alise what is done. while it cohtinues : it merely suspends for the time being the remedy of th~ writ. [461 A-Bl The words \"the right to move any court\" are wide enough to include all claims made by citi7..ens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon \"'ithout examining G 1he question as to whether the citizen is, in substance, seeking to enforce any of the specified Fundamental Rights. There can be no doubt that in view Of the Presidential Order which mentions Art. 21, the detenus 'vould have no locus standi to maintain the writ petitions if it could be shown that the writ -petitions were for the enforcement of the rights conferred by Art. 21. [424 CE)\n\nMakhan Singh v. State of Punjab [1964] 4 SCR 797, fO!IOWCd,\n\nWhen a _Pres.idential Order is issued under Art. 359, clauset (1 ), the Funda- 1:oental Right mentioned in the Presidential Order is suspended so that the restriction on the power of the executive or the legislature imposed by the Fundamehta1 Right is lifted while the Presidential Order is in operation and\n\nthe executive or the Jegislalure is i'ree o make any law or to take any aticn \\Vhich it would, but for the provisions contained in Part Jll, be competent HJl make or to tak, e.\n\nThe word_s \"but for the provisions contained in that part'\", that is, but for the Fundan1en.t'!_l Rights, meani '•if the .Fuhdamental RiQ>h-ts V.'erenot there in the Constitution, the executive being limite_d by la'Y would still b0 unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with Jaw and, therefore, cve11\n\nif the. Presidential Order n1entions Art. 21, clause (lA) of Art. 359 wou1d not enable. the executive to depriv~ a person of his pe_rSonal liberty w:thott sanction of hnv and except in conformity with or ih accordance with l::nv. 11' an order of detention is n1ade by the executive without the authority of Jaw, it w-0uld be invalid and its invalidity would not be cured by clau~-e ( lA) cf Art. 359 because that clause does not protect executive action taken withou;: Jawful authority. An uhlawful order of detention would not be protected from challenge under Art. 21 by\\ reason of clause (lA) of A, rt. 359 and the detenu would be entitled to complajn of su<.:h unla, vful detention as beir; g in violation or Art. 21 except in so far as his right to' move the court for that purpo ei may be held to have been taken away by clause ( l) of Art. 359. [427 C-HJ\n\nState of Madhya Pradesh v. Thakur Bharat Singh [1967]\n\n2 SCR 454; !Jistrict Collector of Hyderabad v. M//s. l'brahim & Co. [1970} 3 SC'R 498; Be1; nelt Colcn1an & Co. v. Union of lndie4 [1973] SCR 757 and Shree 1\\1ecnak • . 1/ii Mills Ltd. v. Union of India [1974] 2 SCR 398, applied.\n\nEven though t\\I Presidential Order issued under clause ( l) of Art. 359 meh~· tions Art. 21, whereit is' found that a detention has not been made in puru.'.l.Ilce of lawful authority or iti othei;._, vords, .the doetention is withut the :1uthority of Jaw, whether by reason of there being ho Jaw at all or by reason of the Jaw under which the detention is made being void, clause ( lA) of Art. 359' would n6t protect it from chalfenge under Art. 21 and it \\vould be in con!1ict \\vith that Article. r429 H. 430 A]\n\nThe words \"rights conf'erred by Part Ill\" cannot be read in isolation, nor can they be constnied by reference to theoretis:al or doctrina'.re considerations.\n\nThey n1ust be: read in the context of the provisions enacted in Purt Ill in order to detern1ine \\Vhat are the rights. conferred by the provisions in that Part.\n\nJt is true that. A.rt. 21 is couched in negative language.\n\nIt is not uncommon in legislative practice to use negative language for conferring a right. That i<; often dohe for lending greater emphasis and strength to 1he Iegis!ative 1;:nactrncnt. Article 21 confers the Fundan1ental Right of personal liberty. [430 F-Hl\n\nPunjab Province v. Dau/at Singh 73 Indian Appeals 59; Baslu~har Nath v.\n\nThe Conu11issioner of lncorne Tax Delhi & Rajasthan [1959] Supp. (I} SCR 529; State of Blhar v. Mahal'ajidldraj Ka111eshwa1' Sinf?h of Dorhflanf?ai & Ors. [1952] SCR 889 at p. 988; P. D. Shamd11.M11i v. Ce11tral Ba11k af /11dia Ltd. [!952] SCR 391 -and R. C. Cooper v'. Union of India [1970] 3 SCR 530, refeiTcd to.\n\nIf Art. 21 were construed as not conferring a right to personal librty, then there would. be no Fundamental R}ght conferred by Art. 21 and e\\'en if a perwh is deprived of his personal liberty otherwise than in accordance with the procedure established by Jaw and there is infringement of Art .21, suc_h Pl.'!fSOn \\vould not be ehtitled to move the Supreme C'oun: for a writ of habeas cnrptB under Art. 32, f'or that Article is .available only for enforcement of the rights. conferred by Part IlI.\n\nThat \\vouldbe a; startling consequence, as t \\vou!d deprive the Supreme Court of a wholesome jurisdiction to pr.1tect thepersonal liberty of an individual against illegal detent'ion, t'esuftihg in a Ueparture. from the well settled constructional position of Art. 21.\n\n[432 B-D]\n\nNo attribute of personal liberty! can be regarded as having been carved out of _-'\\rt. 21.\n\nThat Article protects all attributes of perscnal liberty against executive action which is not supported by J, aw.\n\nWheh a person is det<lined, there is deprivation of personal liberty \\vithin the meaning of Art. 21. [433 A-BJ\n\nKharak SinQ/1 v, State of U.P. & Ors. [1964] I SCR 332. ref, rred te>\n\n.. •\n\n' I\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 199\n\nThe protection under Art. 21 is\\ only against State action and not against A private individuals and the protection, it secures, it is a limted one .. The only safeguard enacted by Art. 21 is that a person cannot be depnved of hts personl liberty except according to procedure prescribed by \"State made\". law. lt is clear on plain natural construction of its languae. that A:t. ~1 1n1ports tv.'o requirements : first, there must be a law authons1ng depnvatton of rsonal liberty and secondly, such law must prescribe a p:ocedure. The first re.qtt_rement\n\nis indeed implicit in the phrase \"except according to procedure prescnbed by law\".\n\nWhen a lav.' prescribes a procedure for depriving a person of pers<;>nal 8 liberty, it must a fortiori auth, orise such deprivation. Article 21, hus, l?roVJ.des . hotb substantive. as well as procedural sfeguards.\n\nTwo other ingredients of Art.-21 are that there must not only be a law authoris\"ing deprivation of personal liberty. there n1ust also be a procedure preScribed by law or in other words law must prescribe a procedure. [433-C-F; 434 A-C, H; 435 B]\n\nP. D. Shamdasani v. Central Bank of India Lie/. [!952] 2 SCR 391; Smt.\n\nVidya Verma v. Dr. Shiv Narain [1955] 2 SCR 983 and A. K. Gopalan v . . \\rate of Madras [1950] SCR 88, followed.\n\nArticle 21 operates not merely as. a restriction on executive action against deprivation of personal liberty without authority o.f law, but it also e!Ul~S a check on the legislature by insistitnm that the law, -\"rhich authorises depr.vatJ.on, must e9tablish a procedure. What the proceduro should be is not laid dow'n in this Article, but there must be some procedure and at the least, lt must conf'brm to the minimal requirements of Aft. 22:. \"Law\" within the mean:ng of Art. 21 must be a valid law and not only mUst it be within the legisla!ive competence of the legislature enacting it, but it must also hot be repugnant to any of the Fundamental Rights enumerated in Part III. [435 C-D]\n\nShamblw Nath Sarkar v. The State of West Bengal [1974] I SCR I; and Klmdtram Das v. •Tile State of West Bengal & Ors. [1975] 2 SCR 832, referred\n\n(O,\n\nThe constitutional principle in Eshugabayi E eko v. The Officer Adminfatrating the Governnzent of Nigeria AIR 1931 PC 248 has been accepted by the court<; in India oo part of the law of the land. In our country, even in preConstitution days, the executive was a limited executiVtJ, that is, an executive limited by law and it could act only in accordance with law. [ 438 B, 439 A]\n\nLiversidge v. Sir John Anderson [1942] 2 AC 206, Vhnalabai Deshpande v.\n\nE1nperor AIR 1945 Nag. 8; Jitendranatlt Ghosh v. Tile Chief Secretary to tile Government of Benf!cl, ILR 60: Cat. 364 at 377; In re : Banwarilal Roy 48 Cal.\n\nWeekly Notes 766 M 780; Secretary of State for India v. Hari Bhanji ( 1882) !LR S Mad. 373; Province of Bombay v. Khushaldas Advani [1950] SCR 621 and P. K. Tare v. En1peror AIR 1943 Nag, 26, referred to.\n\nEven prior to thd Cohstitution, the principle of rule of law that the executive cann¢ act to the prejudioo of a person without the authority of law was recognised as part of the law of the land and was uttlformly administered by the cOurts.\n\nIt \\YaSclearly ''law\" in fou; e'• andl otdinarily, by reason of Att. 372, it would have continued to subsist as a distinct and separate principle of la\\-v even after the commencement of the Constitution, until some aspects of' this G principle of Law were expres'sly recognised and given constitutional embodiment in different Articles of the Constitution. [439 B-Cl\n\nWhen this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised -and emlx.1died as a Fundamental Right and enacted as such in Art. 21 it cannot continue to ~ve. a ditinc! and separat~ existence, independently ad apart from this Art1e1e in \\Vh1ch it hat> been g:tven constitutional vesture, unless it \\Vere also enac:fed a~ a statutory principle by some positive law of the State. It cannot H continue in forre under Art. 372 when it is expressly recognised and embodied\n\nas a Fundam<; ntal Right in Art. 21 and finds a place in the express provi; ions of the Co11stitut1on.\n\nWhen the Constitution makers haYe clearly intended\n\nA that thi• right should be subject to the limitation imposed by Art. 359, clause ( 1) and (IA), it would be contrary to all canons of construction tG hold that the same right continues to exist independently, but free from the limitation imposed by Art. 359, clauses ( 1) and (IA). Such a const, uction would defeat the object of the constitution makers in imposing the. limitation under Art. 359, clauses (1) and (1A) and make a mockery of that limita~ tion. The Presidential Order would in such a cat; e become me<iningless and ineffectual.\n\n[439 F-H, 440 A-CJ B\n\nThe only way in which meaning and effect can be given to the Presidential Order supcnding the enforcement of the right of personal liberty guaranteed under Art. 21 is that the principle of Rule of Law, on what the executive cannot inh:rfere with the personal liberty of any person except by authority of la\\v, is enacted in Art. 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty independently and <1part from that Article.\n\nConsequently, when the. enforcen1ent of the right of pen>onal liberty conferred by Art. 21 is suspended by a Presidential Order, the detenu cannot circumvent the Presidential Order and challenge the legality of his detention by falling back on the supposed right of personal liberty based on the principle of Rule of La.w. [440 F-H]\n\nThe executive is plainly and indubitably subordinated to the law and it cannot flout the mandate of the law but must act in accordance with the law. [441-BJ\n\nEastern Trust Company v.\n\nMckenzie Mann & Co. [19151 AC 750; .Rai Sahib Ram Jawaya Kapur v.\n\nThe State of Punjab\n\n(1955] 2 SCR 225 and State of Madhya Pradesh v. Thakur Bharat Singh [1967] 2 SCR 454, referred lo.\n\nThe Pret:iidential Orders issued under Art. 359 clause (1) do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the pO\\Ver of the executive so as to permit it to go beyond \\Vhat is sanctioned by law.\n\nAs soon as the en1ergency comes to an end and the Presidential Order ceases to be operative, the unlawful action of the executive becomes actionable and thei citizen is entitled to challenge it by moving a court of law.\n\n[461 A-CJ\n\nWhilst a Presidential Order fusued under Art. 359, clause (1) is in operation, the Rule of Law is not obliterated and it continues to operate in all its vigour.\n\nThe executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the Jaw. its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the Fundamental Rights specified in the Presidential Order. [461 C-D]\n\nWhen the right of personal liberty based on the Rule of Law which existed immediately prior to the commencement of the Cont>titution has been enacted in the Constitution as a Fundamental Right in . .\\rt. 21 \\Vith the Jimitation that when there'. is a Proclamation of Emergency, the President, may by order under Art. 359, clause (1) suspend its enforcement, that right of personal liberty based on the Rule. of Law cannot continu~ to exillt as. a distinct and jnUcpendent right free from the limitation as to enforcement contained in Art. 359 clause (1). It would be meaningless and futile for the Constitutionn1akers to hive imposed this limitation in regard to enforcement of the righl of personal liberty guaranteed by Art. 21, if th~ detent.J could with impunity, disregard such limitation and fall back on the right of personal liberty based on the Rule of Law. r445 E-Gl Attorney General v. De Keyser's Royal l/otel, [1920] AC 508, discussed.\n\nDhirubha Devisingh Gohil v. The State of Bombay [1955] 1 SCR 691, followed.\n\nOn an application of the maxim expressum facit cessare tacituni, that is, what is expressed makes what is silent cease-a principle of logic and con1mon\n\n• I\n\n• I\n\n• •\n\nI •\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA 2 01\n\n'$ense and not merely a technical rule of construction-the express provision A in Art. 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by' law will necessarily exclude a provision to the same effect to be gathered or implied from the other provi~\n\nsions of the Constitution. [447 D-E, 448 DJ\n\nShankara Raa Badami v. State of Mysore [1969]\n\n3 ~CR I and State {Walsh ond ors.) v. Lennon and ors. 1942 Irish Reports 112, applied.\n\nThe contention that the principle of Rule of Law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent Principle unaffected inter alia by the enactment of Art. 21, is not correct, [451 Al\n\nSlate of Madhya Pradesh v. Thakur Bharat Singh [1967]\n\n2 SCR 454; District Collector, Hyderabad v. M/s. Ibrahim & Co. [1970] 3\n\nSCR 498; Bennet Coleman & Co. v. Union of India [1973] 2 S\\CR 757; Shree Meenakshi Mills Ltd. v. Union of India & Ors. [1974] 2 SCR 398; Bidi Supply Co. v.\n\nUnion of llldia. [1956] SCR 267; Bishan Das & Ors. v. State of Punjab [1962] C 2 SCR 69; State of Bihar v. Kameshwar Prasad Verma [1963] 2 SCR 183; Eshugbayi Eleko v. The Officer Administering the Government of Nigeria AIR 1931 PC 248 and Makhan Singh v. State of Punjab [1964] 4 SCR 797, distinguished.\n\nThe words \"any court\" in Article 21 must be given their plain gramn1atical meaning and must be construed to mean any court of .;:ompetent jUrisdiction which would include the Supreme Court and the High Courts before v:hich\n\nthe specified rights in Art. 359 clause (1) can be enforced by the citizens.\n\n!454-A]\n\nMak/um Singh v. State of Punjab [1964] 4 SCR 797, followed .\n\nWhen the Presidential Order is without any condition, if a detenu contends that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it hns been exercised inconsistently with the cooditions prescribed in that behalf, that it>, it is not in accordance with the provisions of law, such a plea would be barred at the threshold by the Presidential Order. [458\n\nB~J\n\nI'- Quinn &: Leathen [1901] AC 495, State of Orissa v. Sudhansa Sekhar\n\nMisra [1968] 2 SCR 154; i\\fakhan Singh Tarsikka v. The State of Puniab [1964] 2 SCR 797; A. Nambiar v. Chief Secretary [1966] 2 SCR 406 and State of lvlaharashtra v. Prabhakar Pandurang Sangzgiri [1966} 1 SCR 702, distinguished.\n\nThere is no scope for the contention that even if the enforcement of the Fundamental Right conferred by Art. 21 is suspended by the Presidential Order, the detenu can still enforce a t>upposed natural right of personal liberty in a court of law. [459 DJ\n\nHis lloliness Kesavananda Blwrati Sripadagalavaru v. State [1973] Supp. SCR 1 and Golak Nath & Ors. v.\n\nState [1967) 2 SCR 762, referred to.\n\n'!of Kera/a of Pttnjab\n\nIf the positive law of the State decrees that no person shall be deprived of his personal liberty except according to the procedure descriOed by law, the enforcement of such statutory right v.ould not be barred by the Presidential Order.\n\nBut, there is no legislation in our country which confers the right of personal liberty by providing that there shaJI be no deprivation of it except in accordance with law.\n\nOn the contrary. s. 18 of the h1aintenance of Internal Security Act, 1971, enacts that no person in respect of \"'horn an\n\n.order of detention is made or purported to be made under s. 3 shall have any H right to personal liberty by virtue of natural law or common law, if any.\n\nBecause the Indian Penal Code in s. 342 makes it penal to wrongfully confine -any person and the offence of wrongful confinement postulate•3 that no one •hall be deprived of his personal liberty eXcept by authority of law, it cannot\n\nbe said on that account that s. 342 of the Indian Penal Code: confers a right of personal liberty.\n\nThe utmost that can be said is that this section proceeds on a recognition of the right of personal libery enacted in Art. 21 and makes it an offence to wrongfully confine a pe1!>on in breach of the right conferred by that constitu~'ohal provision. [ 459 E-H, 460 A]\n\nThe v.1ords \"for any other purpose\"· in Art. 226 greatly enlarge the jurisdictiou of the I ligh Court and the J-ligh Court can issue a writ of habeas corpus if it finds that the detention of a person is illegal.\n\nIt is not necessary for this purpose that the court !>hould be n1oved by the detcnu.\n\nIt is sufficient if it is n1cved by any person affected by the order of detention. When it is so moved and it exa1nines the legality of the order of detention, it doe') not enforce the right of personal liberty of the dctcnu, but it merely keeps the executive vvithin the bounds of la\\V and enforces the principle of legality.\n\nThe \\1.:ords \"any other purpose'' cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential Order.\n\n[460 B-Gl C 1\\rticle 359 clause ( 1) and the Presidential Order issued under it do not\n\nhave the effect of making unhnvful actions of the executive lawful.\n\n[460..G]\n\n\\Vhen a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or n1urder or law1ches of prosecution for such offence, he cannot be said to be enforcing the Fundamental Right of the detenu or the. murdered roan under Art. 21 so a!i to attract the ihhibition of' the Presidential Order. [461 F-G]\n\nAn application seeking to enforce a statutory obligation i1nposed on the police officer and a statutory right created in favour of an afrested person by s. 57 of the Criminal Procedure Code would not be barred, because what is 6uspendcd by a Presidential Order specifying Art. 21 is the right to move the court for cnforcen1ent of the Fundamental Right conferred by that Article and' not the right to move the court for enforcement of the statutory right to be relea5ed granted under s. 57, Cr ... P C .. [462.G]\n\nIf a positive legal right is conferred on a person b}' legislation and he seeks to enforce it in a court, it 1.vould not be within the inhibition of a1 Presidential Order issu<d under Art. 359, clause (I). [461 G-H]\n\nThis does not mean that \\Vhenever a petition for a writ of habeas corpus comci,: before the court it must be rejected straightaway without even looking at the averme11ts made in it.\n\nThe court would have to consider where the bar of the Presidential Order is attracted and for that purpose the court \\rould have to see whether the order of detention is one made by an authority empc, vered to pass such an order under the Act.\n\nIf it is not, it \\vould not be State action and the petition would not be one for enforce1nent of the right confemd by Art. 21. [463 GH, 464 A]\n\nOnce it is held that the obligation of the executive is not a deprive a person of his personal liberty except in accordance with law, i13 to be found cnly in Art. 21 and no-where-else it must follow necessarily that in challenging the legality of the detention, what the applicant claims is that there is, in fact, by the executive of the right of personal liberty conferred by Art. 2l and that immediately attracts the applicability of the Presidential Order. [460' D-El\n\nIt is the basic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any suitable ordersi. [442 01\n\nH Jol1n Allen's case (1921) 2 Irish Reports 241, referred to:\n\n1\\Ierely by declaring martial la\\v would. not by itself deprive the courts of the power to issue the writ of habeas corpus or other process for the p!\"flteC-- tion of the right of the individual to life and liberty, [443 Aj\n\n• I.\n\n\" • •\n\n' _.,\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA. 203\n\nThe declaration o'f martial law. v,; hich isnot even expressly provided in A. the Constitution, cannot override the provisions of the Articles confering the ri£tt to life and liberty as also of Articles 32 and 226 and unll!ss the right of nn individual to move the courts for enforcement of the right to life and liberty can bi; suspended or taken a\\vay by or under an express provision of the Con5titution, the individual would be entitled to enforce the right to life and liberty under Art. 32 or Art. 226 or by resorting to the ordinary process of l; nv, even during martial law. [443 A-C]\n\n1\\itidc 34 clearly postulates that during the time that martial law is in force. no jn<lici'4l process can issue to examine the legality of an act done by the military authorities or the executive in connection with the ma:nte ... nanco,; of restoration or ordeir. [ 443' .E.-F]\n\nDuring the n1artial law, the courlt; cannot and should not have the power to examine the legality of the action of the military authorities or the executive on any ground \\vhatsoever, including the ground of mala fides.\n\nBut,. if the courts are tc be prevented from exercising such power during martial law that situation can be brought about only by a Presidential Order issued under Art. 359 clause (i) and in no other way, and the Presidential Order in so far as it suspends the enforcement of the right of pe1!:; onal liberty conferred under ~<\\rt. 21 must be construed to bar challenge to the legality of detention in any court including the Supreme Court and the lligh Courts v.hil5t the Presidential Order is in operation. (444 A-CJ\n\nEx parte Milligan ( 1866) 4 Wallace 2; Moyer v. Peabody (1909) 212 US 76 .:nJ Duncari v. Kohann1eku (1945) 327 US 304, referred to.\n\nTtere are t\\vo rights which the detenu has in this connection : one is the Fu1.Camcntal Rig.ht conferreJ by Art. 22, clause (5) and the other is the statutory right conferred by s. 3. Though the content of both these rights is the same, they have distinct and independent e:\"l:istence and rnrely because eO:\"c:-cen1ent of one is suspended, it does not mean that the other also cannot be tr.forced. [463 BCJ\n\nThe .. theory of rcflectiori\" is clearix erroneous. If the riN, i.t conferred un..kr s. 8 v.ere a reflection of the Fundamental Right conferred by Art. 22, clause (5), \\\\'hic!J is the object reflected, must necessarily rt!; ult in the cffacemtrit of the right under s. 8 \\Vhich is said to constitute the reflection.\n\nBut ever: if. Art. 22 clau.;; e (5) were deleted from the Constitution, s. 8 V./ould still rerr..t!'.n on the statute book until repealed by the legislature. The Presidential\n\nOrder would not, therefore, bar enforcement of the right conferred by s. 8.\n\n(463 C.D]\n\nFathi1na Bcebi v. M. K. Ra1'indranatlzan (1975) Crl. LJ. 1164, overrtfted.\n\n :Jt io; true that subscc. (9) (a) of s. 16A does not specifically refer to any court. But, there is inherent evidence in the sub-section itself to show that it is 1r:tended to prevent disdosure of such . grounds, information and materials before a cort. There is clearly an echo of s. 1.23 of the Indian Evidence Act.\n\nSub-section (9) of s. 16A must also be held to be designed to achieve the same int:::ntion as prohibiting disclosure even to a court. Sub-section (9)\n\n(a)· of s. 16A cannot, therefore, be read down so as to imply an exception in favour of disclosureto a court. (469 D, F]\n\nKhudirarn Da.i v. The State of JVest Bengal & Ors. (1975] Z SCR 832; Ler v. Burrel 170 Englth Reports 1402 and Liversidge v. Sir John Anders.n\n\nLl942] AC 206, rei'erred to.\n\n1here C3n be no doubt that Art. 226 is '3. constitutional provision and it errJ?c\"ers the High Court to issue a \\\\'Tit of habeas corpus for enforcement of the Fundan1ental Right by Art. 21 and also for any other purpose. The lrith Ccurt has. therefore; constitutional power to examine th~ legality of detention and for that purpose to inquire and det\"ermine whether the detention is in accordance \\dth the provisions of Jaw. The constitutional power cannot be taken away or abridged by a legislative enactment. If there is any legislative\n\nSUPREME COURT REPORTS [1976] sUPPLEMENTARY\n\nprovision which obstructs or retards the exercise of this constitutional power it. \\Vould be void. It is, therefore, clear that if it can be sho\\vn that sub section (9) (a) of s. 16A abridges or whitles down the constitutional power of the }Iigh Court under Art. 226 or obstructs or retards its exercise, it Would be void as being in conflict with Art. 226. If there is a legislative provision \\Vhich prohibits disclosure. of the grounds, information and materials on which the order of detention is bated and prevents the court from calling for the production of such grounds, information and materials, it 'voulJ obstruct and retard the exercise of the. constitutional power of the liigh Court under Art. 226 ahd would be void as offendrng tbat Article. [470 Q.D. 471 A-B, E.F[\n\nflari Vishnu Ka1nath v. Syed Ahn1ad Ishaque & Ors. l1955] I_ SCR 1 i04; Durga Shankar Mehta v. Thakur Raghuraj Singh & ()rs. (1955] 1 SCR 267; Raj Kruslzna Bose v. Binod Ka111111go & Ors. ll954] SCR 913; The Kerala Education Blll 1951, [1959] SCR 995; Prem Chand G'arg v. Excise Comn1is sioner, Cl.P. Allahabad [1963] Supp. 1 SCR 885; Khudira1n Das v. State of\n\nWest Bengal [19751 2 SCR 832; Biren Dutla & Ors. v. Chief l'onzn1issfoner of Tripura & Anr. [1964] 8 SCR 2:9-5; M. M. Damnoo v. J & K Stale [1972] 2 SCR 1014 and A. K. Gopafan v. State of Madra,· [1950] SCR p. 80, referred to.\n\nA rule of e\\'idence merely determines what shall be regarded as relvant and admissible material for the purpo.se of enabling the cou11 to con1e to a decision in the. exercise of its jl1risdiction and it does not in any way detract froij:l or affect the jurisdiction of the court and it cannot, in the circum+,; tance<;, be violative of Art. 226.\n\nBut in order that if should not fa11 foul of Art. 226, it niust be a genuine rule of evidence. If in the guise of enacting a rule of evidence the legislature in effect and substance disable anJ in1pedes the lligh Court from effectively exercising its constitutional po\\ver under Art. 226, such an enactment \\vould be void.\n\nIt will be colourable exercise of legislative power.\n\nThe legislature caunot be permitted to violate a constitutional provit>ion by en1ploying an indirect method. If a legislative provision, though in form and outward appearance a rule of evidence, is in substance and reality something different, obstructing or impeding the exercise of the jurisdiction of the High Court under Art. 226, the form in which the legislative provhion is clothed would not save it from condemnation. r474 BC]\n\nIt is well settled that in order to determine the true character of a legislative provision, the court must have regard to the subttance of the provision and not its 1 forn1.\n\nSub-sectio!n (9) (a) of s. 16A is in form and outward appearance a rule of evidence which ays that the grounds, information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-section (3) is bru.; ed shall be treated as confiJential and shall be deen1ed to refer to matters of State and be against the public interest to disclose.\n\nSub-s. (9) (a) of s. 16A assumes a valid declaration under sub-!;. (2) or sub-s. (3) and it is only when such a declaration has bee11 made t11at sub-s, (9) (a) of s. 16A applies or in other words, it is only in cases \\vhere a person is detained in order to deal effectively '\\Vith the emergencv that the disclosure of the. grounds, information and matedats is prohibited by sub-sec. (9)(a) of s. 16A.\n\n[474 E-F, 475 B-C. E-F]\n\n-0 The n1le enncted in sub-s. (9) (a) of s. 16A bears close analogy to a rule\n\nof conclusive presumption and in the circumstances, it must be regnrded as a gehuine rule of evWdence. [476 D]\n\nIf the grounds, information and materials have no rel3.tion to matters of State or they cannot possibly be of such a character that their cl0t,; ure would injure public interest, the leslatureJ cllnndt, by merely employing a legal fiction, deem thern to refer to matters of State which it \\\\rould be against public interest to discl.ose and thereby exclude them from the judicial ken.\n\nThat would not be a genuine rule of evidence : it would he a colourable legislative device-a fraudulent exercise of power.· There can be no blanket ban on disclosure of the grounds, information and materials to the High Court of this Court, irrespective of their true character in such cases. [476 E.F)\n\n• I\n\nt I\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA 205\n\nM. M. Damnoo v. State of J & K [1972] 2 SCR 1014; A. K. Gopalan v.\n\nA Stale of Madras [1950] SCR 88 and Liversidge v. Sir John Anderson [1942] AC 206. referred to.\n\nThe grounds,,.information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under s. 123 and hence the rule enacted in sub-section genuinely partakes of the character of a rule of evidence. Sub-s. (9) (a) of t. 16A enacts a genuine rule of evidence <tild it does not detract from or affect the jurisdiction of the High Court under Art. 226 and henc~ it cannot be successfully assailed as invalid. [476 G~H, 477 A]\n\nThere is no \\\\.'arrant for reading down sub-section 9A of s. 16 so as to imply a favour in favour of disclosure to the court. The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under Art. 226 and is accordingly not void. [477, C-D] If the declaration under sub-section (2) or sub-s. (3) is invalid, sub-\n\ns. 9(a) of s. 16A will not be attracted on the grounds of information and C materials on which the order of detention is made, would not be privileged under tub section. 'Therefore, ,, sub-secttOn 9(a) of s. 16A enacts a genuine rule of evidence. [477 A-BJ\n\n[His tordship thought it unnecessary to go into the question of construction and validity of s. 18 of t!le Maintehance of Internal security Act.]\n\n[464.AJ\n\nAn obiter cannot take the place of the ratio. Judges are not oracles. It hasi no binding effect and it cannot be regarded as conclusive on the point,\n\nwhen considering the observations of a High judicial authority like this Court, the greatest pot.; sible care must be taken to relate the observations of a Judge to the,. precise issues befc•re him and to confine such observations, even though expressed in broad terms, in the general compass of the question before hin1, unless he makes it clear that he intended h.itl remarks to have a wider ambit. Jt is not possible for Judges always to express their judgments so as to exchH.le entirely the risk that in some subsequent caue their language may be misapplied and any att-.npt at such perfection of expression can only lead to' the opposite result of uncertainty and even obscurity as regard the case in hand. [455 F-H, 456 11..CJ\n\nH. }[. Maharajadhiraja 'J..fadhav Rao Jiwaji Rao Scindia Bahadur' & Ors.\n\nv. Union of flldla [1971] 3 SCR 9, applied\n\nPer H. R. Khanna, J. (dis!enting)\n\nArticle 21 cannot be conidered to be the t; ole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law. [266 F, 3021 HJ\n\nSanctity of life and liberty was not something new when the Constitution \\Vas drafted. It represented a facet of higher value!· which mankind began to cherish in il:ti evolution from a state of tooth and claw to a civilized existence.\n\nThe principle that no one shall be deprived of his life and liberty without the authority cf law was not the gift of the Constitution. It \"'as a necessary cQl'Ollary of the concept relating to the sanctity of life and liberty, it existed and was in force before the coming into force of the Constitution. [268 C~D]\n\nEven in the absence of Art. 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. That il; the essential postulate and basic assumption of the Rule of Law and not of men in all civilised nations.\n\nWithout such sanctity of life and liberty,. the distinction between a Lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be H deprived of his life or liberty without the authority of Jaw is rooted in the consideration that life and liberty are priceless post; es&ions which cannot be made the plaything of individual whim and caprice and that any act which has\n\n. - -·~\n\n206 SUPREME COURT REPORT'°i\n\n[\\976) SUPPLEME!>ITARY\n\nthe effect of tampering \\Vith life and liberty musi receive substenance tfc:n anJ sanction of the laws of the land. Article 21 incorpor.1tes an essent:al aspect of that principle and makes it part of the Fundamental Ri2hts guara:r~ teed in Part Ill of the Constitution. It doc!> not, however, fol!ow frcw the above that if Art,, 21 had not been drafted and insertc'd in Part III, ia that event, 1t \":ould have been permissible for the State to deprive a p:':'3:n1 of hi;; life or liberty \\Yithout the authority of la\\V.\n\nThere arc no case:; to sho\\V thn.t before th~ coming into force of the Constitution or in coun; r:s under. Rule of La\\V v.-bcre there is no provision corresponding to 1\\r~.21, a. clai:n \\v:is ever sustained by the court~; that the State can deprive a person cf\n\nis life er liberty ithout the authority of law. [302 H, 269 H, 270 A.CJ\n\nOl!nstead v. United !S:c<s 277 U.S. 438 (_ 1928); Ja111cs Somn1ersett's C2.<; C (1772), 16 Cr. Pract. 289;-Fabrigas v. Jr.fostyn, 1 Co\\Vp .• 161; Anz.?er Khan's case 6 Bengal La\\v Reports 392; l::sliu.t::ba)'i Eleko v. Officer Ad111inisterin:; the\n\nGocTJ11ne11t of Nir; eria, AIR (1931) P.C. 248; Prabhakar Kcshed Tare '-~ Ors. v. En1peror AIR (1943) N::i;. 26; Vi111lahai D.:shpande v. Eniperor A.l.R. 1945 Nvg. 8; Jitcndranath Ghosh v. 1T/1e Chief Secretary to th~ Go1er111t1enr of'Benga! ILR 60 CaL 36.t-; In re: Bali\\\\\"arf Ul Roy'-~ Ors. 48 C\\VN 766; Bidl SuppJy Co. ¥. The U11io11 of India &: Ors. [1956] 5CR 267 and B.11lu:\"-1har Jllath v. The Co1111nissioner of InclJn1e-tax, Delhi & Rajasthan '-~ Anr. [1959] Supp, (I) 528, r<ferreu to.\n\nThe \\•iew, that \"'hen rigl\":t to \"enforce \"the right under Art. 21 is \"uspo;;'!n.!2d, the result \\V'ouJd b~ that there wculJ be no remedy against deprivatiun of a person's life or Iibrty by the St<ltc el-en though such deprivation is \\vitl:.:n1t the authority of l::nv ot e\\:en in flagrant violation of the provi$ion~ of ]av: i~ hot accetitablc. - 1-he facts that the framers of the Constitution made an aspect cf suCh right a part of the Fundamental Rights did .not have the cIT.::c~ of exterminating the indepcncnt identity of suc.h. right and of m::iJ • .ing: Art. 21 to l; c the sole reposit_orv of that richt. Its real effect was to ensure th:.:.t a Ja\\V under which a person can be deprived of his. life or pcrsohal liberty shou1J. prescribe a procedure for such deprivation or such l:r~ should be a valid l::nv not violative of Fundamental Rights guaranteed by Part III of the Constitution.\n\nRecognition as Fundamental Right of one aspect of the pre-constitutlon:ll right ·\n\ncannot have the effect of making things Jess favourable so far a~ the san.:tLY oi' life and personal liberty is concerned compared to the pcsition if ah apect of such right had not been recognised a., Fundamental Right becatL<>e of tl:.e vulnerability of Fundamental Rights accruing from Art. 359, [271 D-GJ\n\nA. K. Gopalan v. State of ldadraS [1950] SCR 88 and Dhirubha Deifair.; h Go/iii v. The State of Bombay [1955] I SCR 691, referred to. '\n\nAfter the earning into force of the COD:.titution a detenu ha3 two reml!Ji-~'l. one under Art. 226 or Art. 32 of the Constitutionand another under s. 4:11 of the Cod~ of Criminal Procedure. The remedy uhder an earlier statut:Jry provision would not get obliterated because of the identical remc<ly by a subsequent Constitutional provision and that the t\\VO can co-exist without 1-os'.nt: their independent iJentity.\n\n[272 D-EJ\n\n, Maklian Singh v. Stale of Punjab [1964] 4 SCR 797, applied.\n\nDhirubha Devisingli Gold! v. 1'he State \"nf Bon1bay [1955] 1 SCR 691, not invokable.\n\nThe principle that no one .shall be deprived of hi~ 1ife or liberty \\\\'i•hc:ut tile authority of law sterng not merely from the ba!'ic ass.umotion in every civilised society governed by the Rule of Law .,:>f I.he Sanctity of life a-r-4 liberty, it flows equally froil\\ the fact that under our penal laws noi on<J i:i empc\\\\o>ered to deprive a, person of his lif'e or liberty \\V'ithout the authority oi ~~ ~2a~3M ·\n\n1 he fact that penat laws of India answer .to the description of !he v.od \"law\" v.hich has been used in Art. 21 v.:ould not milit;:1te ngaint the infcren:~\n\n• I\n\n• •\n\n...\n\ni 1\n\n• •\n\n; f .\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 207\n\nthat Art. 21 is not the sole repository of the right to life or Personal Ubcrty. . A Nor is it the eil'ect of Art.. 21 that pnal laws get merged in Art. 21 because\n\nof i'.he fact that they constitute \"law\" as mentioned in Art. 21, for were it so the suspension of the right to move a Court fOr enforcement of Fundam.ntal Right contained fu Art. 21 would also result iv, suspension of the r.g. t ·, o move any court for enforcement of penal lav.s.\n\nAt lne time the Constitution came into force, the l'egal position was that no one could be deprved of his life or liberty without the authority of law. [273 A-C}\n\nDirector of Rationing and Distribution v. 1The Corporatfon of Cclcutta & Ors. [19611 I SCR 158, relied on.\n\nB it is diffk:ult to accede to the eontention that because of Art. 21 of the Constitution, the law which was already in foice that no c.ne could be deprived of his life or liberty '\\\\ithout the authority of Jaw was: obliterated and ceased to remain in force. No rule of construction or interpretation \\Varrants such an inference. The constitutional recognition of the ren1e<ly of _writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas . corpus. Section 491, oi' the Code of Criminal Prccedure continued to be a\n\npart of that Code till that Code wa_s replaced by he new Code.\n\nAlthough.\n\nC the ren1edy of writ of habeas corpus is not nC?.w avatlable1 under the new Codei of Criminal Procedure. 1973. the same remedy is still available under Art. Z26 of the Constitution. [273 H, 274-A-CJ\n\nl1>fo.kluin Singh v. State of Punjab [1964] 4 SCR 7CJ7, relied on.\n\nAccording to the law in force in India before the comin:j into force of th_e -Constitution, no one could be deprived of his life and personal liberty without\n\nthe authority of law. Such a claw continued to be in force after the coming D into force of the Constitution in view of Art. 372 of the Constitution. [303\n\nA-BJ\n\nThe word \"'law\" bas been used in Art. 21 in the sense of State made law and not as. an equivalent of law in the abstract or general sense embodying the\n\n~ priru:lpres\" of natural justice. \"The procedure established by law\" means the\n\nprocedure established by law made by the State, that ig to saY, the Union Parliament or the Iegis1atures of the States.\n\nLaw meant a valid and binding taw under the provi!ions of the Constitution and not one infringing Fundamental Rights.\n\n[266 C-DJ A. K. Gopalan v. Stat< of Madras [1950) SCR 88, explained.\n\n\"I1le effect of the suspension of' the ril!ht to 'move any court for the chforce~ ment of the right cenferred by Art. 21 is that when a petition .is' filed in a .court, the court would have to proceed upon tha basi~ that no' relianC:e can be\n\nplaced upon that Article for obtaining relief from the coun during the period of emeri:cncy. - [266 D-'-EJ '\n\nStartling consequences would follow from tho acceptance of the contetion that consequent upon the issue of the Presidential Order in question, no one. , can seek relief from courts during tho period of emergency, against deP::ivation\n\n- of Jifa and peroonal liberty. If two c0nstruct1ons. of PreSidentiat Order v.ere\n\npos'!l'.ibfe. the court shtiuld lean ih favour of a view which d0es not result in such coru:\"::quences. The construction which does nOt: result in such consequences\" is not only possible. it is also precminently possible. {303 B-CJ G\n\nEqually well..e5tablished is the\"t rule oft construction that if there be a cohfUct\n\n- between the municipal law on one side and the international 1aw or the provisions of any treaty obligations on the other, thei courts \"'Ould give effect t.CJ\n\nmunicfral law. If. however. two constructions of the municipal Jaw are po5\"' sible. the courts should lean in favour of adopting such cOnstruction as v.ouJJ\n\n- make the provisions of the municipal law to be in harmony with the international -1aw or treaty oblitations. While dealinJJ; with th~ Presidehtial Orde\" und.::-r H Art .. 359(1) snch a eonstruction shoulJ be adopted. as would. if pcs.s.fble. not 1, rin_y it in conflict _with tho aOOYe Articles 8 iind 9 of U.N_. Charter. It i.'i\n\n- plaid' that such a construction is not only possible, it i'i also pre:eminntly\n\nreasonable, The Presidential Order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribuhals. for acts violating bask'l right of personal liberty granted by Jaw. 1276 A-B, 277 D-El '\n\nCorocraft Ltd. v. Pan A.n1erican Airways Inc. [1969} 1 All. E.R. SO; Article 51 of the Constitution, H. H. Kesavanonda Bharti v. State of Kera!a [1.9731 Supp. SCR I, referred to.\\\n\nThe argument that suspending the right of a person to move any court for the enforcemeht of right to Jife and, personal liberty is done under a constitutional prevision and, therefore, it cannot be said that the resulting situation would tr.can the absence of the Rule of law, cannot stand close scrutiny for it tries to equate illusion of the Rule of LaW with the rea.Jity of Rule of Law.\n\nA. state. of hegation of Rule of Law would inot cease to be such a state because of the fact that such a state of negation of Rule of Law has been brought about by a statute. Absence of Rule of Law \\vould neverthele% be absence of Rule of Law ewn though it is broueht about by a law to' repeal all laws.\n\nThe Rule of Law requires something more than the legal principle ''quad prin~ c:ipi placuit legis habet vigorem.\" [277 E-H, 278 A-B]\n\nFree<lom under law is not absolute frecdon1.\n\nIt has its own limitations in its own interest, and can properly be described as regulated freedom. 'Ihe truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free.\n\nThe need of liberty for each is necessarily qualified and conditioned by the need of libe1ty for all. Liberty in the State, or legal liberty, is never the absolute liberty of all, but relative and regulated liberty. Rule of Jaw is the antithesis of arbitrariness.\n\nThe rule of law has come to be regarded as the mark of a free society.\n\nIts content is different in different countries.\n\nIt is, however, identified with the liberty of the individual. It seeks to maintain a balance between the opposing .notions of individual liberty and public order. [267 C--D; 268 B-C]\n\nln a long chain of authorities the Supreme Court has laid stress upon the prevalence of the Rule of Law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law. There is no valid reason to depart from the rule laid down in those decisions. [278 E. 281 E. 303 C--Dl\n\nRai Sahib Rant Ja1t'aya Kapur & Ors. v. The State of Punjab [1955] 2 SCR 225: State of Madhya Pradesh & Anr. v. Thakur Bharat Singh [19671 2 SCR 454; Chief Settlement Con11nissioner, Rehabilitation Departn1ent, Punjab & Ors. etc. v. Oni Parkash &: Or.<:. etc. [1968] 3 SCR 655; District Collector of Hyderabad & On v. Mis. Ibrahim & Co. etc. [1970] 3 SCR 498; Bennett Coleman & Co. and Ors.. v. Union of India [197312 SCR 757; Shree Meenakshi Mills Ltd.\n\nv. Union of India [1974] 2 SCR 398; Naraindas Indurkhya v. The State of\n\nMadhya Pradesh ATR 1974 SC 1232; Director of Rationing and Distribution\n\nv. The Corporation of Calc11tt11 &: Ors.· [1961] 1 SCR 158; Bislian Das & Ors. •.The State of Punjab & Ors. [1962] 2 SCR 69;-S. G. laisinghani v. Union of India & Ors. [1967] 2 SCR 703; rJnited States v. Wunderlick 342 US 98; John Wilkes's case (1770) 4 Burr. 2528 at 2539 and Smt. Indira Nehru Gandhi\n\nv. Shri Raj Narain: [19761 2 SCR 347, referred to.\n\nAccording to Art. 21. no one can be deprived of his right mpersonal liberty except in accordance with the procedure estabHshed by law. Procedure for the exer&ise of power of deprivin~ a person of his right of personal liberty . necessarily vostulates the existence of the substantive power. When Art. 21 is in force, law relating to deprivation of life and personal liberty mst provide both for the substantive power as well as the procedure for the exercise of such power. When right to move in court for enforcement of right guaranteed by Art. 21 is suspended, it would have .the effect of ?ispensing with t!J.e necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life and personal liberty,. it. cannot have te effec~ of permitti.ng an authority to deprive a person of his life or peronal ltberty without the existence of such substantive power. [303 D-Fl\n\n• I\n\n' I\n\n• ,\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA 209\n\nThe difference in phraseology of the Presidential Order dated June 27, 1975 A and that of the earlier Presidential Orders would not, however, justify the conclusion that because of the new Presidential Order dated June 27, 1975, a detention order need not -comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be •zhallenged in a court on the ground that it does not co1nply with the require~ ment of law for preventive detention if ground for such challenge be: permissible in spite of and consistently with the new Presidential Order. The effect of the 1:hange in phraseology would only be that such of the observations made by li this Court fn the context of the language of the earlier Presidential Orders cannot now be relied upon.\n\nReliance, hov./ever, can still be placed upon the observations made in various cases .,-rhich were not linked with the phraseology of the earlier Presidential Orders.\n\n[263 F-HJ\n\nMaklian.Singh v. State of Punjah ll964} 4 SCR 797; State of Ma/i.iras//tra \\' .\n\nPrabhakar Pandurang Sangzgiri & Anr. [1966] 1 SCR 702 and Dr. Rani Manohar Lohia v. State of Bilwr & Ors. [1967] I SCR 709, referred to.\n\nA Presidential Order under Art. 359(1) can suspend during the period !)f C emergency only the right to move any court for enforcement of the Funda mental Rights n1entioned in the order.\n\nRights created by statutes being not Fundamental Rights can be enforced during the period of emergency despite the Presidential Order. Obligations and liabilities flowing from statutory provi\n\nsions likewise remain unaffected by the Presidential Order. Any redress sought from a court of law on the score of breach of statutory provision would be outside the purvie\\v of Art. 359(1) and the Presidential Order made thereunder.\n\n1303 G-H]\n\nIJ• Ana.ndan Nan1biar & A11r. v. Chief Secretary, Govt. of Madras [1966J 2 SCR 406 @ 410, refmed to.\n\nClause (IA) of Art. 359 protects laws and executive actions from any attack on validity on the score of being violative of the Fundamental Rights mentioned in the Presidential Order in the same \\vay as Art. 358 protect., the laws and executive actions from being challenged on the ground of being vioJaw tive of Art. 19 during the period of emergency. The language of clause (lA) of Art. 359 makes it clear that the protection which is afforded by that clause E is to such law or executive action as the State would but for the provisions contained in Part Ill of the Constitution be competent to make or take. The word \"competent\" has a significance and it is apparent that despite the Presi dential Order under Art. 359(1) in the case of executive action the competence of the State to take such action \\vould have to be established. Such competence would, however, be judged ignoring the restriction placed by the provisions of\n\nPart lil of the Constitution. To put it in other words, clause (I A) of Art. 3 59 does not dispense. with the necessity of competence to make law or take exccu F. tive action.\n\nBut 1t would still be necessary to establish the competence de hors the restrictions of the Fundamental Rights.\n\n[283 D-E] Though, there is nlJ reference to substantive power in Art. 21, it \\Vonld cover both the existence of the substantive power of depriving a person of his iife aud personal liberty as 'veil as the procedure for the exercise of that power. ~284-Dl t.\n\nThe :suspension of the right to move a court for the enforccn1ent of the right ontained in Art. 2 l cannot have the effect of debarring an aggrieved G person from approaching the courts with the complaint regarding Jeprivation of !ife or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The presupposition of the existence of substantive power to deprive a person of his life or personal liberty in Art. 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of Art. 21, the suspension \\vould also dispense with the necessity of the existence of the substantive power.\n\nH The coexistence of substantive power and procedure established by law for depriving a person of his life and liberty which is implicit in Art. 21 would not lead to the result that even if there is suspension of the right regarding\n\n16-833 SCI/76\n\nprocedure, suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that propositi?n. The uspesion of the right to move any court for the enforcement of the. nght contan:e? in Art. 21 may have the effect of dispensing with the\n\nneces1ty of prescribing procedure for the exercise of substantive power to ·:lepnve a person of his life or personal liberty, it can in no case have the e.ffect of . permitting a~1 authority to deprive a pefi; On of his life or personal liberty wrhout the existence of substantive pov .. r, The close bond which is lhere between the existence of substantive power of depriving a oerson of his !ifc or personal liberty and the procedure for the exercise of that pO\\Ver~ if\n\n:he right contained in Art. 21 were in operation, would not neces<; at iiy hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive pov:er would not do away with the compulsion regarding the existence of that po\\ver. [284\n\nG--H, 285 A-G]\n\nln r:onsidering the effect of Presidential Order suspending the right of a person to move any court for enforcement of right guaranteed by Art. 21, the words \"except nccording to procedure established by la, v\" should not be treated to be synonymous with \"save by authority of law\". [285 Dl\n\nA Presidential Order under Art. 359(1) cr;_nnot have the effect of suspending lhe right to enforce rights flowing from statutes, nor can it bar <iccess to the rourts of person<; seeking redress on he s:ore of contravention of statutory\n\nprovision~. Statutory provisions are enacted to be complied with and it is not permissible to contravene them.\n\nStatutory provisions cannot be treatt>d a~ mere piolls exhortations or words of advice which n1ay be adjured or diQobeycd with impunity.\n\nNor is r:ompliance with statutory provisions optional or at the sufference of the official concerned. It is the presence of legal sanctions which rl.istinguishes positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for ome of its nrecept~.\n\nA legal sanction is usunlly thought of as a harmful consequence to induce compliance with law.\n\nNoncomplince with statutory provisions entails rPrtain legal consequences.\n\nThe Presidential Order cannot stand in the wnv of the court.;; giving effect to those consequences.\n\nTo put it differently, the Pxecutive authorities exercising po\\ver under a statute have to act in conformity with its provisions and within th\" limits set out therein. \\Vhen a statute deals v, rith matters affecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the statute would be circumscribed by i~\n\n-provision~ and it would not be permissible to invoke some indefinite general po\\vers of the executive. f286 D-Hl\n\nAttorney General v. De Keyser's Royal llotcl Ltd. f19201 AC 508: Jaicl1and Lall Sethia v. State of WPsf BPnf!al f19661 Supp. SCR 464; Dur[:adas Shirali v.\n\nUn; on of lndia & Ors. f19661 2 SCR 573 and G. Sadanandan v. State of Kera/a & Anr. [19661 3 SCR 590, referred to.\n\nArticle 226 under which the High Courts can issue writs of habeas corplL'I is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the Hi.h Court to issue writs in the nature of habeas corpus during the period of emergency.\n\nSuch a result cannot be brought about by putting some particular construction on the Presidential Order in question. [288 B. 304 A--B]\n\nGreene v. Secretary of State for Horne Affairs [19421 AC 284, Secretary of State for Home Affairs v. O'Brien [1923] AC 603 (609) and Rai Sahib Rani Jawaya Kapur & Ors. v. The State of Punjab [1955] 2 SCR 225, referred to.\n\n, i'\\rticle 226 of the Constitution confers power upon the Hi,!?h Courts of i:-; suing appropriate writs in case it is found that the executive orders are not in ronformity with the provisions of the Constitution and the laws of the lnnd.\n\nJudicial scrutiny of executive orders with a view to ensure that they are not Tiolative of the provisions of the Constitution and the laws of the land being an integral pa.rt of our constitutional scheme. it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted-by the J>rovi-\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA\n\n2 I 1\n\n-sions of the Constitution and th~ !av.is made in accordance with those provisions.\n\n[290 F-<J]\n\nThere is a clear d, emarcation of the spheres of function and power in our 12onstitution. The ac1; eptance of the contention advanced on behalf of the\n\nappellants would mean that during the period of en1crgency, the courts \\Vould\n\nbe reduced to the position of being helpiess spectators even if glaring and blatant instances of deprivationof life and pcrso11al liberty in coritr2vention\n\nof the statute arc brought to their notice.\n\nIt would also mean that whatever B inay be the law passed by the legislature, in the raattcr of life and personal liberty of the citizens, the executive duri;1g the priod of en1ergency would not be bound by it r.nd would be at liberty to ignore and contravene it.\n\nIt is obvious that the accepance of the contention would result in a kind Of :; upremacy of the executive over the legislative and judicial organs of the State, and thus bring abut a con1jtitutional imbal<).nce which perhaps was never in the contemplation of the framers of the Constitut:_on.\n\nThe fact th::t the government which controls the executive has to enjoy the confid..?nce of the legislature does not cl ::tract from the above condu-:ion. The executive under C our constitutional sc:::wme is not merely to enjoy the confidence of the majority 'in the legislature, it is also bound to carry out tb:J lcgislaLive intent as n1anifcsted by the statutes passed by the legislature. The Constitution further contemplate5 that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the Courts. [290 G-II, 291\n\nA-CJ No one can deny the power of the State to assume vast po¥.1ers of the detention in the interest of the securhy of the State. It may indeed the necessary to do so to meet the peril facing the nation. The consideration of security of the State must hon'e a primacy and be kept in the forefront compared to which the interests of the individuals can only take a• secondary place. The 1notto has to be \"who lives, if the country dies.\" Extraordinary powers are always assumed by the Government in all countries in times of e1nerc::rcncy because of the extraordinary nature of the emergency. The exercise of the power of detention, it is well-settled, depends uron the subje::tive satisfacti0ri of the detaining authori~ and the courts can neither act as courtg of appeal over the decisions of the detaining authority ner can they substitute their own opinion for that of the authority regarding the necessity of dtention. There is no antithesis between the power of the State to detain a person without trial under a la\\v of preventive detention and the power of the court to examine the legality of such detention. In dealing with an application for a \\Vrit of habeas corpus, the courts only ensure that the d'°triinin'! authoritir.~ flct in accordance wi1Ji the law of preventive detention. The impact upon the individual of the massive and comprehensive powers of preventive detention with which the ad1ninistrative officers are armed has to be cushioned with legal safeguardt; against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become me<lnin_dess.\n\nThe C'hances of an innocent peron being detained under a Jaw providing for preventive detention on the subjective sa-tisfaction of an administrative authority are much greater compared tio the po<:sibilitv of an innocent person being convicted at trial in a court of law. [291 F-H, 292 A. D-E]\n\nf Rex v. Halliday Ex-parte Sadiq [1917] A.C. 260 @ 272 and Liversidge v. • Sir John Anderson [1942] A.C. 206 referred to G The Presidential Order of June 27, 1975, did not affect maintainability of the habeas corpus petitions to question the legality of the detention orders and\n\nsuch petitions could be proceeded with despite that order. [293 F] Pl'inciple in Ja1nes Com1nersett's case 1772 State Trials p. 1, referred to.\n\nA law of preventive detention is not punitive but precautionary and preventive. The power of detention under such law is based on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence. [294 Fl A court cannot go behind the truth of the alleged facts. If the material is germane to the object for \\vhich detention is legally permissible and an\n\n212 SUPREi\\.IE COURT REPORTS\n\n[1976] SUPPLEM£NTARY\n\no.rder for detention is made on the basis of that 1naterial, the .:ourts cannot sit as .a court of appeal and st1bstitute their own opinion for that of the authonty concerned regarding the necessity of detention. l295 E-FJ\n\nSharpe v. Wakefield [1891j A.C. 172 at p. 179 and Ross v. Papadnpoi!o.1 119581 2 All. E.R. 23 (on p. 33), referred to.\n\nMalice in fact is quite a different thing: it n1ea11<.; an actual 1nalicious intention on the part of the person \\.Vho has Jone the wrongful act, a:i.d it\n\n1nay be, in proceedings based on v..Tongs independent of contract, a very material\n\ningredient in the question of \\Vhether n valid cause of action can be stated. [26J\n\nC-DI\n\nSliu!rcr v. Shields [1914] A.C. 808 and Hh11t :Varh v. Sr1uc of !Ve.it Bcngo/, 11974] 3 S.C.R. 315, referred to.\n\nIn view of the Presidential Order suspending the right of a per::; on to n10Vc any court for enforcement of specifk'<l Fnnda111ental Rights including the one under Art. 22(5), it may \\Vi1h plausibility be [lfgned that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidenial Order on lhe score of vio!ation of\n\nArt. 22(5).\n\nThe Presidential Order \\.Vould, hO\\\\'evcr, not stanJ in the \\V:n ,, f the infinnity of th? v<igucncss of grounds of detention because of t11C\n\ncontravention of s. 8{1 J of Maintenance of Jntern:1I Securitv r\\ct. 1971. [297\n\nE-F] .\n\nE\\ery law providing for preventive detention contains certiin procedural\n\nufcguanls. It is imperative that there should be strict compliance \\vith the requirements of those procedural safcgtmrds to sustain the validity of detention.\n\nDetention \\Vithout trial results in serious inroads into pcrsonril liberty of an individual.\n\nIn such cases it is essential 10 ensure that there is no deviation fron1 the procedural s~1feguards provided by the statute. In the matter of even .1 criminal trial, it is procedure thnt spells out much of the difference betv.'ccn the rule of law and the rule by \\Vhim and caprice.\n\nThe need for strict adherence to strict procedural safeguards is much greater \\vhen we arc dealing with preventive Jetention \\.Vhich postulates detention of a person even though he is not found guilty of the eomn1ission of an offence.\n\nTo condone or allo\\v\n\nrclax;~:ion in the 1nattcr of compliance \\vith proce<lur:.1! requirements \\vould necessarily have the effect of practically doing nvny with. even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to prevention detention.\n\nThe history of personal liberty is largely the history of insistence upo11 procedure. lt \\vould, therefore, be wholly inappropriate to countenance .ind laxity in the matter of strict compliance \\vith procedural requiren1ent<; rn:scribed for preventive detention. [297 G-JI, 298 A-Bl\n\nOnce suhstnntial <lisqt1ieting doubt<; arc raised by the detenuc in the mind\n\n• I\n\n• 1\n\nuf the court regarding the validity of hi'> detentior, i, it \\vonld be the bounden • duty of the State to <lipcl those doubts by placing sPfficicnt material before the court \\vith a vie'v to satisfy it about the validity of the detention by filing ~\n\n:1 good return.\n\n\\299 C-D] ·\n\nl\\ishori Mohan v. Slate of l..f''1-xt He/If.fa/ AlR 1974 SC 1749: Ki!lg E111peror\n\nl'. Sihnath Banerii 71 \"IA 241 nnd G. Sada11011da11 v. State of l\\era/11 (~ An,· .. (1966.1 3 SCR 590. referred to.\n\n[His Lordship did not express any opinion on the question or the \\'a\\idity of:;. 16A(9) of the faintenance of Internal Security Act.j 301-A\n\n'The appropriate occasion for the High Court to go into the cos1itutional validity of s. 16A(9) and extend all judicial scrutiny in \\\\Tit<> of habeas corp11_1 v.-ould be \\.Vhen the State or a dctenu whoever is aggrieved upon, con1es in :1ppenl against the final julilgn1ents in any of the petition5 pending in the High Co111i<>.\n\nThe \\\\'hole matter \\vould then be at large before the Suprcnte Court and it \\voul<l not be inhibited by procedural or other constraints. lt \\\\'Oul<l not be pern1issible or proper for the Supreme Court to short circuit the wh0lc\n\n\\ .\n\n• •\n\nAOOL. DIST. MAGISTRATE V. S. S. SHUKLA 213\n\nthing and decide the n1atter by bypassing the l!igh Courts who are seized\n\nof the matter. [302 F-G and 304 D-EJ\n\nSection 18 of the Maintenance of Internal Scurity Act would not detract from the view that Art. 21 is not the sole repository of the right to personal liberty.\n\nThe principle that no one shall be deprived of his life and personal liberty without the authority of la\\v is also an essential facet of the R.ule of law.\n\nSection 18, therefore, cannot be of much assistance. 1he vie\\.v that s. 18\n\n~ould have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention is not correct.\n\nThere ha~ been no amendment of s. 3 of the Act. [274 D-Fl Section 18 cannot be construed to mean that even if an order for detention is made on grounds not \\vanantcd by s. 3 of tile Act, it shall be taken to be an order under s. 3 of the Act.\n\nApart from the fact that such an inference is not pern1issib!e on the language of s. 18, the acceptance of this vi;:w would also render the validity of s. 18 open to question on the ground that it suffers fron1 the vice of excest.ive delegation of legislative power. The legislature is bound to lay do.,.rn the legislative policy by prescribing the circu1nstances in which an order for detention can be made. It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made. To do\n\n~10 \\vould be tantamount to abdication of legislation function for in uch an event it would be open to the dct<iining: authority to detain a person on any\n\ngroun<\\ whatsoever.\n\n[274 F-H. 275 A] 'fhis Court in appeal by the State cannot enlarge the area of the unfavourable decision qua the State and make its position \\Vorse compared to what it was before the filing of the appeal.\n\nProcedural propriety in matters relating to -i1ppeals forbids such a course.\n\nThe question of extent of judicial scrutiny in the light of s. 16A should be gone into v..hcn the \\Vhole matter is at targe before ithis court and this court is not inhibited by procedural and other constraints from going into certain aspects which have a vital beaiing. It is primarily for the High Courts before \\Vhich the matters are pending to decide the question of area of judicial sctutin}' in the light of s. 16A(9), as an1ended by Act 14 of 1976. A -course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide th;! matter even before the matter has been considered by the High Court in the light , of s. 16.\\, as an1cnt!e<l by Act J 4 of 1976 should be\n\n<ivoided. [301 F-Hl\n\nThere is no sufficient ground lo interfere with ihe view taken by all th\\: nine High Courts which went into the n1atter that the Presidenti<tl Ord>!r dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legaHty of the detention orders. f304-· C]\n\n. The principles which should be follov.'ed by the courts in dealing with petitions for writs of habe:.is corpus to challenge the legality of detention are\n\nwell-established.\n\n[304-D]\n\nUnanimity obtained without sacrifice of conviction commends the decision to public confidence.\n\nUnafimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last\n\nresort.\n\n[304-E]\n\nA dissent in. a ci;>urt of last resort is an appeal to the brooding spirit of \\he law, to the 1n!elhgenc~ of a fuure day when a later decision may possibly correct the enor into \\\\lhtch the dissenting Judge believes the court have been betrayed.\n\n[304-GJ\n\nI.I\n\nProphets with Jlo11or by Alan Barth 1974 E<l. p. 3-6, referred to.\n\nObservation : . Judges are not there simply to decide cases, but to decide them as they think they should be <lec_ided, and while it may be reorettab1e H\n\ntha~ th_ey cannot ahvas agree. it is better that their independence sh 0ould b~ mamta1ned and recognized than that unanimity should be secured through its acrifice. ·\n\nA CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 279\n\nof 1975.\n\n(From the Judgment and Order dated 1.9.75 of the Madhya Pradesh High Court m M. P. No. 597 of 1975) and\n\nCriminal Appeals No. 355-356 of 1975.\n\n(From the judgment and Order dated 12.11.1975 of the Allahabad High Court in W.P. Nos 7428 and 6885 of 75) and\n\nCivil Appeals Nos. 1845-1849 of 1975\n\n(From the Judgment and Order dated 26.11.1975 of the Karnataka High Court in W. N. Nos. 3318, 4101, 4103, 4177 and 4178 of 1975) and\n\nCriminal Appeal No. 380 of 1975.\n\n(Appeal by Special Leave from the Judgment and Order dated 31.10.1975 of the Delhi High Court in Criminal Writ No. 149/75) and\n\nCriminal Appeal No. 41 of 1976\n\n(Appeal by Special Leave from the Judgment and Order dated 19-11-1975 of the Delhi High Court in Criminal Writ No. 158 of\n\n1975) and\n\nCriminal Appeal No. 41 of 1976\n\n(Appeal by Special Leave from the Judgment and Order dated 31 10.75 of the Delhi High Court in Criminal Writ No. 128/75) and\n\nCriminal Appeal No. 389 of 1975\n\n(Appeal by Special Leave from the Judgment and Order dated 5 / 6/8th Dec. 1975 of the Bombay High Court in Criminal Appln. Nns.\n\n171. 95, 97, 99, 109, 115, 116 and 168175) and\n\nCriminal AppealNo. 3 of 1976\n\n(From the Judgment and Order dated 12.12.1975 of the High Court of Rajasthan in D. B. Crl. Habeas Corpus petition No. 1606 of 1975) and •\n\nA pplicantl Interveners\n\n1. Smt. Manek Ben (In Crl. A. No. 279175)\n\n2. Maharaj Jai Singh (In Crl. A. Nos. 279, 355-356/75)\n\n3. M/s. Surinder Mohan & Saraj Bhan Gupta (In Crl. A. Nos. 279, 355-356/75)\n\n4. Mr. V.K. Singh Chowdhry (In Crl. A. No. 355175)\n\n5. Mr. Deepchand Jain (In Cr!. A, Nos. 355-356/75)\n\n. ;\n\n- •\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA 215\n\nI. N. Shroff and H. S. Parihar M. C. Nihalani, Adv. Genl., Ram A Punjwani, Dy. Adv. Genl., for the State of Madhya Pradesh--for the\n\n~ j!ppellant, in Criminal Appeal No. 279 /75.\n\n\\ .\n\n• '\n\nShanti Bhushan, R. P. Goyal, S. s. Khanduja, B. R. Agarwala C. L. Sahu arul R. N. Nath, for the respondnt in Criminal Appeal No. 279 of 1975.\n\nS. N. Kakar, Adv. Genl. Girdhar Malviya and 0. P. Rana for the B appellant-State of U. P. in criminal appeals Nos. 355-356 of 1975.\n\nSoli l. Sorabjee, S. S. Kharuluja, Mrs. K. Hingorani, K. N. Tripathi, R. P. Goyal and Y atirulra Singh for the respondent in Crl. A .\n\nNo. 355/75.\n\nG. C. Dwivedi, S. S. Khanduja, Dr. N. M. Ghatate, R. P. Goyal, K. N.\n\nTripathi and K .K. Iha, for the respondent in Cr!. A. No. 356/75.\n\nFor the applicant/lnterveners\n\n!. Smt. Manek Ben M/s. S. Venkataswami, C. S. Vaidianatha, Hardev Singh and R. S. Sodhi.\n\n2. Maharaj lai Singh A. K. Sen, R. H. Dhebar, R. C. Bhatia and B.\n\nV. Desai\n\n3. M/s. Surinder Mohan & Suraj Bhan Gupta M/s Sharad Marwhar and R. N. Nath .. •\n\n4. Mr. V. K. Singh Chowdhry Mr. Santokh Singh .\n\n5. Mr. Deepchand lain M/s. Sharad Manohar and Amlan Ghosh\n\nNiren De, Attorney General for India, V. P. Raman, Addi Sol.\n\nGeneral, R. N. Sachthey, Girish Chandra and S. P. Nayar for the appellant in Civil Appeals Nos. 1846-1849/75 and 1926/75)\n\nRama Joise, N. M. Ghatate and S. S. Khanduja for respondent in CA No. 1845175\n\nC. K. Daphtary, M. Veerappa, N. M. Ghatate, Rama Joise, S. S.\n\nKhanduja and Miss Lilly Thomas for respondent in CA No. 1846.\n\nShanti Bhushan, N. M. Ghatate and Rama Poise for respondent in CA No. 1847 /75.\n\nN. M. Ghatate, Rama Joise, S. S. Khanduja, Miss Lilly Thomas,\n\nPramod Swaroop, M. Veerappa, S. Balakrishnan Sharad Manoharn, G M. K. Jain, Altai Ahmed, R. P. Goyal, K. N. Tripathi, C. C. Dwivedi and Mrs. K. Hingorani for respondent in CA No. 1848/75.\n\nS. S. Khanduja for respondent in CA No. 1849 and R. I. 1926/75\n\nK. N. Byra Reddy and Narayan Nettar for the appellant in CA No. 1926175.\n\nV. M. Tarkunde, S. K. Sinha, C. K. Ratnaparkhi, S. K. Verma and M. P. !ha for respondent I in Criminal A. 380175.\n\nA N. M. Qazi and M. N. Shroff, for the appellants in Criminal Appeal No. 380/75.\n\nN. M. Ghatate and S. Balakrishnan for respondents 3 & 8 and 2, 4-7 in Cr. A. No. 380/75.\n\nS. M . .fain for the appellant in Cr. A. No. 3/76.\n\nV. S. Krishnan and A. V. M. Krishnan for respondent No. 2 in Criminal Appeal No. 3/76.\n\nNiren De, Attorney Genl., V. P. Raman, Addi. Sol. Genl. R. N.\n\nSachthey, Girish Chandra, S. P. Nayar and P. P. Rao (in Cr. A. No. 279175 only) for the Attorney General in Cr!. As No. 279 & 355- 356/75)\n\nC P. Ramchandra Reddy, Adv. Genl. and P. P. Rao for the State of\n\nAndhra Pradesh in Cr!. As. Nos. 279, 355-356175.\n\nMr. Balblzadra Prasad Singh and Mr. U. P. Singh for the State o!\n\nBihar in Cr!. As. Nos. 279, 355-356/75.\n\nJ. N. Kaushal, Adv. General, P. P. Rao and G. D. Gupta for the State of Haryana in Cr!. A. No. 279 /75.\n\nBakshi Sita Ram, Adv. General, R. N. Sachthey and S, P. Nayar for the State of Himachal Pradesh in Crl. As. Nos. 279, 355-356/75.\n\n0. K. Tikhu, Advocate General and Vineet Kumar for the State of Jamrnu and Kashmir in CA. Nos. 1845-1849.\n\nR. N. Byra Reddy, Advocate General and N. Nettar for the State of Karnataka in Cr!. A. 279 and 1845/75.\n\nM. M. Abdul Khader, Advocate General and D. K. M. K. Nair for the State of Kerala in Cr!. As. 279, 355-356/75.\n\nR. W. Adik, Advocate General and D. R. Dhanuka and M. N.\n\nShroff for the State of Maharashtra in Cr!. As. 279, 355-356/75.\n\nJ. S. Wasu, Advocate General and 0. P. Rana for the State of Punjab in Cr!. As. 279, 355-356/75.\n\nA. V. Rangam and Miss A. Subhashini for the State of Tamil Nadu in Cr!. As. 279, 355-356175.\n\nS. N. Kakar, Advocate General and!. M. Nanavati (0. P. Rana) for the State of Uttar Predesh in Cr!. A. 279 and CA No. 1845-1849175.\n\nJ. M. Thakore, Advocate General, !. M. Nanavati, S. K. Dholakia and R. C. Bhatia for the State of Gujarat in all appeals.\n\nThe following Judgments were delivered :\n\nRAY, C.J.\n\nThese appeals are by certificates in some cases and by leave in other cases.\n\nThe State is the appellant.\n\nThe respondents were petitioners in the High Courts.\n\nADDL. DIST. ivIAGISTRA\"I[ l'. s. s. s11t;.,,;.1_A (iny, ('.J.) 217\n\nThe respondents filed applications in different High Courts for the A isSue of writ of habeas corpus.\n\nThey challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts, the Proclamation of Emergency by the President under Article 352 of the Constitution made on 25 June, 1975. They challenged the legality and validity of the orders of their detention in all the cases.\n\nThe State raised a preliminary objection that the Presidential Order dated 27 June, 1975 made under Article 359 of the Constitution suspending the detenus right to enforce any ol the rights conferred by Articles 14, 21 and 22 of the Constitution and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the responoents to invoke the jurisdiction of the High Court under Article 226 of the Constitution and to ask for writs of habeas corpus.\n\nThe judgments are of the High Courts of Allahabad, Bombay (Nag-·\n\nµr Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthau. ·\n\nThe High Courts held that notwithstanding the continuance of . emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14, 21 and 22 the High Courts can examine whether an order of detention is in accordance with the provisions of the Maintenance of Internal Security Act (hereinafter referred to as the Act), which constitute the conditions precedent to the exercise of powers thereunder excepting those provisions of the Act which are merely procedural or whether the order was made malafide or was made on the basis of relevant materials by which the detaining authority could have been satisfied that the order was l].ecessary.\n\nTht: High Courts also held that in spite of suspension of enforcement of fundamental rights conferred by Arlicles 21 and 22 of the Constitution a person's right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statute which form the conditions precedent to the exercise of power under that statute as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining anthority could have been satisfied that the order of detention was necessary.\n\nThe High Courts held that the High Courts could not go into the questions whether the Proclamation of Emergency was justified or\n\nt whether the continuance thereof was malafide.\n\nThe High Courts did not decide about the validity of the 38th and the 39th Constitution Amendment Acts.\n\nThe 38th Constitution Amendment Act amended Articles 123, 213, 239(b), 352, 356, 359 and 360.\n\nBroadly stated, the 38th Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground.\n\nAs for Article 359 clause (IA) has been inserted by the 38th Constitution Amendment Act.\n\nThe 39th Constitution Amendment Act amended Articles 71, 329. 329(A) and added Entries after Entry 86 in the Ninth Schedule.\n\nA No arguments were advanced on these Constitution AmenJment\n\nActs and nothing thereon falls for determination in these appeals.\n\nHis appropriate to mention here that on 3 December, 1971 in exercise of powers conferred by clause (1) of Article 352 of the Constitution the President by Proclamation declared that a grave emergency exists whereby the security of India is threatened by external aggression.\n\nOn 25 June, 1975 the President in exercise of powers conferred by clause ( 1) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances.\n\nOn 27 June, 1975 in exercise of powers conferred by clause ( 1) of Article 359 the President declared I.hat the right of any person including a foreigner to move any Court for the enforcement of the r:ghts conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcemem of the above-mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on 3 December, 1971 and on 25 June, 1975 are both in force.\n\nThe Presidential Order of 27 June, 1975 further stated that the same shall be in addition to and not in derogation of any Order made before the date of the aforesaid Order under clause (1) of Article 359 of the Constitution.\n\nIt should be noted here that on 8 January. 1976 there was a notification that in exercise of po\\ven~ conferred by c]ausc ( 1) of i\\.rticle\n\n359 of the Constitution the President declares that the right of any person to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights shall remain suspended for\" the period during which the Proclamation of Emergency made under clause (1) of Article 352 of the Constitution on 3 December, 1971 and on 25 June, 1975 arc in force.\n\nThe questions which fall for consideration are two . First, whether in view of the Presidential Orders dated 27 June, 1975 and 8 January, 1976 under clause (1) o[ Article 359 of the Constitution any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to perso1rnl liberty of a person detained under the Act on the ground that the order of detention or the continued detention is for any reason not under or in compliance with the Act is maintainable. Second, if such a petition is maintainable what is the scope or extent of .iudicial scrutiny particularly in view of the Presidential Order dated 27 June, 1975 mentioning. inter alia, Article 22 of the Constitution and also in view of sub-section (9) of section 16A of the Act.\n\nThe Attorney General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of State assume importance.\n\nIt has been reconised that times of grave national emergency demand grant of special power to the Executive.\n\nEmergency provisions contained in Part XVIII including Articles 358,\n\n• ;\n\n• '\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Ray, C.J.) 219\n\n359(1) and 359(1A) are constitutional imperatives.\n\nThe validity of A law cannot be challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 359(1).\n\nSimilarly, if the Executive took any action depriving a person of a fundamental right mentioned in the Presidential Order by not complying with the law such Executive action could not be challenged because such challenge would amount in substance to and would directly impinge on the enforcement of fundamenlal rights mentioned in the B: Presidential Order.\n\nThe reason given by the Attorney General behind the principle is that in times of emergency the Executive safeguards the life of the nation.\n\nChallenge to Executive actions either on the ground that these are arbitrary or unlawful bas been negatived in England in Liversidge v. Anderson(') and Greene v. Secretary of State for Horne Affairs(') and also by this Court in Sree Mohan Chowdhury v.\n\nThe Chief Commissioner, Union Territory of Tripura( 3) and Makha11 Singh c\n\nv. State of Punjab(').\n\nThe contentions of the respondents are as follows : The arguments on behalf of the State mean that during the emergency there is no right to life or liberty.\n\nArticle 358 is more extensive as the fundamental right itself is suspended.\n\nThe Presidential Order under Article 359 ( 1) does not suspend any fundamental right. l-J\n\nSecond, the object of Article 359(1) is to bar moving the Supreme Court under Article 32 for the enforcement of certain specified rights without affecting in any manner the enforcement of common law and >tatutory rights to personal liberty under Article 226 before the High Court.\n\nThird, Article 359 ( 1) removes the fetter in Part III but does not remove the fetters arising from the principles of limited power of the Executive under the system of checks and balances based on separation of powers.\n\nFourth, while the Presidential Order operates only in respect of\n\nfundamental rights mentioned in the Presidential Order it would not F affect the rights of personal liberty at common law or under statute law or under natural law.\n\nFifth, Arlicle 359 (1) is not to protecl illegal orders of the Executive.\n\nThe Executive cannot flout the command of Parliament relying on a Presidential Order under Article 359(1). The suspension of fundamental right or of its enforcement cannot increase the power of the Executive vis-a-vis the indiuidual.\n\nSix'.h, there is no reason to equate the State with the Executive.\n\nThe suspension of the fundamental right or the right to enforce it has only this consequence that it enables the Legislature to make laws violative of the suspended fundamental rights and the Executive to implement such laws.\n\nThe suspension of the fundamental right does not\n\nenable the Executive to flout legislative mandates and judicial decisions.\n\n(1) [i942] A. C. 206.\n\n(2) [19c2] A. C. 284.\n\n()) [1964] 3 S. C. R. 442. (4)\n\n[1964] 4 S. C.R. 797.\n\nSUPREME COURT REPORTS\n\n[ 1976] SUPPLEME'ITARY\n\nSeventh, the Executive can act to the prejudice of citizens only to the extent permitted by valid laws.\n\nThe Proclamation of Emergency docs not widen the Executive power of the State under Article 162 so as to empower the State to take any Executive action which it is not otherwise competent to take.\n\nEighth, the right to arrest is conferred by the Act on the States and their o!ftcers only if the conditions laid down under section 3 of the Act are fulfilled.\n\nTherefore, if the conditions laid down under section 3 of the Act are not complied with by the detaining authority then the order of detention would be ultra l'ires the said Act.\n\nNinth, Habeas corpus is a remedy not only for the enforcement of the right to personal liberty, whether under natural law or a statute. but is also a remedy for the enforcement of the principle of ultra vires, viz., when the detaining authority has failed to comply with the conditions laid clown in section 3 of the Act.\n\nIn such a case the High Court has jurisdiction to issue a writ of habeas corpus for the enforcement of the principle of riltm vires.\n\nIn England it was the practice in times of danger to the State to pass what were popularly known as Habeas Corpus Suspension Acts.\n\nSuspension did not legalise illegal arrest; it merely suspended a partictdar remedy in respect of particular offences.\n\nAccordingly it was the practice in England at the close of the period of suspension to pass an Indemnity Act in order to protect otliri<d> conccrnrci from the consequences of any incidental illegal acts which they might have committed under cover of the suspension of the prerogative writ.\n\nIn England the Defence of the Realm Acts 1914-18 empowered the Executive to make regulations by Order in Council for securing the public safety or for the defence rf <he realm. Jn The King v. !/\"1!/idu_r Ex parte Zadiq(') the House of Lords held that a regulation was valid which authorised the Secretary of State to detain a British subject on the grounds of his hostile origin or association. It was contended on behalf of Zadiq that there was no provision for imprisonment without trial.\n\nThe substantial contention was that general words in a statute could not take away the vested right of a subject or alter the fundamental law of the Constitution because it would be repugnant to the constitutional tradition of the country. The majority of the court swept aside these arguments and held that on the constrnction of the /\\ct the Executive had unrestricted powers.\n\nDuring the Second World War the Emergency Powers (Defence) Act, l 939 in England empowered the making of regulations for the detention of persons by the Secretary of State in the interests of the public safety or the defence of the realm. and for authority to enter and search any premises.\n\nAlthough acccs~ to the courts was not barred during the Second World War in England the scope for judicial review of executive action\n\nI I) [19171 A. C. 260.\n\n. ' ' I\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 221\n\n\"as limited.\n\nThe courts could not consider whether a particular regu- A lation is necessary or expedient for the purpose of the Act which authorised it. The question of necessity or expediency was one for the Government to decide.\n\nThe court could, however, hold an act to be illegal as being not authorised by the regulation relied upon to justify it.\n\n1t was open to the subject in England to challenge detention by B application for a writ of habeas corpus, but such application had little chance of success in view of the decision of the House of Lords in Liversidge's case (supra). The House of Lords took the view that che power to detain could not be controlled by the cot1rts, if only because considerations of security forbade proof of the evidence upon which detention was ordered.\n\nIt was sufficient for the Home Secretary to have a belief which in his mind was reas\"onable.\n\nThe courts would c not enquire into the grounds for his belief, although apparently they might examine positive evidence of mala fides or mistaken identity. In Greenes case (supra) the House of Lords held that a mistake on the part of tile advisory committee in failing, as was reqnired by the regulation. to give the appellant correct reasons for his detention did nol invalidate the detention order.\n\nIt is noticeable how the same House expressed this view without auy dissent. !}'\n\nDicey states that this increase in the power of the Executive is no trifle, but it falls far short of the process bown in some foreign countries as \"suspending the constitutional guarantees\" or in France as the .. proclamation of a State of siege\".\n\nUnder the ACi of 1881 the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person E arrested on suspicion for the whole period for which the Act continued in force.\n\nUnder the Prevention of Crime (Ireland) Act, 1882 the Irish Executive was armed with extraordinary powers in the case of certain crimes to abolish right to trial by jury. ·\n\nThe Act of Indemuity in England is a retrospective statute which frees persons who had broken the law from responsibility for its F breach, and thus make acts lawful which Wlien they were committed were unlawful.\n\nA Habeas Corpus Suspension Act does not free any person from civil or criminal liability for a violation of the law.\n\nThe suspension, indeed, of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceeding against the Secretary of State. While the suspension lasts, he will not be able to get himself discharged from prison. If the prisoner has been guilty of no G legal offence then on the expiration of the Suspension Act the Secretary of State and his subordinates are liable to actions or indictments for !heir lllegal conduct.\n\n. Dicey. stated that the unavowed object of a Habeas Corpus Suspension Act is . to enable the Govenment to do acts which, though politically expedient may not be stnctly legal.\n\nThe Parliament which suspe_n?s one o'. the guarantees. for individual freedom must hold that a R\n\ncns1~ has nsen when the nghts of individuals must be postponed to cons1derat1ons of State.\n\nA Suspension Act would in fact, fail of its\n\n\n[1976] SUPPLEMINTARY\n\nA main object, unless the officials felt assured that, as long as they bonafide, and uninfluenced by malice or by corrupt motives, carried out the policy of which the Act was visible sign, they would be protected from penalties for conduct which, though it ; night be technically a breach of law, was nothing more , han the free exertion for the public gcod of that discretionary power which the suspension of Habeas Corpus Act\n\nwas intended to confer upon the execulive.\n\nThe position in America is described in Cooley on the General Principles of Constitutional Law in the U.S.A. Fourth Edition.\n\nIn America the right to the Writ of .Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the C public safety may require it.\n\nIn America the power to suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law.\n\nThe suspension does not legalise what is done while it cont>nues.\n\nIt merely suspends for the time this par.icular remedy.\n\nAll other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them.\n\nLiberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom.\n\nIt is not an abstract or absolute freedom.\n\nThe safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and\n\nare limited lo the period of the emergency.\n\nUnsuitability of a court of law for determining matters of discretionary policy was referred to by Lord Parker in the Zamora(') case and Lord Finlay in the Zadiq case (supra).\n\nIn the Liversidge case\n\n(supra) it was held that the court is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases.\n\nA court of law could not have before it the information on which the Secretary acts still less the background of statecraft and national policy what is and what must determine the action which he takes upon it.\n\nThe Liversidge case (supra) referred to these observations in the Zadiq case (supra) \"However precions the personal liberty of the subject may be, there is something for which it may well be, lo some extent, sacrificed by legal enactment, namely, national success in the war or escape from national plnnder or enslavement''.\n\nLiberty is itself the gift of the law and may by the law be forfeited or abridged.\n\nThere is no record of any life of an individual being taken away either in our country during emergency or in England or America dnring emergency in their countries. It can never be reasonably assumed that such a think will happen.\n\nSome instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or\n\n(I) [1916] 2 A. C. 107.\n\n• •\n\nI f\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 2 23\n\npeople were otherwise murdered. Such instances are intend to produce a A kind of terror and horror and are hortative in character.\n\nPeople who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country.\n\nQuite often arguments are heard that extreme examples are given to test the power. If there is power, extreme examples will neither add to the power nor rob the same.\n\nExtreme examples tend only to obfuscate reason and reality.\n\nThe reffect of the Suspension of Habeas Corpus Acts and of Indemnity Acts in England has been to give every man security and confidence in periods of public danger or apprehension.\n\nRarely, however, has this been suffered without jealousy, hesitation and remonstrance .\n\nWhenever the perils of .he State have been held sufficient lo warrant this sacrifice of personal J:berty, no Minis1cr or Magistrate bas been suffered to tamper with the law at his discretion.\n\nWhere the Government believes the State to be threatened by traitorous conspiracies during times of grave emergencies the rights of individuals of ordinary times become subordinate to considerations of the State.\n\nThe pre-eminent questions are four.\n\nFirst, is the Presidential Order under Article 359 a bar at the threshold Second, is Article 21 the sole repository of right to life and personal liberty Third, is the Presidential Order subject to the rubric of Rule of Law? Fouch, is section 16A(9) of the Act a rule of evidence?\n\nThe first question turns on the depth and content of the Presidential Order.\n\nThe vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws.\n\nArticle 358 does not suspend any fundamental right.\n\nWhile a Proclamation of Emergency is in operation the Presidential Order under Article 359 ( 1) can suspend the enforcement of any or all fundamental rights.\n\nArticle 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights.\n\nThe purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential Order is barred or it remains suspended during the emergency.\n\nAnother important distinction between the two Articles is that Article 358 provides for indemnity whereas Article 359(1) does not, Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential Order and is, therefore, much wider than Article 358 which includes Article 19 only.\n\nA person can enforce a fundamental right both in the case of law being made in violation of that right and also if the Executive acts in non-compliance with valid laws or acts without the authority of law.\n\nIt cannot be said that the scope of Article 359 (l) is only to restrict the application of the Article to the 'Legislative field and not to the acts of the Executive. The reason is that any enforcement of the fundamental rights mentioned in the Presidential Order is barred\n\nand any challenge eilber to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of bw will amount to enforcement of fundamental rights and will, therefore, be within the mischief of the Presidential Order. The effect of the Presidential Order suspending the enforcement of fundamental right amounts to bar the locus stalldi of any person to move the court on the ground of violation of a fundamental right.\n\nThe Constitution is the mandate.\n\nThe Constitution is the rule of law.\n\nNo one can arise above the rule of Jaw in the Constitution.\n\nThe decisions of this Court in Molu111 Chowdhury's (supra) case, Makhan Singlz's (supra) case and Dr. Ram Manohar Lohia v. State of Bihar & Ors.(') are that any court means all courts including this Court and I Iigh Courts and the right to initiate legal proceedings.\n\nA person can enforce fundamental rights in this Court under Article 32 as well as in the High Courts under Article 226.\n\nIt is idle to suggest that the object or Article 359 (1) is that the right to move this Court only is barred and not the right to move any High Court.\n\nArticle 226 does not provide a guaranteed fundamental right like Article 32.\n\nThis guaranteed right under Article 32 itself may be suspended by a Presidential Order under Article 359(1). In such a case it could not be said that the object of the makers of the Constitution is that a person could not move this Court for the enforcement of fundamental rights mentioned in the Presidential Order but could do so under Article 226.\n\nThe bar created by Article 359 (1) applies to petitions for the enforcement of fundamental rights mentioned in the Presidential Order whether by way of an application under Article 32 or by way of any application under Article 226. [Sec Mak/um Singh's case (supra) and Ram Manolwr Lo/Jia's case (supra)].\n\nIt is incorrect to say that the jurisdiction and powers al this Court under Article 32 and of the High Courts under Article 226 are virtually abolished by the Presidential Order without any amendment of the Constitution.\n\nNo amendment of the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away.\n\nWhen a Presidential Order tacks away the locus standi of the detenus to move any court for the enforcement of fundamental rights for the time being the jurisdiction and powers of this Court and of the High Courts remain unaltered Article 359 ( 1) is not directed against any court. Ir is directed against an individual and deprives him of his locus standi.\n\nThe courts cannot either increase or curtail the freedom of individuals contrary to the provisions of the Constitution.\n\nThe courts Interpret the Constitution an~ the la\"'.s in accordance with law and i.udicial conscience and not emotion.\n\nTt ts wrong to say that the Executive has asked or directed any one not to comply with the conditions of the Act.\n\nThe question is not whether the Eexcutive should comply or should not comply with the Act but whether a detenu has a locus sta1u1i to move any court for a writ in the nature of habeas corpus on the ground of non-compliance with the provisions or the Act.\n\n- ~----··~----\n\n(1) [1966] 1 S. C.R. 709.\n\n• • I\n\n• -\n\nl •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, CJ.) 2 25\n\nIn period. of public danger or apprehension the prote-.:tive law A which gives every man security and confidence in times of tranquillity, has to give way to interests of the State.\n\nThe opinion in England has been that when danger is imminent, the liberty of the subject is subordinated to the paramount interests of the State.\n\nRing leaders are seized and outrages anticipated.\n\nPlo!s are disconcerted, and the dark haunts of conspiracy filled with disturst and terror (See May-Constitutional History of England, Vol. I, pp. 130-135).\n\nWhile the courts of law are in normal times peculiarly competent to weigh the competing claims of individuals and govermnent, they are ill equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an emergency.\n\nNeither are they equipped, once an emergency has been recognised particularly a war emergency or emergency on account of security of C the country being threatened by internal aggression to measure the degree to which the preservation of the life of the community may require governmental control of the activities of the individual.\n\nJurists do not have the vital sources of information and advice which are available to the executive and the legislature; nor have they the burden of formulating and administering the continuing programme of the government, and the political responsibility of the people, which, D although intangibles, are of crucial importance in establishing the context within which such decisions must be made.\n\nArticle 359(1) makes no distinction between the threat to the security of India by war or external aggression on one hand and threat to the security of India by internal disturbance on the other.\n\nIn fact, both situations are covered by the expression \"grave emergency\" in Article 352(1). Apart from Article 359(1) all provisions of the Constitution laying down the consequences of a Proclamation of Emergency under Article 352(1) would apply to both situations.\n\nThe conseque11ces of a Proclamation of Emergency under Article 352(1) of our Constitution are much wider than in England or America.\n\nArticle 353 provides that the executive power of the Union shall extend to giving of directions to any State as to manner in which the executive power thereof is to be exercised.\n\nThe exercise of such exeoutive power by the Union totally displaces the provisions of Article 162.\n\nNon-compliance with directions of the Union Executive under Article 353 by any State Executive may attract the provisions of Article 356 and the President's Rule may be imposed on that State. In such an event, Parliament may, under Article 357 ( f) confer on the President the power of the Legislature of that State to make laws or to delegate such legislative power tb lilly other authority. In such a situation, the federal structure and representative Government on which the Constitution is based, mav be completely chan[ed in the State 0r states concerned.\n\nArticle 250 provides that dnring the opratioR of Prnclamation of Emergency Parliament may make laws with respect to\n\nany of the matters enumerated in the State List.\n\nThe Federal structure and representative government may suffer its full place in that\n\nitua:!oo.\n\n17-833 SCI/76.\n\nOn the expiry of the operation of the Presidential Order under Article 359(1), the infringement of the fundamental rights mentioned in the Order, eilher by the legislative enactment o.i: by an executive action, may be challenged iu a court of law and if after such expiration Parliament passes an Act of Indemnity, the validity and the effect of such legislation may have to be scrutinised. [See Mak!zan Singh's case (supra) at 813].\n\nThe provisions in our Constitution relating to emergency are of wide amplitude.\n\nThe Executive is armed with special powers because individual interests are subordinated to State security. If law is invalid vis-a-vis fundamental rights there cannot be any challenge during the operation of Articles 358 and 359 on the ground that law violates fundamental rights.\n\nIt is contradictory to say that there can yet be challenge to orders under that law as being not in accordance with law.\n\nArticle 19 is a prohibition against law.\n\nArticle 19 has nothing to do with the Executive.\n\nLaw under Article 21 can be punitive or preventive.\n\nJn Article 22 reference is made to grounds and representation in cases of preventive detention. If enforcement of Article 22 is suspended one is left with Article 21.\n\nThe Act in the present case is law.\n\nThe Executive orders are under that law.\n\nAny allegation that orders are not under that law will not rob the orders of the protective umbrella of Article 359.\n\nThe challenge by a detenu that law is broken will be enforcement of Article 21 because law contemplated nnder Article 21 is substantive as well as procedural law.\n\nA law can be broken either of substantive or procedural parts. Neither enforcement of nor relief to personal liberty is based on Article 19. No executive action is valid unless backed by law. In the present cases there is law authorising detention. In the present cases, the writs questioned the validity of detention. The Legislature under Article 358 is authorised to act in breach of Article\n\n19. The executive can act only in terms of that law. If this is prcemergency law it has to satisfy Part III of our Constitution. If it is emergency law it can violate Article 19 because it is protected by Article 358. .\n\nUnder Article 359 the Presidential Orders have been of two types.\n\nOn 3 November, 1962 in exercise of powers conferred by clause {I) of Article 359 of . the Constitution the President declared that \"the right of any person to move any conrt for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under clause (l) of Article 352 on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence of India Ordinance 1962 or of any rule or order made thereunder\". 111e 1975 Presidential Order under Article 359(1) does not have the words \"if snch a person has been deprived of any such right under the Defence of India Ordinance 1962 or any rule or order made thereunder\". In other words, the 1962 Presidential Order is limited to the condition of deprivation of rights under the Defence of India Ordinance or any rule or order made thereunder whereas in the 1975 Presidential Order no statute is mentioned.\n\nThe illegality of orders was challenged in\n\n. '\n\n\\ •\n\n1' . '\n\nf '\n\n- •\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (Ray, C.J.) 227\n\nMakhan Singh's case (supra) in spite of the Presidential Order under A the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law.\n\nThe decisions of this Court in Mohan Chowdhury's and Makhan Singh's cases (supra) are that duriug the operation of a Proclamation of Emergency no one has any locus stand! to move any court for the enforcement of any fundamental rights mentioned in the Presidential B Order.\n\nThe ratio must necessarily apply to Executive acts because Executive acts are challenged on the grounds of beiug contrary to law and without the authority of law.\n\nThe submission 6f the respondents that a person in detention can come to a court of law in spite of the\n\nPresidential Order under Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu's challenge that the Act complained of is without c authority of law or the challenge of the detenu that the provisions of the Legislative Act under which the detention has been made have not been complied with are all rooted in the enforcement of fundamental rights to liberty under Articles 21 and 22. If courts will in spite of the Presidential Order entertain such applications and allow the detenus to enforce to start or continue proceedings or enforce fundamental rights, Article 359 (1) will be nullified and rendered otiose.\n\nThis Court in Makhan Singh's case (supra) said that if there was challenge to the validity of the detention order based on any right other than those mentioned in the Presidential Order tha! detenu's right to move any court could not be suspended by the Presidential Order because the right was outside Article 359(1). This was explained by stating that if the detention was challenged on the ground that it con- E !ravened the mandatory provisions of the relevant Act or that it was malafide and was proved to be so, the bar of the Presidential Order could have no application.\n\nThis observation in Makhan Singh's case (supra) is to be understood in the context of the question that arose for decision there. Decision on a point not necessary for the purpose of or which does not fall F to be determined in that decision becomes an obiter dictum [See Maharaiadhiraia Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India('). In Makhan Singh's case (supra) !he detention orders which were the subject matter of the judgment were orders made by the Executive under the Defence of India Ordinance or Act and rules and orders made thereunder which was the express condition for detention in respect of which the Presidential Order of 1.962 under Article 359(1) G applied.\n\nThe Presiden!ial Order in the present case is on the face of it an un-conditional order and as such there is the vital and telling difference between the effect of the Presidential Order of 1962 and the present Presidential Order. It is obvious that the Government fully conscious of the Presidential Order of 1962 and its effect as determined by the H decisions of this Court in Makhan Singh's case (supra) and subsequent\n\n(l) [1971] S. C.R.~ at pp. 97-98, !93-194.\n\ncases deliberately made the present Presidential Order an un-conditional order under Article 359 ( 1).\n\nReference may be made to State of Maharashtra v.\n\nPrabhakar Pm1durang Sangzgiri and Anr. (') which clearly pointed out that the Presidential Order of 1962 was a conditional one and therefore if a person was deprived of his personal liberty not under the Act or rules B and orders made thereunder but in contravention thereof, his right to move the courts in that regard would not be suspended.\n\nThe decision of this Court in Pandurang's case (supra) is by the Constitution Bench of five learned Judges, three of whom were on the Constitution Bench of seven learned Judges deciding Makhan Singh's case (supra). In Fandurang's case (supra) the ratio was that if a person was deprived of his personal liberty not under the Act or rules and orders made C thereunder but in contravention thereof, his right to move the courts in that regard was not suspended.\n\nIt, therefore, follows from the decisions in Pandurang' s case and Makhan Singh's case (supra) that the ratio in both the cases was that the 1962 Presidential Order being a conditional one the enforcement of rights under Articles 21 and 22 was suspended only to the extent of the\n\n• I l\n\n.1 • \\ I\n\nD conditions laid down in the Presidential Order and the suspension could ., , not operate in areas outside the conditions.\n\nThere is no aspect what\" ever of any condition in the present Presidential Order.\n\nTherefore, •' the decisions in Makhan Singh's case (supra) and subsequent cases following it have no application to the present cases where the suspen- !lion is not hedged with any condition of enforcement of any right under • Articles 21 and 22.\n\nThe conclusion for the foreging reasons is that • E the Presidential Order is a bar at the threshold.\n\nThe heart of the matter is whether Article 21 is the sole repository 1 of the right to personal liberty. If the answer to that question be in the affirmative the Presidential Order will be a bar.\n\nThe contentions of the Attorney General are two-fold.\n\nFirst, the F legal enforceable right to personal liberty for violation thereof by the Executive is a fundamental right conferred by the Constitution and is embodied in Article 21.\n\nSecond, apart from Article 21 the right to personal liberty against the Executive is neither a common law right nor a statutory right nor a natural right.\n\nHe relies on three decisions.\n\nThe earliest is Girindra Nath Banerjee v. Birendra Nath Pa/( 2 ). The others are King Emperor v. Sibnath Banerjee( 3 ) and Makhan Singh's G case (supra). In the first two decisions it has been held that the right to habeas corpus is only under section 491 of the Code of Criminal Procedure. In Makhan Singh's case (supra) it has been said that this right under section 491 became embodied in Article 21. The statutory right under section 491 of the Code of Criminal Procedure bas been deleted from the new Code of Criminal Procedure which came into effect on 1 April, 197 4.\n\n(1) [1966] I S. C. R. 702.\n\n12) I. L. R. 54 Cal 727.\n\n(3) 72 I. A. 241.\n\n• -\n\n' I\n\nI '\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 229\n\nThe arguments on behalf of the respondents are that the right to A life and personal liberty is not only in Article 21 but also under common law and statutes for these reasons.\n\nThe right to personal liberty is contained in Articles 19, 20 and 22, and, therefore, Article 21 is not the sole repository to personal liberty.\n\nThe respondents rely on the decision in Rustom Cavasjee Cooper v.\n\nUnion of India(') where it was said that the ruling in A. K. Gopalan\n\nv. The State of Madras(') that Articles 19 and 22 are mntually exclu- sive no longer holds the field.\n\nThe respondents also rely on the decisions in Shambhu Nath Sarkar v. The State of West Bengal & Ors.(\"),\n\nHaradhan Saha & Anr. v. The State of West Bengal & Ors.(') and Khudiram Das v. The State of West Bengal & Ors.( 5) in support of 1he proposition that these decisions followed the ruling in the Bank Nationaiisation case (supra).\n\nThe respondents contend lhat the Presidential Order bars enforcement of rights under Articles 14, 19, 21 and 22 but it is open to the respondents to enforce violation of rights under Article 20.\n\nThe other reasons advanced by the respondents are dealt with hereinafter.\n\nIhe majority view in Flis Holiness Kesavananda Bharati Sripadagalavaru v. State of Kera/a(') is that there are no natural rights.\n\nFundamental rights in our Constitution are interpreted to be what is D commonly said to be natural rights.\n\nThe only right to life and liberty is enshrined in Article 21.\n\nIn A. K. Gopalan's case (supra) it has been said that to read law .as meaning natural law is to lay down vague standards.\n\nLaw means law enacted by the State. Law must have some firmness. Law means positive State made law.\n\nArticle 21 has been interpreted in A. K.\n\nE Gopalan's case (supra) to include substantive as well as procedural law in the phrase \"procedure established by law\".\n\nThe reason is obvious.\n\nA Jaw providing for procedure depriving a person of liberty must be a law made by statute.\n\nP. D. Shamdasani v. Central Bank of India Ltd.(') held that Article 21 is prohibition against unauthorised executive action. In Shrimati Vidya Verma through next friend R. V.\n\nS. Mani v. Dr. Shiva Narain Verma( 8 ) law in Article 21 has been held F to mean State made law.\n\nIn Makhan Singh's case (supra) it was decided that during the subsistence of the Presidential Order suspending the enforcement of fundamental rights neither a petition under Article 32 nor a petition under Article 226 could be moved invoking habeas corpus. An application invoking habeas corpus under section 491 of the Code of Crimimd Procedure cannot similarly be moved in the High Court.\n\nG Part III of our Constitution confers fundamental rights in positive :as well as in negative language.\n\nArticles 15(1), 16(1), 19, 22(2),\n\n(I) [1970] 3 S.C.R. 530.\n\n(2) [1950] 3 S. C. R. 88.\n\n(3) [19HJ I S. C. R. I.\n\n(4) [1975! I S. C. R. 778.\n\n(5) [1975! 2 S. C. R. 832.\n\n(6) [1973] Supp. S. C. R. I.\n\n(7) [1952] S. C. R. 391. '(8) [1955] 2 s. c. R. 983.\n\n22(5), 25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in positive language.\n\nArticles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are in negative language. It is apparent that most categories of fundamental rights are in positive as well as in negative language.\n\nA fundamental right couched in negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasise the immunity from State action as a fundamental right. [See The State of Bi/wr v.\n\nMaharajadhiraja Sir Kameshwar Singh of J)arbhanga and Ors. (1) .] These fundamental rights conferred by our Constitution have taken different forms. Some of these fundamental rights are said to have the texture of Basic Human Rights (See A. K. Gopalmz's case\n\n(supra) at pp. 96-97, 248, 249, 293 and Bank Naionalisation case\n\n(supra) at pp. 568-71, 576-78).\n\nArticle 31 (!) and (2) subordinate the exercise of the power of the State to the concept of the Rule of Law enshrined in the Constitution. (See Bank Nationalisation case (supra) at p. 568). Similarly, Article 21 is our Rule of Law regarding life and liberty.\n\nNo other rule of law can have separate existence as a distinct right.\n\nThe negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right.\n\nThe limitation and guarantee are complementary. The limitation of State\n\naction embodied in a fundamental right couched in negative form is the measure of the protection of the individual.\n\nPersonal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in Article 19 (1 )( d). (See Kharak Singh v. State of U.P. & Ors.('). The Bank Nationalisatio11 case (supra) merely brings in the concept of reasonable restriction in the law.\n\nIn the present appeals, the Act is not challenged nor can it be challenged by reason of Article 358 and Article 359(1A) and the Presidential Order mentioning Article 19 as well.\n\nIf any right existed before the commencement of the Constitution and the same right with its same content is conferred by Part III as a fundamental right the source of that right is in Part III and not in any F pre-existing right.\n\nSuch pre-Constitution right has been elevated by Part III as a fundamental right. The pre-existing right and the fundamental right have to be grouped together as a fundamental right conferred by the Constitution.\n\nSee Dhirubha Devisingh Gohil v.\n\nThe State of Bombay(').\n\nIf there is a pre-Constitution right which is expressly embodied as a fundamental right under our Constitution, the common law right has no separate existence under our Constitution. (See B. Shankara Rao Badami & Ors. v. State of Mysore & Anr.(4 ). If there be any right other than and more extensive than the fundamental right in Part III, such right may continue to exist under Article 372.\n\n, 1) [19521 S. C. R. 889 at 988-89.\n\n12) [1964] 1 S. C.R. 332.\n\n(3) [1955] I S. C .R. 691 at 693-97.\n\n(4) [1969] 3 S. C. R. I at 11-13.\n\n- •\n\n• •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 231\n\nBefore the commencement of the Constitution the right to personal A liberty was contained in Statute Jaw, e.g. the Indian Penal Code, the Criminal Procedure Code as also in the common law of Torts. In the event of any wrongful infringement of the right to personal liberty the person aff.ected could move a competent court by way of a suit for false imp_risonment and claim damages.\n\nSuits for false imprisonment are one of the categories of Jaw of B Torts. The common Jaw of Torts prevailed in our country before the Constitution on the basis of justice, equity and good conscience. (See Waghela Rajsanfii v. Shiekh Masludin & Ors.(') Satish Chandra Chakravarti v. Ram Doyal De( 2 ) and Baboo s/o Thakur Dhabi v .\n\nMt. Subanshi w /o Mangal Dhobi( 3). This principle of justice, equity and good conscience which applied in India before the Constitution is generally known as the English Common Law. Apart from the Jaw C of Torts, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution.\n\nAfter the amendment of section 491 of the Code of Criminal Procedure in 1923, the right to obtain a direction in the nature of a habeas corpus became a statutory right to a remedy in India.\n\nAfter 1923 it was not open to any party to ask for a writ of habeas corpus as a matter of common law. (See Makhan Singh's case (snpra) at pp. 818-19; District Magistrate, Trivandrum v. K. C. Mammen Mappillai(4), Matthen v. District Magistrate, Trivandrum('5 ), Girindra Nath Banerjee's case (supra) and Sibnath Banerjee's case (supra). The previsions of section 491 of the Criminal Procedure Code have been repealed recently as being superfluous in view of Article 226. (See 41st Report of Law Commission of India (Vol. I) p. 307).\n\nE The present appeals arise from petitions filed in High Courts for writs in the nature of habeas corpus. The statutory right to remedy in the nature of habeas corpus under section 491 of the Criminal Procedure Code cannot be exercised now in view of the repeal of th:i, t section. Even if the section existed today it could not be exercised as a separate right distinct from the fundamental right, the enforcement of which is suspended by the Presidential Order as was held by this F Court in Makhan Singh's case (supra) at pp. 818-825. There was no statutory right to enforce the right to personal liberty o\\her than that in seetion 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under Article 372. Law means enacted law or statute law. (See A. K. Gopalan's case (supra) at pp. 112, 199, 276, 277, 288, 307, 308, 309, 321, 322). It follows that law in Article 21 will G include all post-constitutional statute law including the Act in the present case and by virtue of Article 372 all pre-constitutional statute Jaw including the Indian Penal Code and the Criminal Procedure Code.\n\nThe expression \"procedure established by law\" includes substantive as well as procedural Jaw. (See A. K. Gopalan's case (supra) at p. 111 and S. Krishnan & Ors. v. The State of Madras( 6). It means H\n\n(I) 14 I. A. 89 at 96.\n\n(2) I.L.R. 48 Cal. 388 at 407-10, 425. 426.\n\n(3) A.I.R. 1942 Nag. 99.\n\n(4) l.L.R. [1939] Mad. 708.\n\n(5) L.R. 66 I.A. 222.\n\n(6) [1951] S. C. R. 621 at p. 639.\n\nSUPREME COURT RHORTS [1976] SUPPLnlENTARY\n\nsome step or method or manner of procedure leading upto deprivation of personal liberty. A law depriving a person of personal liberty must be a substantive and procedural raw authorising such deprivation. It cannot be a bare law authorising deprivation of personal liberty. The makers of the Constitution bad the Criminal Procedure Code in mind.\n\nThe repealed Criminal Procedure Code as well as the present Criminal Procedure Code bas substantive as well as procedural provisions. The substantive as well as the procedural parts in a law depriving a person of personal liberty must be strictly followed.\n\nThere is no distinction between the expression \"save by authority of law\" in Article 31 (I) and the expression \"except by authority of law\" in Article 265. Laws under Article 31 ( 1) must lay down a procedure containing reasonable restrictions.\n\nLaw under Article 265 also lays down a procedure.\n\nTherefore, there is po difference between the expression \"except according to procedure established by law\" in Article 21 and the expression \"save by authority of law\" in Article 31 (1) or the expression \"except by authority of law\" in Article 265.\n\nWhen Article 21 was enacted it would be a blunder to suggest that the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the constitutional mandate that personal liberty could not be takea except according to law.\n\nThe Attorney General rightly submitted at the outset that Article 21 confers a fundamental right against the Executive and law in that Article means State law or statute law.\n\nIn the present appeals, the respondents allege that section 3 of the Act bas not been complied with.\n\nIn the present appeals the Act is not challenged nor can it be challenged on the ground of infringement of Article 19 by reason of Articles 358. 359(1) and the Presidential Order. It has been pointed out earlier that non-compliance with the provisions of the Act cannot be chaJlengcd as Jong as the Presidential Order is in force.\n\nArticle 20 states that no person shall be prosecuted and punished for the same offence more than once.\n\nThe present appeals do not touch any aspect of Article 20. The reason why reference is made at this stage to Article 20 is to show that Article 20 is a constitutional mandate to the Judiciary and Article 21 is a constitutional mandate to the Executive.\n\nThe respondents contend that \"State\" in Article 12 will also include the Judiciary and Article 20 is enforceable against the Judiciary in respect of iJlegal orders. The answer is that Article 20 is a prohlbition against the Judiciary in the cases contemplated there. If a G person is detained after the Judiciary acts contrary to the provisiom in Article 20 such detention cannot be enforced against the Judiciary.\n\nIn the event of the Judiciary acting contrary to the provisions in Article 20 such detention can be challenged by moving the court against the Executive for \\Vrongfu1 detention. or conviction or punishment as the case may be.\n\nThe expression \"No person shall be prosecuted for the same offence more than once\" in Article 20 would H apply only to the Executive.\n\n• • \\\n\nThe decision in Makhan Singh's case (supra) is that fundamental Y rights cannot be enforced against the Judiciary in case of illegal\n\n- ,\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (Ray, C.J.) 233\n\n-0rders.\n\nThe decision in Ram Narayan Singh v. The State of Delhi & Ors.(1) is no authority for the proposition that fundamental rights ·.can be enforced against the Judiciary.\n\nThis Court held that the -detention of Ram Narayan was illegal because Ram Narayan was being detained without any order of remand by the Magistrate. In Ram Narayan's case (supra} there was no aspect of the bar under Article 359. It is not correct to say that the suspension of fundamental rights or of their enforcement can increase the power of the Executive.\n\nThe effect of suspension or enforcement of fundamental rights is that an individual cannot move any court for the enforcement of his fundamental right to personal liberty for the time being.\n\nReference to Articles 256, 265 and 361 was made by the respondents to show that Article 21 is not the repository of rights to life and liberty.\n\nThese references are irrelevant.\n\nArticle 256 does not confer any right on any person. It deals with relations between the Union and the State.\n\nArticle 265 has nothing to do with the right to personal liberty.\n\nArticle 3 61 ( 3) refers to the issue of a process from any court which is a judicial act and not any Executive\n\naction. In any event, these Articles have no relevance in the present appeals.\n\nReference was made by the respondents to an accused filing a\" appeal relating to criminal proceedings to show that Artie!~ 21 is not the sole respository of right to life and liberty.\n\nIn a criminal proceeding the accused defends himsel! against the accusation of a'l -0ffence against him.\n\nHe does_ not move any court for the enforcement of his fundamental right of personal liberty.\n\nIn an appeal against the order of conviction the accused challenges the correctness of the judicial decision.\n\nAn appeal or revision is a continuation of the original proceeding. (See Garikapatti Veeraya v. N. Subbiah Choudhury(') and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Taha! Ramnand & Ors.(').\n\nThe respondents posed the question whether a decree given against the Government could be enforced because of the Presidential Order.\n\nThis is irrelevant. However, a decree conolusively determines the rights of the parties in the suit and after a decree is passed the right o~ the decree-holder is not founded on the right which is recognised by the decree but on the decree itself. This right arising from a decree is not a fundamental right, and, therefore, will not be prima facie eovered by a Presidential Order under Article 359 ( 1) .\n\nThe other examples given by the respondents are seizure of property by Government, requisition by Government contrary to Arti~ des 31 and 19(1)(f). If any seizure of property is illegal or an acquisition or requisition is challenged it will depend upon the Presidential Order to find out whether the proceedings are for the enforcement of fundamental rights covered by the Presidential\n\nOrder.\n\n(I) [19531 S. C. R. 652.\n\n(2) (1957] S. C. R. 488.\n\n(3) [1973] 1 s. c. R. 185.\n\nFundamental rights including the right to personal liberty are conferred by the Constitution. Any pre-Constitution rights which are included in Article 21 do not after the Constitution remain in existence which can be enforced if Article 21 is suspended. If it be assumed that there was any pre-constitutional right to personal liberty included in Article 21 which continued to exist as a distinct and separate right then Article, 359 (I) will be an exercise in futility.\n\nIn Makhan Singh's case (supra) there was not suggestion that apart from Article 21 there was any common law or pre-Constitution right to personal liberty.\n\nThe theory of eclipse advanced on behalf of the respondents is 1mtenable.\n\nReliance was placed on the decision in Bhikaji Narain D!wkms & Ors. v. The State of Madhya Pradesh & Anr.(T). The theory of eclipse refers to pre-constitutional laws which were inconsistent with fundamental rights.\n\nBy reason of Article 13 (1) such Jaws did not become void but became devoid of legal force.\n\nSuch laws became eclipsed for the time being.\n\nThe theory of eclipse has no relevance to the suspension of the enforcement of fundamental rights wider Article 359 ( 1).\n\nThe constitutional provisions conferring fundamental rights cannot be said to be inconsistent with Article 13 (1).\n\nArticle 21 is not a common law right. There was no pre-existing common law remedy to habeas corpus.\n\nFurther, no common law right which corresponds to a fundamental right can exist as a distinct right. apart from the fundamental right.\n\nSee Dhirubha Devisingh Go/zil v. The State of Bombay (supra) and B. Sha11kar Rao Badami's c1se (supra).\n\nIn Gohil's case (supra) the validity of the Bombay Act of 1949 was challenged on the ground that it took away or abridged fundamental rights conferred bythe Constitution. The Act was held to be beyond question in view of Article 31-B which had been inserted in the Constitution by the First Amendment and the Act being mentioned as Item 4 of the 9th Schedule.\n\nIt was said that one of the rights secured by Part III of our Constitution is a right that the property shall be acquired for a public purpose and um!er a law auhorising such acquisition and providing for compensation.\n\nThat is also the very right which was previously secured to a person under section 299 of the Government of India Act, 1935.\n\nThis Court said that what under the Government of India Act was a provision relating to the competency of the Legislature, was aisD' clearly in the nature of a right of the person affected.\n\nThe right under Article 299 which was pre-existing, became along with other fundame[\\tal rights for the first time secured by our Constitution when grouping them together as fundamental rights.\n\nThe respondents gave the example that although section 12(2)' of the Act makes it obligatory on the Executive to revoke the detention order and if the Executive does not do so such Executive action will amount to non-compliance with the Act. Here again, the detenu\n\n(I) [1955] 2 S. C. R. 589.\n\n. '\n\n• • \\\n\nf •\n\n• •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 235\n\ncannot enforce any statutory right under the Act for the same reason that it will amount to enforce his fundamental right to personal liberty by contending that the Executive is depriving him of his personal liberty not according to \"procedure established by law\". Similarly, the example given of an illegal detention of a person by a Police Officer will be met with the same plea.\n\nAn argument was advanced on behalf of the respondents that if pre-existing law is merged in Article 21 there will be conllict with Article 372.\n\nThe expression \"law in force\" in Article 372 cannot include laws which are incorporated in the Constitution viz., in Part III. The expression \"law\" in Articles 19 ( 1) and 21 takes in statute law.\n\nThe respondents contended that permanent law cannot be repealed by temporary law.\n\nThe argument is irrelevant and misplaced.\n\nThe Presidential Order under Article 359 ( 1) is not a law. The Order does not repeal any law either.\n\nThe suggestion that Article 21 was intended to afford protection to life and personal liberty against violation by private individuals was rejected in Shamdasani's case (supra) because there cannot be any question of one private individual being authorised by law to deprive another of his property or taking away the life and liberty of any person by procedure established by law.\n\nThe entire concept in Article 21 is against Executive action.\n\nIn Vidya Verma' s case (supra) this Court said that there is no question of infringement of fundamental right under Article 21 where the detention complained of is by a private person and not by a State or under the authority or orders of a State.\n\nThe Act in the present case is valid law and it has laid down procedure of applying the law.\n\nThe validity of the Aci has not been challenged and cannot be challenged.\n\nThe Legislature has competence to make the law.\n\nThe procedure, therefore. cannot be challenged because Articles 21 and 22 cannot be enforced. The suggestion of the respondents that the power of the Executive is widened is equally untennble.\n\n. The suggestion on behalf of the respondents that the right to pnvate defence is available and if any one resorted to private defence\n\nin esisting _detention there might be civil war is an argument to excite emotw~. If there are signs of civil war, as the respondents suggested, tt 1~ for the Government of our country to deal with the\n\nstuation. It 1s because of these aspects that emergency is not justi-\n\nG• ciable because no court can have proper standard to measure the problems of mergency in the country. If any person detained finds that the_ official has the _authority to. arrest him no question of resistanc:e anses and 1f there 1s no authority the same cannot be challenged durmg Hie operatwn of the Pr'.\"idetial Order but the person shall have hrs remedy for any false rmpnsonment after the expiry of the Presidential Order.\n\nTh_e respondents sumitted. that if Article 21 were the repository of a nght to personal liberty 1t would mean that Article 21 destroyed pre-existing rights and then made a fresh grant.\n\nThere is no\n\nSUPREME COURT REPORTS f J 976] SUPPLH1E'ITARY\n\nA question of destruction of any right.\n\nOur fundamental rights came into existence for the first time under the Constitution. The fact that section 491 of the old Criminal Procedure Code has been abolished in the new Code establishes that the pre-existing right was embodied as a fundamental right in the Constitution. The right to personal liberty became identified with fundamental right to personal liberty under Article 21.\n\nThe third question is whether Rule of Law overrides the Presidential Order.\n\nThe Presidential Order does not alter or suspend any law.\n\nThe rule of law is not a mere catchword or incantation. Rule of law is not a law of nature consistent and invariable at all times and in all circumstances.\n\nThe certainty of law is one of the elements in the concept of the Rule of Law but it is only one element and, taken by itself, affords little guidance. The essential feature of Rule of Law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature. Rule of Law is a normative as much as it is a descriptive term. It expresses an ideal as much as a juristic fact.\n\nThe Rule of Law is not identical with a free society.\n\nIf the sphere of the Rule of Law involves what can be called the \"Existence of the Democratic System\" it means two things. In the first place the individual liberties of a democratic system involve the right of the members of each society to choose the Government under which they live.\n\nIn the second place come freedom of speech, freedom of assembly and freedom of association.\n\nThese are not absolute rights, Their exceptions are justified by the necessity of rccu\"ciling the claims of different individuals to those rights.\n\nThe criterion whereby this reconcilliation can be effected is the concern of the law to ensure that the status and d'gnity of all individuals is to the greatest possible extent observed.\n\nFreedom of speech may be limited by conceptions as \"clear and present danger\", \"attack on the free democratic order\".\n\nThe institutions and procedures by which the fundamental regard for the status and dignity of the human person can be effected is that rights and remedies are complimentary to the other. The phrases such as \"equality before law\" or \"equal protection of the laws\" are in themselves equivocal.\n\nThe supremacy of the law means that the faith of civil liberty depends on the man who has to administer civil liberty much more than on any legal formula. Aristotle, pointed out that the rigid certainty of law is not applicable to all circumstances. This plea would be echoed by the modern administrator called upon to deal with the ever changing circumstances of economic and social life of the nation.\n\nThe respondents contend that all executive actions which operate to the prejudice of any person must have the authority of law to support it. Reliance is placed on the decisions in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab('). M. P. State v. Bharat Singh( 2 ) Collector v. Ibrahim & Co. ( 3). Bennet Coleman & Co. v. Union of\n\n( t) [1955] 2 s. c. R. 225.\n\n(2) [196i] 2 s. c. R. 454. (J) f19i0] 3 S. C. R. 498.\n\n• \\\n\n• \\ -\n\n• •\n\ni •\n\ni l\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 237\n\nIndia(\") and Meenakshi Mills v. Union of lndia('). This is amplified A by the respondents to mean that the Executive cannot detain a person otherwise than under any legislation and on the suspension of Article 21 or the right to enforce it, the Executive cannot get any right to act contrary to law.\n\nThe Executive cannot detain a person otherwise than under valid legislation. The suspension of any fundamental right does not effect B this rule of the Constitution.\n\nIn normal situations when there is no emergency and when there is no Presidential Order of the type like the present the situation is different. In Bharat Singh's case (supra) this Court was concerned with the pre-emergency law and an order of the Executive thereunder. It was held that the pre-emergency law was void as violative of Article 19, and, therefore, such a law being pre-emergency law could not claim the protection under Article 358.\n\nThe ratio in Bharat Singh's case (supra) is this : Executive action which operates to the prejudice of any person must have the authority of law to suppor it. [See also Ram Jawaya Kapur's case (supra)]. The provisions of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or Executive action provided such action was competent for the State to make or take but )} for the provisions contained in Part III of our Constitution. Article 358 permits an Executive action under a law which may violate Aricle 19 but if th law is void or if there be no law at all, the Executive action will not be protected by Article 358. Bharat Singh's case (supra) considered the effect of Article 358 so far the Executive action is concerned, but was not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential Order under E Article 359 ( 1).\n\nlbrahim's case (supra), the Bannett Coleman case (supra) and the Meenakshi Mills case (supra) follow Bharat Singh's case (supra) regarding the proposition that the terms of Article 358 do not detract from the position that the Executive cannot act to the prejndice of a person without the authority of law.\n\nThe ratio in Bharat Singh's case (supra) is that the Madhya Pradesh Public Security Act was brought into force before the Emergency.\n\nArticle 358 emj:>owers the legislatnre to make a law violating Article 19.\n\nArticle 358 does not mean that a pre-emergency law violating 1 Article 19 would have constitutional validity during the period of emergency. The Executive action which was taken dnring the emergency on the basis of the pre-emergency law did not have the authority of law inasmuch as the Madhya Pradesh Act of 1959 was a void law when it was enacted in violation of Article 19.\n\nfo Ibrahim's case (supra) the Sugar Control Order 1963 permitted allocation of quotas of sugar.\n\nThe State Government ordered that the sugar allocated to the two cities of Hyderabad and Secunderabad were in entirety to be given to the Co-operative Stores. Under Article H\n\n(!) 11973] 2 S. C. R .757.\n\n(2) [1974] 2 s. c. R. 398.\n\n358 the respondents there could not challenge an Executive action which, but for the provisions contained Article 19, the State was competent to take. But the Executive order there was one which had the effect of cancelling the licences of the respondents which could be done only after an enquiry according to the procedure prescribed in the order.\n\nThe Executive order there was contrary to the provisions contained in the Sugar Control Order. In other words, the Executive action which was in breach of the order could not be immune from attack under Article 358. In the Bennet Coleman case (supra) it was said that the Newsprint Control Order could not authorise the number of pages. In the Meenakshi Mills case (supra) it was said that the Yarn Control Order could not be resisted on the ground that it had no direct intpact on the rights of the mills.\n\nIn these four cases referred to there was no question of enforcement of fundamental right mentioned in the Presidential Order. These four cases were not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential Order under Article 359.\n\nThe suspension of right to enforce fundamental right has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of law other than the constitutional rnle of law.\n\nThere cannot be any pre- Constitution or post-Constitntion Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency.\n\nThe respondents relied on the decision in Eshugbayi Eleko v.\n\nOfficer Administering the Government of Nigeria(') in support of the\n\nproposition that Rule of Law will always apply even when tllerc is Presidential Order. It has to be realised that the decision in Es!;,, qbav1 Eleko cannot over-reach onr Constitution.\n\nF Article 358 does not permit the Executive action to harn the authority of law.\n\nArticle 359 prevents the enforcement of the fundamental rights mentioned in the Presidential Order. It bars enforcement against any legislation or executive! action violating a fundamental right mentioned in the Presidential Order.\n\nG The principle in Eshugbayi Eleko's case (supra) will no: apply where Article 359 is the paramount and supreme Jaw of the cvuntry.\n\nThere is no question of amendment of the concept of rule of law or any suggestion of destruction of rule of Jaw as the respondents contended because the Presidential Order under Article 359 neither nullifies nor suspends the operation of any law.\n\nThe consequence of the Presidential Order is of a higher inlport than the suspension of any law because the remedy for the enforcement of fundamental rights is barred for the time being because of grave emergency.\n\n(!) .[1931] A. C. 662.\n\n' I\n\n!--\n\n• •\n\n' .\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (Ray, C.J.) 239\n\nThe respondents contend that if an individual officer acts outside his authority, it will be an illegal act and the High Court under Article 226 can deal with it.\n\nReliance is placed on the English decision in Christie & Allr. v. Leachinsky(') in support of the proposition that the action of an individual officer will be an Executive action when he acts within the scope of his authority.\n\nThe decision in Leachinsky' s case (supra) is an action for false imprisonment nd damages against two persons of Liverpool City Police for wrongfully arresting a person without informing that person of the grounds for arrest.\n\nThat case has no relevance here.\n\nAn individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to\n\nbe not in compliance with the statute under which he is authorised to C make the order.\n\nAny challenge to the order of detention would come within the fold of breach of fnndamental right under Article 21, namely, deprivation of personal liberty.\n\nThe obligation of the Executive to act in accordance with the Act is an obligat\\on as laid down in Article 21. If such an obligation is not performed, the violation is of Article 21. It will mean that the right of the person affected will be a violation of fundamental right.\n\nThe expression \"for any other purpose\" in Article 226 means for • any purpose other than the enforcement of fundamental rights.\n\nA > petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal.\n\nAn Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.\n\nSection 18 of the Act has been argued by the respondents to mean that a malafide order of detention cannot be regarded as an order\n\nmade under the Act.\n\nSection 18 has also been challenged to suffer F from the vice of excessive delegation.\n\nSection 18 has been amended by the words \"in respect of whom an order is made or purported to be made under section 3\" in substitution of the words \"detained under this Act\". The result is that no person in respect of whom and order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural Jaw or common Jaw, if any.\n\nIt has been earlier held that there is no natural law or common law G right to habeas corpus.\n\nThe respondents rely on the decisions in Poona Municipal Corporation v. D. N. Deodher(2), Kala Bhandar v.\n\nMunc. Committee('), Indore Municipality v. Niyamatulla(4) and Joseph v. Joseph(') in support of the proposition that the expression \"purports\" means \"has the effect of\". The respondents contend that\n\no l f!947l A c., 573.\n\n(2) (19641 8 S. C. R. 178.\n\n(3) [1965] 3 S. C. R. 499.\n\n(4) A. I. R. 1971 S. C. 97.\n\n(5) [1966] 3 All. E. R. 486.\n\nsection 18 of the Act can apply only when a valid order of detention is made. If the section be interpreted to include rnalafide orders or orders without jurisdiction then it is said that such interpretation will prevail upon the judicial power and violate Article 226.\n\nThe expression \"purported to be done\" occurs in section 80 of the Code of Civil Procedure.\n\nThe expression \"purported to be made under section 3 of the Act\" in section 18 will include an executive act made by the Dstrict Magistrate within the scope of his authority as District Magistrate, even if the order is made in breach of the section or is mala fide. (See Hari Singh v.\n\nThe Crown(') Bhagcha11d Dagadusa v. Secretary of State for lndia(2), Albert\n\nWest Meads v. The King('), Anismi11ic v. Foreign Compensation etc.( 4 ) and Dakshina Ranjan Ghosh v. Omar Chand Oswal(•). As bng as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under section 3 of the Act.\n\nThe section applies to any person in respect of whom an order has been made or purported to be made. There is no question of excessive delegation. Section 18 of the Act lays down the law. Section 18 of the Act is only an illustration of an application of the .Act by the officers authorised by the Act.\n\nSection 18 identifies the person to whom it applies and in what cases it applies to snch a person. The word \"purport\" covers acts alleged to be malafide.\n\nThe decisions to which reference has been made indicate that the acts whatever their effect be are all acts made or purported to be made under the Act.\n\nA contention is advanced by the respondents that section 18 of the Act will apply only to post-detention challenge. This is wrong. Section 18 applies to all orders of detention.\n\nCounsel on behalf of the respondents submitted that the High Courts had only heard the matters on preliminary points and not on the area of judicial scrutiny, and, therefore, this Court shonld not express any view on the latter question. There are three principal :rounds why this Court should express views.\n\nFirst. The Bombay High Court (Nagpur Bench) has read down section 16A(9) of the Act.\n\nOne of the appeals is from the judgment cif the Bombay High Court (Nagpur Bench).\n\nThis judgment directly raises the question of section 16A(9) of the Act.\n\nSecond. The Additional Solicitor General made his submissions on this part of the case and all counsel f?r the respondents made their submissions in reply.\n\nConsiderable tllfie was spent on hearing submissions on both sides.\n\nTime of the Court is time of the nation.\n\nThird. It is only proper that when so mc~ time has been taken on these questions this Court should eKpress opm10ns and lay down areas for judicial scrutiny.\n\n(1) [1939] F. C. R. 159.\n\n(2) L. R.. 54 I. A. 338 at 352.\n\n(3) A. l. R. 1948 p, C. 156 at 157-59.\n\n14) 11969] 1 All. E. R. 208 at 212-13, 237.\n\n(5) I. L. R. 50 Cal'. 992 at 995-1003. ·\n\n.. '\n\n,. -\n\n) . '\n\n• • )\n\n• j\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA ·(Ray, C.J.) z.41\n\nThe respondents contend that if the Presidential Order. does not bar the challenge on the ground that the orders are malafide or that the orders are not made in accordance with the . Act the non-supply of grounds will not affect the. juris\\liction of the Court. It is sa, id by the respondents that the. scope of judicial scrutiny is against orders. The respondents submit that courthi\\S gone behind the orders of detention in large number of cases.\n\nThe respondents submit as follows : It is open to the Court to judge the legality of the orders. This the Court can do by going beyond the order.\n\nThough satisfaction is recorded in the order and such recording of satisfaction raises the presumption of legality of order the initial onus on a detenu is only to the extent of creating \"disquieting doubts\" in the mind of the Court.\n\nThe doubts are that the orders are based ou irrelevant non-existing facts or on facts on which no reasonable person could be satisfied in respect of matters set out in section 3 of the Act. If such a prima facie case is established the burden shifts and the detaining authority must satisfy the court about the legality of detention and the detaining authority must remove doubts on all aspects of legality which have been put in issue. If the detaining authority for whatever reasons fails to satisfy the court either by not filing an affidavit or not placing such facts which may resolve the doubts about the legality of detention the court may direct release of the detenus .\n\nThe respondents submit that all that they want is that if the detenus challenge the orders to be malafide or to be not in compliance with the statute and if the court does not have any \"disquieting doubts\" the court will dismiss the petitions. If the court has any such doubt the court will call for the return.\n\nOn a return being made if the court is E satisfied that the return is an adequate answer the court will dismiss the petition. If the court wants to look into the grounds the court will ask for the production of the grounds and the court itself will look into the grounds but will not show the grounds to the detenus.\n\nIn short, the respondents submit that the jurisdiction of the court to entertain the application should not be taken away as a result of the Presidential order.\n\nF The appellants submit that if Article 359 is not a bar at the threshold and if the Court can entertain a petition, judicial review should be limited within a narrow area.\n\nIn the forefront 16A(9) of the Act is put because that section forbids disclosure of grounds and infortion in the possession of the detaining authority.\n\nThe Nagpur Bench of the Bombay High Court read down section 16A(9) but the Additional Solicitor General submitted that section 16A(9) should not be read down because it enacts a rule of evidence.\n\nThe Additional Solicitor General submitted as follows : The scrutiny by courts will extend to examining first whether detention is in exercise or purported exercise of law.\n\nThat will be to find out whether there is a legal foundation for detention.\n\nThe second enquiry will be whether the law is valid law. If it is a pre-emergency law the same can be tested as to whether it was valitl with reference to Articles\n\n18-833Sup. Cl/76 II\n\n14, 19, 21 and 22. If it is an emergency legislation the validity of law cannot be gone into first, because of Article 358, and, second, because of the Presidential Order under Article 359. The other matters wbich the court may examine are whether the detaining authority is a competent authority under the law to pass the order, whether the detenu has been properly identified, whether the stated purpose is one wbich osterisibly conforms to law and whether the procedural safeguards enacted by the law are followed.\n\nWith regard to grounds of detention it is said by the Additional Solicitor General that if the grounds are furnished or are required to be furnished the Court can examine whether such grounds ex-facie justify reasonable apprehension of the detaining authority.\n\nWhere the grounds are not to be furnished, it is said that tins enquiry does not arise.\n\nThe Additional Solicitor General submits that judicial scrutiny cannot extend to three matters-first, objective appraisal of the essential subjective satisfaction of the detaining authority, second, examination of the material and information before the detaining authority for the purpose of testing the satisfaction of the authority, and, third, directing compulsory production of the file relating to detenu or drawing and adverse inference from the non-production thereof.\n\nMaterial and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosure would impair the proper functioning of public service and administra.tion.\n\nThe file relating to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question.\n\nTbis was the view taken in the Liversidge (') case.\n\nSee also Rogers(') case. If privilege were to be claimed in each case such a claim would in terms of sections 123 and 162 of the Evidence Act have been invariably upheld.\n\nArticle 22 ( 6) also contemplates such claims on behalf of the State.\n\nThat is why instead of leaving it to individual decision in each case or to the discretion of individual detaining authori.ties to make a claim for privilege, the legislature has enacted section 16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification.\n\nSec.lion 16A cannot be said to be an amendment to Ar.tide 226.\n\nThe jurisdiction to issue writs is neither abrogated nor abridged.\n\nA claim of privilege arises in regard to documents or information where a party to a suit or proceeding is called upon to produce evidence.\n\nG Section 16A(9) enacts provisions analogous to a conclusive proof of presumption.\n\nSuch a provision is a genuine rule of evidence. It is in the nature of an Explanation to sections 123 and 162 of the Evidence Act.\n\nSection 16A(9) is a rule of evidence.\n\nTherefore, when the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise for adverse inference against the authority. If a detenu makes out a H prime facie case and the court calls for a return, the affidavit of the\n\n(!) [1942] A. C. 206 at 221, 253, 254. 266, 267, 279' and 280.\n\n(2) [1973] A. C.\\ 388 at 400, 401 and 405.\n\n. '\n\nJ '\n\n• •\n\n• j\n\nADDJ;,. DIST. MMm>TRATE v. S. S. SHUKLA (Ray, C./.) 243\n\nauthority will be an answer.\n\nThe Court cannot insist on the production of the file or hold that the case of the detenu stands unrebutted by reason of such non-disclosure. To hold otherwise would be to induce reckless averments of malafides to force production of the file which is forbidden by law.\n\nSection 16A(9) cannot be read down implying an exception in favour of disclosure to the Court as was suggested by the Bombay High Court (Nagpur Bench). Such disclosure to the court alone and not to the detenu will introduce something unknown to judicial procedure.\n\nThis will bring in an element of arbitrariness and preclude both parties from representing their respective cases. Further, it would substitute or super-impose satisfaction of the Court for that of the Executive.\n\nThis Court has held that the view of the detaining authority is not to be substituted by the view of th~ court. (See State of Bombay v. Atma Ram Sridhar Vaidya ('), Shibban Lal Saksena v. The State of Uttar Pradesh & Ors(')., Rameshwar Shaw v.\n\nDistrict Magistrate, Burdwan & Anr.,( 3 ) Jaichand Lal v. W. Bengal(,4), and Ram Manohar Lohia's case (supra).\n\nThe theory of good return mentioned in the English decisious is based on the language of Habeas Comps Act and the Rules of the \" Supreme Court of England.\n\nThe practice of our Court is different.\n\nThe rnspondents relied on M. M. Damnao v. J. & K. State(') in support of the proposition that the file was produced there and also contended that section 16A(9) can be struck down as happened in A. K. Gopalwfs case (supra) where section 14 of the Preventive Detention Act was struck down. When A. K. Gopalan's case (supra) was decided Article 22 was in force. Prevention of court from E seeing the grounds contravened Article 22.\n\nThere was no question of privilege.\n\nSection 14 of the Preventive Detention Act in A. K.\n\nGopalan's case (supra) offended Article 22. (See A. K. Gopalan's case 1950 S. C. R. 88 at 130, 217, 242, 283-84, 332-33).\n\nIn Damnoo's case (supra) there was no question of privilege.\n\nThe file was produced but there was no direction of the court to produce the file.\n\nSecond. There was no aspect of Article 359.\n\nThird.\n\nIn Damnoo's case (supra) the analogy of section 14 of the Preventive Detention Act in Gopalan's case was considered.\n\nNo provision like section l 6A(9) was on the scene.\n\nFourth, The State did not rely on the proviso to section 8 of the relevant Act there to contend that the file could not be produced.\n\nSection 16A(9) of the Act contains definite indications of implied exclusion of judicial review on the allegations of malafide. It is not possible for the court to adjudicate effectively on malafides.\n\nThe reason why section 16A has been enacted is to provide for periodi-\n\n(1) [1951] s. c. R. 167.\n\n(2) [1954] s. c.. R. 418.\n\n(3) [1964]'4 S. C.R. 921.\n\n(4) [1966] Supp. S. C. R. 464.\n\n(5) [1972].2 S.C. R. 1()14.\n\nA cal review by Gove=en.t and that is the safeguard against any unjust or arbitrary exercise of power. . ;\n\nIt will be useless to attempt to examine the truth of the fact alleged in the order in a case when the fact relates to the personal belief of the relevant authority formed at least partly on grounds which he is not bound to disclose.\n\nIt , is not competent for the court to decide whether the impugned order of detention under section 3 (1) or the declaration under section 16A(2) and (3) of the Act during the emergency is a result of malice or ill-will.\n\nThe reason is that it is not af all possible for the court to call for and to have a look at the grounds of the order of detention under section 3 (1) or the declaration under section 16A(2) and (3) of the Act that induced the satisfaction in the mind of the detaining authority that it was necessary to detain the person or to make a declaration against him.\n\nThe grounds of detention and any information or materials on which the detention and the declaration were made are by section 16A(9) of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose.\n\nNo one under the provisions of the Act and in particular section 16A(9) thereof shall communicate or disclose such grounds, materials or information except as provided in section !6A(5) and (8) of the Act.\n\nSubsections (5) and (8) have no application in these cases.\n\nThe ccurt cannot strike down the order as vitiated by malafide and grant relief since it is not possible for the court without the examination of such grounds, materials and information to decide whether the order of detention is the result of malice or ill-will. When the court cannot give any relief on that basis the contention of malafides is not only ineffective bnt also untenable. (See Lawrence Joachim Joesph D'Souza v. The State of Bombay(').\n\nThe provision for periodical review entrusted to the Government under section l 6A ( 4) of the Act in the context of emergency pro- F vides a sufficient safeguard against the misnse of power of detention or arbitrary malafide detention during the emergency. The Government is in full possession of the grounds, materials and information relating to the individual detentions while exercising the power of review. ·; ·\n\nThe jurisdiction of the court in times of emergency in respect of detention under the Act is restricted by the Act because the Government is entrnsted with the task of periodical review. Even if the generality of the words used in section 3 ( 1) of the Act may not be taken to show an intention to depart from the principle in. ordinary times that the courts are not deprived of the jurisdiction where bad faith is involved, there are ample indications in the provisions of the Act, viz., section 16A(2), proviso to section\n\n16A(3), section 16A( 4), section 16A(5), section 16A(7)(ii) and section 16A(9) of the Act to bar a challenge to the detention on the basil; of mala-\n\n(I) [1956] S. C. R. 382 at 392-93.\n\n' I\n\n• '\n\n• )\n\n• l\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Ray, C.J.) 245\n\nfides. (See Smith v. East Eiloe Rural District Council & Ors.(') and Ram Manohar Lohia's case (supra) at 716, 732). This Court said that an action to decide the order on the grounds of malafides does not lie because under the provisions no action is maintainajJle for the purpose. This Court also referred to the decision in the Liversidge case (supra) where the Court held that the jurisdiction of the court was ousted in such way that even questions o~ bad faith could not be raised.\n\nThe production of the order which is duly authenticated constitutes a peremptory answer to the challenge.\n\nThe onus of showing that the detaining authority was not acting in good faith is on the detenu.\n\nThis burden cannot be discharged because of the difficulty\n\nof proving bad faith in the exercise of subjective discretionary power vested in the administration. De Smith in his Judicial Review C of Administrative Actions 1973 Edition at page 257 seq. has said that the reservation for the case of bad faith in hardly more than a formality.\n\nDetenu will have to discharge the impossible burden of proof that the detaining authority did not genuinely believe he had reasonable cause.\n\nIn Lawrence Joachim Joseph D' Souza's case. (supra) malafide p exercise of power was untenable having regard to the gronnds on which detention was based.\n\nIn the context of emergency section\n\n3 ( 1) of the Act confers an unlimited discretion which cannot be examined by courts.\n\nThis rule of construction of the phrases ''is satisfied\", \"in the opinion of\", \"it appears to be\", \"has reason to believe\" adopted by courts in times of national emergency will be rendered nugatory and ineffective if allegationsof malafides are gone into.\n\nA distinc- E tion is to be drawn between purpose and motive so that where an exercise of power fulfils the purpose for which power was given, it does not matter that he who exercised it is inflnenced by an extraneous motive because when an act is done which is authorised by the Legislature it is not possible to conte<st that discretion.\n\nSo long as the authority is empowered by law action taken to realise that purpose is not malafide. when the order 0f detention is on the face of it within the power F conferred, the order is legal.\n\nThe width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President. The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control. An investiga- G tion into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the gronnds of detention and materials constituting those grounds which is not competent in the context of the emergency.\n\nFor the foregoing reasons the conclusions are as follows :- First. In view of the Presidential Order dated 27 June, 1975 under clause (1) of Article 359 of our Constitution no person has locus\n\n{1) \\195&] A. C. ?36 at ??6.\n\nA standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or malafide.\n\nB Second. Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential Order.\n\nThird. Section 16A(9) of the Act is valid.\n\nIt is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds c of detention.\n\nFourth. It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority.\n\nThe appeals are accepted. The judgments of the High Courts are set aside.\n\nKHANNA, J .-Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which e all cherish and which occupy prime position among the higher values of life.\n\nIt is,, therefore not surprising that those who have an abiding faith i.u the rule of law and sanctity of personal liberty do not easily reconcile themselves. with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of Jaw where the correctness of the allegations' can be gone into in _the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, they assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.\n\nThose who are entrusted with the task of administering the land have another viewpoint.\n\nAccording to them, although they are conscio'1S of the value of Jhuman liberty, they cannot afford to be oblivious of the need of the security of the State or the maintenance of public order.\n\nPersonal liberty has a value if the security of the Stae is not jeopardised and the maintenance of public. order is not threatened.\n\nThere can be the administrator assert, no freedom to destroy freedom.\n\nAllegiance to ideals of freedom cannot operate in vacuum.\n\nDanger lurks and serious consequences can follow when thoughts become encysted in fine phrases oblivious of political realities and the impact of real politik.\n\nNo government can afford to take risks i11\n\n• j\n\nj • '\n\n• I\n\n,.. •\n\n• -\n\n• )\n\nI '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 247\n\nmatters relating to the security of the State.\n\nLiberty, they accord- A ingly claim, has to be measured against community's need for security against internal and external peril.\n\nIt is with a view to balancing the conflicting viewpoints that the framers of the Constitution made express provisions for preventive detention and at the same time inserted safeguards to pr, went abuse of those powers and to mitigate the rigour and harshness of those provisions.\n\nThe dilemma which faced the Constitution-makers in balancing the two conflicting viewpoints relating to liberty of the subject and the security of the State was not, however, laid to rest for good with the drafting of the Constitution. It has presented itself to this Court in one form or the other ever since the Constitution came into force.\n\nA. K. Gopalan's(') was •he first case wherein a Bench of six Judges of this Conrt dealt with the matter. Another Bench of seven Judges again dealt with the matte~ in 1973 inl the case of Shambu Nath Sarkar v. State of West Bengal & Ors(2 ) In between a number of Benches have dealt with the various facets of the question. One\n\nsuch facet has now presented itself to this Constitution Bench.\n\nThe question posed before us is whether in view of the Presidential order dated June 27, 1975 under clause (1) of article 359 of the ConsHtution, any petition under article 226 before a High Court for writ of habeas corpus to enforce the right of personal liberty of a person detained under the Maintenance1 of Internal Security Act,. 1971 (Act 26 of 1971) (hereina£ter referred to as MISA) as amended is maintainable.\n\nA consequential question which may be numbered a& question No. 2 is, if such a petition is maintainable, , what is the scope or extent of judicial scrutiny.\n\nThe above questions arise in criminal appeals Nos. 279 of 1975, 355 and 356 of 1975, 1845-49 of 1975, 380 of 1975, 1926 of 1975, 389 of 1975, 3 of 1976, 41 of 1976 and 46 of !976. These appeals have been filed against the orders of Madhya Pradesh High Court, Allahabad High Court, Kamataka High Court, Delhi High Court, Nagpur Bench of Bombay High Court and Rajasthan High Court whereby the High Courts repelled the preliminary objections relating to the maintainability of petitions under article 226 for writs of habeas Corpwl on account of Presidential order dated June 27, 1975. On the second question,, some of the High Courts\n\nexpressed the view that this was a matter which would be gone into while dealing with individual cases on their merits.\n\nThe other High Courts went intcl the matter and expressed their view.\n\nThis judgment would dispose of all the appeals. ·\n\nMISA was published on July 2, 1971. Section 2 of the Act contains the definition clause.\n\nSection 3 grants P()Wers to make orders for detaining certain persons and reads as under :\n\n\"3. (1) The Central Government of the State Government may,-\n\n(a) if satisfied with respect to any person (including a foreigner) that with a vi~ l?. preventing him from acting in any manner pre1ud1c1al to--\n\n(!) [!950] S., C. R. 88.\n\n(2) [1974] I S. C. R. I.\n\n• G\n\n(i) the defence of India, the relations of India with foreign powers, or the security of India, or\n\n(ii) the secur1ty of the State or the maintenance of public order, or\n\n(iii) the maintenance of supplies and services essential to the community, or\n\n(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or ~1th a view to making arrangements for his expulsion from India,\n\nit is necessary s01 to do,, make an order directing that such person be detained. ·\n\n(2) Any of the following officers, namely:-\n\n(a) district magistrates,\n\n(b) additional district magistrates specially empowered in this behalf by 1the State Government,\n\n( c) Commissioners of Police, wherever they have been appointed,\n\nmay, if satisfied as provided in sub-clauses (ii) and (iii) of clause (a) of sub-section (1)\" exercise the power conferred by the said sub-section.\n\n( 3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report .the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such. other particulars as in his opinion\n\nhave a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:\n\nProvided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the date of detention, !his sub-section shall apply subject to the modification that for the words 'twelve days', the words 'twenty-two days' shall be substituted.\n\n( 4) When any order is made or approved by the State Govermnent under this section, the State Government shall within seven days, report the fact , to the Central Government together with the grounds on which the order bas been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order.''\n\n• '\n\n• •\n\n• •\n\n• ' .\n\n• '\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanru1, J.) 249\n\nSection 4 and 5 deal respectively with execution of detention orders A and the power to regulate place and conditions of detention.\n\nAccording to section 6, detention orders are not to be invalidated or inoperative on the ground that the person to be detained is outside the limits of the territorial jurisdiction of the Government or officer making the order' or that the place of detention of such person is outside the said limits.\n\nSection 8 requires that the grounds of order of detention should be disclosed to persons affected by the order and B he should .be granted the earliest opportunity of making a representation against the order.\n\nSection 9 deals with the constitution of Advisory Boards.\n\nSection 10 makes provision for reference to Advisory Boards.\n\nSection 11 prescribes the procedure of Advisory Boards and section 12 requires that action should be taken in accordance with the report of the Advisory Board.\n\nAccording to section 13, the maximum period of detention shall be 12 months from the C date of detention.\n\nSection 14 confers power of revocation of detention orders. Section 15 confers power upon the appropriate Government to temporarily release the detained persons.\n\nSection 16 gives protection to action taken in good faith.\n\nSection 1 7 provides for detention up to two years in certain cases of foreigners.\n\nSection 18, which has subsequently been re-numbered as section 19, provides for the repeal of the Maintenance of Internal Security Ordinance and D the saving clause.\n\nAccording to clause (1) of article 352 of the Constitution, if the President is satisfied that a grave emergency exists whereby the security of India or of anY part of the territory thereof is threatened, whether by war or extet'Dlll . aggression or internal disturb:rnce, he may, by :Proclamation,_ make a declaration to that effeo!. . On Deceinber 3,, 1971 the President of India issued the following' proclamation of emergency : ·\n\n\"Jill exercise of 'the powers coliferred by clause ( 1) of article 352 of the' Constitution, I, V. V. Giri, President of Indra; by this Pfoclamatioh declare that a grave emergency exists whereby the security of India is therea!ened by external aggression.\n\nV. V. Giri\n\nPresident\" Clause ( 1) of article 359 of the Constitution reads as under :\n\n\"Whre a Proclamation of Emergency is in operation, G the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order ond all proceedings pending in any court for the enforcement of the\n\nrigts so entioned shall remain suspended for the period durmg which the Proclamation is in force or for such shorter period as may be specified in the order.\" H\n\nOn November 16, 1974 the President of India made the following order :\n\n\n(1976] SUPPLEMENTAR!\n\n. \"In exercise of the powers conferred by clause ( 1) of article 359 of the Constitution, the President hereby declares that-\n\n( a) the right to move any cou111 with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1) ( c) of the Maintenance of Internal Security Act, 1971 as amended by Ordinance 11 of 197 4, for the enforcement of the rights conferred by article 14, article 21 and clauses (4), (5), (6) and (7) of article 22 of the Constitution, and\n\n(b) all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect of orders of detention made under the said section 3(1) (c)'\n\nshall remain suspended for a period of six months from the date of issue of this Order or the period during which the Proclamati\"on of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd December, 1971, is in force, whichever period expires earlier.\n\n2. This Order shall extend to the whole of the territory of India.\"\n\nOn June 20, 197 5 the President of India amended the above order I. by substituting twelve months\" for \"six months\" in the order. On June 25, 1975 the President of India issued another proclamation of e:mergency and the same reads as under :\n\n\"PROCLAMATION OF EMERGENCY In exercise of the p<>wers conferred by clause ( 1) of article 352 of the Constitution, I Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal. disturbance.\n\nSd/- F. A. Ahmed\n\nPresident\" G New Delhi\n\nthe 25th June,, 1975\n\nOn June 27, 1975 the President of India made the following order:\n\n\"In exercise of the powers conferred by clause (I) of article1359 of the Conscitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitwtion\n\n< ••\n\n•• '\n\n• I\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 251\n\nand all proceedings pending in any court for the enforce- A men of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause ( 1) of article 352 of the Constitution on , the 3rd December, 1971 and on the 25th June, 1975 are both in force.\n\nThis Order shall extend to the whole of the territory of India except the State of J ammu and Kashmir.\n\nThis . Order shall be in addition to and not in derogation\n\nt • of any Order made before the date of this order under clause ( 1) of auticle 359 of the Constitution.\"\n\nOn June 29, 1975 another order was issued by the President whereby c the words \"except the State of Jammu & Kashmir\" in the order dated June 27, 1975 were omitted. On September 25, 1975 another Presidential order was issued as a result of which the last paragraph in the Presidential order dated June 27, 1975 was omitted.\n\nBy Act 39 of 1975 Section 16A was introduced in MISA with effect from June 29, 1975 and the same reads as under :\n\n\"16A. (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this secttion shall have effect during the period of operation of the Proclamation of Emergency issued under clanse ( 1) of article 352 of the Constitution on the 3rd day of December, 1971 or tho Proclamation of Emergency issued under that clause\n\non the 25thi da)i o~ June, 1975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest.\n\n(\\2) The e:ase of every person (including a foreigner) against whom an order of detention was made under this Act on or after the 25th day of June, 1975, but before the commencement of this section, shall, unless such person is sooner released from detention, be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which\n\nthe Proclamations referred to in subction ( l) have been issued , hereinafter in this section! referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned.\n\n,, ( 3) When making an order of detention under this Aat against any person (including a foreigner) after the commencement of this section, the Central Government or the\n\nState Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergenc)' and if, on such consideration,, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a dcc!aration to that effect and communicate a copy of the declaration to the person concerned :\n\nProvided that where such declaration is made bv an officer, it shall be -reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declarntion shall cease to have effect unless it is confirmed by the State\n\nGovernment, after such review, within the said period of fifteen days.\n\n( 4) The question whether detention of any pesson m respect of whom a declaration has been made under subsection (2) or sub-section (3) continues to be necesary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months and if, on such re-consideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively droling with the emergency, that Government may revoke the declaration.\n\n( 5) In making any review, consideration or reconsideration under sub-sections( 2), (3) or (4), the appropriate Government or officer mav, if such Government or officer considers it to be against public interest to do otherwise act on the basis of the information and ma'.erials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.\n\n06) In the case of every person detained under a detention order to which the provisions of sub-section (2) apply, being a person the review of whose case is pending under that sub-section or in respect of whom a declaration has been made under that sub-section,-\n\n(i) section 8 to 12 shall not apply; and\n\n(ii) section 13 shall apply subject to the modification that the word&. and figures 'which has been confirmed under section 12' shall be omitted.\n\n(7) In the case of every person detained under a deten-\n\n( • '\n\n• I\n\n• ,\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, l.) 253\n\ntion order to which the provisions of sub-section (3) apply' being a person in respect of whom a declarntion has been made under that sub-section,-\n\n(i) section 3 shall apply .subject to the modification that for sub-sections (3) -and ( 4) thereof,, the following subsection shall be substituted, namely :-\n\n'(3) when order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order;\"\n\n(ii) section 8 to 12 shall not apply; and\n\n(iii) section 13 shall apply subject to the modification\n\ntha~ the words and figures 'which has been confirmed under section 12' shall be omitted.\"\n\nAqt 39 o1l 1975 also inserted section 18 with effect from June 25, 1975 and the same reads as under :\n\n\"18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any.\"\n\nBy the Constitution (Thirtyeighth Amendment) Act, 1975 clauses ( 4) and (5) which read as under were added in article 352 • of the Con~!itution :\n\n\"( 4) The power conferred on the President by this article shall include the power to jssue different Proclamation on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance, whether or not there is a Proclamation already issued by the President under clause\n\n(1) and such Proclamation is in operation.\n\n(5) Notwithstanding anything in this Constitution,-\n\n(a) the satisfaction of the President mentioned in clause ( !) and clause (2) shall be final and conclusive and shall not be questioned in any court on any ground;\n\n(b) subject to the provisions of clause (2), neither the Supreme Court nor any other conrt shall have jurisdiction to entertain any question, on any ground, regarding the validity of-\n\n(i) a declaration made by Proclamation by the President to the effect stated in clause ( 1); or\n\n(ii) the continued operation of such Proclamation.\"\n\nFollowing clause (IA) was also added after clause (1) of article 359 and the same reads as under :\n\n(IA) While an order made under clause (1) men,'.ioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.\"\n\nC The Constitution (Thirtyninth Amendment)\n\n0Act, 1975 was published on August 10, 1975 and inserted the Maintenance of Internal Security Act, 1971 as item 92 in the Ninth Schedule to the Constitution.\n\nOn October 17, 1975 Ordinance 16 of 1975 was issued making further amendment in section 16A of MISA and the same read as under :\n\n\"(a) for sub-section (5), the following sub-section shall be substituted, namely\n\n'(5) In making any review, consideration or re-consideration under snb-section (2), sub-section\n\n(3) or subsection ( 4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub-section (2), or the making or confirming under sub-section ( 3), or the non-revocation under sub-section ( 4), of the declaration in respect of him.';\n\n(b) in sub-section (7), in clause (i) ,-\n\n(i) in the opening portion, for the words 'the following sub-section', the words 'the following' shall be substituted;\n\n(ii) in sub-section'(3), as substituted by that clause, for the words 'forward to the Central Government a report in respect of the_ order', the words 'report the fact to the Ce!lP'al Government' shall be substituted;\n\n(iii) after sub-section (3) aforesaid, the following shall be inserted, namely :-\n\n'( 4) At any time after the receipt of a report under subsection ( 3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars\n\n' '\n\n\" •\n\n• •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, I.) 255\n\nas, in the opinion of the State Government, have a bearing on the necessity for th~ order.';\n\n(c) after sub-section (7), the folliwing sub-sections shall be inserted, namely :-\n\n' ( 8) in the case of any person in respect of whom a declaration has been made by a State Government under subsection (2) or a d_ecla!ation has been made by a State Government or an officer subordinate to it or confirmed by the\n\nState Government under sub-section (3), or a declaration has not been revoked by a State Government under subsection ( 4), the Central Government may, whenever it con\n\nsiders it necessary so to do, require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed, or not revoked, as the case may be, and such other information and materials as the Central Government may deem necessary.\n\n(9) Notwithstanding anything contained in any other law or any rul_e _having the force of law,-\n\n( a) the grounds on which an order of detention is made under sub-section ( 1) of section 3 against any person in respect of whom a declaration is made under sub-section (2) or sub-section (3) and any information or materials on which such grounds or a declaration under sub-section (2) or a declaration or confirmation under sub-section ( 3) or the nonrevocation under sub-section ( 4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any docnment containing such ground, information or material;\n\n(b) no person against whom an order of detention is made under sub-section ( 1) of section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material.\"\n\nOn November 16, 1975 Ordinance 22 of 1975 was issued making certain amendments in MISA.\n\nBy section 2 of the Ordbance the words \"twelve days\" and \"twenty days\" in sub-section (3) of section 3 of MISA were substituted by the words \"twenty days\" and \"twentyfive days\" respectively. In section 14 of the principal Act following sub-section was substituted for the original sub-section :\n\n\"(2) The expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not bar the making of another detention\n\n256 SUPREME COUKf REPQRTS\n\n[1976] SUPPLEMENTARY\n\norder (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person ;\n\nProvided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person, may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971, whichever is later.\"\n\nFollowing sub-section (2A) was also inserted in section 16A of the C principal Act ;\n\n\"(2A) If the State Government makes a declaration under sub-section (2) that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency, the State Government shall be deemed to have approved such detention order and the provisions of sub-section (3) of section 3, in so far as they relate to the approval of the State Government, and of subsection ( 4) of that section, shall not apply to such detention order.\"\n\nThe amendments made by the Ordinance were given retrospective effect • E for the purpose of validating all acts done previously.\n\nDuring the pendency of these appeals, the Maintenance of Internal Security (Amendment) Act, 1976 (Act 14 of 1976) was published on January 25, 1976. This amending Act incorporated and in same respects modified the changes which had been brought about iN. the principal Act by ordinance 16 of 1975 and ordinance 22 of 1975.\n\nF Section 2 and 3 of the amending Act incorporate the changes which had been introduced by sections 2 and 3 of Ordinance 22 of 1975.\n\nAt the same time sections 2 and 3 of the amending Act make it clear that substitution brought about by those sections shall be with effect from June 29, 1975. Sections 4, 5 and 6 of the amending Act read as under;\n\nG \"4. In section J 6A of the principal Act,-\n\n( a) after sub-section (2), the following sub-section shall lie inserted, and shall be deemed to have been inserted with effect from the 29th day of Jnne, 1975, namely :-\n\n'(2A) If the State Government makes a declaration under sub-section (2) that the detention of any person in respect of whom a detention order is made by an oflicersubordinate to that Government is. necessary for dealing effectively with the emergency, the Slate Government shall be\n\n• •\n\n• '\n\n• •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, 1.) 257\n\ndeemed to have approved such detention order , and the provisions of sub-section (3) of section 3, in so far as they relate to the approval of the State Government, and of sub-section\n\n(4) of !hit section; shall not apply to such detention order.';\n\n(b) for sub-section (5), the following sub-section shall be substituted, and shall be deemed to have been substituted with effect.from the 29th day of June, 1975, namely :-\n\n'(5) In making any review, consideration or reconsideration under sub-section (2), sub-section\n\n(3) or subsection ( 4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or afford- 1ng him any opportunity of making any representation against the maklri!l under sub-section ( 2) , or the making or confirming under sub-section ( 3), or the non-revocation under sub-section ( 4), of the declaration in respect of him.,;\n\n(c) in sub-section (7), in clause (i),-\n\n(i) in the opening portion, for the words 'the following sub-section', the words 'the following' shall be substituted; and shall be deemed to have been substituted with effect from the 29th day of June, 1975;\n\n(ii) in sub-section (3), as substituted by that clause, for the words 'forward to . the Central Government a report in respect of the order', the words 'report the fact to the Central Government' shall be substituted, and shall be deemed to have been substituted with effect from the 29th day of June, 1975;\n\n(iii) after sub-section (3) aforesaid, the following shall be inserted, and shall be deemed to have been inserted with effect from the 17th day of October, 1975\n\nnamely :- Ji'\n\n'( 4) At any time after the receipt of a report under sub-section (3), the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars (\\&, in the opinion of the State Government, have a bearing onthe necessity for the order.', ( d) after sub-section (7), the following sub-sections shall be inserted, and shall be deemed to have been inserted with effect from the 29th .day' of June, 1975; namely :-\n\n'(8) In the case of any person in respec(qf whom a: declaration has been made by a State Government under subsection (2) or a declaratio11.ha, s been made by a Sta, te Govermnent .or an officer: subordinate. to it. or c9qjlrmea J>y the State'Govemment und.er sub-section (3), or a. dafl\\tion .\n\nhas not been rewked by ;1; State Government unde.r sul>; ec- .. 19-833 sc1n6. ·\n\nlion (4), e Central Govenunent may, whenever it considers it necessary so to do, require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed, or not revoked as the case may be, and such other information and materials as the Central Government may deem necessary.\n\n(9) Notwithstanding anything contained in any other Jaw or any rule having the force of law,-\n\n(a) the grounds on which an order of detention is made or purport.ed to be made under section 3 against any person in respect of whom a declaration is made under sub-section\n\n(2) or sub-section (3) and any information or materials on which such grounds or a declaration under sub-section (3) or the non-revocation under sub-section ( 4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to. matters of Stare and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material;\n\n(b) no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material.'\n\n5. In section 18 of the principal Act, for the words 'detained under this Act', the words and figure fo respect of w born an order is made or purported to be made under section 3' shall be substituted, and shall be deemed to have been substituted with effect from the 25th day of June, 1975.\n\n6. Any act or thing done or purporting to have been done; before the 16th day of November, 1975, under the principal Act in respect of any person against whom an order of detention was made under that Act on or after the 25th day of June, 1975 or in respect of any such order of detention shall, for all purposes, be deemed to be as valid and effective as if the amendments made to the principal Act by seeuons 2 and 3, and clause (a) of section 4, of this Act bad been in force at all material times.\"\n\nDuring the pendency of these petitions under article 226 of the Constitution of India before ihe High Courts for issue of writs of habeas corpus, it was contended on behalf of the Union of India and the States that in view of the Presidential order dated June 27, 1975 , under article 359 suspending the right of all persons to move any conrt for the enforcement of the rights conferred by articles 14, 21 and 22 of the Constitution, petitions for issue of writs of habeas corpus were not maintainable. Particular stress was laid upon the fact that\n\n• '\n\n' .\n\n¥ ' ,\n\n.. 1\n\n• j\n\nAl>DL. DIST. MAGISTRATE v. s. s. Sl!U!(J-A ({lup)µa, l.) 25 9\n\nthe right to move the court for enforcement of the rigl!t un.®r article 21 had been suspended and as such no petition for a writ pf habeas corpu8 could be proceeded with.\n\nThe above mentioru:d Presidential order was stated to be an absolute bar to the judicial security of the detention orders. This contention did not find favour with the High Courts 'and they held that despiie the said Presidential order the petitions were maintainable and could be proceeded with.\n\nA1tho)Jgh opinions were not unanimous on the point as to whether the High Courts should without examining the rndividual facts of each case go into the question of the area of the judicial scrutiny and if so, what was the area of the judicial scrutiny, all the nine High Courts which dealt with the matte{ came to the conclusion that the Presidential\n\norder did not create an absolute bar to the judicial scrutiny of the validity of the detention. The nine High Courts are :\n\n(1) Delhi\n\n(2) Karnataka\n\n(3) Bombay (Nagpur Bench) ( 4) Allahabad\n\n(5) Madras\n\n(6) Rajasthan\n\n(7) Madhya Pradesh\n\n(8) Andhr11 Pradesh\n\n(9) Punjab and llaryana.\n\nIn these appeals before us, learned Attorney-General on ~If of the appellants has drawn our attention to the difference in phraseology of the Presidential order dated June 27, 1975 and the earlier Presidential orders dated November 3, 1962 and November 16, 1974 and has urged that in view of the absolute nature of the Presidential order of June 27, 1975, petition for a writ of habeas corpus is not maintainable.\n\nThere can be no doubt that the Presidential order dated June 27, 1975 has been worded differently compared to the earlier Presidential orders which were issµed µoder clause ( 1) of article 359 and that there has been a departure fr.om the pattern which used to be adopted while issuing such orders. The Presidential order dated November 16, 1974 has a!re:i.dy l; ieen reproduced earlier. Preside1; iJial order dated November 3, 1962 issued under clause (l) of article 359 of the Constitution read as under\n\nOR, QER\n\n~.ew I)eJhi, tl; i.e r.d qyeµiber, 19,62\n\nG.S.)l. 1464-Ip. e11ercis~ qf the ppwers .conferred by\n\ncluse (l) of , article 359 .of !he .'Col)tiu.ti0n, the Pres.ident\n\nl)reby declars tl)a( the right pf any persoµ t, o move aµy court for the enforcement iif the rights conferre0 by article 21 and article 22 of the Constitution shall remain slispendetl for the period during which the ProclallW, ti<?R of. J:lmeygency\n\nissued under clause (1) of article 352 thereof on the 26th October, 1962 is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962) or any rule or order made thereunder.\"\n\nOn November 6, 1962, the rules framed .under the Ordinance by the Central Government were published .. On November 11, 1962 the Presidential order reproduced above was amended and for the words and figure \"article 21\", the words and figures \"articles 14 and 21\" were substituted. The Defence of India Ordinance was subsequently replaced by the Defence of India Act and the rules framed under the Ordinance were deemed to have been framed under the Act.\n\nPerusal of the above Presidential order of 1962 shows that what was suspended was the right of any person to move any court for the enforcement of rights conferred by articles 14, 21 and 22.\n\nThe suspension was, however, conditioned by the circumstance that such person had been deprived of such rights under the Defence of India Act or any rule or order made thereunder. It was plain that in case a detention order was made or any other action was taken not under the provisions of the Defence of India Act or any rule or order made thereunder, the same could not enjoy the protection of the Presidential order under article 359. Another effect of the Presidential order was that as loug as the proclamation of emergency was in force, the validity of the provisions of the Defence of India Act or the rules or orders made thereunder could not be assailed on the ground of being violative of articles 14, 21 and 22. It is also clear that in view of article 358, while a proclamation of emergency was in operation, nothing in article 19 could have restricted the power of the State to make any Jaw or to take any executive action which the State could but for the provisions contained in Part III was competent to make or to take.\n\nLikewise, under the Presidential order dated November 16, 1974 which has been already reproduced earlier, what was suspended was the right to move any court with respect to an order of detention which might have been made or which might be made thereafter under section 3(1) (c) of the Maintenance of Internal Security Act as amended for the enforcement of rights conferred by articles 14, 21 and clause (4) to (7) of article 22 of the Constitution. Proceedings pending in any court for the enforcement of any of the aforesaid rights with respect\n\nto orders of detention made under section 3 ( 1 ) ( c) too were suspended. It was plain from the language of the Presidential order that tilere could be no suspension of the right mentioned in the Presidential order if the detention order could not be shown to have bin made under section 3 ( 1 )( c) of MISA because an order not under section 3 (1) ( c) was outside the Presidential order.\n\nThe Presidential order of 19'62 under article 359(1) of the Constitution came (o be considered by this Court in .the case of Makhan Singh v. State of Punjab.(') Gajendragadkar J. (as he then was) speaking for six out of the Bench of seven Judges of this Court observed while de; iling with the effect of the Presidential order on a petition of habeas, c9rpus :\n\n(I) [196414.S. C.R. 7'Y7'.\n\n' I\n\n• '\n\n' ..\n\n• -\n\n• • . '\n\nr •\n\n( •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Khanna, J,) 261\n\n\"We have already seen_ that the right to move any court which is suspended by Art. 359 ( 1) and the Presidential order issued under it is the right for the enforcement of such' of the rights conferred by Part III as may be mentioned in the order.\n\nIf in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right_ to move any court in that behalf is not suspended, because it is outside Art. 359(1) and consequently outside the Presidential order itself.\n\nLet us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.\n\nIn such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provision of the Act have been contravened. Such a plea is outside Art. 359 (1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order.\n\nTake also a case where the detenu moves the Court for a writ of habeas corpus on the ground that hls detention has been ordered malafide. It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged.\n\nIt is true that a mere allegation that the detention is malafide would not be enough; the detenu will have to prove the malafides.- But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on\\ the ground of the bar created by Art. 359(1) and the Presidential order.\n\nThat is another kind of plea which is outside_ the purview of Art. 359(1 ).\"\n\nIt was further observed\n\n\"It is only in regard to that class of cases falling under s. 491 (1) (b) where the legality of the detention is challenged on grounds which fall under Art. 359 ( 1) and Presidential order that the bar would operate.\n\nIn all other cases falling under s. 491 ( 1) the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be ttied in accordance with Jaw.\n\nWe ought to add that these categories of pleas have been mentioned by ns by way of illustrations, and so, they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order.\n\nThere is yet another ground on which the validity of the detention may be open to challenge. If a detenu conte11ds that the operative provision of the law under whlch he is detained suffers from the vice of excessive delegation H and is, therefore, invalid, the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi-\n\n262 •SUPREME couRT REPORTS\n\n[J 976] SUPPLEMENTARY\n\ndential order.\n\nIn terms, it is not a plea which is relatable to the fundamental rights specified in the said order.\n\nIt is a plea which is independent of the said rights and its validity must be examined.\" .\n\nIn the case of State of Maharashtra v.\n\nPrabhakar Pandurang Sangzgiri & Anr(1 ). Subba Rao J. (as he then was) speaking for the Constitution bench of this Court observed :\n\n\"Article 358 of the Constitution suspends the provisions of Art. 19 of Part III of the Constitution during the period the proclamation of emergency is in operation; and the order passed by the President under Art. 359 suspended the enforcement, inter alia, of Art. 21 during the period of the said emergency.\n\nBut the President's order was a conditional one.\n\nIn effect it said that the right to move the High court or the Supreme Court retnained suspended if such a. person had been deprive.d of his personal liberty under the Defence of India Act, 1962, or any rule or order made\n\nthretlnder.\n\nIf a person was deprived of his personal liberty not under the Act or a rule or order made thereui1der but in contravention thereof, his right to move the said tourts in that regard would not be suspended. The question, therefore, in this case is whether the first respondent's liberty has been restricted in terms of the Defence of India Rules whereunder he was detained.\n\nIf it was in cdntravention of the said Rules he would have the right to atJproach the 1Jigh Court under Art. 226 of the Constitution.\" Similar view was expressed in the case of Dr. Ram Manohar Lohia v. State of Bihar & Ors( 2) Sarkar J. (as be then was) in that case observed that where a person was detained in violation of the mandatory provisions of the Defence of India Act, his right to move the court was not suspended.\n\nHidayatullah and Bachawat JJ. referred to the fact that the Presidential order did not say that even if a person was proceeded against in breach of the Defene<: of India Act or the rules, he could not move the court or complain that the Act and the Rules under colour of which some action was taken did not warrant it. The Presidential order was held to have not intended to condone an illegitimate eriforcement of the Defence of India Act.\n\nRaghnbar Dayal J. held that the Court could go into the question as to whethe~ the District Magistrate exercised the power. of detention under the Defence of India Rules bonafide and in accordance with the rules.\n\nMudholkar J. observed that if a detenu contends that the order, though it purports to be under rule 30(1) of the Defence of India Rules, was not competently made, this Court had a duty to enquire into the matter.\n\nSarkar.\n\nHidayatullah, Mudholkar and Bachawat JJ. on consideration of the material before them found that -\n\nas the detention order had been made with a view to present the detenu from acting in a manner prejudicial to the maintenance of\n\n( 1l [196(\\J I S. C. R. 702.\n\n(2 / [1966] I S. C. R. 709.\n\n• '\n\n; '\n\n• -\n\n• •\n\n' ,\n\nI ADDL. DIST. Mt.GISTRATE v. s. s. SHUKLA (Khanna, 1.) 263\n\nlaw and 01der and not public order, as contemplated by rule 30, the A detentioll order was not ia conformity with law.\n\nThe petitioner in that case was accordingly directed to be set at liberty.\n\nThe observations in the cases referred to above show that the validity of the detention orders could be ssailed dspite the Pesi dential orders of 1962 and 1974 under article 359 in case the nght relied upon was not one covered by these Presidential orders.\n\nThe B protection afforded by those Presidential orders was not absolnte~ it was conditional and confined to ruling out the challengie to detention orders and other actions taken under the provisions mentioned in those Presidential orders on the score of contravention of the articles specified in those orders.\n\nIf the detention of a detenu was not in accordance with the provisions mentioned in the Presidential orders, the Presidential orders did not have the effect of affording protection C to the detention order and it was permissible to challenge the validity of the detention on the ground that it had not been made under the specified provisions but in contravention of those provisions. • We may now deal with the Presidential order dated June 27, 1975 with which we are concerned.\n\nUnlike the Presidential orders under clause ( 1) of article 359 issued earlier, this Presidential order makes D no reference to any detention order made under any 'Pecified provision.\n\nIt seeks to impose a blanket suspension of the right of any person, including a foreigner, to move any court f<lr the enforcement of the rights conferred by articles 14, 21 and 22 of the Constitution and of all proceedings pending in any court for thei enforcement of the above mentioned rights for the period dnring which the proclamation of emergency is in force.\n\nThe observations which were E made by this court in the cases referred to above in the context of the phraseology of the earlier Presidential orders of 1962 and 1974, namely, the detention orders made under specified provisions, cannot now be relied upon while construing the ambit of the Presidential order of June Z.7, 1975.\n\nthe difference in phraseologoy ofl the Presidential order dated June F 27, 1975 and that of the earlier Presidential orders would not, however, justify the conclusion that because of the new Presidential order dated June 27, 1975 a detention order need not comply with the requirements of the Jaw providing for preventive detention.\n\nSuch a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in G spite of and consistently with the new Presidential. order.\n\nThe effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relic~ upon.\n\nReliance, however, can still be placed upon the observat10ns made in those eases which were not linked with the phraseology of the eariler Presidential orders.\n\nquestion then arises 11s to what is the effect of the suspension of the nght of a person to move any court for the enforcement of rights\n\nA conferred by articles 14, 21 and 22 of the Constitution.\n\nOne obvious result of the above is that no one can .. rely upon articles 14, 21 and 22 with a view to seek relief from any court.\n\nAccording to the stand taken by the learned. Attorney General, the effect of the suspension of the right of a person to move any court for the enforcement of the right conferred by article 21 is that even if the order for \"detention has been made without the authority of law, no redress can B be sought from the court against such detention order. Article 21 of the Constitution reads as under :\n\n\"No person shall be deprived of his life or personal liberty except according to procedure established by law.\"\n\nc It is urged that article 21 is the sole rository of one's right to life or personal liberty.\n\nThe. moment the nght to move any ourt for enforcement of article 21 is suspended, no one can, accordmg to the\n\nsubmission, complain to the court of deprivation of life or personal liberty for any redress sought from the court on that score woul~ be enforcement of article 21.\n\nPetition under article 226 for the issue of a writ of habeas corpus, it is contended by learned Attorney General, is essentially a petition to enforce the right of personal liberty and as the right to move any court for the enforcement of the right conferred by article 21 is suspended, no relief can be granted to the petitioner in such petition.\n\nIn order to assess the force of the above argument, it way be necessary to give the background and the history of article 21.\n\nIn the original draft of the Indian Constitution, in the article which now stands as article 21 the words used were \"in accordance with due process of law\" instead of the words \"according to procedure established by law.\" The concept of expression \"due process of law\" or its equivalent \"law of the land\" traces its lineage for back into the beginning of the 13th century A.D.\n\nThe famous 39th chapter of the Magna Carta provides that \"no free man shall be taken 'or impri- &oned or disseized, or outlawed or exiled or in any way destroyed; nor shall w~ go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land.\" Magna Carta as a charter of English liberty was confirmed by successive English monarchs.\n\nIt was in one of these confirmations (28 Ed. III, Chap.\n\n3) known as \"Statute of Westminster of the liberties of London\" that the expression \"due process of law\" appears to have been used for the first time.\n\nNeither of the expressions \"due process of law\" or \"law of the land'? was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning.\n\nIn substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opporitunity to show cause why seiznre should not be made.\n\nThe expression \"due process of law\" came to be a part of the US Constitution by the Fifth Amendment which was adopted in 1791 and which provided that \"no person shall .... be\n\n' •\n\n• •\n\n• '\n\n• •\n\nADDL. DIST. MAG!STl\\ATB v. s. s. SHUKLA (Khanna, /.) 265\n\ndeprived of life, liberty or poperty without due process of. law.\" Similar expression was used Ill the Fourteenth Amendlll:ent m 1868.\n\nIt has been said that few phrases in !fe law are elusive of exact apprehension as \"due process of law.\n\nThe Un.1ted Stal7~ Supree Court has always declined to give a comprehensive definition of. 1t and has preferred that its full meaning should be gradually ascered by the process of inclusion and exclusion in the course of the dec1s1ons as th~· arise. ' The expression \"due .process of .lay<,\", as used in the Us Constitution, has been taken to impose a !imitaon uP?n . !he powers of the Government, legislative as well as eecutive an~ 1ud1c1al.\n\nApplied in England as protection against execuliv.e usurp.ation a:id royal iyranny, in America it became a bulwark agamst .. arb1trar_y legislation. \"Due process of law,\" according to Cooley, means m each particular case such an exercise of the powers of Government as the settled maxims of law permit . and sanction, and under such safeguards for the protection of individual rights as th?Se maxims prescribe for the class of cases to which the one in queustion belongs\" (Constitutional Limitations, Vol. II, p. 741 ).\n\nTill about the middle of the 19th Century, due process clause was interpreted as a restriction upon procedure, and particularly the judicial procedure, by which the Government exercises its power.\n\nPrincipally it related to the procedure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in Compliance with well established criminal proceedings.\n\nThe same principle applied to the machinery or proceedings by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised.\n\nDuring this period it was not considered to have any bearing on substantive law at all.\n\nSubsequently view came to be accepted that the concept of due process of Jaw protected rights of life, liberty and property.\n\nThis change in judicial thinking was influenced in a great measure by the industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class.\n\nWhat constituted legitilllate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was reasonable in the opinion of the Court.\n\nThe US Supreme Court laid stress '!PO~, the wNd \"due\" which occurs before and qualifies the expression process of law.\" \"Due\" means \"what is just and proper\" according to the circumstances of a particular case.\n\nThe word intro- ?uces a variale element in the application of the doctrine, for what is reasonable m one set of circumstances IllaY not be so in another set of c!rcumsta!1c~.\n\nThe requirement of due process clause as a subs.tant1al restr1clion on Government control is also now becoming\n\n~ th11'.g. of the past and the rule is being restricted more and more to its onginal procedural aspect _(see observations of Mukherjea J. in the case of A. K. Gopalan, (supra). ·\n\nt the time the Constitution was being drafted, the Constitutional Adviser Mr. B. N. Rau had discussions with US Constitutional expert~ soe of whome expressed the opinion that power of review implied m due process clause was not only undemocratic becausue it\n\nve the power of vetoig .le.gislation t.o th.e judges, but also. threw an unfair burden on the 1ud1ciary.\n\nThis view was commumcated by Mr. Rau to the Drafting Committee which thereupon substituted the words \"except according to procedure established by law\" for th~ words \"due process, _of law.\" In dropping the words \"due process of law,\" the framers of our Constitution prevented the introduction of elements of vagueness, uncertainty and changeability which had grown round the due process doctrine in the United States.\n\nThe words \"except according to procedure established by law\" were takei. from article 31 of the Japanese Constitution, according to which \"no person shall be deprived of life or liberty, nor shall any criminal liability be imposed, except according to procedure established by law.\n\nThe article is also somewhat similar to article 40( 4 )(i) of Irish Constitution, according to which no person shall be deprived of his personal liberty .save in accordance with law.\" It was laid down in Gopalan's case by the majority that the word \"law\" has been used in article 21 in the sense of State-made law and not as an equivalent of law in . the abstract or general sense embodying the principles of natural justice. \"The procedure established by law\" was held to mean the procedure established by law made by the State, that is to say, the Union Parliament or the legislatures of the States, Law, it was also observed by Mukherjea J., meant a valid and binding law under the provisions of the Constitution and not ot1e infringing fundamental rights.\n\nThe effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21, in my opinion, is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that article for obtaining relief from the court during the period of emergency.\n\nQuestion then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law stilt survives during the period of emergency despite the Presidential order suspending the right to move any court for the enforcement of the right contained in article 21.\n\nThe answer to this question is linked with the answer to the question as to whet!her article 21 is the sole repository of the right to li, fe and personal liberty.\n\nAfter giving the matter my earnest consideration, I am of the opinion that article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law. Many modern constitutions incorporate certain fundamental rights. including the one relating to personal freedom.\n\nAccording to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal li!Jerty and private property. The American Declaration of Independence (1776) states that all men are created equal. and among their inalienable rights are life, liberty, and the pursuit of happiness.\n\nThe Second Amendment to the Us Constitution refers inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and lil;>erty without clue process of law.\n\nThe different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity\n\n• I\n\n• •\n\n• '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKL<\\ (Khanna, J.) 261\n\nof life arid liberty.\n\nThey have also given e'.ltptession. in .varying ords to !tie principle that no ?lie shall l:Je der!ved of his. lie or librty without the. authonty of law. The Intermthonal Comm1ss1on of Junsts, which is affiliated to UNESCO, has been attempting with considerable success to give material content. to \"the Rule of 1:-aw,\" an expressi?n used in the Universal beclarat10n of Human Rights. _ One of its most notable achievements was the Declaration of Delhi, 1959. This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000 lawyers. \"Respect for the supreme value of human personality\" was stated to be the basis of all law (see page 21 of the Constitutional and Administrative Law by 0. Hood Phillips, 3rd Ed.).\n\nFreedom under law, it may be added, is not absolute freedom. It has its own limitations in its own interest, and can properly be described as regulated freedom.\n\nIn the words of Ernest Barker, (i) the truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free; that (ii) the need of liberty for each is necessarily qualified and conditioned by the need of liberty for all: that (iii) liberty in the State or legal liberty, is never the absolute liberty of all : that (iv) liberty within the state is thus a relative and regulated liberty; and that (v) a relative and regulated liberty; actually, operative and enjoyed, is a liberty greater in amount thin abSolute liberty could ever be-if indeed such liberty could ever exist, or even amount to anything more than nothing at all.\n\nRule of law is the antithesis of arbitrariness. Plato believed that if philosophers were kings or kings philosophers government by will would be instrinsically superior to government by law, and he so proclaimed in his Republic.\n\nExperience eventually taught him that this ideal was not obtainable and that if ordinary men were allowed to rule by will alone the interests of the community would be sacrified to those of the ruler.\n\nAccordingly, in the Laws he modified his position and urged the acceptance of the \"second best\", namely government under law.\n\nSince then the question of the relative merits of rule by law as against rule by will has been often debated.\n\nIn the aggregate the decision has been in favour of rule by law. On occasions,. however, we have slipped back into government by will only to return again, sadder and wiser men, to Plato's \"second best\" when the hard: facts of human nature demonstrated the essential egotism of men and the truth of the dictum that all power corrupts and absolute power corrupts absolutely. Bracton's dicta that if the king has no bridle one ought to be put upon him, and that although the king is under no man he is under God and the law Fortescue's insistence that the realm of England is a reginem politicium et regale and hence limited by law; Coke's observation that \"Magna Carta is such a fellow that he will have no sovereign\"; these are but a few of the beacons lighting the way to the triumph of the rule of law (see pages 3-6 of the Rule of Law by H. Malcolm Macdonald & Ors.). Rule of law is now the accepted norm of all civilised societies. Even if there have been deviations\n\nfrom the rule of law, such deviallions have been covert and disguised for no government in a civilized country is prepared to accept the ignominy of gorning without the rule of law. As observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed., the rule of law has come to be regarded as the mark of a free society. Admittedly its content is different in different countries, nor is it to be secured exchtsively through the ordinary courts.\n\nBut everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law. ·\n\nSanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollory of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty withont the anthority of law are essentially two facets of the same concept. This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation. Great writers and teachers, philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self-interest and for orderly existence.\n\nAccording even to the theory of social compact many aspects of which have now been discredited, individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government. Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens.\n\nSuch norms take the shape of the rule of Jaw.\n\nRespect for law, we must bear in mind, has a mutual relationship with respect for government.\n\nErosion of the respect for .Jaw, it has accordingly been said, affects the respect for the government.\n\nGovernment under the law means, as observed by Macdonald, that the power to govern shall he exercised only under conditions laid down in constitutions and laws approved by either the people or their representatives. Law thus emerges as a norm limiting the application of power by the government over the citizen or by citizens over their fellows. Theoretically all men are equal before the Jaw and are equally bound by it regardless of their status, class, office or authority. At the same time that the law enforces duties it also protects rights, even against the sovereign.\n\nGovernment under Jaw thus seeks the establishment of an ordered community in which the individual, aware of bis rights and duties, comprehends the area of activity within which, as a responsible and intelligent person, he may\n\n• •\n\n• ,\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 269\n\nfreely order. his life, secure from interference from either the government or other indviduals (see Rule of Law, page 6). To quote further from Professor Macdonald :\n\n\"It is clear enough that high echelon administrators are understandably impatient with the restraints imposed upon them by the traditional concept of the rule of law as de'leloped by Dicey. Administrators deal wit~ the i.mplemntati~ of highly technical and complex matters mvolvmg the 1mmedia.te\n\ninterests of manv citizens.\n\nTo accomplish this they are granted wide discretion in the use of administrative power to effectuate broad policies laid down by the legislators.\n\nIt is natural that they should desire to have the conflicts which arise as the result of the exerdse of their diseretion adjudicated by tribunals composed of experts acquainted with the details of t)le niatters at issue, rather than by\n\njudges trained only in the law.\n\nHence their resistance to judicial review of administrative 'findings of fact' as opposed to 'findings of law'. The very things which a court of law prizes-rules of evidence, common law procedures, even due process-frequently. appear to the administrators as obscurantist devices employed by those who oppose the very principle of the policy he is aitempting to effectuate.\n\nOften, secretly if not openly, the administrator considers his policy to be the incarnation of the best interests of the people, or at least of their best interests if they really und.erstood them, and hence considers himself as arrayed on the side of progress and light against the dark forces of reaction.\n\nThus our 'wonderland of bureaucracy', as Beck has called it, has sought autonomy from the traditional 'i1e of courts and law. If it should succeed we should then indeed be con!lronted with a vital segment of governmental power which would have escaped from fogal control and become arbitrary in its acts. To prevent this we have subjected the acts of administrators to challenge in the courts on the basis of ultra vires, and provided for judicial review of administrative tribunals' finding of law.\" (see ibid page 8) .\n\nTo use the words of Justice Brandeis(,) with some modification xperience should teach us to be most on our guard to protect G liberty when the Government's purposes are beneficent.\n\nMen born to. fredom are naturally alert to repel invasion of their hoeJ:(y by eVJl-mmdcd persons.\n\nGreatest danger to liberty lies iii . 'insidious encroachment by men of zeal, well-meaning but lacking 'in due deference for the rule of law. ,\n\nEven in the absence of article 21 in the Constitution, the State H -1 has got no power to deprive a person of his life or liberty without\n\n(I) Olmstead v. United States, 277 U. S. 438' (1928). ·\n\nthe authority of law.\n\nThis is the essential postulate and basic assumption of the rule of Jaw ancl not of men in all civilised nations.\n\nWithout such sanctity of life and liberty, the distinction between a Jawless society and one governed by laws would cease to have any meaning.\n\nThe principle that no one shall be deprived of his life or liberty withou.~ the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of il)dividual whim and caprice and that any act which has the effect of mpering with Ii[~ an.d liberty must receive sustenance from and sanction of the laws of the land.\n\nArticle 21 incorp.orates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution.\n\nIt does not, however, follow from the above that if article 21 had not been drafted and inserted in Part JII, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law.\n\nNo case bas been cited before us to show that before the coming into force of the Constitution or in countries under rule of law where there is no provision corresponding to article 21, a claim was ever sustained by the courts that the State can deprive a person of his life or liberty without the authority of law. In fact, any suggestion to such a claim was unlequivocally repelled.\n\nIn the case of lames Sommersett(') Lord Mansfield dealt. with a case of a negro named Sommersett, who was being taken in a ship to Jamaica for sale in a slave market.\n\nWhen the ships anchored at London port, a ha be as corpus petition was presented by some Englishmen who were moved by the yelling and cries. of Sommersett.\n\nIn opposition to the petition the slave trader took the plea that there was no law which prohibited slavery. Lord Mansfield while repelling this objection made the following observation in respect of slavery which is one of the worst forms of deprivation of personal freedom :\n\n\"~ is so odious that nothing can be suffered to support it but positive law: whatever inconveniences, therefore, may follow from this decision, I cannot say this case is allowed or -approved by the law of England; and therefore the black must be discharged.\"\n\nIn other case, Fabriqas v. Mostyn(') Lord Mansfield observ1:d on page 173:\n\n\"To lay down in an English court of Justice that a Governor acting by virtue of LeUers Patent. under th~ Great Seal, is accountable only to God and his own conscience: that )le is absolutely despotic and can spoil, plunder, and affect His Majesty's subjects, both in their liberty and property, with imp)lllity, is a doctrine that cannot be maintained.\" ·\n\nThe above observations were relied upon in the matter of Ameer Khan(').\n\nI may alsp refer to t.he ()bservations of Lord Atkin in the\n\n(l) [1772). 16 Cr. Pract. 289.\n\n(2) I Cowp., 161.\n\n(3) 6 Bengal Law Reporto 39Z'\n\n• •\n\n< •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 271\n\ncase of Eshuqbavi Eleko v. Officer Administering the Government of A Nigeria( 1) :\n\n\"In accordance with British jurisprudence, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice.\n\nAnd it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive.\" '\n\nThe above rule laid down in Eleko's case was followed by the High Courts in India before the coming into force of the Constitution in\n\nPrabhakar Kesheo Tare & Ors. v. Emperor('), Vimlabai Deshpande\n\nv. Emperor('). Jitendranath Ghosh v.\n\nThe Chief Secretary to the Government of Bengal(') and In re: Banwari Lal Roy & Ors.(•).\n\nThe rule laid down in Eleko' s case was also followed by the Constitution Benches of this Court after the coming force of the Constitution in the cases of Bidi Supply Co. v. The Union of India & Ors.(•) and Basheshar Nath v. The Commissioner of Income-tax, Delhi & Rajasthan & Anr.(').\n\nI am unable to subscribe to the view that when right to enforce the right under article 21 is suspended, the result would be that there would be no remedy against deprivation of a person's life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law.\n\nThe right not to be deprived of one's life or liberty y, ithout the authority of law was not the creation of the Constitution.\n\nSuch right existed before the Consitution came into force.\n\nThe fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right.\n\nIts real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopa/an's case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution.\n\nRecognition as fundamental right of one aspect of the pre-Constitutional right cannot have the effect of making things less favourable so far as the sanctity ?f life and personal iberty is concerned compared to the position 1f an aspect of such nght had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from article 359.\n\nI am also unable to agree that in view of the Ptesi-\n\n(1) AIR 1931 P.C. 248.\n\n(2) AIR 1943 Nag. 26. <3 l A. I. R. 1945 Nag. 8.\n\n(4) I. L. R. 60 Cal. 364.\n\n(5) 48 C. W. N. 766.\n\n(6) [1956] S. C. R. 267.\n\n(7) [1959] Supp. (I) S. C. II.. 528.\n\ndential Order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coming into force of the Constitution.\n\nThe case of Dhirubha Devisingh Gohil v. The Siate of Bombay(!) upon which reliance has been placed by learned Attorney General cannot be of much assistance to him.\n\nJn that case this Court held that the validity of the Bombay\\ Taluqdari Tenure Abolition Act, 1949 cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of the fact that that Act had been inserted in the Ninth Schedule of the Constitution. This Court also repelled the contention that the said Act was violative of section 229 of the Government of India Act, 1935 because, in the opinion of the Court, the right secured by section 229 was lifted into the formal category of a fundamental right. The principle laid down in that case cannot be invoked in a case like the present wherein the area covered by the right existing since before the Constitution is wider than the area covered by the fundamental right and the fundamental right deals with only an aspect of such pre-existing right. Moreover, the correctness of the view taken in the above. case, in my opinion, is open to question in view of the later decision of Makhan Singh (supra) decided by a Bench of seven Judges wherein it ha> been observed on page 821 that after the coming into force of the Constitution, a detenu has two remedies, one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure.\n\nMakhan Singh' s case, as discussed elsewhere, shows that the remedy under an earlier statuary provision would not ' get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co-exist without losing their independent identity.\n\nPreventive detention, thongh not strictly punishment, is akin l<> punishment, because of the evil consequences of being deprived of one's liberty.\n\nNo one under our laws can be deprived of his life or liberty without the authority of law. This would be evident from the fact that if a person without the authority of law takes another person's life, he would normally be guilty of the offence of culpable homicide.\n\nLikewise, if a person deprives another of his liberty by confining him, he would in the absence of any valid justification, be guilty of wrongful confinement.\n\nIt is for that reason that courts\n\nhave insisted upon the authority of law for a pttblic servant to take , away someone's life or liberty. An executioner carrying out the sen- 1t tence of death imposed by the court would not commit the offe11ce . , of homicide. because he is executing the condenmed man in obedience .,,,; to a warrant issued by a court having jurisdiction in accordance with the law of the land. Likewise, a jailor confining a person sentenced to imprisonment is not guilty of the offence of wrongful confinement.\n\nTire principle that no one shall be deprived of his 'life or liberty without the authority of law stems not merely from the basic assumption in every civilised society g<)verned by the rule of law of the , tll\n\n(I) (1955] 1 S. C.R. 691. 411\n\n• .. •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, i.) 2 73\n\nsanctity of life and liberty, it flows eqnally from the fact that _under our penal laws no one is epowered to depnve a person of !us life or liberty without the authority of law .\n\nThe fact that penal laws of India .answr to the description . of the word \"law\".- which has been used m article 21 would not i; n1litate against the inference that article 21 is not the sol~ ros1tory\n\nof the right to life or personal liberty and that .the pnn.c1ple that no one shall be deprived of his life or personal 11.berty w1tl; mt the authority of Jaw flows from the penal laws of India\" Nor 1s 1t the effect of article 21 that penal Jaws get merged m arllc!e 21 .because of the fact that they constitute \"law\" as mentioned m article 21, for were it so the suspension of the right to move a court for enforce ment of 'fundamental right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws. ·\n\nIt has been pointed out above that even before the coming into force of the Constitution, the position under the common law boll in England and in India was that the State could not deprive a person of his life and liberty without the authority of law.\n\nThe same was the position under the penal laws of India. It was an offence under the Indian Penal Code, as already mentioned, to deprive a person oi his life or liberty unless such a course was sanctioned by . the laws of tke land. An action was also maintainable under the Jaw of torts for wrongful confinement in case any person was deprived of his personal liberty without the authority of law.\n\nIn addition to that, we had section 491 of the Code of Criminal Procedure which provided the remedy of habeas corpus against detention without the authority of law.\n\nSuch laws contiuned to remain in force in view of article 372 after the coming into force of the Constitution. According to that article, notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the Jaw in force in the territorv of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended\n\ny a competent legislature or other competent authority.\n\nThe law m force, as observed by the majority of he Constitution Bench in the case of Director of Rationing and Distribution v. The Corporanon\n\nof Ca/cJ1tta & Ors.(1), include not only the statutory Jaw but also custflm or usage having the force of Jaw as also the common law of glnd which was adopted as the law of the country before the commg mto force of the Constitution. The position thus seems to be firnliy established that at the time the Constitution came into force the legal position was that no one could be deprived of his life or liberty without the authority of law.\n\nIt is diffiicult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no one could be deprived of his life or liberty without the authority ot law\n\n0) (a961] 1 S. 0. R. 158.\n\n18-833SCI/76\n\nwai: obliterated and ceased to remain in force.\n\nNo rule of construction interpretati'i'n warrants such an inference.\n\nSection 491 of the Code of Crimir, ial Procedure continue~ to remain an integral part of that Code despite the fact that the High Courts were vested with the power of issuing writs of habeas corpus under article 226.\n\nNo submission was ever advanced on the score that the said provision had become a dead letter of unforceable because of the fact that article 226 was made a part of the Constitution.\n\nIndeed, in the case of Makhan Singh (supra) Gajendragadkar J. speaking for the majority stated that ~Her the coming into force of the Constitution, a party could avail of either the remedy of section 491 of the Code of Criminal Procedure or that of article 226 of the Constitution. The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus.\n\nSection 491 of the Code of Criminal Procedure continued to be part of that Code till that Code was replaced by the new Code.\n\nAlthough' the remedy of writ of habeas corpus is not now available under the new Code of Criminal Procedure, 1973, the same remedy is still available uuder article 226 of the Constitution.\n\nOur attention has beeu iuvited to section 18 of the maintenance of Internal Security Act as amended.\n\nAccording to that section, no person, including a foreigner, in respect of whom an order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any. This section wouid not, in my opinion, detract from my conclusion that article 21 is not the sole repository of the right to personal liberty.\n\nIt has been pointed out above that the principle that no one shall be deprivad of his life and personal liberty without the authority of laws follows not merely from common law, it flows equally from statutory law like the penal law in force in India.\n\nThe above principle, as would appear from what has been discussed elsewhere, is also an essentail facet of the rule of law.\n\nSection 18, therefore, cannot be of much assistance to the appellants.\n\nI am also unable to subscribe to the view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention.\n\nThere has been, it needs to be emphasised, no amendment of section 3 of the Act.\n\nSection 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act, it shall be taken to be an order under section 3 of the Act.\n\nApart from the fact that such an inference is not permissible on the language of section 18, the acceptance of this view would also render the validity of section 18 open to question on 111e ground that it suffers from the vice of excessive delegation of legislative power.\n\nThe legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made.\n\nIt is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in wjlich such order should be made. To do so would be tantamount to abdication of lcgislatitvc function for in such\n\n• •\n\n, . ,\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 275\n\nan event it would be open to the detaining authority to detain a per- J. son on any ground whatsoever.\n\nI agree with the Jeamed Attorney General that if we are to accept his argument about the scope of the Presidential order of June 27, 1975, in that event we have to accept it in its entirety and go the whole hog; there is no half way house in between. So let us examine the consequences of the. acceptance of the above argument.\n\nThis would mean that if any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency.\n\nThis would also mean that it would not be necessary to enact any law on the subject and even in the absence of any such law, if any official for reasons which have nothing to do with the security of State or maintenance of public order, but because of personal animosity, arrests and puts behind the bar any person or a whole group or family of persons, the aggrieved person or persons would not be able to seek any redress from a court of law.\n\nThe same would be the. position in case of threat of deprivation or even actual deprivation of life of a person because article 21 refers to both deprivation of life as well as personal liberty. Whether such .things actually come to pass is not the question before us; it is enough to state that all these are permissible consequences from the acceptance of the contention that article 21 is the sole repository of the right to life and personal liberty and that consequent upon the issue of the Presi- • dential order, no one can approach any court and seek relief during the period of emergency against deprivation of life or personal liberty.\n\nIn order words, the position would be that so far as executive officers are concerned, in matters relafmg to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.\n\nTo take another illustration.\n\nSupposing the Presidential order F nuder article 359(1) were to mention article 21 but not article 22.\n\nThe acceptance of the above submission advanced on behalf of the appellants would mean that if the State does not release a detenu .despite the opinion of the Advisory Board that there is no sufficient • cause for his detention and thus keeps him in detention in flagrant • violation of 1he provisions of article 22, no habeas corpus petition ,.. would be maintainable and this would be so even though article G 22 itself is a fundamental right. ·.\n\nThe right to move a court for enforcement of a right under article 19 has now .been suspended by the President under an order issued under article 359(1). The ejfect of that,. on a parity of reasoning advanced on behalf of the appellant would be, that no one can file a suit , during the period of emergency against the State for JI recovery of property or money (w)lich is a form of property) because ··.\n\nsuch a suit, except in some contingencies, would be a snit to enforce {he right contained in article 19.\n\nNot much argument is needed to show that it two constructions of Presidential order were possible, one leading to startling reeults and the other not leading to such results, the court should lean in favour of such construction as would not lead to such results.\n\nEqually well established is the rule of construction that if there\n\n• f\n\nbe a conflict between the municipal law on one side and the international Jaw or the provisions of any treaty obligations on the other, the courts would give effect to municipal law.\n\nIf, however, two constructions of the municipal law are possibfe, the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the international law or treaty obligations.\n\nEvery statute, according to this rule, is interpreted, so far as its language permits, so as not to be • C inconsistent with the committee of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language.\n\nBut if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results (see page 183 of Maxwell on the Interpretation of Statutes, Twelfth D Edition.) As observed by Oppenheim's International law, although municipal courts must apply Municipal Law even if it conflicts with the law of Nations, there is a presumption against the existence of such a conflict.\n\nAs the Law of Nations is based upon the common consent of the different States, it is improbable that an enlightened State would intentionally enact a rule conflicting with the Law of Nations.\n\nA rule of Municipal Law, which ostensibly seems to con- E flict with the Law of Nations, must, therefore, if possible, always be so interpreted as to avoid such conflict (see Vol. I, pages 45-46), Lord Denning gave expression to similar view in the case of Corocraft Ltd. v. Pan American Airways Inc.(') when he observed :\n\n\"The Warsaw Convention is an international convention which is binding in international law on all the countries who have ratified it: and it is the duty of these courts to construe our legislatiou so as to be in conformity with international law and not in conflict with it.\"\n\n....\n\n' l\n\nThe rule about the construction of municipal law also holds good when construing the provisions of the Constitution as would appear from International Law by Fenwick, Third :Edition, page 90, wherein , • is observed: + G\n\n\"But while in the case of a direct conflict between national and international law, the rule of national law will of necessity take priority until changed to conform to the international obligations of the state, there are numerous cases in which the provisions of the national constitution of the provisions of a particular legislative ac! are not so explicit but that they may be interpreted so as to enable the executive and the judical agencies of the st; i.te to act in; accordance with the obligations of international law.\"\n\n(I) {1969] I All E. R,, 80.\n\n...\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 277\n\nAccording to article 51 our Constitution, the State shall endeavour to inter alia foster respect for international law and treaty obligations in the dealings of organised peoples with one another.\n\nRelying upon that article, Sikri CJ. observed in the case of Kesavananda Iiharathi v. Slate of Kerala(I) : \"it seems to me that, in view of art. 51 of the directive principles, this Court must interpret language of\"the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India.\" Articles 8 and 9 of the Universal Declaration of Human Rights in -respect of which resolution was passed by the United Nations and .was supported by India read as under :\n\nARTICLE 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental .rights granted him. by the constitution or. by law.\n\nARTICLE 9 -'No one hall be subjected to arbitrary arrest, detention or\n\nexile.\" · . while dealing with the Presidential order under _article 359 (1), -we should adopt such a construction as would, if possible, not bring it in conflict with. the above articles 8 and 9. From what has been discussed elsewhere, it is plain that such a construction is not only :possible, it is also preeminently. reasonable. The Presidential order, . therefore,· should be so construed aS not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals :for acts violating basic right of personal liberty granted by law.\n\nIt has been argued that suspendmg the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutiorial provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law. 'This argument, in my opinion, cannot stand close scrutiny for it tries 10 equate illusion of the rule of law with the reality of rule of law. :supposing a law is made that in . the matter of the protection •of ilifo and liberty, the administrative officers would not be governed lby any law and that it would be permissible for them to deprive a . rson of life: and - liberty without any authority of law.\n\nIn one\n\nense, it might in that even! b~ !lrgued _that c:ven if lives of hundreds of persons are taken capriciously artd maliciously without the authority of law it is enforcement of the above enacted law.\n\nAs observed by Friedmnn on page 500 of Law fo t:;;;;;:;:ing Society, nd Ed., iri a purely formal sense, any system of norm baiM 00 ?:::::archv of orders, e\".en the ganis_ec!_ mass murders of Nazi regime qualify as\n\nlaw.\n\nThis argument call?ot howe\".er, . disguise the reality 6f the matter that hundreds of mnocent lives have been taken because of\n\nhe absence of rule of law. A state of negation of rule of law would not .cease to be such a state because of the fact that such a state of negation .of rule of law has been brought about by a statute. Absence of rule (I) 11973) Supr, S.C.R. I.'\n\n.ff\n\n?f law w, ould nevertheless be absence of rule of law even though it 1s brought about by a law to repeat all Jaws. In the words of Wade, Government under the rule of law demands proper legal limits on the exercise of power.\n\nThis does not mean merely that acts of authoity. must .be justified by law, for if the law is wide enough it can iust1fy a d1ctatorsh1p based on the tyrannical but perfectly legal principle quod principi placuit legis habet vigorem.\n\nThe rule of law requires something further.\n\nPowers must first be approved by Parliament, and must then be granted by Parliament within definable limits (see Administrative Law, Third Edition, page 46). It is no doubt true that Dicey's concept of rule of law has been criticised by subsequent writer5 since it equatell the rule of law with the absence not only of arbitrary but even of wide discretionary power. The following reformulation of Dicey's ideas as applicable to modern welfare state given by H.W.\n\nJones eliminates the equation of arbitrary and wide discretionary powers:\n\n\"There are, I believe, ideas of universal validity reflected in Dicey's 'three meanings' of the rule of law ..... (I) in a decent socie!J it is unthinkable that government, or any officer of government, possesses arbitrary power over the person or the interests of the individual; (2) all members of society, private persons and governmental officials alike, must be equally responsible before the law; and (3) effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the State\" (see Law in a Changing Society by Friedmann, 2nd Ed., page 501).\n\nE One of the essential attributes of the rule of law is that executive action to the prejudice of or detrimental to the right of an individual must have the sanction of some law.\n\nThis principle has now been well settled in a chain of authorities of this Court. ·\n\nIn the case of Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab(!) Mukherjea C.J. speaking for the Constitution F Bench of this Court observed:\n\n\"Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law; in order to carry on the particular trade or business.\n\nThns when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, 'a specific legislation sanctioning such course would have to be passed.\"\n\nThe above attribute of the rule of law has been specially high-_ lighted in the decision of this Court in the case of State of Madhya Pradesh & Anr. v. Thakur Bharat Singh( 2).\n\nIn that case the State Government made an order under section 3 of the Madhya Pradesh Public Security Act, 1959, directing that the respondent (i) shall not be in any place in Raipur District, (ii) shall immediately proceed\n\n(I) [1955] 2 s. c. R. 225,\n\n(2) [1967] 2 S. C .. R. 454.\n\n• •\n\n' I\n\n. '\n\n• I\n\n.... ..\n\n• •\n\n,.. ,\n\nADD)... DIST. MAG!~TRATE v. s. s. SHUKLA (Khanna, J.) 279\n\nto and reside in a named town, and (iii) shall report daily to a police A station in that town.\n\nThe respondent challenged the order by a writ petition under articles 226 and 227 of the Constitution on the ground inter alia, that. section 3 infringed the fundamental rights guaranteed nuder article 19 of the Constitution.\n\nThe High Court declared; clause.s (ii) and (iii) of the order invalid on the ground that clauses (b) and (c) of section 3 (i) of the Madhya Pradesh Public Secw; ity Act on which they were based contravened article 19.\n\nOn B appeal this Court held that section 3 (i) (b) violated article 19 and as it was a pre-emergency enactment, it must be deemed to be void when enacted.\n\nSection 3 (i) (b) was further held not to have revived as a result of the proclamation of emergency by the President.\n\nCounsel for the State submitted in the alternative that even if section 3 (i) (b) was void, article 358 protected action, both legislative and executive, taken after proclamation of emergency, and therefore any c executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under article 19.\n\nThis contention was repelled.\n\nShah J. (as ho then was) speaking for the Court observed :\n\n\"AU executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule .\n\nArticle 358 el\\pre,<; s)y authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions C\\lntained in Part III of the Constitution.\n\nArticle 358 does not purport to invest the State with arbitrary authority to take action to th!:' prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in puPsuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid.\n\nOur federal structure is founded on certain iundamental principles: (1) the sovereignty of the people with limited Government authority i. e. the Government must be conducted in accordance with the wiJ.l of the majority of the people.\n\nThe people govern themselves through their representatives, whereas the official agencies of the executive Govelllil!ent possess only such powers as lta:ve been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial-each organ having some check direct or indirect on the other: and (3) the rule of law wliich includes judicial review of arbitrary executive actions.\n\nAs pointed out by Dicey in his 'Introduction to 1'he study of the Law of the Constitution', 10th Ecln., at p. 202 th~ expression 'rule of law' has three meanings, or may be regarded from three different points of view. 'It means in the first place, the a]?solute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionay\n\nE .\n\nauthority on the part of government.' At p. 188 Dicey points out:\n\n'In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the .government in England : and a study of European polities now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom :on the part of its subjects.' We have adopted under our Cons!itution not the Continental system but the British system under which the rule of law prevails.\n\nEvery act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority.\"\n\nIn Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors. etc. v. Om Parkash & Ors. (') a Division Bench of this Court observed :\n\n\"In our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality.\n\nThe administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court.\"\n\nIn District Collector of Hyderabad & ors. v. MJ s Ibrahim & Co. etc.(') the respondents who were recognized dealers in sugar were prevented by an executive order from carrying on the business.\n\nThe question which actually arose for decision before this Court was whether the said order was protected under articles 358 and 3.'i9 because of the declaration of state of emergency by the president.\n\nShah J. speaking for Bench of six Judges of this Court observed :\n\n\"But the executive order immune from attack is only that order which the State was competent, but for the provisions contained in Art. 19, to make.\n\nExecutive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken.\n\nSince the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control order, it was not protected under under Art. 358 of the Constitution.\n\nNor had it the protection under Art. 259.\"\n\n(I) [1968} 3 S.C.R. 655.\n\n(2) [19701 3 S. C.R. 498.\n\n' ' r\n\nJI . '\n\n• . (\n\n( a\n\n.. .\n\n> -\n\n.ADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 281\n\nIn Bennett Coleman & Co. & ors. v. Union of India(') Ray J. (as be then was) speaking for the majority of the Constitnlion Bench relied upon Thakur Bharat Singh and M/3 Ibrahim & Co. cases (supra)\n\nJmd Qbserved :\n\n\"Executive action which is unconstitutional is not immune during the proclamation of emergency.\n\nDuring the proclamation of emergency Article 19 is suspended.\n\nBut it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any per-emergency law which was invalid when enacted.\"\n\nIn Shree Meenakshi Mills Ltd. v. Union of India(') this Court dealt with petitions challenging the validity of the fixation of price of cotton yarns under an executive order.\n\nObjection was raised to the maintainability of the petitions on the score of proclamation of emergency.\n\nThis objection was repelled and reliance was placed on the decision of the Court in the case of Bennett Coleman & Co.\n\nIn Naraindas Indurkhya v. The State of Madhya Pradesh(') the Coru; titution Bench of this Court to which three of us (Ray C. J, Khanna and Bhagwati JJ.) were parties placed reliance on the decisions in the cases of Ram Jawaya Kapur, Thakur Bharat Singh and Bennett Coleman & Co. ( surpa)\n\nThese authorities clearly highlight the principle that executive authorities cannot under the rule of law take any action to the prejudice of an individnal unless such action is authorised by Jaw.\n\nA E fortiori it would follow that under the rule of Jaw it is not permissible to deprive a person of his life or personal liberty without the authority of Jaw.\n\nIt may be appropriate at this age to refer to other cases in which stress has been laid on rule of law by this Court.\n\nWanchoo J. in the case of Director of Rationing and Distribution F\n\nv. The Corporation of Calcl!tta & Ors.(') stated that in our country the rule of Jaw prevails and our Constitution has guaranteed it by the provisions contained in Part III thereof as well as other provisions in other Parts.\n\nIn Bishan Das & Ors. v. The State of Punjab & Ors.( 5) S. K. .Das J. speaking for the Constitution Banch of this Court deprecated action taken by the State and its officers on the ground that it was destructive -0f the basic principles of the rule of Jaw.\n\nIn G. Sadanandan V'. State of Kera/a & Anr. (supra) Gajendragadkar CJ. speaking for the Constitution bench observed that the\n\nparamount requirement of the Constitution was that even during\n\n(!) f1973J 2 s. c. R. 757.\n\nH ,. '\n\n(2) (1974] 2 s. c. R. 398. (3)\n\nA. I. R. 1974 S. C. 1232.\n\n(4) ]1961] 1 S. C. R. 158.\n\n(5) I1962J 2 s. C.iR. 69'.\n\nemergency the freedom of Indian citizens would not be taken away without the existence of justifying necessity specified by the Defence of India Rules.\n\nIn S. G. Jaisinghani v. Union of lndia & Ors. (1), Ramaswami J. speaking for the Constitution Bench of this Court observed as under :\n\n\"In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based.\n\nIn a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.\n\nThe rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is.\n\nIf a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-'Law of the Constitution'-Tenth Edn., Introduction ex). 'Law has reached its finest moments', stated Douglas, J. in United States v.· Wunderlick CJ, 'when it has freed man from the unlimited discretion of some ruler .... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the +ase of John Wilkes( 3 ), 'means sound discretion guided by law.\n\nIt must be governed by rule, not by humour : It must not be arbitrary, vague and fanciful.' \"\n\nIn the case of Shrimati Indira Nehru Gandhi v. Shri Raj Narain(<) both Ray CJ .. and Chandrachud J. laid stress on the rule of law in our constitutional scheme.\n\nIt would not, in my opinion, be correct to consider rule of law as a vague or nebulous concept because of its description as an unruly horse by Ivor Jennings.\n\nIndeed, according to Jennings, the rule of law demands in the first place that the powers of the Executive should not only be derived from law, but that they should be limited by Jaw.\n\nWhatever might be the position in peripheral cases, there are certain aspects which constitute the very essence of the rule of Jaw. Absence of arbitrariness and the need of the authority of law for official acts affecting prejudicially rights of individuals is one of those aspects.\n\nThe power of the courts to grant relief against arbitrarines9 or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law. To quote from Halsbury's Laws of England, Third Edition, Vol. 7,\n\n(1) [19671 2 S. C. R.'703.\n\n(2) 342 li. s. 98.\n\n(3) (I 770) 4 Burr. 2528 at 2539.\n\n(4) [1976] 2 S. C. R. 347.\n\n' ..\n\n• -\n\n. '\n\n< I -·\n\n/ .\n\n* ..\n\nADOL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, !.) 28 3\n\npara 416, the so-called liberties.of the subject are really. implications A drawn from the. two principles that the subject may ay or do wat he pleases, provided he does not transgress ubstant1v.e. la~, or .Infringe the legal rights of others, whereas public authonue~ mcludmg the Crown) may do nothing but what they are authonsed to do by some rule of co=on law or statute.\n\nThe essence of rule of law, according to Prof. Goodhart, is that public officers are governed by law which limits their powers. It means Government under law- B the' supremacy of law over the Government, as dstinct from Government by law-the mere supremacy of law in society generallywhich would apply also to totalitarian states (See plige 42 of constitutional and Administrative Law by Hood Phillips, Third Edition).\n\nI may mention that there has been an amendment of article 359 G inasmuch as clause (lA) has been added in that article.\n\nThe effect of the insertion of that clause in article 359 is that while an order made under clause ( 1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the I) extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects thing done or omitted to be done before the law so ceases to have effect.\n\nClause (IA) ihus protects laws and executive actions from any attack on validity on the score of being violative of the fundamental rights mentioned in the Presidential order in the same way as article 358 protects the laws and executive actions from being challenged on the E ground of being violative of article 19 during the period of emergency.\n\nIf the existence of article 358 did not have the effect of dispensnig with the necessity for an executive action operating to the prejudice of the right of a citizen of the authority of law, the same must necessarily be the position after the insertion of clause {lA) in article 359. It is significant that the language of clause (lA) of article 359 in material respect is substantially the same as that of article 358.\n\nThe p language of clause {lA) of article 359 makes it clear that the protection which is afforded by that clause is to such law or executive action as the State would but for the provisions contained in Part III of the Constitution be competent to make or take.\n\nThe word \"competent\" has a significance and it is apparent that despite the Presidential order under artlcle 359(1), in the case of executive action the competence of the State to take such action would have to be established.\n\nSuch G competence would, however, be judged ignoring the restriction placed by the provisions of Part III of the Constitution.\n\nTo put it in other words, clause (lA) of article 359 does not dispense with the necessity of competence to make law or take executive action.\n\nThe only effect of that clause is that during the period of emergencv. the restriction placed uoon the competence by fundamental rights would not be there.\n\nBut it would still be neces- R sary to establish the competence dehors the restrictions of the fundamental rights.\n\n.284\n\n:SUPAEME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nThe .matter can also be looked at from another angle.\n\nBefore any public authority can deprive a person of his life or personal liberty, 1wo requirements are to be satisfied :\n\n(1.) Power must be conferred by law upon such authority to deprive a person of his life or liberty; and\n\n(2) Law must also prescribe the procedure for the eirnrcise of such power.\n\nSuspension of the right to move any court for the enforcement of !he right under article .21 can at the best impinge upon the second req!ilirement; it cannot affect the first requirement which is a cardinal principle of the rule of law.\n\nI am conscious of the fact that though article 21 refers to procedure estal>lished l>y law, there. are observations in Gopalan's case that the article would also cover substantive law for affording protection .to life and liberty.\n\nWhat article 21 lays down is that no person shall be deprived of his lifo or personal librty except according to procedure established by law.\n\nProcedure about the exercise of power of depriving a person of his life or personal liberty necessarily presupposes that the substantive power of depriving a person of his life or personal liberty has l>een vested in an authority and that such power exists.\n\nWithout the existence of such substantive power, no question can arise about the procedure for the exercise oE that power. It has, therefore, been held that though there is no reference\n\nto substantive power in article 21, the said article would cover both the existence of the substantive power oE depriving a person of his life and personal liberty as well as the procedure for the exercise of that power.\n\nThe question with which we are concerned is as to what is the effect of the suspension of the right to move a court for the enforcement of the right contained in article 21.\n\nThe effect, it may possibly be argued, is that consequent upon such suspension, if a person is deprived of his life or personal liberty under a law not satisfying the second requirement indicated above, he cannot seek judicial redress on that score.\n\nWould it, however, follow from the suspension of such right that no judicial remedy would be avaiial>le if a person is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty. The answer to this question in my opinion, should plainly be in the negative. The •ouspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring anaggrieved person from approaching the courts with the compJaint rega'rding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or Jil>erty.\n\nThe presupposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21. even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power. The coexistence of substantive power arid procedure established by law for depriving a person of his life anJ liberty\n\n• •\n\n. '\n\n. '\n\n' •\n\nI •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, /.) 28 5\n\nwhich is implicit in article 21 would not lead to the. result that even if there is suspension of the right regarding procedure, suspension would also operate upon the necessity of substantive power.\n\nWhat is true of a proposition need not be true of the converse of that proposition.\n\nThe suspension of the right to move any court for the enforcemenl of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person 'of his life or personal liberty, it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power.\n\nThe close bond which is 1there between the existence of substantive power of depriving a person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in articlsi 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power.\n\nIt is significant that there is a difference in the language of article 21 and that of article 31(1) wherein the framers of the Constitution said that no one shall be deprived of his property save by the authority of law.\n\nIn considering the effect of Presidential order suspending the right of a person to move any court for enforcement of right guararu'.eed by article 21, we should not treat the words \"except according to procedure established by [aw\" to be synonymous with \"save by authority of law\" .\n\nThe President can in exercise 0£ powers conferred by article 359(1) suspend when the proclamation of emergency is in operation, the right1to move any court for the enforcement of such of the fundamental rigb.'.s as may be mentioned in the order. On the plain langu- age of article 359 ( 1), the President has no power to suspend the right to move any court for the enforcement of rights which are not fundamental rights conferred by Part III of the Constitution.\n\nRights ereated by statutes are not fundamental rights conferred by Part III of the Constitution and as such enforcement of snch 9tatutory rights cannot be suspended under article 359 (1). Likewise, article 359 ( 1) does not deal with obligations and liabilities which flow from statutory !PfOVisions, and it would follow that an order under article 359(1) cannot affect those obligations and liabilities arising out of statutory provisions.\n\nNor can a Presidential order under article 359(1) nulfy or suspend the op.eration of any statute enacted by a competent legis- lature.\n\nAny redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article\n\n359 ( 1) and the Presidential order made hereunder.\n\nThe Presidential order cannot put the detenu in a worse position than that in which he would be if article 21 were repeated. It cannot be dispu'.ed\n\nthat if artiole 21 were repealed, a detenu would not be barred from o9taining relief under a statute in case there is violation of statutory provisions.\n\nLikewise, in the event• of repeal of article 21, a detenu can rightly claim in cour1J . of law that he cannot be deprived of his life or personal liberty Without the authority of law.\n\nArticle\n\n]J.\n\n359 ( 1) ousts the jurisdiction of the court only in respec.t of matkrs specified therein during the period of emergency.\n\nSo far as mattw. not mentioned in article 359(1) and the Presidential order thereunder are concerned, the jurisdictiQn of the court is no'. ousted.\n\nA provision which has the effect of ousting the jurisdiction . of the courts should be c:Qnstrued stri:tly. No inference of the ouster of the jurisdiction of1the court can be drawn unless such inference is warranted by the clear language of the provision ousting such .iurisdiction.\n\nI may in this context refer to the observations of the Omstitution Bench of this Court in the case of K. Anandan Nambiar & A nr.\n\nv. Chief Secretary, Government of Madras & Ors(') Gajendragadkar J. speaking for the Constitution Bench observed :\n\n\"In construing the effect of the Presidential order, it is necessary to bear in mind the -general rule of constru~':jon that where an order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution, the said order mu&: be strictly construed in favour of the citizens' fundamental rights.\"\n\nI am also unable to accede to the argument that though the position under Jaw may be that no one can be deprived of his right to life or personal liberty without the authority of law, the remedy to enforce the right to life or personal liberty is no longer available during the period of emergency because of the suspension of right to move any court for enforcement of right conferred by article 21.\n\nThe basic assumption of this argument is that article 21 is the sole repository of right to life and personal liberty.\n\nSuch an assumption, as already stated above, is not well founded.\n\nThis apart, a Presidential order under article 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can .it bar access to the courts of persons seeking redress on the score of contravention of statutory provis\\ons. Statutory provisions are enacted to be complied with and it is not permissible to contravene them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be abjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufference of the official concerned. It is the presence of legal sanctions which distinguishes positive Jaw from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with Jaw.\n\nNon-compliance with statutory provisions entails certain legal consequences.\n\nThe Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act ii1 conformity with its provisions and within the limits set out therein'.\n\nWhen a statute deals with matters affecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the statute would be circumscribed by its provisions, and it would not be permissible to invoke some indefinite general powers pf the executive.\n\nAs observed by Lord Atkinson in\n\n(1) (1966] 2 s. c. R. 406 (on p. 410).\n\n• •\n\n' • ~\n\n• ' ...\n\n• , .\n\n- •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 28 7\n\nthe case of Attorney General v.\n\nDe Keyser's Royal Hotel Ltd.,(') the constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority .from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject. It is also not the result of the Presi den'.ial order, as discussed elsewhere, that because of the suspension of the right to move any court for enforcement of right under article 21, the remedy of a writ of habeas corpus ceases to be available against the State.\n\nThe Presidential order would not preclude a person from challenging the validity of a law or order on grounds other than violation of articles 14, 19, 21 and 22. It may be pertinent to refer to a decision of this Court in the case of Jaichand Lall Sethia v. State of West Bengal(2) wherein the Constitution Bench of this Court observed after referring to the case of Makhan Singh (supra) :\n\n\"It was pointed out that during the pendency of the Presidential order the validity of the Ordinance or any rule or order made thereunder cannot be ques'ioned on the ground that it contravenes Arts. 14, 21 and 22.\n\nBut this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground. If the appellant seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Arts. 14, 21 and 22, the Presidential order cannot come into operation. It is not also open to the appellant to challenge the order on the ground of contravention of Art. 19, because as soon as a Proclamation of Emergency is issued by the President under Art. 358 the provision of Art. 19 are automatically suspended.\n\nBut the appellant can challenge the validity of the order on a ground other than those covered by Art. 358, or the Presidential order issued under Art. 359{1).\n\nSuch a challenge is outside the purview of the Presidential order.\n\nFor instance, a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas cm:vus on the ground that his detention has been qrdered mala fide.\n\nSimilarly, it will be open to the citizen to challenge the order of detention on the iround that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context\n\nthat a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statUl'.ory power is exercised for purposes foreign to those for which it is in law intended. In otl1er words, the power conferred by the statute has been utilised\n\nj •\n\n(1) fl920] A. c. 508.\n\n(2) 11966) Supp, S .C. R. 464.\n\nA for some indirect purpose not connected wi.th the object of the statute or the mischief it seeks to remedy.\"\n\nSimilar view was expressed in the case of Durgadas Shirali v. Union of India & Ors.(') In G. Sadanandan v. State of Kera/a & Aw.(2) the Constitntion Bench of this Court speaking through Gajendragadkar CJ. struck down a detention order Olli the ground that it was ma/a fide.\n\nOur founding fathers made article 226 which confers power oil' the High Court to issue inter aUa wr'ts in the nature of habeas corpus an integral part of the Constitntion.\n\nThey were aware that under the US Constitution in accordance with article 1 section IX ilie privilege of the writ of habeas corpus could be suspended when in cases of rebellion or invasion the public safety may require it.\n\nDespite that our founding fathers made no provision in our Constitution for suspending the power of the High Courts under article 226 to issue writs in the natnre of habeas corplis during the period of emergency.\n\nThey had perhaps in view the precedent of England where there had been nQ suspension of writ of habeas corpus since 1881 and even during the course of First and Second World Wars.\n\nIt would, in my opinion, be !JOI permissible to bring about th~ result of suspension of habeas corpus by a strained construction of the Presidential order under article 359 ( 1) even though article 226 continues to remain in force during the period of emergency.\n\nThe writ of habeas corpus ad subjiciendum, which is commonly known as the writ of habeas corpus,. is a process for securing the liber_ty of the subject by affording an effective means or immediate release from unlawful or unjustifiable dmention, whether in prison or in private-custody.\n\nBy it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released.\n\nRelease on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal (see Halsbury's Laws of England,. Vol. 11, Third Edition, page 24).\n\nIn Greene v. Secretary of State for Home Affairs(') Lord Wright observed: ·\n\n\"t is clear that the writ of habeas corpus deals with the machinery of justice, not the sul; istantive law, except in so far as it can be said that the right to have the writ is itself part of substantive law. t is essentially 11 procedural writ, the object of which is to enforce a legal right . . . . The inestimable value of the proceedings is that it is the moot efficient mode ever devised by any system of law to end unlawful detainments and to secure a speedy releasel where the circumstances and the law so required.\"\n\n(!) [1966] 2 S. C. R. 573.\n\n(2) [19661 3 s. c. R. 590.\n\n(3) [1942] A. c. 284.\n\n• t\n\n...\n\n. '\n\ni- •\n\nt '\n\n' I\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 289\n\nWrit of habeas corpus was dcribed as under by Lord Birkenhead in the case of Secretary of State for Home Affairs v. O'Brien(') :\n\n\"It is perhaps the mos! impoi:tant writ known to the cons, titutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or connnement. It is of immemorial antiquity, an instance of its, use occurring in the thirtythird year of Edward I. It has through the ages been jealously maintained by courts of law\n\nas a check upon the illegal usurpation of power by the executive at the cost of the liege.\"\n\nThe existence of the power of the courts tct issue a writ of habeas corpus i_s regarded as one of the most important characteristic of democratic tates under the rule ofi law. .The significance of the writ for the moral health of the society has been acknowledged by al! jurists.\n\nHallam describedit as the \"principal bulwark of English liberty''. The uniqueness of )labeas corpus in the procedural armoury of our law cannot be too often emphasised. It differs from all others remedies in that it is available to bring into question the legality of a person's restraint and to require justitication for such detention.\n\nOf course, this does not mean that prison doors may readily be openeci. It do, os mean that explanation may be exacted why they should remain closed.\n\nIt is not the boasting of empty rehtoric that has treated the writ o: habeas corpuJ as the basic safeguard of freedom.\n\nThe great writ d habeas corpus has been for centuries e&teemed the best and sufficient defence of personal freedom (see Human Rights & Fundamental Free- • don1s by Jagdish Swarup, page 60).\n\n~ As article 226 is an integral part of the Constitution, the power of the High Court to enquire in proceedings for a writ of habeas corpu; into the legality of the detention of persons cannot,, in my opinion, be denied.\n\nAlthough the Indian Constitution, as mentioned by Mukherjc:· O. in the case of Ram J awaya Kapur (supra), has not recognised the doctrine of separation of powers in its absolute rigidity, the funo'.io i : of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Cons'.itution does not contemplate assumption, by one organ or part of the State, of functions tliat essentially belong to another.\n\nThcexecutive can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.\n\nIt can also, when so empowered exercise judicial functions in a limited • way.\n\nThe executive however, can never go against the provisions of ;. the Co1; sti\\Ution or of any law.\n\nTo quote the words of Dr. AmbedJ;.ar in the Constituent Assembly :\n\nt ;\n\n\"Every Constitution, so far as it relates to what we call parliament d., mocracy, requires three different organs of the State, the executive, the judiciary and the legislature.\n\nI have not anywhere found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciay.\n\nNowhere is such a provision to be\n\n(I) [i923] A. C. 6-03 (6-09). 22-SJJSu]OCI/76\n\nfound.\n\nThat is because it is genera!Iy understood that the provisions of the Constitution are binding upon the different organs of the State.\n\nConsequently, it is to be presumed that those who work the Constitution, those who compose the Legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties. It is therefore to be expected that if the executive is honest in working the Constitution, then the executive is bound to obey the Legislature without any kind of compulsmy obligation laid down in the Constitution.\n\nSimilarly, if the executive is honest in working the Constitution, it must act in accordance with the judicial decisions given by the Supreme Q>urt.\n\nTherefore my submission is that this is a matter of one organ of the State acting within\n\nits own limitations and obeying the supremacy of the other organs of the State. In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself.\"\n\nIt was further observed by him :\n\n\"No constitutional Government can function in any country unless any particular constitutional authority remember~ the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decided between that particular authority and any other authority,. then the decision, of that authority shall be binding upon any other organ.\n\nThat is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with the interpretation of the judicial organ created by the Constitution.\"\n\nArticle 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land.\n\nJudicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our' constitutional scheme, it is no~ permissible to exclude judicial scrutiny except to the el<lent such exclusion is warranted by the provisions of the Constitution and the Jaws made in accordance with those provisions.\n\nThere is, as already mentioned, a clear demarcation of the spheres of function and power in our Constitution.\n\nThe acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation! of life and personal liberty in contravention of the statute are brought to their notice. It would also mean that whatever\n\n• j\n\n... -\n\n. '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, !.) 2 91\n\nmay be the law passed by the legislature,. in the matter of Lifp. and A personal liberty of the citizens, the executive during the period of -\n\nemergency would not be bound by it and would be at liberty to ignore and contravene it. It lis obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislative and judicial organs of lhe State, and thus bring about a constitutiona! imbalance which perhaps was never in the contemplation of the framers of the Constitution, The fact that the government which B • controls !lie executive has to enjoy •the confidence of the legislature I does not detract from the above conclusion.\n\nThe executive under our constitutional scheme is not merely to enjoy the confidence of the •=, majority in the legislature, 11 is also bound to carry out the legislative intent as manifested by the statutes passed by the legislature.\n\nThe • j Constitution further1 Contemplates tha.t the function of deciding whether the executive has. acted in accordance with the legislative intent should c be performed by the courts.\n\nc The cases before us raise questions of utmost importance and gravity,, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic values affecting life, liberty and the rule of law.\n\nMore is at stake in ..\n\n.these cases than the liberty of a few individuals or the correct construelion of the wording of an order.\n\nWhat is at stake is the rule of law .\n\n' If it could be the boast of a great English jndge* that the air of • England is too pure for a slave to breathe, cannot we also say with justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that , the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the • executive, a power against which there can be no redress in courts E of law, even if it chooses to act contrary to Jaw or in an arbitrary and , • capricious manner.\n\nThe qnetion is not whether there can be curtailmen~ of personal liberty when there is threat to the security of the ' State.\n\nI have no doubt that , there can be such curtaihnent, even on an extensive scale, in the face of such threat.\n\nThe question is whether the Jaws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.\n\n' No one can deny the power of the State to assume vast powers of detention in the interest of the security of the State. It may inl\\eed • be necessary to do so to met the peril facing the nation.\n\nThe consi-\n\n> derations of security of the State must have a primacy and be kept in • the forefront compared to which the interests of the individuals can\n\n),. only take a secondary place.\n\nThe motto has to be \"Who lives, if the G country dies\".\n\nExtraordinary powers are always assumed by the government in all countries in times of emergency because of the extraordinary nature of the emergency.\n\nThe exercise of the power of detention, it is well-settled,, depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the neces- H > '\n\nsity of detention.\n\nThere is no antithesis between the power of the\n\n•Lord Mansfield in the case of James Sonunersett (1772 State Trials t>age 1l\n\nState to detain a person without trial under a' law of preventiv<> detention and the power of the court to examine the. Iegali'.y of su;:h ddention. As observed by Lord Atkin in Rex v. Halliday(') while dealing \\\\1th the argument that the Defence of Realm Consolidation Act or 1914 and the regulation made under it deprived the subject of his righ'. under the several Habeas Corpus Acts, that is an entire misconception.\n\nThe subject retains every right which those statutes confer upo11 him to have tested and de.'.ermined in a court o[ law, by means of a writ of Habeas Corpus, .addressed to th\" person in whose cu•to:ly ho may be, the legality of the order or warrant by virtue of wh'd1 he is given into or kept in that custody. To quote the words of Lord Macmilbn in the case of Lirersidge v. Anderson(2 ).\n\n. :n is important to have in mind that the regulatioa ii& question is a war measure. This is not to say that the Coart sought to adopt in war time canons of cons'.ruction; different from those they follow in peace time; The fact that the nation is at war isl no justification for any relaxation of the vigilance of 'the Courts in seeing that the law is duly. observed, especially in a matter so fundamental as the liberty 0£ the subject.\n\nRather the contrary.\" In dealing with an application for a writ of habeas corpus, the.court only ensure that the dc.caining authorities act in accordance with th~ Jaw of preventive detention.\n\nThe impact upon the individual of tho ffia5SiVC a!ld COrnprehnsive pO-..VCfS Of preventive detention With \\Vhjch\n\nthe admini, trative officers are armed has to be cushioned with legal safeguards against arbi'.rary deprivation of personal liberty if th., premises of the rule of la\\V is not to lose its content and become meaningless.\n\nThe chances of an innoccrrt person being detained under \" law providing for preventive detention on the subjective satisfaction of an\n\na<.!mipjstrativc authority are much g, eater compared to the possibility of an innocent persoa being convicted at trial in a court of law. It would be auposite in trjs coatext to refer to the observations of Professor Alan M. Dershm\\otz : The available C'lidence su; gest that our system of determining past guilt results in erroneous conviction of relatively few ianocent peoplo.\n\nWe really do seem to practice what we preach, about preferring the acquittal of guilty men over the conviction of innocent men.\n\nBut the indications are that any system of predicting future crimes would result in a vastly larger number of err<>'. neous confinements-that is. confinements of rersons predicted to engage in violent crime who would not, in fact~ d() so.\n\nIndee.d, all the experience with predicting violent conduct suggests !hat in order to spot a significant proportion of future violent criminals, we would have to reverse the traditional maxim of the criminal law and adopt a uhil<>- sophy that it is 'better to confine ten people who would not . com:ni~· predicted crimes, thJn to release one who would' ;\" ·\n\n(!) [1917] 'A. C. 261 (O'l pago 272).\n\nfi942) A. C. 206.\n\n• • .r-' .\n\n• ..\n\n...\n\n' •\n\n• •\n\n, t\n\nADDL: DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, I.) 293\n\n(.rge p. 313 Crime, Law and Society by Goldstein and Gold- A stein). .\n\nIt would, therefore, seem to be a matter of melancholy reflection if the courts were to stay their hand and countenance laxity or corn.lone lapses in relation to compliance with requirements prescribed by law for preventive detention.\n\nIn England there was no suspension of thti power of the courts to B issue a writ of habeas corpus during the First World War and the Second World War. In India also there was no absolute bar to approaching the courts during the Sino-Indian hostilities of 1962 and the lndo-Pak wars of 1965 and 1971. It has not been suggested that because of the existence of the powers of the court to issue writs of habeas corpus war efforts were in any way prejudicially affected.\n\nThe United Nations' Economic and Social Council endorsed the C general agreement reached at the Baguio Seminar that \"the writ of habeas corpus or similar remedy of access to the courts to test tl!.e legality and bona\"fides of the exercise of the emergency powers should never be denied to the citizen\". It drew attention to the foJ!owing passage from the report of the seminar : \"All members recognised that in time~ of emergency it might be necessary to restrict tempororily the freedom of the individual.\n\nBut they were firmly of the view that, •D whatever temporary restrictive measures might be necessary, recourse to the courts through the right of habeas corpus or other similar remedy should never be suspended.\n\nRather the legislature could, if necessary,, subject to well defined procedures safeguarding human dignity, authorise the temporary detention of persons for reasons specified in the law.\n\nBy that means d1e executive can act as emergency may requirn but the ultimate judicial protection of individual liberty is E preserved.\n\nMembers hold strongly that it is a fundamcr>'al principle that the individual should never be deprived of the means of testing the legality of his arrest or custody by recourse to judicial process even in times of emergency. If that principle is departed from, the liberty of the individual is intmediately put in great peril\".\n\nI am, therefore, of the view that there is no sufficient ground to :F interfere with , fue view taken by all the nine High Courts which went into the matter, that the Presidential order of June 27, 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite .that order.\n\nWe may new deal with the second question regarding the scope and extent of judicial scrutiny in petitions for writ of habeas corpus relating to persons detained under MISA. For this purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned.\n\nAccording to section 3(1) of MISA, the authorities specified in the sub-section may if satisfied with respect to any person (including a foreigner) that with a view to preventin~ him from acting in any manner prejudicial to (i) the defece of India, the .elations of .India with foreigner powers, or the secunty of India, or (n} the secunty p~\n\nthe State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, it is necessary so to do make an order that such person be detained.\n\nThe words \"if satisfied\" indicate that 'the satisfaction of the authority concerned is a condition precedent to the making of a detention order.\n\nUnless therefore the <outhority concerned is satisfied on the material before it tha,'.\n\nit is necessary to detain a person with a view to prevent him from indulging in any of the specified prejudicial activities, it has no power to ma]<:e olll order for his d<:>'.enti011.\n\nSection 3 also contains an implied injunction that the said authority shall not detain a person under that section for reasons other than those specified therein.\n\nAlthough the satisfaction contemplated by the sub-section is the subjective satisfaction of the authority concerned, it is necessary that it should be arrived at in an objective manner. It is consequently essential that the facts on the basis of which ,\\be authority concerned reaches the conclusion that it is necessary to detain a person should have a rational nexus or probative value and be germane to the object for which such detention is allowed under section 3 (1) of MISA.\n\nIn case the facts which are taken into account are extraneous, not germane or do not have any live link or reasonable connection with the object for which the detention order can be made, the order would be liable to be quashed.\n\nEven if one out of the many grounds on which a detention order is based is not germane or legally not tenable, the detention order would be quashed because it is difficult to predicate that the detaining authority would have come to the requisite satisfaction even in the absence of that ground. It is plainly not possible to estimate as to how far the irrelevant or untenable ground operated on the mind of the appropriate authority and contributed to the creation of the r.atisfaction on the basis of which the detention order was matle.\n\nTo s1y that the other ground which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive anthority which is against the legislative policy underlying the statute.\n\nA law o~ preventive detention is not punitive but precautionarv and preventive.\n\nThe power of detention under &uch law is based on circumstance of suspicion and not on proof of allegation <Ill is required at a regular trial for the commission of an offence.\n\nSuch a power is exercised because of apprehension of future prejudicial activity on the part of the person ordered to be detained judged in the light of his past conduct and propensity.\n\nThe order for preventive detention in such cases postulates prior restraint so that the mischief apprehended at the hands of the person ordered to be detained might not materialise.\n\nThe consequences of waiting and declining to take action against that person till the mischief is actually done wou!J quite oten be disastrous and the nation may in some cases have to pay a heavy price for such abstention. The quantum of material available regarding the conduct and propensity of a person may not be sufficient to warrant his conviction in a court of law for an offence and yet if the material is germane to the object for which detention order can legally be made and the detaining authority is satisfied in view of that material rearding the necessity of making a detention order, such ordr· made by that authority would be upheld as being in accordance with\n\n> ;\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, !.) 295\n\nlaw.\n\nIt is also not difficult to visualise a situation wherein serious crimes are committed in broad daylight and yet the witnesses to the crime are so much terrified and awestricken that they dare not depose against the culprits in a court of law. In such cases also because of the dilliculty of securing the conviction of the culprits, the courts have upheld the detention orders, if the activities of the culprits are of such a nature as has a nexus with the object for which detention order, can be made. In a petition for a writ of habeas corpus the courts do not normally question the veracity and sufficiency of the material on the bsis of which the authority concerned arrives at the conclusion regarding the necessity of detention. In case the detenu challenges the correctness or •truth of the allegations on the basis of which the detention order is made, he should normally do so by means of representation contemplated by clause (5) of article 22. It is legitim'>te to expect that the authority concerned and the advisory board when the matter comes up before them shall take into account the stand taken by the detenu regarding those allegations.\n\nIt would be also their function to give consideration to any fresh material which may be produced before them regarding the truth and correctness of those allegations. In a habeas corpus petition, if it becomes apparent on the record from the admission made by the detaining authority in the return or some other evidentiary material of unquestioned authenticity and probative value .that some of the alleged facts upon the basis of which detention order is made are non-existent, the court would be well justified in quashing the detention order. A court apart from that cannot go behind .the truth of the alleged facts.\n\nIf the material is germane to the object for which detention) is legally permissible and an order for detention is made on the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned and hold that the authority concerned should not have arrived at the conclusion regarding the necessity of detention.\n\nAt the same time, it is necessary that the authority concerned before deciding to detain a person should apply its mind to the facts before 1it in a fair and reasonable manner. If the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it, the legitimate inference would be that the authority concerned did not apply its mind to the relevant facts and did not honestly arrive at the conclusion.\n\nTo use the words of Lord Halsbury in Shrape v. Wakefield(') :\n\n\" ...... when ii is said that something is to be done within the discretion of the alJthorities . . that something is to G be done according to the rul~ of reason and justice, not according to private opinion . . . . according to law and not humour.\n\nIt is to be, not arbitrary, vague, fanciful, but legal and regular.\" Likewise, if there were no grounds, as observed by Lord Morton in Ross v. Papadopollos(2), or which :the authority concerned could be satisfied., the court might infer either that the authority did not H honestly form that view or that in forming it, the authority could not\n\n(I) [18911 A. C. 172 at p. 179.\n\n(2) [1958] 2 All. E. R. 23 (on p. 33),\n\nA have .applied its mind to th~ relevant facts. The courts would also interfere if the power <;>f detention is exercised malafide, not in good faith or for an ulterior purpose. It would follow from the above that if -~ the power of detention is exercised for an improper purpose, i.e., a purpose not contemplated by the statute,, the order for detention would be quashed.\n\nB Between m1!1ice in fact and malice in law, as observed by Viscount Haldane L.C. m the case of Shearer v. Shields(') there is a broad •\n\ndistinction which is not yuliar t<? !IDY particular ; ystem of jurisprudence .. A person who. millets an m1ury upon another person in contravent1011 of the law 1s not allowed to say that he did so with an \"< f innocent mind; he is taken to know the law, and he must act within\n\nI - c the law.\n\nHe may, therefore, be guilty of malice in law although, so far as the state of his mind is concerned,, he acts igno; antly and in that sense innocently.\n\nMalice in fact is quite a different thing; it means an actual malicious intention _on the part of the person who has done the wrongful act, and it may be, in proceedings based on\n\nwrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated.\n\nThe D above principle was applied by this Court in detention matters in Bhut Nath v. State of West Bengal(2). • Normally, it is the past conduct or antecedent history of a person which shows a propensity or a1tendency to act in a particular manner.\n\nThe past conduct or antecedent history of a person can, therefore, •\n\nbe appropriately taken into account in making a detention order. It\n\nE is indeed larzely from the past events showing tendencies or inclinalions of a person that an inference can be drawn that he is likely iii ..\n\nthe future to act in a particular manner.\n\nIn order to justify snch an inference, it is necessary tliat such past conduct or antecedent historv • ' should ordinarily be proximate in point of time. It would, for\n\nx instance, be normally irrational to take into account the conduct ano activities of a person which took place ten years before the date of his detention and say that even though after the said incident took place F nothing is known agaiiist the person indicating his tendency to act. in a prejudicial manner,, even so on the1 strength of tl1e said incident which - is ten years o)d, the authority is satisfied that his detention is necessary.\n\nIt is both inexpedient and undesirable to lay down an inflexible • test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion l~'!t • • G\n\nthel person concerned if not detained may indulge in prejudicial activ1- .. ties.\n\nThe nature of the activity would have also a bearing in deciding the question of proximity. If, for example, a person who has Ii1!ks with a particular' foreign power is known to have indulged ifl subversive activities when hostilities broke out with that foreign power and hostilities again break ant with that foreign power after ten years, the authorities concerned if satisfied on the basis of the past activi!ies that it is necessary to detin him with a view to preventing him from actir '' H in a manner prejudicial to the security of India, might well pass a • ...\n\n(I) ]1914] A, C. 808.\n\n(2) [1974] 3 S. C. R. 315.\n\n.... -4\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 297\n\ndeten:.ion order in respect of that person.\n\nThe fact that in such a A case there is( a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar , to a recent prejudicial activity as may give rise to an inference that the two are a part of cl)ain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain ]ts relevance and reliance upon B it would not introduce an infirmity.\n\nIf, however, in a given case and in the context of the nature of activity the time Iagi between the preiudicial activity of a detenu and the detention order made because of that aetivity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the: deention order.\n\nIf the detaining authority fails to do so, in spite of an oppor- C tunity having been afforded to it, a serious inflrmity would creep into .the detention order (see Rameshwar Singh v. District Magistrate Burdwan & Anr. (') and Sk. Abdul Munnaf v.\n\nState of West Bengal(2 ) •\n\nOne other requirement of a valid order of detention is that the grounds of detention which are communicated to the detenu should D not be vague sd that he may nOlt be handicapped in making an effective representation against the detention order.\n\nBoth artickJ 22(5) of the Constitution and section 8 ( 1) of M!SA refer to such representation and provide .that the detaining authority shall as soon as may be, and in any case not later than the prescribed period, communicate to the person detained the gr01111ds on which the detention order has been made \"and shall afford him the earliest opportunity of making reprc- E sentation against •the order\". In view of the Presidential order suspending th!' right of a person to move any court for enforcement of specified fundamental rights, including the one under article 22(5), it may with plausibility be argued that the vagueness of grounds of deter>'.io11 would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22 ( 5). The Presidential order would, however, not stand in the way F of the court quashing the detention order on the score of the infirmitv of the vagueness of grounds of detention because of the contravention of sectio, a 8 ( 1) of MISA.\n\nEvery Jaw providinp: for preventive detention contains certain procedural safeguards. It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention.\n\nDetention without trial results in serious inroads into personal liberty of an individual.\n\nIn such cases it is essential to ensure that there is no deviation from the procedural safeguards provided by the statute. In .the matter of even a criminal trial, it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice.\n\nThe need for strict adherence to strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a\n\n(I) [1964] 4 S. C. R. 921.\n\n(2) A. I. R. 1974 S. C .. 2066.\n\nperson even though he is not found guilty of the commission of an\n\n?ence. To condone .or allow relaxation in the matter of compliance\n\nwith procedurall reqmreiments would necessarily have the effect of practically doing away with even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to preventive detention. The history of personal liberty,. we must bear in mind, is largely the history of insistence upon procedure.\n\nI am, therefore, of the view that it would be wholly inappropriate to countenance any laxity in the matter of slrick compliance with procedural requirements prescribed for preventive detention.\n\nThe observations made in the case of Kishori Mohan v. State of West Bengal(') have relevance.\n\nIt was observed by this Court in that case : \"The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts.\n\nObviously, such power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only.\n\nThere can, therefore, be no donbt that snch a Jaw has to be strictly construed.\n\nEqually also, the power conferred by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in snch a law.\" Question then arises as to how far are the recitals in the order of detention binding upon the court, and upon whom and to what extent does the onus lie in a petition for a writ of habeas corpus relating to a detained person.\n\nIn this respect I find that in the case of King Emperor v. Sibnath Banerji(') the Judicial Committee, speaking through Lord Thankerton,, approved the following observation of the learned Chief Justice of , the Federal Court :\n\n\"It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where the recital purports to sta.te as a fact the carryiag out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its accuracy, be accepted by a court as establishing that the necessary condition was fulfilled.\n\nThe presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima fade case that the recital is not accurate.\" The matter was considered by this Court' by the Constitution Bench of this Court in the case of G. Sadanandan v. State of Kera/a & Anr.\n\n(upra) and it was observed' as under :\n\n\"After all, the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority; and so, if a prima facie case is made by the petitioner that his detention is either mala fide, or is the result of the casual approach adopted by the appropriate authority, the\n\n(I) A. I. R. 1974 S. C. 1749.\n\n(l) 71 !. A. 241.\n\n• •\n\n\"'; ,,,. __ ,\n\nADDL. DIST. MAGISTRATE v. ~· s. SHUKLA (Khanna, !.) 2 9 9\n\nappropria.'.e authority should place before the Court sufficient A material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its mala {ides, are not well-founded.\n\nThe failure of respondent No. 1 •to place any such material before us in the present proceedings leaves us no alternative but to accept the plea made by the petitioner that the order of de'.ention B against him on the 20th October, 1965,, and more particularly, his continued detention after the 24th October, 1965, are to'.ally invalid and unjustified.\" The initial burden is on the detenu to show that his detention is mala fide or not in accordance with law. If the detenu makes out a prima fade case, the burden shifts on the State and it becomes essential for the State to file a good return.\n\nOuce substantial disquieting C doubts are raised by the detenu in the mind of the court regarding the validity of his detention, it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention. In case the detenu fails to discharge the initial burden, his petition for writ of habeas corpus would be dismissed.\n\nEveu if the detenu dis\" charges the initial burden and makes out a prima facie case :igainst the D validity of his detention, but the State files a good return and adduces sufficient material before the court to show that his detention is valid, the detenu's petition would be dismissed.\n\nIn case, however,, the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention and the State fails to file a good return and does not place sufficient material on the record to show that the detention is, valid, a serious infirmity would creep into the E State case as might justify interference by the court and reiease of the detenu. More than that, it is not necessary to say for everything in the final analysis would depend upon the individual facts of the case.\n\nWe may now turn to the newly added section 16A of MISA. This section was inserted by section 6 of Act 39 of 1975 with effect from June 29, 1975.\n\nSubsequently, there was a further amendment of F section 16A b)' Act 14 of 1976 which was published on January 2:,\n\n1976. According to sub-section (1) of section 16A, the provisions of the section would have effect notwithstanding anything contained in MISA or any rules 0£ natural justice during the period of emergency proclaimed on December 3, 1971 and June 25, 1975 or a period of 12 months from June 25,, 1975 whichever period was the shortest.\n\nSub-sections (2) and (3) provides for the making of a declaration to G that effect by the authorities concerned if they are so satisfied on considera:ion that it is necessary to detain a person for effectivclv dealing with the emergency.\n\nSub-section (2) deals with cases of persons against whom orders of detention were made under the Act on or after June 25, 1975 but before the coming into force of this section, viz., June 29, 1975, while sub-section (3) deals with cases of detention in respect of persons against whom orders for det.ention H were made after the coming into force of. the section.\n\nThe proviso to sub-section! (3) provides for review and the necessity of confirmation within fifteen days of the declaration by the State Government in case\n\nsuch declaration is made by an officer subordinate to the State Government. Sub-section (2A) provides for deemed approval of a detention order made by an officer subordinate to the State Government in case the State Government makes a declaration that t:1e detention of the person ordered to be detained is necessary for dealing\n\ne!fectiely wi~1 the emergency.\n\nSub-section ( 4) provides for recons1dera?on at rntervals. not exceeding four months f the necessiiy of detention of a person rn respect of whom a declaral!on is made undr sub-section (2) or (3).\n\nAccordin~ to uh-section (5), in making any review, cons1derahon or reconsideration under sub-sections (2),\n\n( 3) or ( 4), the appropria:e Government or officer may act on the basis of the information and materials in its or his possession without com-· municating: or disclosing any such information or materials to the person concerned or affording him any opportunity of making any reprerentation against the making under sub-section (2),, or the making or confirming under sub-section (3), or the non-revocation under sub-section ( 4), of the declaration in respect of him.\n\nSub-sections\n\n(6) and (7) provide inter alia that sections 8 to 12 shall not apply in the case of a person detained under a detention order to which the provisions of sub-sections (2) and (3) apply.\n\nSub-section (8) authD' rises the Central Government whenever it considers it necessary so to do to require the State Government to furnish to the Central Government the information and materials on the basis of which declaration hasi been made or con.firmed or not revoked and such other information and materials as the Central Government may deem rn:cessary.\n\nIt would appear from what has been stated above that once a • declaration is made with respect to a detenu under sub-sections (2). • or ( 3) of section 16A of MISA, the provisions of sections 8 to 12 of MISA would not apply to such a detenu.\n\nThe result would be that the grounds of the order of detention would not be disclOSed to the person affected by the order.\n\nThere would also be no reference of the case of such a person to the Advisory Board.\n\nWe may uow turn to sub-section (9) of section 16A. According to this sub-section, no'.withstanding anything contained in a.'J.y other law or any rule having the force of law, the grounds on which an order of detention is made or purported to be made under sections against any person in respect pf whom a declaration is, made under sub-section (2) or sub-section (3) and any information or matena1s on which such grounds or a declaration under sub-sectioa (2) or \" declaration or confirmation under sub-section (3) or the non-revocahop under sub-section ( 4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provideed in this Act, no one shall communicate or disclose any such ground information or n1aterial or any docunh.:nt containing such ground inforn1ation or material. According; to dame (b) o[ 'uh-section (9) no person against whom an order of detention is made or purnortccl to be made under section 3 shall be entitled to the communica'ion\n\nor disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material.\n\n• ' -\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 301\n\nSo far as the impact of section 16A(9) is concerned on the extent of the power of judicial scrutiny in writs of habeas corpus relating to persons detained under MISA, I am of the view that the matter should :iot be gone into in these apPeals for the following reasons.\n\nOut of thel nine High Courts which dealt with the question of maintainability of petitions for writs of habeas corpus, only two, namely, Rajasthan High Court and Nagpur Bench of Bombay High Court have • gone into this aspect, while the other seven have not expressed any view in the matter. Both Rajasthan High Court and Nagpur Bench of the Bombay High Court have upheld the validity of section 16A(9) . ..- While Rajasthan High , Court has not read down the provisions of sec-\n\n~· ; tion 16A(9), the Nagpur Bench of the Bombay High Court ha, expressed the view that it would be permissible for the High Court to call fctr and peruse the grounds in certain circumstances. Tke Nagpur Bench, it may be pointed out, dealt with the provisions of section 16 A(9), as they then existed before its amendment by Act 14 of 1976.\n\nBefort1 us arguments have beeri addressed on behalf of the respondents challenging the validity of section J6A(9) on the ground that it is violative of article 226 inasmucl)_ as it prevents the High Court from __ effectively exercising the jurisdiction under that article to issue writs .. of habeas corpus.\n\nIn my opinion, it would not be perrnissibie it1 these appeals against orders disposing of preliminary objection to decide the • question of validity of section 16A(9). It is manifest that any decision on the question of the validity of section J6A(9) would result , either in upholding the validity of the provision or in, striking it down . • The latter course is out of question for it would be plainly imperm; ssible to strike down the provision in appeal by the State when 1'hc validity of such provision has been upheld by the High Court.\n\nLike-- ,. • wise, it would be impermissible in these appeals to record a finding that the ambit of judicial scrµtiny is greater than 11at found by tho -\" High Court even though this Court on consideration of the relevant provisions comes to that conclusion.\n\nThere is no appeal before us by the detenu-respondents.\n\nThis Court in appeal by the State cannot enlarge the area of the unfavourable decision qua the State and make its position worse compared to what it was before the filing of the appeal.\n\nProcedural propriety in matters relating to appeals forbids o. such 'ii course.\n\nThe appeals before us are primarily against the orders of the High Court disp6sin~ of the preliminary objections relating • to the maintainability of petitions under article 226 for writs of habeas .,.' corpus in view of the Presidential order.\n\nThe question or extent of judicial scrutiny in the light of sectiou 16A should, in my opinion. be gone into when the whole matter is at large before us and we arc not inhibited by procedural and other constraints from going into certai\"\n\naspects which have a vital bearing. It is primarily for the Hih Courts before which the matters are pending to decide the questi<'n oI'area of judicial scrutiny in the light of section 16A(9), as amended\n\nby Act 14 of 1976.\n\nA course which has the effect of bypassing the High Courts and making this Court in avoeals from orders on preli- ,; j minarv obiection to decide the matter even before the matter has been considered by the High Court in the light of section 16A, as amende<l\n\nby Act 14 of 1976, should, in my opinion, be avoided.\n\nThe observations on pages 658 and 659 in the case of J. K. Synthetics Ltd. v. J. K. Synthetics Mazdoor Union (') can be of no assistance in this case because what has been laid down there is tha~ the respondent can support an award of an Industrial Tribunal on a ground not adopted by the Tribunal so long as in the final result the amount awarded is not exceeded.\n\nThe observations in that case do not warrant the enlargement of the area of unfavourable decision against an appellant in the absence of an appeal by the respondent.\n\nNor does that decision justify adoption of a course which might conceivably lead to such result.\n\nLikewise, no assistance can be derived from clause ( 3) of article 132 of the Constitution because of the fact that the appeal against the order of the Rajasthan High Court has been filed in pursuance of a certificate of nee.' granted under that article.\n\nThe only point on which the Rajasthan High Court has decided against the appellant is regarding the maintainability of the petition under article 226.\n\nThe effect of article 132(3) would only be that it would be permissible to assail the order of the High Court on the question of maintainability of the petition under article 226 not only on the ground relating to the question of law as to the interpretation of the Constitution mentioned in the order granting the certificate but also with the leave of this Court on other grounds.\n\nIt is, however, no< the effect of article 132(3) that if the High Court in the impugned order decides two distinct preliminary issues, one in favour of one party and the other in favour of the opposite party, this Court in an appeal by only one party against that order of the High Court can also go mto the correctness of the issue which has been decided in favour of the appellant.\n\nThe fact that the respondents ini these appeals have as a matter of abundant caution addressed arguments on subsection (9) of section 16A, so that the submissions of the appellants on that point may not remain unanswered, would not jnstify departure from the principle that this Court cannot, in the absence of an appeal by the respondent, adopt a comse which might conceivably enlarge the area of unfavourable decision against the appellant.\n\nI am,, therefore, of, the view that the appropriate occasion for going into the question of the constitutional validity of section 16A(9) of l\\flSA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would! be when the State or detenu, whosoever is aggrieved, comes np in appeal agaiµst the final judgment in any of the petitions pending in the High Courts.\n\nThe whole matter would then be at large before ns and we would not be inhibited by procedural and other constraints referred to above. It would not, in my opinion, be permissible or proper to short circuit the whole thing and decide the matter by bypassing the High Courts who are seized of the matter.\n\nI may now summarise my conclusions : (I) Article 21 cannot be considered to be the sole repository of the rL!lht to Jifo and personal liberty.\n\nC2) Even in the absence of article 21 in the Constitution, the State bas got no power to deprive a person of his life or personal liberty without the authority of Jaw.\n\nThat i.\n\n(1) [1972] I S. C. R. 651.\n\n--... ' ' .\n\n• -\n\n,, ....\n\n- ..\n\nI ...\n\n' . -\n\n., . -•\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Khanna, J.) 303\n\nthe essential postulate and basic assumption of the rule of law in every civilised society. ( 3) According to law in force in India before the coming into force of the Constitution, no one could be deprived of his life or personal liberty without the authority of law.\n\nSuch a law continued to be in force after the coming into force of the Constitution iu view of article 372 of the Constitution. ( 4) Startling consequences would follow from the acceptance of the contention thau consequent upon the issue of the Presidential order in question no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty. If two constructions of the Presidential order \\Vere possible, the court should lean in favour of a view which does not result in such consequences.\n\nThe construction which does not result in such consequences is not only possible, it is also preeminently reasonable.\n\n( 5) In a long chain of authorities this Court has laid s.tress upon the prevalence of the rule of law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law.\n\nThere is no valid reason to depart from the rule laid down in those decisions,, some of which were given by Benches larger than the Bench dealing with these appeals.\n\n(6) According to article 21, no one can be deprived of his life or personal liberty except in accordance with pr0cedure established by law.\n\nProcedure for the exercise of power of depriving a person of his life or personal liberty necessarily postulates the existence of the substantive power . 'When article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as well as the' procedure for the exercise of such power.\n\nVV1ten right to move any court for enJorcement of right guaranteed by article 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty, it cannot have the effect of pennitting an authority to deprive a person of his life or personal liberty without the existence of such substantive powec.\n\n(7) A Presidential order under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the fundamental rights mentioned in the Order.\n\nRights created by statutes being not fundamental rights can be enforced during the period of emergency despite the Presidential order.\n\nObligations and liabilities flowing from statutory provisioris likewise remain unaffected by the Presidential order.\n\nAny redress sought from a court of law on the score of breach of statutory pr0visions would be outside the purview of article 359(1) and the Presidential order made thereunder.\n\n. (8) Article 226 under which the High Courts can issue 'Ynts of habeas corpus is an integral part of the Constitulion.\n\nNo power has been Qonferred upon any authority in the_ Constittion for suspending the power of the High Court to !Ssne wnts m the nature of habeas corpus during the penod of emergency.\n\nSuch a result cannot be brought about by putting some particular construction on the Presidential order in question.\n\n(9) There is no antithesis between the power of the State to detain a person without trial under a Jaw of preventive detention and the power of the court to examine the lecra!itv\n\nof such detention.\n\nIn exer.cising such power the (; urb only ensure that t, he detaining authority acts in accordance with the law providing for preventive detention.\n\n(10) There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975 did not affect the maintainabi)ity of the habeas corpus petitions to question the legality of the detention orders. . ( 11) The principles which should he followed by tile courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well-established.\n\n(12) The appropriate occasion for this Coµrt to go into the constitutional validity of section 16A(9) of M!SA and\n\nis in1pact on the power and extent of judicia~ scrutiny in writs of habeas corpus would be when the State or a detenu, whosoever is aggrieved, comes np in appeal against the final judgment in any of the, petitions pending in the High Courts.\n\nThe whole matter would then be at large before this Court and it would not be inhibited by procedural and o'.her constraints. It would not be permissible or proper for this Court to short circuit the whole thing and decide the matter by by-passing the High Courts who are seized of the matter.\n\nBefore I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethern has not s'.ood in the way of my expressing the same.\n\nI am aware of the desirability of unanimity, if possible.\n\nUnanimity obtained without sacrifice of conviction comments the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Ch.icf Justice Hughes (1) judges are not there simply to decide cases, bnt to decide them as they think they should be decided, and while if may be regrettable that they cannot always agree, it is better that their independence should be maintained nnd recogPize<1 than that una11imity should be secured through its sacrifice.\n\nA dissent in a court of last resort to use his words, is an appeal to the brooding spirit of the law. to the intelligence of a future day, when a later clecision may possibly correct the error in'.o which the dissenting judge believes the oourt to have been btryec-:.\n\nThe apµeals are dispooed 0t l!IXL\"t1lmgty.\n\n( 1) Prophets with Honor by Alan Barth, 1974 Ed. p. 3-6.\n\n....,,, ' ' .\n\n• .•\n\n...\n\n. ..\n\n•.>r-\n\n\" • , .\n\n• • •\n\n• ,\n\n• •\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (Beg, J.) 305\n\nBEG, J. The two principal questions placed before us for determination in these appeals from decisions given by various High Courts, on certain preliminary objections to the maintainability and earing of Habeas Corpus petitions, under Article 226 of our Constitu10n, have been stated as follows by the Attorney General of India : -\n\n1. Whether, in view of the Presidential Order dated June 27, 1975, under Clause (1) of Article 359, any writ petition is maintainable under Article 226, before a High Court for Habeas Corpus to enforce the right to personal liberty of a person detained under the Maintenance of Internal Security Act on the ground that the order of detention or the continued detentio!l is, for any reason, not under or in compliance with Maintenance of Internal Security Act?\n\n2. If such a petition is maintainable, what is the scope or extent of judicial scrutiny, particularly, in view of the aforesaid Presidential Order which covers, inter alia, Clause (5) of Article 22, and also in view of sub-section (9) of Section\n\n16A of the Maintenance of Internal Security Act?\n\nIf the only reason on which a detention is assailed, could be that the provisions of the Maintenance oflnternal Security Act 26 of 1971 (hereinafter referred to as 'the Act') have not been complied with, there could be little difficulty in holding, having red to the natural and obvious meaning of the suspension of \"the right to move any Court for the enforcement\" of the fundamental right to personal liberty, protected by Article 21 of the Constituion, that this right, with whatever it evolved from, or embraced, could not be the basis for any claim to its enforcement during the Emergency. All that would then remain to consider would be the exact point at which and the form in which the order of the Court denying the petitioner an enforcement of the right could be passed. The last part of the first question, however, also brings into the area of discussion the case where a petitioner alleges that \"for any reason\" his detention falls completely outside the Act.\n\nDetenues allege not merely infraction of some provision of the Act, under which a detention is ordered, but, more often, that the detention is for extraneous reasons falling either entirely or partially outside the Act. \"Mala {ides\" is almost invariably alleged presumably on the assumrtion that almost everything the detenue considers either wrong or erroneous or improper must be \"ma/a fide\" .\n\nArguments addressed to us on behalf of the detenues have raised a host of hypothetical question§, such as : What would be the position if the order of detention, on the face of it, either falls outside the proviSions of the Act or is made ma/a fide? Would a detention order, by any Government servant without even an ostensible or purported 'statutory authority to support it, not st md on the same footing as u detention by a private person ? Would remedy against detention which may be patently illegal, without need for any real investigation into facts at all also be barre.cl? Cmild remedy by way of a writ of Habeas Corpus against any illegal detention by any one in this country, 22-833 Sup CT/7 6\n\nunder any circumstances, be held to be suspended during the Emergency ? The next steps in the argument on behalf of detenues consisted of attempts to show that there could be no distinction in principle, between an order which is, prima fade, ulra vires or mad~ mala fide and one which can be sho_wn to be that only 1f the facts nd mcumstances surrounding a detention were fully mvest1gated m a Court.\n\nProcesses of reasoning, based on hypothetical cases put forward for consideration by us, by learned Counsel for the detenus seek, by stages to so expand the area of maintainability and investigation on claims for writs of Habeas Corpus in the High Courts that, if we accept them, the result would be that Article 359 of the Constituion and the Presidential orders of 1975 made under it would become entirely mea.ningless and infructuous.\n\nIt seems to me that the two questions set out above, could very well be compressed into a single question : To what extent, if at all, .can a High Court be moved to assert a right to personal liberty, by means of a petition under Article 226 for a writ of Habeas Corpus during the operation of the Presidential order of 27th June, 1975?\n\nSpeaking for myself, I am extremely reluctant to embark on a consideration and decision of any \"pure\" question of law. In cases coming up before Courts, no question of law can be \"pure\" in the sense that it has no bearing on the facts of a particular case to which it must necessarily be related. Neither Article 136 nor Article 226 of the Constituion is meant for the exercise of an advisory jurisdiction.\n\nAttempts to lay down the Jaw in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions mentioned above, but may result in misapplications of the law declared by Courts to situations for which they were not intended at all.\n\nLearned Counsel for the detenus have tried to induce us to answer many questions which may arise in purely hypothetical situations some of which seem to me to be far removed from the realms of reality. We cannot assume that those who exercise powers of detention are bound to do so, as a rule, as though they were demented respots-without any regard for law, justice, reason, or honesty of purpose, solely for achieving objects other than those which are really meant to be served by the Act. Both sides, however, desire that we should answer questions indicated above on the assumption that the provisions of law contained in the Act have been infringed, in some way, by the detaining authorities in a particular case. They want us to indicate degrees of transgression of the provision~ of the Act, if any, which can justify interference by the High Courts in Habeas Corpus proceedings. As the facts of no particular case are before tis, we can only answer the questions before us with the help, where necessary, of appropriate hypothetical examples .\n\n. The learned Attorney General has, very frankly and honestly, subnutted. tat there was !10 ned to bestow upon actions of the detaining authorities the protections given to them only for the duration of t11e Emergency proclaimed under Article 352 ( l) of the Constitution, if the\n\n. \"'--•\n\n• • ' \"\n\n...\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J,) 307\n\nPresident did not really intend to confer certain immunities from judi- A \" ,,._ -\n\ncial scrutiny and interference upon detentions by executive authorities, even if some of them were contrary to the letter of the law, so that certain over-riding interests of national securi; y and indepei; idence may not be jeopardized. The Attorney General s submission is that . the risks of misuse of powers by the detammg officers and authonlles, which are certainly there, must be presumed. to have been, over_-ndden B • by the higher claims of national security which the procJ.amal!on of Emergency denotes. It was pointed out that a citizen, or other person who may have been unfairly or illegally detained due to some unfortu- - nate misapprehension or error, does not loose his remedy altoge!her. • • Only his right to move a Court for the enforcement of any of the nghts • . conferred by Part Ill of the Corntituion would be suspended for te time being. He could always approach higher Governmental authonc ties. All of them could not be so_ unreasonable as to deny redress in a case of genuine injustice. - The propositions thus stated appear to be so reasonable and are so well founded, as I shall endeavour to show later, in the course of\n\nthis judgment, in the Constitutional and legal history and the case law of other countries, during periods of Emergency, from whose constitutions what has been described as the \"ancient writ of Habeas Corpus\" D has been taken and transplanted into our Constitution that it may seem somewhat surprising that their correctness should be doubted or denied at all.\n\nThe propositions have, however, not only been vehemently assailed but the attacks upon them were sought to be supported by attempts to engraft theories upon our Constitution which, if accepted, \"' will destroy the basic principle of the supremacy of the written Constitution which I attempted, in Smt. Indira Nehru Gandhi v.\n\nShri Raj E ' Narain('), to explain at some length. ...,. '\n\n< If the clear and unequivocal language of Article 359(1) of our Constitntion is the bed-rock on which the Attorney General's arguments to sustain the preliminary objections to the maintainability of Habeas Corpus petitions during the Emergency rest, learned Counsel F for the detenus have put forward theories of a nebulous natural law - and a common law which, on close scrutiny, appear to me to resolve themselves into what, according to the notions of learned Counsel for \"' the detenus, the law ought to be. Strenuous attempts have been made\n\n~ to ess up these notios in the impressive garb of the \"Rule of Law\" .. which ev?kes. te ge!lllle ardour and respectful devotion of lawyers\n\n- ad public spmted ciizens. But, the mere veneration of a caption, G tthont an nnderstandmg. of what_it really denoted in the past and what it means or should mean today, is another name for obfuscation of thought. .\n\nEven in England: the reputed home of the Rule of Law the rather loose, general, ad m exct. meaning given to the term by Dicey to desci:ibe and lo!\"lfY certam assumed!y special characteristics of the '\n\nEi; tglih C<; nstitmon, have given pface to more realistic, critical and H scientific views of the \"Rn!e of Law\" and what Dicey meant by' it. Sir\n\n(1) [1976] 2 s. c. R. 347.\n\nIvor Jennings, in \"Th1:1 Lw and the Constitution\" (3rd Edn. p. 296) pointed out :\n\n\"Dicey honestly tried (in The Law of the Constitution, not in his polemical works) to analyse, bnt, like most, he saw the Constitution through his own spectacles, and his vision was not exact. The growth of the new functions oi the State has made much of his analysis irrelevant. Moreover, the argument from history or, wJiat is the same thing, from the Constitution must he used with discretion. To say that a new policy is 'unconstitutional' is merely to say that it is contrary to tradition, and it must always be considered whether the tradition is relevant to new circumstances. Even if the rule of law as Dicey expounded it had been exact, it would not be a sufficient argument to say of any proposal, as the Committee on Ministers' Powers .said on a minor point, that it was contrary to the rule of Jaw\".\n\nThose who glibly talk of the Rule of Law, as expounded by Dicey, forget that Prof. Dicey had made a very gallant and effective (I would not like to use here a colloquial expression, \"desperate\", to describe it) attempt to repel the correctness of what he called \"the dark saying\" of de Tocqueville that the largely conventional \"English Constitution has no real existence 'elle n'existe point)\" (See: page 22 of the Dicey's \"Introduction to the Study of the Law of the Constituion\"-lOth Edn.). He was at pains to show that the Constitutional Law of England did exist. It lived and functioned not only in the hearts and minds of Englishmen, also reflected in Parliament, but through the force of healthy conventions and highly disciplined habits of life and thought of the British people. These conventions and habits had, behind them, the sanction not only of a powerful and intelligent pnblic opinion but also of the control by the Houses of Parliament, wrested from the Crown)n th!' course of historic constitutional struggles, over the finances of the nation. Dicey distinguished this peculiarly British Constitutional Law from \"political ethics\" which, according to him, was \"mis-called Constitutio11 Law\". It was not, he pointed out, l:ke International law, the \"vanishing point\" of law.\n\nDicey succeeded, at least so far as his' statement of the Rule of Law is concerned, in doing nothing more than indicating, under this heading, certain common guiding principles for Courts as well as Legislators to follow when they needed these. Hence, he said that the Rule of law and the legal Sovereignty of Parliament were allies in England.\n\nAccording to him, both these principles so operated as to always support and strengthen each other. This idealistic rosy optimism, reflecting the Whig tradition of minimum interference with individual freedoms and representing the Constitutional jurisprudence of the hey-day of a laissez faire British economic prosperity, was destined to be displacecl by the more \"down to the earth\" pragmatism of the Twentieth Century Britain, attempting to meet economic difficulties and distress through socialistic planning and to build a welfare State by making Jaws which appeared to those brought up on the traditional postulates of Diccy's Ruic of Law to deny the validity of its basic assumptions.\n\n• • ' . -\n\n' -\n\n• ..\n\n• .-.. . .\n\n, .\n\nADDL. DIST. MAGISTRATE V. S.S. SHJ!KLA (Beg,/.) 309\n\nThe first of these assumptions or meanings was that any deprivation of personal liberty--or property must not only be for a \"distinct\n\nbreach of law\" but \"established iu the ordinary legal manner before the ordinary Courts of the land\". He contrasted this \"with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint\". He concluded, from what he regarded as a basie feature of the British Constitution, that all modes of dispensing justice, through specialised adifiinistrative authorities and bodies, must necessarily be . autocratic and unfair.\n\nHe compared the British system with the one under which Voltaire, in 1717, was \"sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiments of which he did not agree\".\n\nThe second assumption of Dicey's kule of Law was : \"Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals\".\n\nHe overlooked the not infrequent injustice caused in England of his time, due to want of adequate remedies against the servants of the Crown, by applications of the maxim : \"The\n\nKing can do no wrong\". He wrote \"With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal _justification as any other citizen\". The third assumption on which Dicey's Rule of Law rested was what he called \"the predominance of the legal spirit\" which he described \"as a special attribute of English Institutions\". He explained :\n\n\"We may say that the constitution is pervaded by the rule of law on the _ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas µnder many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result from the general principles of the constitution\".\n\nDicey observed :\n\n\"There is in the English constitution an absence of these\n\ndelarat.ions or definioi; s of rights so dear to foreign constitut10nalists. Such prmciples, moreover, as you can discover\n\nn 1:11~ Engsh onstituion are, like all maxims established by 1ud1crnl legislatton, mere generalisations drawn either from the decisions or dicta of judges, or from statutes which being passed to meet special grievances, hear a close resem'blance to judicil decisions, and re in effect judgments pronounced by the ):fig~ Court of Parhament. To put what is rally the\n\nsme thii:g 1!1.a somewhat die\\ent shape, the relation of the nghts of md!Vlduals to the prmc1ples of the constitution is not\n\nqute 0e same in countries .like Belgium, where the Constitut10n 1s the res1!1t ?f a. legtsJative act, as it is in England, where the cons!ltuhon l!self is based npon legal de<; isions\",\n\nThus, Dicey depicted the Brish Parliament, while_ performing even its legislative functions, as 1f 1t was a Court followmg the path shown by judges filled w1f:h the spmt of law and w1~ meticulous r; oncern for all the canons of iustice. He concluded : Our Const1tuhon, in short is a Judge-made Constitution and it bears on its face all the , \" features, good and bad, of judge made law .\n\nDicey thought that the differenc_e between the unwritten_ British Constitution and a written Conshtmon, such as that of Belgmm, was not merely a formal one, but revealed entirely differing approaches to basic freedoms.\n\nHe observed :\n\n\"The matter to be noted is, that where the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capalile of being suspended or taken away.\n\nWhere, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be demoyed without a thorough revolution in the institutions and manners of the nation\".\n\nAfter making the distinction mentioned above, Dicey deals with \"the so-called suspension of the Habeas Corpus Act\". He said that it bears \"a certain similarity to what is called in foreign countries 'suspending the constitutional guarantees' \"..\n\nHe euphemistically, explained :\n\n\"But, after all, a statute suspending the Habeas Corpus Act falls very far short of what its popular name seems to imply; and though a serious measure enough, is not, in reality, more than a suspension of one particular remedy for the protection of personal freedom.\n\nThe Habeas Corpus Act may be suspended and yet Englishmen may enjoy almost all the rights of citizens. The constitution being based on the rule of law, the suspension of the constituion, as far as such a thing can be conceived possible, would mean with us nothing less than a revolution\".\n\nIf Dicey, bewitched by the beautieS/ of an unwritten British Constitution could have been shocked by any modern transgressions oi the basic principles of his \"Rule of Law\"-in the Introduction to later editions of his book, Dicey modified his earlier views, to some extent, about the nature and purposes of \"Droit Administratif'', accepted the inevitability of change, and noticed the logical consequences of what he himself had describ_eg, in his \"Law and Opinion in England\", as the Collectivist or Socialistic trend-he would have been even more shocked by the proposition that !he cherished principles of his Rule of Law could override the statute law which the British Parliament could make and unma_ke in the exercise, of what Dicey called the\n\n\"Sovereignty of Parliament\". The truth is that Dicey did not at first, visualise the possibility of any conflict between the Rule of Law and' the principles of Parliamentary Sovereignty in England. And, correctly understood and applied, there should not be serious conflict between them. But, are principles always correctly understood and applied?\n\n.-.\n\n' .\n\n~ , '\n\nADDL. DIST. MAGISTRATE v. S.S. SHUKLA (Beg, J.) 311\n\nJennings critically commented upon Dicey's views (See : \"The Law and the Constitution\" 3rd Edn. p. 294) as follows : A\n\nThe rules which in foreign countries naturally form part of a constitutional code \"mostly do not exist m England, for the recognised (or legal) supremacy of Parliamnt prevents any fundamental distribution of powers and forbids th_e existence of fundamental rights. The supremacy of Parliament is the Constitution.\n\nIt is recognised as fundamental law just as a written constitution is recognised as fundamental law. Various Public authorities-the Crown, the Houses of Parliament the courts, the administrative authorities-have powers and duties. Most of them are determined by statute.\n\nSome are traditional, and so are 'determined' by the common law. The powers of administrative authorities in respect of 'fundamental liberties' are mainly contained in statutes. But even if they were not, I do not understand how it is correct to say that the rules are the consequence of the rights of individuals and not their source. The powers of the Crown and of other administrative authorities are limited by the rights of individuals; or the rights of individuals are limited by the powers of the administration.· Both statem.ents are correct; and both powers and rights come from the law-from the rules\".\n\nThus, Jennings pointed out that whit was material was the existence of rules, a~ a part of Constitutional law, and not their sources or forms.\n\nHe tried to show that the basic rule heing the supremacy of Statutory law that was \"The Constitution\" in Britain. No other rule could compete with it or stand fa its way or be a substitute for it Dicey, on E the other hand, believed that the difference in sources and forms of rules made a great difference in approach and outlook. But, Dicey also treated the judge-made Rule of Law and the rights \"guaranteed\" by a written constitution as alternatives or different modes of protecting same species of rights. He never dreamt of looking upon them both as simultaneonsly existing and available under a written Constitution in addition to what such a Constitution contained.\n\nDicey, indicated the basic distinction between the Constitutional position in England,, with an unwritte1! Constitution where the supremacy of Parhament prevailed, and that in: the United States of America with a written Costitution which was snpreme. But, despite the diffe'. rences In the logical consequences of an nnwritten constitution, in a\n\ncoutry so largely goveed by its conventions and disciplined habits of _life and thought as Dicey's England, and those of the written Constitntion. of the U.S.f\\.., one common featnre, shared by both English and Amenca1! syste!lls, was the large amount of judicial Constitutional law making which took place in both countries.\n\nI~ Brita!n, although the Parliament is the supreme law-giver, yet, as Dicey pomted out, there was, out of respect for the judicial function nd the Rule of Law, an a?ceptance of jndge made law as the constitutional law of the land which the Parliament could alter, whenever it\n\nliked, but did not think of altering presumably because it served very well, the needs of British people who took pride in their judge-made law. Of course, if Parliament did make a law on any subjectand it has made some laws on Constitutional matters also-the Courts could not think of qu, stioning the validity of the law so made.\n\nIn America, not only was the doctrine of judicial review of legislation, established by Marshall, C. J., in Marbury v. Madison,(') but the\n\n\"due process\" clauses, introduced by. the 5th amendment ( 1791) and by the 14th amendment (1868) of the American Constitution, became the most prolific sources of judicial law-making.\n\nThey gave to the American Courts an amplitude of power to indulge in what is called \"judicial legislation\" which our Constitution makers, after considerable debate, deliberately eschewed by using the expression \"procedure established by law\" instead of the \"due process of law\".\n\nWillis, adverting to the very skeletal character of the American Constitution, said :\n\n\"Our original Coustitution was not an anchor but a rudder. The Constitution of one period has not been the Constitution of another period.\n\nAs one period has succeeded another, the Constitution has become larger and larger.\"\n\nIn A. K. Gopalan v. The State of Madras,(') the earliest case in which a comprehensive discussion of fundamental guaranteed freedoms in our Constitution took place, Kan[a, C. J., after referring to observations of Munro, of James Russell Lowell, of Willis, and of Cooley, on the American Constitution, noted about the nature of our Constitution (at p. 109) :\n\n\"The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures.\n\nThe same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other\".\n\nThe position in this country is clearly one in which the fundamental Jaw found in the Constitution is paramount. The Constitution provides the test for the validity of all other laws. It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision.\n\nThe judicial function, though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current Emergency, is especially conStricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention. The wider the sweep of the provis.ions of Article 21 and 22 the more drastic must be the effect of suspending their enforcement. After all, suspension does not and cannot mean retention under a disguise.\n\n(I) (1803) (I Cranch 137).\n\n(2) [1950] S. C. R. 88 (a! p. 109.\n\n. ;, .\n\n. .\n\n, •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 313\n\nThe only Rule of Law which can be recognised by Courts of our country is whafis deducible from our Constitution itself. The Constitution is, for us, the embodiment of the highest \"positive Jaw\" as well as the reflection of all the rules of natural or ethical or common law lying behind it which can be recognised by Courts. It ses to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution.\n\nI am not awere of any Rule of Law or reason which <:ould enable us to do that. What we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind our existing Constitution, which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes. And, we were asked by some learned Counsel, though not by all, to perform this ambitious task of judicial Constitution making without even using the crutches of implied imperatives of our Constitutional provisions as though we had some plenary legislative Constituent powers. Fortunately, Judges in this country have no such powers. And, those who are meant to so function as to keep the other authorities and organs of State within the limits of their powers <:annot themselves usurp powers they do not possess. That is the path of descent into the arena of political controversy which is so damaging for the preservation of the impartiality and prestige of the judicial function.\n\nWe cannot, therefore, satisfy those who may feel the urge, -as Omar Khayyam did \"to shatter\" what they regard as \"this sorry scheme of things entire\" and to \"remould\" it nearer their \"heart's <lesire\"'. I think we must. make it clear that the spirit of law or the Rule of Law, which we recognise, cannot, however ominously around like some disembodied ghost serving as a substitute for the living Constitution we actually have. It has to be found always within and operating in harmony with and never outside or in conflict with what our Constitution enjoins.\n\nAll that we can do is to faithfully explain what the Constitution and its spirit mean.\n\nWe cannot alter or twist these.\n\nThe distinction made above between law as it exists and as it has to be recognised and enforced by the State's judicial organs and \"the 1aw\", if we may call it that at all, which could only constitute some rules of ethics but could not be enforced at all, whatever may be its moral worth, was thus stated by John Cadman Hurd in his \"Law of Freedom and Bondage in the United States\" (Negro Universities Press, New York (Vol. I, at p. 3) :\n\n\"Now, jurisprudence is taken to be the science of a rule not merely existing, but one which is actually operative or enforced in or by the will of society or the state. The Science of what rule ought to be made operative by the will of the state i.s a different thing; it is a science of rules regarded only as existing, whether operative in civil society-that is enforced-or not.\n\nA rule. made oprativ.e by the authority of society, or of the state, 1s a rule 1denufied with the expressed will of society or of the State. The will of the state, indicated in some form of expression, is the law, the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the will of the state so indicated. What the state wills is the conterminous measure of law, no preexisting rule is the measure of that will\".\n\nJohn Cadman Hurd went on to point out that judicial authorities constituted by the State can only carry out the mandates of the positive Jaw which, for purposes of enforcement, must be deemed to embody all the pre-existing enforceable natural and ethical values.\n\nEnforceability, as an attribute of a legal right, and the power of the judicial organs of the State to enforce the right, are exclusively for the State, as the legal instrument of Society, to confer or take away in the legally authorised manner. It follows from these basic premises of our Constitutional jurisprudence that Courts cannot, during a constitutionally enjoined period of suspension of the enforceability of Fundamental Rights through Courts, enforce what may even be a \"fundamental right\" sought to be protected by Part III of the Constitution.\n\nThe Attorney General has, very fairly and rightly, repeatedly pointed out that no substantive right, whether declared fundamental or not except the procedural rights converted into substantive ones by Article 32, could be suspended.\n\nEven the enforcement in general, of all such rights is not suspended. Only the enforcement of specified rights through Courts is suspended for the time being.\n\nThe enforceability of a right by a constitutionally appointed judicial organ !ms necessarily to depend upon the fulfilment of two conditions : firstly, its recognition by or under the Constitution as a right; and, second!y, possession of the power of its enforcement by the judicial organs.\n\nNow, if a right is established, on facts, as a right, it will certainly satisfy the first condition.\n\nBut, if the right is unenforceable, because the power of its enforcement by Courts is constitutionally suspended or inhibited, for the duration of the Emergency, its mere recognition or declaration by Courts, either as a right or as a fundamental right, coulJ not possibly help a petitioner to secure his personal liberty.\n\nArticle 226 of the Constitution is not meant for futile and unenforceaable declarations of right.\n\nThe whole purpose of a writ of Habeas Corpus is to enforce a right to personal freedom after the declaration of a detention as illegal when it is so found upon investigation.\n\nIt may be that many moral and natural obligations exist outside the Constitution and even outside any positive law-this is not denied by the learned Attorney General at all-but, their existence is not really relevant for purposes of petitions for writs of Habeas Corpus which lie only to enforce legally enforceable rights.\n\nNeither the exis tence nor the possibilities of denials of any rights by the detaining officers of the State, due to frailities of human nature and errors of judgment, are denied by the Attorney General. All that is denied is the correctness of the assertion that they are enforceable, during the period of Emergency, through Courts, if they fall within the pmview of rights whose enforcement is suspended.\n\n- .;.._ _,\n\n.• ' .\n\n.r ' .• '\n\nAODL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 315\n\nThe result of the few very general observations made above by me, A before examining, in greater depth, any of the very large number of connected questions and side issues raised-I doubt whether it is necessary or of much use, in view of my opinion on the preliminary issue of enforceability, to consider all of them even if it were possible for me to do so-may be summarised as follows :\n\nDicey's Rule of Law, with special meanings given to it, was meant Bto prove the existence and peculiarities of the uncodified English Constitutional Law.\n\nAccording to Dicey himself, these features either did not exist elsewhere or were the ve.ry objectives of provisions of written Constitutions of other countries.\n\nOn Dicey's very exposition, no ordinary Judge-made law or common law could survive in opposition to statutory law in England, or, in conflict with a written Constitution where there was one.\n\nEnforceability of rights, whether they are consc , titutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs, is governed solely by the. terms of the written instrument in a constitution such as ours.\n\nThe scope for judicial law making on the subject of enforcement of the right to personaJ freedom was deliberately restricted by our Constitu.- tion makers.\n\nIn any case, it is difficult to see any such scope when \"enforcement\" itself is suspended.\n\nAll we can do is to determine the D e!Iect of this suspension.\n\nWe have now to consider in greater detail : What is it the enforcement of which is suspended and what, if anything. remains to be enforced ?\n\nIn this country, the procedure for the deprivation as well as enforcement of a right to personal freedom is governed partly by the Constitution and partly by ordinarily statutes. Both fall within the purview E of \"procedure\".\n\nArticle 21 of the Constitution guarantees, though the guarantee is negatively framed, that \"no person shall be deprived of his life or personal liberty except according to procedure establisl1ed by law\".\n\nIf an enforcement of this negatively framed right is suspended, a deprivation contrary to the prescribed procedure is not legaJised.\n\nThe suspension of enforcement does not either authorise or direct any authority to violate the procedure. It has to be clearly understood that F what is suspended is really the procedure for the enforcement of a right through Courts which could he said to flow from the infringment of a statutory procedure. If the enforcement of a right to be free, resulting derivatively from both the Constitutional and statutory provision>. based on an infraction of the procedure, which is statutory in cases of preventive detention, is suspended, it seems to me to be impossible to lay down that it becomes enforceable when that part of the G procedure which is manda!ory is violated but remains unenforceable so long as the part of the procedure infringed is directory.\n\nSuch a view would, in my opinion, introduced a distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential Orders of 1975. If the claim to assert' the right is one based on. violation of procedure, the degree of violation may a!Iect the question whether the right to be free is established at all, Hi but, it should not, logically speaking, a!Iect the result where the enforcement of the right, even in a case in which it has become apparent, is suspended.\n\nThe quest!on, however, which has been most vehemently argued is : Does Article 21 exhaust every kind of protection given to rights to personal freedom ? Another way in which this question was put is : Is Article 21 of the Constitution \"the sole repository\" of the substantive as well as procedural rights embraced by the expression \"personal liberty\" ? One of the contentions before us was 1!hat Article 21 does not go beyond the procedural protection to persons who may be depnved of personal liberty.\n\nMr. Jethmalani, learned Counsel appearing for one of the detenues, contended that personal freedom was a by-product of the removal of constraints or hindrances to the positive freedom of action of the individual.\n\nThe contention seemed to be that procedure for deprivation of personal liberty being one of the ways of imposing positive constraints, the removal of a negative procedural protection could not dispense with the necessity to establish a right of the detaining authority under some positive or statutory law to deprive a person detained _<Jf his liberty whether the authority concerned followed the right procedure or not in doing so.\n\nThe argument is that proof of a just and reasonable cause, falling within the objects of the Act so as to create a liability to be detained, must precede the adoption of any procedure to detain a person under the Act. A \"satisfaction\" that one of the grounds of detention, prescribed by Section 3 of the Act, is there, was thus said to be a \"condition precedent\" to the exercise of jurisdiction to detain.\n\nThis argument obviously proceeded on a restricted meaning given to the \"procedure established by law\". Jt is very difficult to see why the satisfaction, required by Section 3 of the Act, is not really part of \"procedure established by law\".\n\nThere is, however, an even more formidable difficulty in the way of this argument.\n\nIf, as it is undeniable, the procedure under Article 226 is the direct procedural protection, which is suspended by the terms of the Presidential Order, read with Article 359, Article 226 will not be available to the detenue at all, for the time being, for showing absence of the required \"satisfaction\", as a condition precedent to a valid detention order under Section 3 of the Act. If the \"right to move any Court\" can be suspended-Article 359 is very clear on the point-there remains no right, for the time being, to a:n inquiry into conditions whicl1 may enable a party to secure release in assertion of rights guaranteed either by Article 21 or by other articles whose \"enforcement\" is suspended.\n\nIndeed, the clear object of such a suspension seems to me to be that Courts should not undertake inquiries into the violations of the alleged right\n\nIf the fundamental rights in Part III of the Constitution are not suspended, as they obviously are not, but O?IY their enforcement can be and is suspended what is really affected 1s the power conferred on Courts by Articles 32 and 226 of the Constitution.\n\nThe power of the Courts is the direct and effective protection of the rights sought to be secured indirectly by Article 21, and perhaps less indirectly, by some other articles and laws. Indeed, it is the basic protection because other protections operate through it and depend on it. If this is curtailed\n\n• •\n\n' • . .\n\n~ -' '\n\n...\n\n( .. '\n\nADDL. DIST. MAGISTRATE v. S.S. SHUKLA (Beg, J.) 31 7\n\ntemporarily, the other affected . protections become automatically A. inoperative or ineffective so far as Courts are concerned.\n\nIt is no answer to say that. the Constitutional power of High Courts cannot be affected by a Presidential order under Article 359 which is as much a 11art of the constitution as Article 226.\n\nBoth articles were there from the commencement of the Constitution. 1 do not see how it can be reasonably urged that our Constitution-makers did B; not visualise and intend that the Presidential order under Article 359 must, for the duration of the Emergency, necessarily limit the powers of High Courts under Article 226 albeit indirectly by suspending rights to entorcement of fundamental rights.\n\nIt is also not possible for a detenue to fall back upon the last part c· of Article 226 of the Constitution which enables the use of powers given by this Article \"for any other purpose\". Sq long as that purpose is enforcement of a right which is covered by Articles 14 or 19 or 21 or 22 either separately or conjointly, as the enforcement of each of these is now suspended, the inhibition will be there.\n\nMoreover, we have no case before us in which a detenu asks for an order for any purpose other than the one which can only be served by the issue of a writ of Habeas Corpus.\n\nEach detenu asks for that relief and for D no other kind of writ or order.\n\nTherefore, there is no need to consider \"any other purpose\".\n\nIt is true that some of the learned Counsel for the detenus have strongly relied upon \"any other purpose\", occurring at the end of Article 226, for enabling the High Court to undertake an investigation suo motu into the question whether the executive is performing its duties. Other Counsel have submitted that such an enquiry suo motu can be undertaken by this Court or by a High Court in exercise of powers to issue writs of Habeas Corpus quite apart from the enforcement of the right of a detenu to any writ or order.\n\nAs I have indicated earlier, I am not prepared to answer purely hypothetical questions, except within certain limits, tl1at is to say, only so far as it is necessary for the purposes of illustrating my point of view. I do not think that the powers of Courts remain unaffected by t'he suspension of rights or\n\n!ocus standi of detenus. A Co1'.1t cannot, in exercise of any supposed mherent or 1mphed or unspecified power, purport to enforce or in substance enforce a right the enforcement of which is suspended.\n\nTo pennit such circumvention of the suspension is to authorise doing mdireclly. what law does not allow to be done directly.\n\nAssuming, for P?rposes of. argument, that ther~ is ome unspecified residue of judicial power m Courts of Record m this country, without deciding what it ceuld be, as that question does not really arise in cases before us there must be undeniable facts and circumstances of some verv grav;\n\nextraordinary, and exceptional character to justify the use of such powers, if they exist at all, either by this Court or by the High Courts.\n\nSo long as the powers of Government are exercised by the chosen representatives of the people, their exercise is presumed to be of the people and for the people. It bas to be borne in mind that the validity of the declaration of Emergency under Article 352 has neither been nor can it be constitutionally challenged in view of Article 352(5)\n\nA of the Constitution.\n\nAnd, the validity of Presidential Orders of 1975 under Article 359 has not been questioned.\n\nSo far, I have only indicated the nature of the problems before us and my general approach to them.\n\nBefore specifically answering questions, stated at the outset, I will deal, as briefly as possible, under the following Six main heads, wlth such of the very large number of points raised and authorities cited before us as appear to me to be really B necessary for answering the questions calling for our decision :\n\n(A) \"Rights conferred by Part III\" of our Constitution from the point of view of Personal Freedom.\n\n(B) Power to issue writs of Habeaus Corpus and other powers of High Courts under article 226 of the constitution.\n\n( C) The objects of the Maintenance of Internal Security Act ('the Act') and the amendments of it.\n\n(D) The purpose and meaning of Emergency provisions, parti\n\ncularly Article 359 of our Constitution.\n\n(E) The effect of the Presidential orders, particularly the order of 27th June, 1975, on the rights of Detenus.\n\n(F) The Rule of Law, as found in our Constitution, and how it operates during the Emergency.\n\n(A) \"Rights conferred by Part Ill\" from the point of view of personal freedom.\n\nIt is somewhat difficult to reconcile the language of a purported conferment of rights upon themselves by citizens of India with their political sovereignty. The language of the preamble to the Constitution recites that it is they who were establishing the legally Sovereign Democratic Republic with the objects given there.\n\nOf course, some rights are \"conferred\" even on non-citizens, but that does not remove the semantic difficulty which gave rise to some argument before us.\n\nIt seems to me that if, as this Court has already explained earlier (e.g. by me in Shrimati Indira Nehru Gandhi's case (supra), the Con stitution, given unto themselv'es by the people, is legally supreme, it will not be difficult to assign its proper meaning to the term \"conferred\".\n\nI do not find the theory unacceptable that there was a notional surrender by the people of India of control over their several or individual rights to a sovereign Republic by means of a legally\n\nsupreme Constitution to which we owe allegiance.\n\nIt only means that we recognise that the Constitution is supreme and can confer rights and powers. We have to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms. There has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of \"licence\" to all, which ends in the exploitation and oppression of the many weak by the few strong, into the. actuality of a freedom for all regulated by law or under the law applicable to all. This seems to\n\n-. • ' ..\n\n...\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 319\n\nme to be a satisfactory explanation of the language of conferment A used with reference to rights.\n\n( ..\n\nApar1 from the explanation given above, of the language of conferment, the meaning of placing some rights in Part III, whatever be the language in which this was done, is surely to select certain rights as most essential for ensuring the fulness of lives of citizens.\n\nThe whole object of guaranteed fundamental rights is to make those basic aspects of human freedom, embodied in fundamental rights, more secure than others not so selected. In thus recognising and declaring certain basic aspect~ of rights as fundamental by the Constitution of the country, the purpose was to protect them against undue encroachments upon them by the legislative, or executive, and, sometimes even judicial (e.g. Article 20) organs of the State. The encroachments must remain within permissible Hmits and must take place only in prescribed modes. The intention could never be to preserve something concurrently in the field of Natnral Law or Common Law. It was to exclude all other control or to make the Constitution the sole repository of ultimate. control over those aspects of human freedom which were guaranteed there.\n\nI have already referred to Dicey's attempt to show that one of the meanings of the Rule of Law in England was that the law made by the ordinary Courts served purposes sought to be achieved in other countries by means of written Constitutions. This meant that one of the two systems governs the whole field of fundamental rights bnt not both. This very idea is thus put by Keir & Lawson in \"Cases in Constitutional Law (5th Edn. p. 11) :\"\n\n'The judges seem to havt< in their minds au ideal constitution, comprising those fundamental rules of common law which seem essential to the liberties of the subject and the proper government of the country. These rules cannot be repealed but by direct and unequivocal enactment.\n\nIn the absence of express words or necessary intendment, statutes will be applied subject to them. They do not override the statute, but are treated, as it were, as implied terms of the statute.\n\nHere may .be found many of those fundamental rights of man which are directly and absolutely safeguarded in the American Constitutio11 or the Declaration des droits de I' homme\".\n\n• In the passage quoted above, Rules of Natural Justice, which are impliedly read into statutes from the nature of functions imposed upon • statutory authorities or bodies, are placed on the same footing as \"fundamental rights of men which are directly and absolutely safeguarded\" by written Constitutions.\n\nThere is, however, a distinction\n\nb~:tween these two types of basic rights. The implied rules of natural justice do not, as has been repeatedly pointed out by us, over-ride the express terms of a statute. They are only implied because the t functions which the statute imposes are presumed to be meant to the exercised in accordance with these rules. Hence, they are treated as , though they were parts of enacted law. This Court has repeatedly\n\napplied this principle (sec: e.g. State of Orissa v. Dr. (Miss) Binapani Dei & Ors.)(1 )\n\nThe principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follows from them.\n\nThey can also be said sometimes to be implied as necessary parts of the protection of equality and eqnal protection of laws conferred by Article 14 of the Constirution where one B of the pillars of Dicey's principles of the Rule of Law is fow1d embodied.\n\nSometimes, they may be implied and read into legislation dealing with rights protected by Article 19 of the Constitution. They could, at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable.\n\nStatutory provisions creating certain types of functions may become unreasonable, and, therefore, void unless rules of natural justice were impliedly C annexed to them.\n\nAnd, the well known method of construction is : 'ut res magis valeat guam pereat\"-to prefer the construction which upholds rather than the one which invalidates. Thus, rules of natural justice, even when they are read into statutory provisions, have no independent existence. They are annexed to statutory duties or fundamental rights so long as they are not expressly excluded. Their express exclusion by statute may, when the enforcement of fundamental rights o is not suspended, affect the validity of a statute.\n\nBut, tltat is so because of the requirements of Articles 14 and 19 of the ConstitutiOn and not because they are outside the Constitution altogether.\n\nIt is also very difficult for me to understand what is meant by such \"Common Law\" rights as could co-exist and compete with constitutional provisions or take their place when the constitutional provisions become unenforceable or temporarily inoperative. The whole concept of such alleged Common Law is based on an utter misconception of what \"Common Law\" means.\n\nThe orign of Common Law in England is to be found in the work done by the King's Judges, who, through their judicial pronouncements, gave to the people of that country a law common to the whole country in the place of the peculiar or conflicting local customs.\n\nLet me quote here from a recent book by Prof. George W. Keeton on .\"English Law-The Judicial Contribution\" (at p. 68-69), about what Judges appointed by Henry the II of An jou did :\n\n\"It is in his reign that something recognisable as a Common Law begins to emerge. It is an amalgam of Anglo- Saxon and Danish customs and Norman laws governing military tenures, both of which are about to be transformed by several mighty agencies-the ever-expanding body of original writs, of which Glanville wrote; the assizes which Henry introduced; and finally, by the activities of his judges, whether at W cstminster or on Circuit. It is significant that although for some centuries to come, English law was to remain remarkably rich in local customs, we no longer hear, after Henry's reign, of the laws of Mercia, Wessex and Northumbria, but of a Common Law of England-that is to say,\n\n(I) [1967] 2 S. C. R. 625.\n\n-\" _,\n\n• •\n\n, ,..\n\n- ..\n\n• )\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 321\n\nthe law of th~ kinls courts, about which treatises of the calibre of Bracton and Fleta would be written almost exactly a century later, and as the _concluding words of o~k and Maitland's great work remmd us, they and their 1ud1crnl eolleagues were building, not for England alone but 'for kingless common-wealths on the other shore of the Atlantic Ocean'--and now, one can perhaps add, for many other commonwealths, too.\n\nThis we owe ultimately, not to a Norman Conqueror, nor even to a distinguished line of Saxon kings, but to a bow-legged and unprepossessing prince of Anjou, of restless energy and great constancy of purpose who built, perhaps, a good deal better than even he knew\".\n\nSuch were the origins of the Common Law in England. It is true that Common Law did try to dig its tentacles into Constitutional Law as well. Chief Justice Coke not only denied to King James the 1st the power to administer justice directly and personally, but he went so far as to claim for the King's Courts the power. to proclaim an Act of Parliament invalid, in Dr. Bonham's case, if it sought to violate a principle of natural law.\n\nSuch claims, however, were soon abandoned by Common Law Courts.\n\nIt is interesting to recall that, after his dismissa!, by King James the 1st, in 1616, Sir Edward Coke entered politics and became a Member of the House of Commons in Liskeard. He led a group which resisted Royal claims. He was the principal advocate of the Petition\n\nof Rights which Parliament compelled a reluctant King of England to accept in 1628.\n\nCourts of justice, unable to withstand Royal onslaughts on their authority, joined hands with Parliament and laid E down some of the rules which, according to Dicey, gave the Rule of Law to England. Thus, the judge-made fundamental rights, which Parliament would not disturb, out of innate respect for them, existed, legally speaking, because Parliament, representing the people, wanted them. They could not compete with or obstruct the legal authority of Parliament. Coke's doctrine, however, found expression in a constitution which enabled judges to test the validity of even legislation F with reference to fundamental rights. This is also one of the primary functions of Chapter III of our own Constitution. Another function of provisions of this chapter is to test the validity of the State's executive action.\n\nSo far as Article 21 of the Constitution is concerned, it is abundantly clear that it protects the lives and liberties of citizens primarily G from legally unwarranted executive action. It secures rights to 'procedute established by law'.\n\nIf that procedure is to be established by statute law, as it is meant to be, this particular protection could not, on the face of it, be intended to operate as a restriction upon legislative power to lay down procedure although other articles affecting legislation on personal freedom might. Article 21 was only meant, on the face of it, to keep the exercise of executive power, H in ordering deprevations of life or liberty, within the bounds of power prescribed by procedure established by legislation. 23-833 SuP C 1/76\n\n' The meaning of the expression \"procedure established by law\" came in for discussion at considerable length, by this Court. in A. K.\n\nGopalan's case (supra). The majority of the learned Judges clearly held there that it furnishes the guarantee of \"Lex\", which is equated with statute law only, and not of \"Jus\". or a judicial concept of what procedural law ought really to be.\n\nThe whole idea, in using this expression, taken deliberately from the Japanese Constitution on the advice, amongst others, of Mr. Justice Felix Frankfurter of the American Supreme Court, was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others Jiving in our country on any ground other than that it is contrary to procedure actually prescribed by law, which, according to the majority view in Gopalan's case, meant only statute law.\n\nThe majority view was based on the reason, amongst others, that according to well established canons of statutory construction, the express terms of \"Lex\" (assuming, of course, that the \"Lex\" is otherwise valid), prescribing procedure, will exclude \"Jus\" or judicial notions of \"due process\" or what the procedure ought to be.\n\nAppeals to concepts of \"Jus\" or a just procedure were made in Gopalanfs case (supra), as implied by Article 21, in an attempted application of \"Jus\" for testing the validity of statutory provisions.\n\nAlthough. no such question of validity of the procedure established by the Act in ordering actual deprivations of personal liberty has arisen before us, yet, the argument before us is that we should allow use of notions of \"Jus\" and the doctrine of ultra vires by the various High Courts in judging the correctness of applications of the established procedure by executive authorities to each case at a time when the Presidential Order of 27th June 1975 precludes the use of Article 21 by Courts for enforcing a right to personal liberty.\n\nTherefore, the question which arises here is whether \"Jus\" .held by this Court, in Gopalan's case, to have been deliberately excluded from the purview of procedure established by law\", can be introduced by Courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other Part of the Constitution.\n\nI am quite unable to accede to the suggestion that this could be done.\n\nWe have been referred to the folowing passage in R. C. Cooper v, Union ol India('), to substantiate the submission that the decision of this Court in Gopalan's case (supra), on the question mentioned above, no longer holds the field :\n\n\"We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution which justifies tI; is apparently. inconsistent development of the law.\n\nIn our 1udgment, the assumption in A.K. Gopalan's case that certain articles in the Constitution exclusively deal with specific matters and in determining wheher there is infringement of the individual's guaranteed rights, the object and the form~ of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be acepted. as correct. We hold that the\n\n(I) [1970) 3 S. C. R. 530 (ii1 578.\n\n• <\n\n• •\n\n...\n\n, .\n\n• '\n\n.r •\n\n• -\n\nADDL. DIST. MAGISTRATE I'. S.S. SHUKLA (Beg, J.) 3 23\n\nvalidity 'of law' which authorises deprivation of property and 'a law' which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of of the same tests.\n\nA citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the ge_neral public\". ,,,.\n\nIt sems to me that Gopa!an's case (supra) was merely cited, in 'Cooper's case (supra) , for illustrating a line of reasoning which was\n\nheld to be incorrect in determining the validity of \"Jaw\" for the :acquisition of property solely with reference to the provisions of .Article 31. The question under consideration in that case was whether Articles 19(1) (f) and 31 (2) are mutually exclusive.\n\nEven if, on the strength of what was held in Cooper's case (supra), we hold that the effects of deprivation upon rights outside Article 21 have also to be considered in deciding upon the validity of \"Lex\", and that the line of reasoning in Gopalan's case (supra), that the validity of a law relating to preventive detention must be judged solely with reference to the JilfOVisions of Article. 21 of the Constitution, is incorrect, in view of the opinion of the majority of learned Judges of this Court in Cooper's -case (supra), it seem to me that this is hardly relevant in considering whether any claims based on natural law or common law can be enforced. There is no challenge before us based on Article 19, to any provision of the Act. Moreover, now that the enforcement of Article 19 is also suspended, the question whether a law dealing with preventive detention may directly or indirectly infringe other rights contained in Article 19 of the Constitution is not relevant at all here for this additional reason .\n\nMr. Shanti Bhushan, appearing for some of the detenu, seems to have seriously misunderstood the meaning of the majority as well as minority views of Judges of this Court in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kera/a.(') when he submitted that. as the majority view there was not that natural rights do not exist, these rights could be enforced in place of the suspended guaranteed fundamental rights.\n\nOne learned Judge after another in that case emphatically rejected the submission that any theory of natural rights could impliedly limit powers of Constitutional amendment contained in Article 368 of the Constitution. In doing so, none of us held that any natural rights could impliedly become legally enforceable rights.\n\nDwivedi, J., in Kesavananda Bharti'!! case (supra) said about what could be characterised as a far more \"unruly horse\" than public policy (at p. 918):\n\n\"Natural Law has been a sort of religion with many political and constitutional thinkers. But it has never believed in a single Godhead. It has a perpetually growing pantheon.\n\nLook at the pantheon, and you will observe there : 'State\n\n(I) [19731 Suppl. S. C. R. I @ 918.\n\nof Nature'. 'Nature of Man'. 'Reason'. 'Cod\", 'Equality', 'Liberty', 'Property', 'Laissez Faire', 'Sovereignty', ,'Democracy', 'Civilised De_cency', 'Fundamental Conceptions of Justice' and even 'War'.\n\nThe religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St.\n\nThomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and Trietschke. The pantheon is not a heaven of peace. Its gods are locked in constant internecine confiict.\n\nNatural Law has been a highly subiective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark : \"Outstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct opposition to many positive legal orders. There 'is no positive law that is not in conflict with one or the other of these principles; and it is not possible to ascertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgments of their various authors about what they consider to be just or natural.\"\n\nIf the concepts of natural law are too conflicting to make them a secure foundation for any alleged \"right\", sought to be derived from it, until it is accepted and recognised by a positive law, notions of wkat Common Law is and what it means, if anything, in this country, are not less hazy and unsettled.\n\nMr. Setalvad, in his Hamlyn Memorial Lectures on \"Common Law in India\", treated. the whole body of general or common statute law\n\nand Constitutional Law of this country as though they represented a codification of the Common Law of England. If this view is correct, Common Law could not be found outside the written constitution and statute law although English Common Law could perhaps be used to explain and interpret our statutory provisions where it was possible to do so due to some uncertainty.\n\nSometimes, Judges have spoken of the principles of \"Justice, equity, and good conscience\" (See : Satish Chandra Chakramurthi v. Ram Dayal De(') Waghela Raj Sanji v. Sheik Mashuddin & ors. ('); Baboo Slo Thakur Dhodi v. Mst. Subanshi Wlo Mangal('), as sources of\n\n\"Common Law\" in this1 country. One with some knowledge of development of law in England will distin}¥iish the two broad streams of law there : one supposed to be derive from the customs of the people, but, actually based on judicial concepts of what custom is or should properly be; and. another flowing from the Court of the Chancellor, the \"Keeper of the King's Conscience'', who used to be approached\n\n(I) l L. R. 48 Cal. 388 @ 407-410.\n\n(2) 14 Indian Appeals p. 89 @ 96.\n\n(3) A. I. R. 1942 NaJ!. 99. '\n\n~,\n\n.. •\n\n-... •\n\n,..\n\n' •\n\n...\n\n.,_\n\n' ~\n\n-\\ ....\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (B.eg, J.) 325\n\nwhen plain demands of justice failed to be met or caught in the meshes A >. of Common Law, or, were actually defeated b¥ some statute law which was being misused. The two streams, one of Common Law and another of Equity, were \"mixed\" or \"fused\" by statute as a esult of the Judicature Acts in England at the end of the last century m the sense that they became parts of one body of law administered by the same • Courts, although they are still classi!ied separately due to their separate origins. In Stroud's Judicial Dictionary, we find (See : Vol. I, B 4th Edn. p. 517) : \"The common law of England is that body of Jaw which has been judicially evolved from the general custom of the .r realm\" . • ' Here all that I wish to indicate is that neither rights supposed to ' - . . 'be recognised by some natural Jaw nor those assumed to exist tn some c part of Common Law could serve as substitutes for those conferred by -\n\nPart III of the Constitution. They could not be, on any principle of Jaw or justice or reason, virtually added to part Ill as complete replacements for rights whose enforc.,, ment is suspended, and lhen be enforced, through constitutionally provided. machinery, as the unseen ... appendages of the Constitution or as a seporate group of rights outside the Constitution meant for the Emergency which suspends but does D , 11ot resuscitate in a new form certain rights. •\n\nA submission of Dr. Ghatate, appearing for Mr. Advani, was that ( we should keep in mind the Universal Declaration of Human Rights in • interpreting the Constitution. He relied on Article 51 of the Constitution, the relevance of which for the cases before us is not at all evi- E • dent to me.\n\nHe also relied on the principle recognised by l'lritish Courts that International Law is part of the law of the land. Similarly, .J it was urged, it is part of our law too by reason of Article 372 of the Constitution. He seemed to imply that we should read the universal declaration of human rights into our Constitution as India was one of the signatories to it.\n\nThese submissions appear to me to amount to nothing more than appeals to weave ccrtin ethical rules and principles F ... into the fabric of our Constitution which is the paramount Jaw of this\n\n~ country and provides the final test of vali<lity and enforceability of rules and rights throug~ Co_urts.\n\nTo avance such arguments is to forget \" that our Constttntion itself embodies those rules and rights. It also .. governs the conditions of their operation and suspension. Nothing j ' which conflicts with the provisions of the Constitution could be enforced bere under any disguise.\n\n. Emergency _provisions in our Constitution are, after all, a recogni- ' t10':1 and extension of the individual's natural law right of self-defence\n\nwhch has its exprssion i!' positive laws, to the State, the legal organi'. satio'.1 through which society or the people in its collective aspect • •\n\nf1:1ctions for !he pr?tection of_ th~ common interests of all. Such pro~\n\nH v1s1ons or thelf egmvalents exist m the Constitutions of even the most\n\nadvaced democratic countries of the world. No lawyer can seriously quest10n the correctness, in Public International Law, of the proposl-\n\nA tion that the operation and effects of such provisions are matters which are entirely the domestic concern of legally sovereign States and can brook no outside interference.\n\nSubba Rao, C.J., speaking for five learned Judges of this Court, in I. C. Golaknath & Ors. v. State of Punjab & Anr(') said : (at p.\n\n789) :\n\n\"Now, what are the fundamentl rights? They are embodied in Part III of the Constitution and they may be classified thus : (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion,\n\n(v) cultural and educational rights,\n\n(vi) right to property, and (vii) right to constitutional remedies.\n\nThey are the rights of the people preserved by our Constitution. \"Fundamental right~\" are the modern name for what have been tradi- tionally known as \"natural rights\".\n\nAs one author puts : \"they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with .other beings, he. is rational and moral\".\n\nThey are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best.\n\nOur Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such rights\".\n\nI do not know of any statement by this Court of the relation between natural rights and fundamental constitutional rights which conflicts with what is stated above.\n\n;(l-Hidayatullah, J., in Go/aknath's case (supra) observed (at p .. &17):\n\n\"What I have said does not mean that Fundamental Rights are not subject to change or modification.\n\nIn the most inalienable of such rights a distinction mnst be made between possession of a right and its exercise. The first is fixed and the latter controlled by justice and necessity. Take for example Art. 21 :\n\n'No person shall be deprived of his life or personal liberty except according to procedure established by law'.\n\nOf all the rights, the right to one's life is the most valuable.\n\nThis article of the: Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed by a murderer's condnct as viewed under law, The deprivation, when it takes place, is not of the right which was immutable but of the continned exercise of the right\".\n\nThe connts of Article 21 were considered at some length and H given a wide connotation by this Court in Gopalan's case' (supra).\n\nPatalliali Sastri, J., held at pages 195-196:\n\n(I) [1967] 2 S. C. R. 762 (al 789.\n\n• '\n\n, .\n\n' •\n\n/ • --\n\n-· - ,\n\n( >\n\n• , -\n\n• .. f •\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 327\n\n'~ ,'!ecw;. / , :'if \"It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation.\n\nThis view of the correlation between the two articles has found favour with some of the Judges in the Higli Courts which have had occasion to consider the constitutional validity of\n\n' the impugned Act. It is, however, to be observed that article J 19 confers the rights therein specified only on the citizens of India, while article 21 extend§ the protection of life and personal liberty to all persons citizens and non-citizens alike.\n\nThus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested. Again, if article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal librty, f 11on-citizens to be found in the Constitution ? Are they denied such right altogether ? If they are\n\nto have no right of personal liberty, why is the procedural safeguard in article 21 extended to them? And where is that most fundamental right of all, the right to life, provided for in the Constitution?\n\nThe truth is that article 21, like its American prototype in the Fifth and Fourteenth Amendments\n\noi the Constitution of the United States, presents an example of the fusion of procedural and substantive rights in the same provision. The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes _the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law. 'Process' or 'procedure' in this context connotes both the act and the manner of proceeding to take away a man's life or personal liberty .\n\nAnd the first and essential step in a procedure established by Jaw for such deprivation must be a law made by a competent legislafure authorising such deprivation\".\n\nMahajan, J., also observed at pages 229-230 :\n\n\"Article 21, in my opinion, lays down substantive law as giving protection to life and lib_erty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the Jaw should further provide for a i; node of procedure for such deprivation. This article gives complete immunity against the exercise of despotic power by the executive. It fu@er gives immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty. It negatives the idea of fantastic arbitrary and oppressive forms of proceedings. The principles therefore underlying article 21 have been kept in - view in drafting article 22 \".\n\nE -\n\nDas, J., said at page 295 :\n\n\"If personal liberty as such is guarantd by any of the sub-clauses of article 19 (1) then why has 1t also been protected by article 21 ? The answer su&llested by learned counsel for the petitioner is tat personal liberty :is a subs!antive right is yrotected by '.lrbcle 19(1)_ ad article 21 g\"ves only an additional prtect1on by prescnbmg the procedure according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Constitution does not guarantee to any person, citizen or non-citizen, the; freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause ( l) of article 19\".\n\nHe also said at p. 306-307 :\n\n\"Article 21, as the marginal note states, guarm1tees to every person 'protection of life and personal liberty'.\n\nAs I read it, it defines the substantive fundainental right to whicil\n\nprotection is given and does not purport to prescribe any particular procedure at all. That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Consiitution. The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right. The right to life and personal liberty protected by article 21 is not an absolute right but is a qualified right-a right circumscribed by the possibility or risk of being lost according to procedure established by law\".\n\nIt will thus be seen that not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom has been held, by implication, to be covered by Article 21 of the Constitution.\n\nIn Kharak Singh v. the State of U.P. & Ors.('), the wide import of personal liberty, guaranteed by Article 21, was considered. By a majority of 4 against 2 learned Judges of this Court, it was held that the term \"personal liberty\", as used in Article 21, is a compendious one and includes all varieties of rights to exercise of personal freedom, other than those dealt with separately by Article 19 which could fall under a broad concept of freedom of person. It wa~ held to in.elude freedom from surveilance, from physical torture, and from all kinds of harassment of the person which may interfere with his liberty.\n\nThus, even if Article 21 is not the sole repository of all personal freedom, it will be clear, from a reading of Gopalan's case (supra) and\n\n(1) [1964] 1 s. c. R. 332.\n\n- •\n\n,-· ,,\n\n...\n\n, •\n\nADDL. DIST. MAGISTRATE v. S.S. SHUKLA (Beg, J.) 329\n\nKharqk Singh's case (Supra), that all aspects of freedom of perou. are meant to be covered by Articles 19 and 21 and 22 of the Constitution.\n\nIf the enforcement of these rights by Courts is suspended during the Emergency an inquiry by a Court into the. question whether any .of them is violated by an illegal deprivation of it by executive authonties of the State seems futile.\n\nFor the reasons indicated above I hold as follows :-\n\nFirstly, fundamental rights are basic aspects of rights selected from what may previously have been natural or common law righls. These basic aspects of rights are elevated to \" new level of importance by the Constitution. Any other co-extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with funda- . mental rights.\n\niiecondly, the object of making certain general aspects of rights fundamental is to guarantee them against illeg<i', invasions of these rights by executive, legislative, or judicial organs of the State. This necessarily means that these _safeguards can also he legally remove& under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences.\n\nThirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom. It mbraces hath procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of Jaws regulating preventive detention would be included in \"procedure established by law\" and indicates what that procedure should be. In that sense, it could be viewed as, substantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power.\n\nFourthly, taken by itself, Article 21 of the Constitution is primarily a protection against illegal deprivations hy the executive action of the State's agents or officials, although, read with other Articles, it could F operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom.\n\nFifthly, the most important object of making certain basic rights fundamental by the 'Constitution is to make them enforceable against the State and its agencies through the Courts.\n\nSixthly, if the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them.\n\n(B) Power to issue writs of Habeas Corpus and other powers of High Courts under Article 226 of the Constitution.\n\nReliance has been placed on behalf of the detenus on the following statement of the law found in Halsbury's Laws of England (Vol. 11, p. 27, paragraph 15), where dealing with the _jurisdiction to issue such writs in England it is said : ·\n\n33 ()\n\n\"The right to the writ is a right which exists at common law independently of any statute, though the right has been confirmed and regulated by statute. At common law the jurisdiction to award the wri~ was exercised by the Court of Queen's Bench, chancery, and Common Pleas, and, in a case of privilege, by the Court of Exchequer\".\n\nB It is, therefore, submitted that the High Courts as well as this Court !which have the same jurisdiction to issue writs of Habeas Corpus as English Courts have to issue such writs at common law.\n\nThe argument seems to me to be based on several misconceptions :·\n\nFirstly, there are no Courts of the King or Queen here_ to issue writs of Habeas Corpus by reason of any \"prerogative\" of the British Monarch. The nature of the writ of Habeas Corpus is given in the same volume of Halsbury's Laws of England, dealing with Crown proceedings, at page 24, as follows : ' \"40. The prerogative writ of habeas corpus. The writ of habeas corpus and subiiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the Queen has a right to inquire into the c.auss for which any of her subjects are deprived of their liberty.\n\nBy it the High Court and the judges of that Court, at the instance of a subject aggrieved, command the production of that subject, and inquire into the< cause of his imprisonment If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal, nor may the writ be used as a means of appeal\".\n\nIt will be seen that the Common Law power of issuing the writ of Habeas Corpus is possessed by only certain courts which could issue \"prerogative\" writs. It is only to indicate the origin and nature of the writ that the writ of habeas corpus is known here as a \"prerogative\" writ.\n\nThe power to issue it is of the same nature as a \"prerogative\"· power inasmuch as the power, so long as it is not suspended, may carry with it an undefined residue of dfocretionary power.\n\nStrictly speaking, it is a constitutional writ. The power to issue it is conferred upon Courts in this country exclusively by our Constitution. All the powers of our Courts flow from the Constitution which is the source of their jurisdiction. If any provision of the Constitution authorises the suspension of .the right to obtain relief in any type of cases, the power of Courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there. If they cannot issue writs of Habeas Corpus to enforce a right to personal freedom against executive authorities during the Emergency, the original nature of this writ issuinu power comparable to a \"prerogative\" power, cannot help the detenu. \"'\n\n• •\n\n- •\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 331\n\nSecondly, as I have already indicated, whatever .could be formerly A even s:iid to be governed by a Common Law prerogative power 1'ecomes \"'. merged in the Constitution as soon as the Constitution takes it over and regulates that subject. This is a well reconised principle o.f faw. , I will only cite Attorney-General v. De Keyser s Royal Hotel Lmuted( ) , where Lord Dunedin, in answer to a claim of the Crown based on prerogative, said (at p. 526) : •\n\n' •\n\n\"None the less, it is equally certain that if the whole ground of something which could be done by the prerogative 1s covered by the statute, it is th~ statute that rules. On this point I think the observation of the learned Master of the Rolls 1s unanswerable.\n\nHe says : \"What use could there be in llllposing limitations, if the Crown could at its pleasure disregard them and fall back on prerogative?\".\n\nThirdly, if there is no enforceable ight either arising under the Constitution or otherwise, it is useless to appeal to any general power of the Court to issue a writ of Habeas Corpus. The jurisdiction to. issue\n\nan order of release, on a Habeas Corpus petition, is only excercisable after due enquiry into the cause of detention. If the effect of the sus- 1pension of the right to move the Court for a writ of Habeas Corpus Dis that no enquiry can take place, beyond finding out that the cause is one covered by the prohibition, mere possession of some general power will not assist the detenu.\n\nIf the right to enforce personal freedom through a writ of habeas corpus is suspended, it cannot be said that the enforcement can be restored by resorting to \"any other purpose''. That other purpose could E not embrace defeating the effect of suspension of the enforcement of a Constitutional guarantee. To hold that would be to make a mockery of the Constitution.\n\nTherefore, I am unable to hold that anything of the nature of a writ of habeas corpus or any power of a High Court under Article 226 could come to the aid of a detenu when the right to enforce a claim to personal F freedom, sought to be protected by the Constitution, is suspended.\n\n(C) The objects of the Maintenance of Internal Securitv Act ('the Acf) and the amendments of it. .\n\nAs this Court has recently held, in Haradhan Saha & Anr v. The State ; of West Bengal & Ors.( 2') preventive detention is to be differentiated from punitive detention. Nevertheless, it is evident, whether de-\n\nG..· tentio11 is preventive or punitive, it necessarily results in the imposition of constraints, which, from the point of view nf iusticc to the detenu. should not be inflicted or continue without fair and adequate and careful scrutiny into its necessity. This Court pointed out that Article 22 of the Constitution was designed to guarantee these requirements of fairness and justice which are satisfied by the provisions of the Act. It said in said Haradhan Saha & Anr. (supra) (at p. 784): H\n\n(l) [1920] A. C. 508 (al 526.\n\n(2) 119751 1 S r R 778.\n\nA \"Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evit of elements imperilling the security, the safety of a State and ->- the welfare of the Nation. It is not possible to think that a person who is detained will yet be free to move or assembk or form association or unions or have the right to reside in\n\nany part of India or have the freedom of speech or expression\".\n\nB • Provision for_ preventive detention, in itself, is a departure from ordinary norms. I! is generally resorted to either in times of war or •\n\nof apprehended internal disorders and disturbances of a serious nature. ·\"' Its object is to prevent a, greater danger to national security and integrity than any claim which could be based upon a right, moral or legal, c to individual liberty. It has been aptly described as a \"jurisdiction of suspicion.\" See : Khudiram Das v. State of West Bengal., ('), State of Madras v. V. G. Row; (2) R. v. Halliday (3). It enables executive authorities to proceed on bare suspicion which has to give rise to a \"satisfaction\", as the condition. precedent to passing a valid detention order, laid down as follows in Section 3 of the Act : -\n\n\"3 ( 1) (a) if satisfied with respect to any person (including\n\n~ D a foreigner) that with a view to preventing him from acting in any manner prejudicial to-- .•\n\n( i) the defence of India, the relations of India \\Vi th • foreign powers, or the security of India, or\n\n(ii) the security of the State or the maintenance of public order, or • E\n\n(iii) the maintenance of supplies and services essential to the community, or ~\n\n(b) if satisfied with respect to any foreigner that with a ' view to regulating his continued presence in India or with a view to making arrnngements for his expulsion from India. it\n\nF is necessary so to do, make an order directing that such person is detained\". - The satisfaction. as held consistently by a whole line of authorities • of this Court, is a \"subjective\" one.\n\nIn other words, it is not possible to prescribe objective standards for reaching that satisfaction. Altlnugh , the position in law, as declared repeatedly by this Court, has been '\n\n' -0 very clear and categorical that the satisfaction has to be the subjective satisfaction of the detaining authorities, yet, th.e requirements for supply of grounds to the detenu. as provided in Section 8 of the Ac;, in • actual practice, opened up a means of applying a kind of objective test by Courts upon close scrutinv of these grounds. The result h\"\" been, according to the Attorney General, that the subjective satisfaction of the detaining authorities has iended to be substituted h\"- the H\n\n---~ (I) [1975] 2 S. C. R. p. 832 (a! p. 842. ~\n\n(2) A. T. R. 1952 S. C. 197 (a! 200.\n\n(3) [1917] A. C. 260 @ 275.\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 333\n\nsubjective satisfaction of Court on the objective data provided by the A \" -\n\ngrotmds, as to the need to detain for purposes of the Act. The quuestion thus arose : Did this practice not frustrate the purposes of the Act ?\n\nThe position of the detenu has generally evoked the sympathy of lawyers and law Courti_. They cerish a tradition as zealous protec- ' tors of personal liberty. They are engaged in pointing out, day in and B ' day out, the essentials of fair trial. They are used to acting strictly on the rule~ of evidence contained in the Indian Evidence Act. The possibility of indefinite incarceration, without anything lih a trial, not unr naturally, seems abhbrrent to those with such traditions and: habits of ,\n\n-~ thought and action.\n\nThere is an aspect which perhaps tends to be overlooked in c considering matters which are generally placed for weighment on the\n\ngelden scales of the sensitive judicial balance.\n\nIt is that we are\n\n.:; living in a world of such strain and stress, satirised in a recent fictional depiction of the coming future, if not of a present already enveloping us. in Mr. Alva Toffter's \"Future Shock\", with snch fast changing conditions of life dominated by technological revolutions\n\n> as well as recurring economic, social, and political crises, wit!:\\ result- D .. ing obliterations of traditional values, that masses of people suffer from psychological disturbances due to inability to adjust themselves • to these changes and crises.\n\nAn example of such maladjustipent is provided by what happened to a very great and gifted nation within living memory.\n\nThe great destruction, the inhuman butchery, and • the acute suffering and misery which many very civilised parts of the world had to pass through, because some psychologically disturbed E people led by Adolf Hitler, were not prevented in time lrom mislead- • ing and misguiding the German nation, is still fresh in our minds .\n\n~ Indeed the whole world suffered, and felt the effects of tlie unchecked aberrant Nazi movement in Germany and the havoc it wtleashed when it acquired a hold over the minds and feelings of the German people with all the vast powers of modern science at their disposal.\n\nWith such recent examples before them, it was not surprising that F - our constitution makers, quite far sightedly, provided not only for preventive detention in our Constitution but also introduced Erner- • gency provisions of a drastic nature in it.\n\nThese seem to be in- '\n\nescapable concomitants of conditions necessary to ensure for the '\n\nm.ass of the people of a backward country, a life of that decipline • without which the country's security, integrity, independence, and pace of progress towards the objectives set before us by the Constitution G will not be safe . • I do not know whether it was a too liberal application of the pri'.1cip!e that courts m; ist lean in favour of the liberty of the citizen, which is, stnctly speaking, only a principle of interpretation for cases of doubt or difficulty, or, the carelessness with which detentions were\n\nordeed by Subordinate officers in the Districts, or the inefficiency in H draftmg of the grounds of detention, which were not infrequently found to be vague and defective, . the. resul~ of the practice developed by Oourts was that detenus did, m qmte a number of cases, obtain\n\n:I'\n\n\n[1976) SUPPLEMGHARY\n\nfrom High Courts, and, perhaps even from this Court, orders of release on Habeas Corpus petitions on grounds on which validity pf criminal trials would certainly not be affected.\n\nIn Prabhu Dayal Deorah etc etc. v. District Magistrate Kamrup _& Ors.('). I ventured, with great respect, in my minority , opinion, to suggest that the objects of the Act may be frustrated if Courts interfere even before the machinery of redress under the Act through Advisory Boards, where questions relating to vagueness or irrelevance or even sufficiency of grounds could be more effectively thrashed out than in Courts in proceedings under Article 32 or 226 of the Constitution, had been allowed to complete its full course of operation.\n\nIn some,. cases, facts were investigated on exchange of affidavits only so as to arrive at a conclusion that some of the facts, upon which detention orders were passed, did not exist at all.\n\nIn other cases, it was held that even if a single non-existent or vague ground crept into the grounds for detention, the detention order itself was vitiated as it indicated either the effects of extraneous matter or carelessness or non-application of mind in makini the order.\n\nCourts could not separate what has been improperly considered from what was properly taken into account.\n\nHence detentions were held to be vitiated by such defects.\n\nIn some cases, the fact that some matter too remote in time from the detention order was taken into consideration, in ordering the detention, was held to be enough to invalidate the detention.\n\nThus, grounds supplied always operated as an objective tesf for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in.\n\nThe reasonableness of the detention became the justiciable issue really decided.\n\nWith great respect, I doubt whether this could be said to be the object of preventive detention provisions authorised by the Constitution and embodied in the Act.\n\nIn any case, it was the satisfaction of the Court by an application of a kind of objective test more stringently than the principle of criminal procedure, that a defective charge could be amended and would not vitiate a trial without proof of incurable prejudice to the accused, which became, for all practical purposes, the test of the correctness of detention orders.\n\nI have ventured to indicate the background which seems to me to have probably necessitated certain amendments in the Act in addition tO the reasons which led to the proclamation of Emergency, the effects of which are considered a little later below.\n\nWe are not concerned here with the wisdom of the policy underlying the amendments. It is, however, necessary to understand the mischief aimed at so as to< be able to correctly determine the meaning of the changes made.\n\nThe Central Act 39 of 1975 which actually came into effect filter Emergency added Section 16A to the Act, to sub-sections of\n\n(H A. I. R. !974 s. c, 183.\n\n• •\n\n; ;\n\n• -\n\n• -•\n\nf •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 335\n\nwhich have been the subject matter of arguments before us.\n\nThey .read as follows :\n\n\"(2) The case of every person (including a foreigner) against whom an order of detention was made under !this Act on or after the 25th day of June, 1975, but before the commencement of this section, shall, unless such person is sooner released from detention, be viewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessaryfor dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1) have been issued (hereafter in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned.\n\n( 3) When making an order of detention under this Act against any person (including a foreigner) after , the commencement of this section, Jthi>- Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied hat it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and conmmunicate a copy of the declaration to the person concerned:\n\nProvided that where such declaration is made by an officer it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government, after such review, within the said period of fifteen days\".\n\nAct No. 14 of 1976, which received the Presidential assent on '25th\n\nJanuary, 1976, added Section 16A(9) which runs as follows: G\n\n\"16A(9) Notwithstanding anything contained in any other faw or any rule having the force of faw,-\n\n( a) the Grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub-section\n\n(2) or sub-section (3) and any information or materials on which such grounds or a declaration under sub-section (2) or declaration or confirmation under sub-section (3) or the non-\n\nH '\n\nrevocation under sub-section ( 4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters\" of State and to be against the public interest to disclose and save as otherwise provided in this Act, on one shall communicate or disclose any such ground, information or material. or any document containing such ground, information or material;\n\n(b) No person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the prodnction to him of any document containing such ground, information or material\".\n\nThis Section and Section 18 of the Act are the only provisions whose validity is challenged before us.\n\nIt appears to me that the object of the above mentioned amendments was to affect the manner in which jurisdiction of Courts in considering claims for reliefs by detenus on petitions for writs of Habeas Corpus was being exercisedf so that the only available means that had been developed for such cases by the Courts, that is to say, the scrutiny of grounds supplied under section 8 of the Act,, may be removed from the judicial arrooury for the duration of the Emergency.\n\nIt may be mentioned here that Art. 22(5) and 22( 6) of the Constitution provided as follows :\n\n\"22(5) When any person is detained in pursuance of the order made under any law providing for prewntive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the eariiest opPortunity of making a representation against the order.\n\n22(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose\".\n\nThe first contention, that Section 16A(9) affects the jurisdiction of High Courts under Article 226, which an order nnder Article 359(1) could not do, appears to me to be untenable. I am unable to see how a Presidential Order which prevents a claim for the enforcement of a fundamental right from being advanced in a Court.\n\ndul'ing the existence of an Emergency, could possibly be said not to be intended to affect the exercise of jurisdiction of Courts at all.\n\nThe second argument, that Section 16A(9) amounts to a general legislative declaration in place of judicial decisions which Courts had themselves to give after considering\" on the facts of each case, whether Article 22( 6) could be applied, also does not seem to me to be acceptable.\n\nThe result of Section 16A(9), if valid, would be to leave the presumption of correctness of an order under Section 3 of the Act, good on the face of it, untouched by any investigation relating\n\nl •\n\n• j\n\n• -\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (Beg, J.) 337\n\nto its correcmess.\n\nNow, if this be; the object and effect of the amend- A ment, it could not be said to go beyond making it impossible for \"·. detenus to rebut a presumption; of legality and val)dity which an order under Section 3 of the Act, if prima facie good, would raise in any event.\n\nThe same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as \"conclusive proof\" that the requirements of Section 3 have been ful- • tilled.\n\nBut, as the giving of grounds is not entirely dispensed with B I under the Act even as it now exists !his. may have left the question in doubt whether Courts could call upon the detaining authorities to pro- - duce the grounds.\n\nEnactment of a rule of conclusive proof is a well , • established form of enactments determining substantive rights in the \" form of procedural provisions.\n\nIn any case, so far as the rights of a detenu to obtain relief are hampered, the question raised touches the enforcement of the fundac mental right to persnal freedom.\n\nIts effect upon the powers of the Court under Article 226 is, as I have already indicated, covered by .;, the language of Article 359(1) of the Constitution. It is not necessary for me to consider the validity of such a provision if it was to be applied at a time not covered by the Emergency, or whether it should be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of D \"malice in fact\" and for reasons completely outside the purview of the • Act itself.\n\nThat sort of inquiry is not open, during the Emergency, in proceedings under Article 226.\n\nOn the view I take, for reasons which will be still clearer after a consideration of the remaining questions discussed below,, I think that, • even the issue that the detention order is vitiated by \"maHce in fact\"\n\nwill not be justiciable in Habeas Corpus proceedings dnring the Erner- E\n\n' gency althongh it may be in an ordinary suit which is not filed for enforcing a fundamental right bnt for other reliefs.\n\nThe question of bona. fides seems to be left open for decision by such suits on the - language of Section 16 of the Act itself which says :\n\n\"16. No suit or other legal proceedings shall lie against the Central Government or a State Government, and no suit, F prosecution or other legal proceedings shall lie against any .. person, for anything in good faith done or intended to be done .• in pursuance 0£ this Act\" .\n\nSection 16 of the Act seems to leave open a remedy by way ot ... suit for damages for wrongful imprisonment in a:possible case of what may be called \"malice in fact\".\n\nIn the cases before us, we are only concerned with Habeas Corpus proceedings under Article 226 of the G Constitution where, in my opinion, malice in fact could not be investi- • gated as it is bound to be an allegation subsidia.tJ; to a claim for the enforcement of a right to personal liberty, a fun amenta! right which cannot be enforced during the Emergency.\n\nIn Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura('), a Constitution Bench of this Conrt, after pointing oUit that Article 3~(4) contemplate<'! a. suspe?sion of the ·\n\nH l guaranteed right only as proVlded by the Const1tution, said (at p. 450-\n\n451) :\n\n(!) [!9641 3 S. C.R. 442 at 450. 24-833 Sup CI/76 /\\\n\n\"The order of the President dated November 3, 1962, already set out, in terms, suspends the right of any person to move any Court for the enforcement of the rights conferred by Arts. 21 and 22 of the Constitution, during the period of Emergency.\n\nPrima facie, therefore, the petitioner's right to move this Court for a writ of Habeas Corpus, as he has purported to do by this petition, will remain suspended during the period of the Emergency.\n\nBut even then it has been contended on behalf of the petitioner that Art. 359 does not authorise the suspension of the exrcise of the right guaranteed under Art. 32 of the Constitution, and that, in terms, the operation of Art. 32 has not been suspended by the President. This contention is wholly unfounded.\n\nUnquestionably, the Court's power to issue a writ in the nature of habeas corpus has not been touched by the President's Order, but the petitioner's right to move this Court for a writ of that kind has been suspended by the Order of lite President passed under Art. 359(1). The President's Order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of Arts. 21 and 22.\n\nThus, as a result of thtl President's Ordec aforesaid, the petitioner's right to move this Conrt, but aot this Court's power under Art. 32, has been suspended during the operation or the E=rgency, \\\\>ith the result that the petitioner has no locus staTll# to enforce his right, if any, during the Emergency\".\n\nIt is true that the Presidential Order of 197 5, like the Presidential Order of 1962, does noti suspend the general power of this Court under Article 32 or the general powers of High Courts under Article 226, bnt the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential Order. Courts, even in Habeas Corpus proc.eedings, do not grant relief independently of rights of the person deprived of libertY. If the locus standi of a detenu is suspended no one can claim, on his behalf, to get his right enforced.\n\nThe result is to affect the powers of Courts, even if this be an indirect result confined to a cJass of cases, bnt, as the general power to issue writs of Habeas Corpus is not suspended, this feature was, quite ri¢itly, I respectfully think, pointed out by this Court in Mohan Chowdhury's case (supra). It would not be correct to go further and read more into the passage cited above than seems intended to have been laid down there.\n\nThe passage seems to me to indicate quite explicitly, as the language of article 359 (1) itsel~ shows,, that the deterru's right to move the Courts for the enforcement of his right to personal freedom, by provin~ an illegal deprivation of it by executive authorities of the State, is certainly not there for the duration of the Emergency.\n\nAnd, to the extent that Courts do not, and, indeed, cannot reasonably, act without irJving the detenu some kind of a right or locus stand.i, their power to proceed with a Habeas petition against executive authorities of the State is itself impaired. It may be that, in form and even in subs- (!) !1964] 3 s. c. R. 442 @ 450.\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 339\n\ntance,, a general power to issue writs of Habeas Corpus remains with A Courts.\n\nBut, that could only be invoked in cases falling entirely outside the purview of the Presidential Order and Article 359(1). That js how I, with great respect, understand the effect of Sree Mohan Chowdhury's case (supra).\n\nIt is possible that, if a case so patently gross and clear of a detention falling, on the face of the order or detention or the return made B to a notice from the Court outside the provisions of the Act on the ground of personal milice of the detaining authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for, it may be possibltl, to contend that it is not protected by the Presidential Order ofi 27th June, 1975, and by the provisions of Article 359 ( 1) of the Constitution at all. If that could be patent, without any real investigation or inquiry at all, it may stand on the c same footing as an illegal detention by a private individual.\n\nThe mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enougjh to convert it . into a detention by the State or its agents or officers.\n\nThat is the almost utterly inconceivable situation or type of case which could still be covered by the general power to issue writs of Habeas Corpus.\n\nThere may, for example, be a case of a fabricated 'order of detention D which, the alleged detaining officer, on receipt of notice, disclaims.\n\nIt is admitted that Parl III of the Constitution is only meant to protect citizens against illegal actions of organs of the State and not against wrongs done by individuals. The remedy by way of a writ of Habeas Corpus is more general. It lies even against illegal detentions by plivate persons although not under Article 32 which is confined to enforcement of fundamental rights (Vide : Shrimali Vidya E Verma through next friend R. V. S. Mani, v. Dr. Shiv Narain ('). The Attorney General also concedes that judicial proceedings for trial of accused persons would fall outside the interdict of the Presidential Order under Article 359(1). Therefore, it is unnecessary to consider hypothetical cases of illegal convictions where remedies under the ordinary law are not suspended. ·\n\nNow, is it at all reasonably conceivable that a detention order would, on the face of it, state that it is not for one of the purposes for which it can be made under the Act or that it is made due to personal malice or animus of the officer making it ? Can we, for a moment, believe that a return made on behalf of the State, instead of adopting a detention order, made by an officer duly authoriB<XI to act, even if there be a technical flaw in it, admit that it falls outside the Act or was made mala fide and yet the State is keeping the petitioner in detention ? Can one reasonably conceive of a case in which,\n\non a Habeas Corpus petition, a bare look at the detention order or on the return made, the Court could hold that the detention/ by a duly authorised officer under a duly authenticated order, stands on the same footing as a detention by a private person? I would not like to consider purely hypothetical, possibly even fantastically imaginary, cases lest we are asked to act, as we have practically been asked to, on the assumption that reality is stranger than fiction, and that be-\n\n(!) f!955l 2 S. C. R. p. 983.\n\ncause, according to the practice of determining validity Qf detention orders by the contents o~ grounds served, a number of detentions were found, in the past, to be vitiated, we should not presume that executive officers will act according to law.\n\nCourts. must presume .that executive authorities are acting in conformity with both the spmt and the substance of the law : \"Omina praesumuntur rite esse acts\", which means that all official acts are presumed to have been rightly and regularly done.\n\nIf the burden to displace that presumption is upon the detenu, he cannot, on a Habeas Corpus petition under Article 226 of the Constitution,, ask the Court to embark upon an ii]quiry, during the Emergency, to allow him to rebut this presumption.\n\nTo do so would, in my opinion, be plainly to countenance a violation of the Constitution.\n\nA great deal of reliance was placed on, behalf of the detenus, on\n\n' .-.\n\nthe principle stated by the Privy Council in Eshuq/Jayi Eleko v. Officer ._ Administering the Government of Nigeria & Anr.(') where Lord Aktin said (at p. 67'0) :\n\n\"Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous.\n\nThe Governor acting under the Ordinance acts solely under executive powers, and in no sense as a Court. As the executive he can only act in. pursuance l:>f the powers given to him by law.\n\nJn accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British sub.iect except on the condition that he can support the legality of his action before a court of justice.\n\nAud it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.\n\nThe analogy of the powers of the English Home Secretary to deport alience was invoked in this case.\n\nThe analogy seems very close. Their Lordships entertain no doubt that under the legislation in question, if the Home Secretary deported a British subject in the belief that he was an alien,, the subject would have the right to question the validity of any detention under such order by proceedings in habeas corpus, and that it would be! the duty of the !Courts to investigate the issue of alien or not\".\" The salutary general principle, enunciated above, is available, no doubt, to citiz.eus of this country as well in normal times.\n\nBut it was certainly not meant to so operate as to make the executive aniwerable for all its actions to the Judicature despite the special pr9visions for preventive detention in an Act intended to safeguard the security of the nation, and, mochless, during an Emergency,, when the right to move Courts for enforcing fundamental rights is itself suspended.\n\nPrinciples applicable when provisions, such as those which the Act contains, aud a suspension of the right to move Courts for fundamental rights, during an Emergency, are operative, were thus.\n\n(!) [1931] A. C. 662 @ 670.\n\n- •\n\n; .\n\n/ •\n\nr •\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 341\n\nindicated, in Liversidge v. Sir John Anderson & Anr.,(1) by Viscount Maughan (at p. 219) :\n\n\"There can plainly be no presumption applicable to a regulation made nuder this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention mnst not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary Qf State\" .\n\nFollowing the ratio decidendi of Rex v. Secretary of State for Home Affairs, Ex parte Lees,(') the learned Law Lord said (at p. 217).\n\n\"As I understand the judgment in the Lees case it negatived the idea that the court had any power to inquire into the grounds for the belief of the Secretary of State (his good faith not being impugned) or to consider whether there were grounds on which he could reasonably arrive at his belief\".\n\nIn Liversidge's case (supra), the Court's power to inquire into the correctness of the belief of the Secretary of State was itself held to be barred merely by the terms of a Regulation made under a statute without even a constitutional suspension of the right to move Conrts such as the one we have before us.\n\nIn Liversidge's case (supra), Lord Wright explained Eshuqbayi Elekos' case (supra), cited before their Lordships,, as follows: (at p. 273) :\n\n\"The other matter for comment is the decision in Eshuqbayi Eleko v. Officer Administering the Government of Nigeria (1931) (A.C. 662), Where the govermnent claimed to exercise certain powers, including deportation, against the apoellant.\n\nThe appellant applied for a writ of habeas coi-pus, on the ground that the ordinance relied on gave by express terms the powers it contained only against one who was a native chief, and who had been deposed, and where there was a native custom requiring him to leave the area, whereas actually not one of these facts was present in the case. It was held in effect that the powers given by the ordinance were limited to a case in which these facts existed.\n\nIt was a question of the extent of the authority given by the ordinance.\n\nThat depended on specific uacts, capable of proof or disproof in a court of law, and unless these facts existed, there was no room for executive discretion.\n\nThis anthority has, in my opinion, no bearing in the present case, as I construe the powers and duties given by the regulation. There are also obvions differences between the ordinary administrative ()_rdinance there in question and an emergency power created to meet the necessities of the war and limited in its operation t9 the period of the war.\n\nThe powers cease with the emergency.\n\nBut that period still continues and, it being assumed that the onus is on the respondents in this action of unlawful imprisonment, the onus (l l [1942] A. C. p. 206 @ 217 & 219 & 273.\n\n(2) [1941) I K. B. 72.\n\nis sufficietly discharged, in my opinion, by the fact of the order havmg been made by a competent authority within the ambit of the powers entrusted to him and being regular on its tiace\".\n\nViscount Maugham, in Greene v. Secretary of State for Home Affairs,(') after refering to a very comprehensive opinion of Wilmot C. J. on the nature of Habeas Corpus proceedings in Common Law, pointed out that a return, good on its face and with no affidavit in support of it, could not be disputed on the application for a writ. .At Common Law, the \"sacred\" character of the return, as Wilmot\n\nC. J. called it, even without a supporting affidavit, could not be touched except by the consent of the parties\", because the whole object of the writ was to enquire into the existence of a legally recognised cause of detention, in a summary fashion, and not into the truth of fac!S\" constituting the cause. By the Habeas Corpus Act of 1816, the powers of Courts were extended so that it became possible to go behind the return in suitable cases othe_r than those where a person was confined for certain excepted matters including criminal charges. In these excepted matters the return was and is still conclusive so that English Courts do not go behind them.\n\nIn Greene's case, (supra), the rule of presumptive correctness of the return was applied to the return made on behalf of the Secretary of State to the extent of treaiing it as practically conclusive.\n\nIt was held that the mere production of the Home Secretary's order, the authenticity and good faith of which were not impugned, constituted a complete answer to an application for a writ of Habeas Corpus and that it was not necessary for the Home Secretary to file an affidavit. It is interesting to note that, in that case, which arose during the Emergency following the war of\n\n1939~ the failure of the Advisory Committee to supply the correct reasons for his detention to the petitioner were not held to be suffic!ent to invalidate his incarceration.\n\nOn the other hand, in this country,, a violation of the obligation to supply grounds of detention has been consistently held to be sufficient to invalidate a detention before the changes in the Act and the Presidential Order of 1975.\n\nBy Section 7 of the Act 39 of 1975, Section 18 was added to the Act with effect from 25th June, 1975. This provision reads:\n\n\"18, No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or c.ommon law, if any\".\n\nJn view of what I have pointed out earlier, this provision was not necessary. It appears to have been added by way of abundant cauj:ion.\n\nBy Section 5 of the amendment Act 14 of 1976 another amendment was marle in Section 18, substituting, for the words \"under this Act\" used in Section 18, the words \"in respect of whom an order is made or purported to have been made nuder Section 3\", retrospectively from 25th day of June, 1975.\n\nThese amendments are covered by Article 359 (lA) of the Constitution,. so that their validity is unassailable during the Erner-\n\n(!) [1942) A. C. 284@ W3.\n\n• '\n\nl -\n\n.. -•\n\n>-• •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, /.) 343\n\ngency on the ground oli violation of any right conferred by Part III of the Constitution.\n\nNevertheless, the validity of Section 18 of the Act, as it stands, was challenged on the ground, as I understand it, that, what is described as \"the basic structure\" of the Constitution was violated because, it was submitted, the Rule of Law, which is a part of the \"basic structure\" was infringed by the amended provisions.\n\nAs I have indicated below, I am unable to subscribe to the view that the theory of basic structure amounts to anything more than a mode of interpreting the Constitution. It caunot imply new tests outside the O:>nstitution or be used to defeat Constitutional provisions.\n\nI am unable to see any force in the attack on the validity of Section 18 of the Acn on this ground .\n\nThe result ot the amendments of the Act, together with: the emergency provisions and the Presidential Order of 27th June, 1975, in my opinion, is clearly that the jurisdiction of High Courts is itself affected and they cannot go beyond looking at the prima facie validity of the return made.\n\nThe production of a duly mithenticated order, purporting to have been made by an officer competent to make it under Section 3 of the Act, is an absolute bar to proceeding further with the hearing of a Habes Corpus petition.\n\n(D) The purpose and meaning of Emergency pravisions, particularly Article 359 of our Constitution.\n\nFrom the inception of our Constitution, it was evident that the framers of it meant to establish a secular democratic system of Government with certain objectives before it without which real democzacy is a mirage.\n\nHence, they provided us not only with an inspiring Preamble to _the Constitution atid basic Fundamental Rights to E citizens, but also with Directive Principles of State Policy so as to indicate how not only a political, but, what is more important, social and economic democracy, with maximum practicable equality of status and opportunity, could be attained.\n\nThey foresaw that it may be necessary, for preserving the system thus set up and for ensuring\n\na rapid enough march towards the objectives placed before the people of India, to give the executive branch of Government wide F powers, in exceptional situations, so that it may deal with all kinds of emergencies effectively, and,, thereby, safeguard the foundations of good Government which lie in discipline and orderliness combined with speedy and substantial justice. The late Prime Minister Jawaharlal Nehru once said : \"You may defiue democracy in a hundred ways, but surely one of its definitions is self-discipline, of the community.\n\nThe more the self-discipline, the less the imposed discipline\".\n\n. Laws and law Courts are only ai part of a system of that imposed discipline which has to take its course when self-discipline fails.\n\nConditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country, or the very conditions on which existence of Jaw and order and of Jaw courts depend, may be imperilled H by forces operating £rom within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals, wherever placed, could not\n\npossibly be diselosed publicly or become matters suitable for inquiry into or discussion in a Court of Law;\n\nIn Liversidge v. Sir John Anderson (supra) the following passages from Rex v. Halliday,(]) were cited b)! Lord Romer to justify principles adopted by four out five of !their Lordships in Liversidges case m their judgments : ( 1) Per Lord Atkins (at p. 271) :\n\n\"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent sacrificed by legal enactment, namely, national success in the war, of escape from national plunder or enslavement'.\n\n(2) Per Lord Finlay, L.C. (at p. 269).\n\n\"It seems obvious that no tribunal for investigating !he question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law\".\n\nAfter citing the two passages quoted above, Lord Romer observed, in Liversidge's case (supra) (at p. 281):\n\n;'I respectfully agree.\n\nI cannot believe that the legislature or the framers of the regulation ever intended to constitnte the courts of this country the ultimate judges of the matters in question\".\n\nIf, as indicated above, the opiuion of the overwhelming majority of the Law Lords of England,, in\"Liversidge's case (supra), following\n\ntlhe principles laid down earlier also in Rex. v. Halliday Ex Parte Zadig's (supra), was that the jurisdiction of Courts is itself ousted by a statutory rule vesting the power of detention on a subjective satisfaction, based possibly on nothing more than a detenu's descent from or relationship or friendship with nationals of a country with which England may be at war, and that the Secretary of State's order indicating that he was satisfied about one of these matters, on hearsay information which could not be divulged in courts, in the interests of\n\nnational safety and security, was enough, I do not think that either our Constitution in contemplating an ouster of jurisdiction of Courts in such cases, or our Parliament, in enacting provisions which have that effect, was going beyond the limits of recognised dell1()Cratic principles as they operate during emergencies.\n\nIn fact, decisions on what restraints should be put and on which persons,, during a national emergency, in the interests of national security, are matters of policy as explained below, which are outside the sphere of judicial determination.\n\nSituations of a kind which could not even be thought of in Eng land are not beyond the range of possibility in Asian and African countries or even in Continental Europe or in America judging from events of our own times.\n\nIndeed, we too have had our fill of grim tragedies, including the assassination of the father of the nation, which\n\n(!) [1917] A. c. 260 @ p. 271, 269.\n\n. ).\n\n,, • •\n\n...\n\n- •\n\n; .\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg: J.) 345\n\ncould rock the whole n:ilion aacl propel it towards the brink of an\n\nWJtathomable abyss and the irreparable disaster which anarchy mvolves.\n\nLet me glance at the Constitutional History of England from where we took the writ of Habeas Corpus.\n\nSir Erskine May wrote (See : Constitutional History of England, B • Chapter XI) :\n\n• •\n\n\"The writ of habeas corpus is unquestionably the first security of civil liberty. It brings to light the cause of every imprisonment, approves its lawfulness, or liberate~ the prinsoner.\n\nIt exacts obedience from the highest courts : Parliament itself submits to its authority.\n\nNo right is more justly valued.\n\nIt protects the subject from unfounded suspicions, from the aggressions of power, and from abuses in the administration of justice. Yet, this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension.\n\nRarely,, however, has this been suffered without jealousy, hesitation, and remonstrance; _and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion.\n\nParliament alone, convinced of the exigency of each occasion, has suspended, for a time, the right of individuals, in the interests of the State .\n\nThe first years after the Revolution were full of danger.\n\nA dethroned king, aided by foreign enemies,. and a powerful body of English adherents, was threatening the new .settlement of the Crown with war and treason.\n\nHence, the liberties of Englishmen, so recently assured, were several times made to yield to the exigencies. of the State.\n\nAgain, on occasions of no less peril-the rebellion of 1715, the Jacobite conspiracy of 1722, and the invasion of the realm by the Pretender in 1745-the Habeas Corpus Act was suspended.\n\nHenceforth, for nearly half a century, the law remained inviolate. During the American War, indeed, it had been necessary to empower the king to secure persons s_uspected of high treason, committed in North America, or Qn the hjgh1 seas, or of the crime of piracy : but it was not until 1794 that the civil liberties of Englishmen at home Were again to be suspended.\n\nThe dangers and alanns of that dark period have already been recounted. Ministers, believing the State to be threatened by traitorous conspiracies, once more sought power to countem1ine treason by powers beyond the law.\n\nRelying upon the report of a secret committee, Mr. Pitt moved for a bill to empower his Majesty to secure and detain persons snspected of conspiring against his person and Government. He justified this measure on the ground that •\n\nwhatever the temporary danger of placing such power ill the hands of the Government,, it was far less than the danger with which the .Constitution and society were threatened.\n\nIf Ministers abused the power entrusted to them, they would be responsible for its abuse. It was vigorously opposed by Mr. Fox, Mr. Grey, Mr. Sheridan, and a small body of adherents.\n\nThey denied the disaffection imputed to the people, ridiculed the revelations of the committee, and declared that no such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom.\n\nThis measure would give Ministers absolute power over every individual in the kingdom.\n\nIt would empower them to arrest, on suspicion, any man whose opinions were abnoxious to them-the advocates of reform,. _even the members of the Parliamentary Opposition.\n\nWho would be safe, when conspiracies were everywhere suspected, and constitutional objects and language believed to be the mere cloak of sedition'! Let every man charged with treason be brought to justice; in the words of Sheridan, 'where there was guilt, let the broad axe fall, but why surrender the liberties of the innocent ?\"\n\n\"The strongest opponents of the measure, while denying its present nec<11sity, admitted that when danger is imminent, the liberty of the subject must be sacrificed to the paramount interests of the State. Ring leaders must be seized, outrages anticipated, plots di6concerted, and the dark haunts of conspiracy filled with distrust and terror.\n\nAnd terrible indeed was the power now entrusted to the executive.\n\nThough termed a suspension of the Habeas Corups Act, it was, in truth, suspension of Magna Charta, and of the cardinal principles of the common law.\n\nEvery man had hitherto been free from imprisonment until charged with crime, by information upon oath, and entitled to a speedy\n\ntria~ and the i udgment of his peers.\n\nBut any subject could now be arrested on suspicion 0£ treasonable practices, without specific charge or proof of guilt, his accusers were unknown; and in wiin might he demand public accusation and trial.\n\nSpies and treacherous accomplices,, however circumstantial in their narratives to Secretaries of State and Jaw officers, shrank from the witness-box; and their victims rotted in gaoL Whatever the judgment, temper, and good faith of the executive, such a power was arbitrary, and could scarcely fail to be abused.\n\nWhatever the danger by which it was justified, never did the subject; so much need the protection of the laws, as when Government and society were filled with suspicions and alarm\".\n\nIt was not until 180 I that the Act was considered \"no longer defensible on grounds of public danger'' and Lord Thurlow announced that he could \"not resist the impulse to deem men innocent until tried and convicted\". It was urged in defence of a Bill indemnifying all those who may have misused or exceeded their powers during the\n\n• - • •\n\n/ ,,/. . -\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 34 7\n\nperiod of suspension of the Habeas Corpus in England that, unless A it was passed, \"these chan_nels of information would be stopped on which Government relied for guarding the public peace\".\n\nHence,, a curtain was drawn to shield all whose acts could have been characterised as abuse or exc; ess of power.\n\nIt is uuuecessary to cite from Dicey or modern writers of British Constitutional Law, such as M/s Wade and Phillips, to show how, in times of emergency, the ordinary functions of Courts, and, in particular, powers of issuing writs of Habeas Copus, have been curtailed.\n\nIn such periods, legislative measures known as \"suspension of the Habeas Corpus Act\", followed by Acts ofl Indemnity, after periods of emergency are over, have been restored to in England.\n\nBut, during the first world war of 1914 and the last world war of 1939, it was not even necessary to suspend the Habeas Corpus Act in England.\n\nThe Courts themselves, on an interpretation of the relevant regulations under the Defence of Realm Act, abstained from judicial interference by denying themselves power to interfere.\n\nIn Halsbury's Laws of England (4th Edn. Vol. 8, para 871, page 624), we find the following statement about the Crown's Common . Law prerogative power in an Emergency :\n\n'The Crown has the same power as a private individual of taking all measures which are absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency\".\n\nAnd, as regards statutory powers of the Crown (See : Emergency Powers Ac.t,, 1920, Sec. I; Emergency Powers Act, J 964, Sec I), we find (see para 983, page 627) :\n\n\"If it appears to Her Majesty. that events of a specified nature have occurred or are about to occur, Her Majesty\n\nmay by proclamation declare that a state of emergency exists.\n\nThese! events are those of such a nature as to be calculated, by interfering with th\" supply and distribution of food, water, fuel or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of. life.\n\nNo proclamation is to be in force for more than one month,, without prejudice to the issue of\n\nanother proclamation at or before the end of that period. xxx xxx xxx xxx\n\nWherEi a proclamation of emergency has been made, and G so llilng as it remains in force, the Crown has power by Order in Council to make regulations for securing the essentials of life -to the Community.\"\n\nIn America also, the suspension of the right to writs of Habeas Corpus, during emergencies, so as to temporarily remove the regn!ar processes of Jaw, is permissible by legislation (See : Cooley's Consti- H tutiona/ Law\", 4th Edn. Chapter 3<1, p. 360), but it is limited by (Article !,, Sec. 9, clause 2) the American Constitution to situations in which there may oo a ebellion or an invasion (See : Willis on\n\n\"Constitutional Law of United States\", 1936 edn. p. 441 and p. 570).\n\nEven more drastic consequences flow from what is known in France as declaration of a \"State of Seige\", and, in other countries, as a \"Suspension of Constitutional Guarantees\".\n\nUnder our Constitution, it will be seen, from an analysis of emergency provisions, that there is no distinction between the fleets of a declaration of Emergency, under Article 352(1), whether the threat to the security of the State is from internal or external sources. Unlike some other countries,, powers of Presidential declarations under Article 352(1) and 359(1) of our Constitution are immune from challenge in Courts even when the Emergency is over.\n\nAnother noticeable feature of our Constitution is that, whereas the consequences given in Article 358, as a result of a Proclamation under Article 352 ( 1), are automatic, Presidential Orders under Article 359 (1) may have differin!!J consequences, from emergency to emergency, depending upon the terms of the Prsidenttal Oders involved. And then, Article 359 (lA), made operallve retrospectlvely by the 38th Constitutional amendment, of 1st August, 1975, makes it clear that both the Legislative and Executive Organs of the State, are freed, for the duration of the Emergency, from the limits imposed by Part III of the Constitution.\n\nIt is unnecessary to refer to the provisions of Articles 356 and 357 except to illustrate the extremely wide character of Emergency powers of the Union Govt. which can, by recourse to these powers, make immune from judical review, suspend the federal features of our Constitution which have, sometimes, been elevated to the basic level. These provisions enable the Union Govt. to supersede both the legislative and executive wings of Government in a State in the event of a failure of Constitutional machinery in that State, and to administer it through any person or body of persons under Presidential directions with powers of the State Legislature \"exercisable by or under the authority of Parliament\". Article 360, applicable only to Proclamations of financial emergencies, with their special consequences, indicates the verv comprehensive character of the Emergency provisions contained in part XVIII of our Constitution.\n\nWe are reallv directly concerned only with Articles 352 and 353 and 358 and 3·59 as they now stand. They are reproduced below :\n\n\"352: (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the terr!tory tereof is threatened, whether by war or external aggression or mternal disturbance, he may by Proclamation make a declaration to that effect. ' '\n\n(2) A Proclamation issued under clause (1 )-\n\n(a) may be revoked by a subsequent Proclamation:\n\n(b) shall be laid before each House of Parliament-' ( c) shall cease to operate at the expiration of two onths\n\nunless before the expiration of that period it has beei: approved by resolution of both Houses of Parliament:\n\n, •\n\n' '\n\n,..\n\n• •\n\n• •\n\n\" •\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 349\n\nProvided that if any such Proclamation is issued at a time when the House of the People has been dissolved or he dissolution of the House of the People takes place dunng the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the Hou.se of the People.\n\n( 3) A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof.\n\n( 4) The power conferred on the President by this Article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance; whether or not there is a Proclamation already issued by the President under clause (I) and such Proclamation is in operation.\n\n(5) Notwithstanding anything in this Constitution,-\n\n(a) the satisfaction of the President mentioned in clattse\n\n(I) and clause ( 3) shall be final and conclusive and shall not be questioned in any court on any ground;\n\n(b) subject to the provisions of clause (2), neither the\n\nSupreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of-\n\n(i) a declaration made by Proclamation by the President to the effect stated in clause (I); or\n\n(ii) the continued operation of such Proclamation\" .\n\n\"353.\n\nWhile a Proclamation of Emergency is in operation, then-\n\n( a} notwithstanding aything in this Constitution, the\n\neecu!1ve power of the Umon shall extend to the giving of drrections to any State as to the manner in which the executive power thereof is to be exercised;\n\n(b) the power f Parliament to make laws with respect to any matter shall mclude power to make laws conferring\n\npowers and imposing duties, or authorising the confering of powers and the imp?sition of duties, upon the Uruon or officers and authonoes of the Umon as respects that matter, notwithstanding that it is one which is not enumerated in the Union List.\"\n\n\"358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restri.ct the power of the State_ as defined jn Part III to make any law or to take any executtve action which the State would but for the provisions contained in that part be competent to make or to take, but any law so made shall, fo the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or_ omitted to be done before the law so ceases to have effect\".·\n\n\"359 ( 1) Where a Proclamation of Emergency is in operation the President may by order declare that the right to move ny court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period dnring which the Proclamation is in force or for such shorter period as may be specified in the order.\n\n( lA) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in th~ said Part to make any law or to take any executive action which the State would but for the prnvisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.\n\n(2) An order made as aforesaid may extend to the whole or any part of the territory of India.\n\n( 3) Every order made under clause (1 ) shall, as soon as may be after it is made, be laid before each House of Parliament\".\n\nBefore dealing with relevant authorities on the meaning and effects of Article 358 and 359 of the Coru; titution, I will indicate the special features and context of the Presidential Order of 27th June 1975 as compared with the Presidential Order of 3rd November, 1962, whlch was the subject matter of earlie~ pronomicement of this Court on which considerable reliance has been placed on behalf of the detenus. In\n\nf~t, the next tw<;> _topics are so connected with the Emergency provisions that there 1s bound to be a good deal of overlapping between what I have, for the sake of convenience only, tried to discuss under\n\n.thr~ eads .. Different heads or names are not infrequently used only Ito md1cate different aspects of what is really one connecfed subject\n\n- '\n\n• • t . '\n\n• •\n\n' •\n\n• • - • ,_ ' •\n\n~ • • -\n\n• •\n\n-', ..: -\n\n'< •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 351\n\ntter. Perhaps the last and concluding topic is wide enough to cover the scope of the whole discussion.\n\nE. The effect of the Presidential Orders and particularly the order Of 27th June, 1975, on the rights of detenus.\n\nThe Presidential Order of 3rd November 1962 was issued after the proclamtaion of Emer.gency under Article 352 ( 1) on 26th October, B\n\n1962. That proc)amation said : ·\n\n\" ........ a grave emergency exists whereby the security \">f India is threatened by exern!!J aggression\" .\n\nOn the other hand, the Presidential Order of 27th June, 1975, with which we are concerned here was issued under a proclamation which declares \"that a grave l!lergency exists whereby the security of India is threatened by internal disturbances\".\n\nThere was also a Presidential proclamation of 3rd December, 1971, repealing the terms of the proelamation of 26th October, 1962, as under:\n\n\"In exercise of the powers conferred by clause ( 1) of D article 352 of the Constitution, I, V. V. Giri, President of\n\nIndia, by this Procl_amation declare that a grave emergency exists whereby the security of India is threatened by external aggression\" .\n\nThe Presidential Ord.er of 3r<] November, 1962, reads as follows :\n\n\"In exercise of the powers conferred by clause ( 1 ) of article 359 of the Constitution, the President hereby declares\n\nfuat the right of any person to move any court for the en-· forcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period Wring which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force, if such rson has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder\".\n\nThe Presidential Order of 27th June, 1975, runs as follows :\n\n. \"In exercise of the powers conferred by clause (1) of G article 35?. of the Constitution1 th~ resident hereby declares\n\nthat the nght of any person (mcludmg a foreigner) to move any Court fo~ the enforceent of the rights conferred by article 14, article 21 and article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for the period during which the Proc!amtions of Emergency made under H clause (1) of article 352. of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 al'e both in force.\n\n(2) This Order shall extend to the whole of the territory of India except the State of J ammn and Kashmir. ' ( 3) This Order shall be in addition to and not in derogation of any order made before the date of this Order under clause (!) of article 359 of the Constitution\".\n\nB The striking differences in the terms of the two Presidential Or<iers • set out above are : I\n\n(1) The Presidential Order of 1962 did not specify Article 14 of the Constitution, but Article 14, guaranteeing equality before the law land equal protection of laws to all persons in India, is mentioned in • < the 1975 order. To my mind, this does make some difference between the intentions behind and effects ofthe two Presidential Orders. c\n\n(2) The Presidential Order of 1962 expressly hedges the suspension of the specified fundamental rights with the condition, with regar!I to deprivations covered by articles 21 and 22 of the Constitution that, - \"if such person is deprived of such right under the Defence of India, Act, 1962, or any rules or order made thereunder\". In other words, on the terms of the 1962 Presidential Order, the Courts were under a D duty to see whether a deprivation satisfies these conditions or not. They could adjudicate upon the question whetlier a detention was under the Act or a rule made thereunder. On the other hand, the Presidential Order of 1975 unconditionally suspends the enforcement of the rights • conferred upon \"any person including a foreigner\" to move any Court for the enforcement of the rights conferred by Articles 14, 21. and 22 f of the Constitution.\n\nThe Courts are, therefore, no longer obliged or • E able to test the validity of a deten.tion by examining whether they conform to statutory requirements. They will have to be content with compliance shewn with forms of the law. •\n\n(3) Presidential Order of 1962 makes no mention of pending proii ceedings, but the 1975 order suspends all pending proceedings for the ' enforcement of the rights mentioned therein. This further clarifies and F emphasizes that the intention behind the Presidential Order of 1975 was to . actually affect the jurisdiction of Courts in which proceeiiings were actually pending. The inference from this feature also is that all • similar proceedings in future will, similarly, be affected. ,_\n\ni The result is that I think that there can be no doubt whatsoever ..\n\nG that the Presidential Order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result, so that the jurisdiction of Courts under Article 226, in this particular type of cases,\n\nis itself affected for the duration of the emergency. seems clear enough from the provisions of Section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on 25th January, 1976, making Section 16A(9) operative retrospectively from 25th June,\n\n1975.\n\n...\n\n~ li\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 35 3\n\nThe question before us is : Wha\\ is the inte°:tion behind the Prsi dential Order of 27th June, 1975? After ass1gnmg a correct meamng to it we have to determine whether what was meant to be done lay witbln the scope of powers vested by Article 359 of the Constitution in the President. There is no doubt in my mind that the object of the Presidential Order of 27th June, 1975, by suspending the enforcement of the specified rights, was to affect the powers of Courts to afford relief to those the enforcement of whose rights was suspended. A I have already indicated, this was within the purview of Article 359 (1) of the Constitution. Hence, the objection that the powers of the Court under Article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if tbat jurisdiction cannot be itself suspended for all types of cases. It is enough if the ambit of the power to suspend under Article 359(1) is such as to make exercise of the jurisdiction to protect guaranteed fundamental rights not reasonably possible .\n\nSection 16A(9) also appears to me, as held by My lord tbe Chief Justice, to make it impossible for Courts to investigate questions relating to the existence or. absence of bona {ides at least in proceedings under Article 226 of the Constituion. It is clear that the validity of D Section 16A(9) cannot be challenged on the ground of any violation of Part III of the Constitution in view of the provisions of Article\n\n359(1A).\n\nNo previous decision of Ibis Court deals with a situation which results from the combined effect of a Presidential Order couched in the language of tbe Order of 27tb June 1975, and a statutory provision, such as Section 16A(9) of tbe Act, the validity of which cannot be challenged. Hence, strictly speaking, earlier decisions are not applicable. I will, hqwever, consider them under the next heading as considerable argument has Jaken place before us on the assumption that these cases do apply to such a situation.\n\n(F) The Rule of Law as found in our Constitution, and how it operates during the Emergency.\n\nAs I have indicated earlier in Ibis judgment, tbe term Rule of Law is not a magic wand which can be waved to dispel every difficulty. It is ot a~ A ladin' s Lamp w!Jich can be scratched to invoke a power which brmgs to any person m need whatever he; or she may desire to have. It can only mean, for lawyers with their feet firmly planted in the realm of reality, what the law in a particular State or country is G and what it enjoins. That law in England is the law made by Parliament. That is why Sir Ivor Jennings said (See : Law and the Constitution-III Edn.) that \"in England supremacy of Parliament is tbe Constitution\". Aud naturally, the Constitution of a country and not something outside it contains the Rule of Law of that country. This means that te Rule ?f Law must differ in shades of meaning and emphasis fr?m time o time and. country to country. It could not be rigid, H uncangmg, and 1mmutable like the' proverbial laws of the Medes and Persians. Nevertheless, one has to understand clearly what it means 25-833 Sup C I/76\n\nA in a particular context. It cannot be like some brooding omnipotence in the skies. Its meaning cannot be what anyone wants to make 1t. It has to be, for each particular situation, indicated by the Courts which are there to tell the people what it ljleans.\n\nThis Court has, in no unmistakable terms, indicated what the Constitution means and how the Rule of Law embedded in it works even during Emergencies.\n\nA statement of the Rule of Law by Jackson, J ., in Youngstown Sheet & Tube Co. V. Sawyer( 1), quoted with approval by this Court, in Chief Settlement Commissioner, Rehabilitation Department Punjab & Ors. etc. v. Om Parkash & Ors.(\") etc. (at page 661):\n\n\"With all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive b~ under the law, and that the law be made by Parliamentary deliberations\".\n\nIt was explained there :\n\nIn our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality.\n\nThe administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court. The rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control of law. Such a notion is forei11:n to our basic constitutional concept\".\n\nThis statement, no doubt, includes the concept of determination by Courts of the question whether an impugned executive action is within the bounds of law.\n\nHowever, it p, resupposes : firstly, the existence of a fixed or identificable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power tl' 'act; and. secondly, the power of the Courts to test that action by reference to the Rule, Even, in Emergencies, provided the power of the Court to so test the legality of some executive act is not curtailed, Courts will apply the test of legality \"if the person aggrieved brings the action in the competent Court\". But, if the locus standi of the person to move the Court is gone and the competence of the Court to enquire into the grievance is also impaired by inability to peruse the grounds of executive action or their relationship with the power to act, it is no use appealing to this particular concept of the Rule of law set out above.\n\nIt is just inapp!icaj:Jle to the situation which arises here. Such. a situation is governed by the Emergency provisions of the Constitntinn These provisions contain the Rule of Law for such situations in our country.\n\n(I) 343 U. S.,579, 655.\n\n(2) [1968] 3 S. C. R 655 @ 661.\n\n• •\n\n• -\n\n• -\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, /.) 355\n\nIn Mohd. Yaqub etc. v. the $late of l(lmmu & Kashmir('), a seven Judge bench of this court pointed out that, whereas Article 358, by its own force, suspends the guarantees of Article 19, Article 359(1) hasthe effect of suspending the opera1ion of specified fundamental rights (strictly speaking it is enforcement only which is suspended) so that these concepts cannot be used to test the legality of executive action.\n\nNow, much of what Dicey meant by the Rule of Law was certainly sought to be embodied in Part III of our Constituion. If, however, tl1e appJication of Articles 14, 19, 21 and 22 of the Constitution is suspended, it is impossible to say that there is a Rule of Law found there which is available for the Courts to apply during the emergency to test' the legality of executive action.\n\nMakhan Singh v. State of Punjab( 2 ), a seven Judge decision of this Court was sought to .be made a foothold for several arguments on behalf of the detenus. Jt, however, S(:ems to me to have laid down more propositions which demolish various contentions advanced on behalf of t11e detenus than those which could assist them. One main question considered' in that case was whether Section 491 ( 1) (b) of the Code of Criminal Procedure could afford a statutory remedy, by an order or direction in the nature of a writ of Habeas Corpus, <it a time when enforcement of the fundamental right to personal liberty was suspended by the Presidential Order of 1962 already set out above. The suggestion that a Common Law remedy by way of writ of Habeas Corpus exists, even after Section 491 was introduced in the Criminal Procedure Code in 1923, was negatived. The sweep of Article 359(1) of the Constituion, taking in the jurisdiction of \"any Court\", was !1eld wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified fundamental right.\n\nInter alia, it was held (at p. 821-822) :\n\n\"If Art. 359 (I) and the Presidential Order issued under it govern the proceedings taken under s. 491 (I )(b), the fact that the court can act s_uo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him iu his petition, the Court cannot, purporting to act suo motu, pass any order inconsistent with the provisions of A:rt.. 359 ( p and the Presidential Order issued under it.\n\nS1milarly, if the proceedings under s. 491 (I) (b) are hit by Art. 359 ( 1) and the Presidential Order, the arguments based on the provisions of Art. 372 as well as Arts. 225 and 37'i have no validi!Y The obvious and the necessary implicatio~\n\nof the susenSio;11 of th~ right of the citizen to move any court for nf_orm~ his specified fundamental rights is to suspend the 1unsd1ction of the Court pro tai1to in that behalf\". .\n\nThis is exactly the interpretation which I have adopted above of Sree Mohan Chowdhury's case (supra).\n\n(i)[J91i8f2S,\" C. R. p. 227 @ 234.\n\n(2) f19641 4 S. C. R. 797 (a) 821-822.\n\nA It was also held in Makhan Singh's case (supra) that, as no attack on the validity of the Defence of India Act of 1962 and the Rules framed thereunder, on the ground of violation of fundamental rights, was open during the emergency, no petition was maintainable on the ground of such alleged invalidity. It was held (at p. 825-826) there :\n\n\"Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respec; tive High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene Arts. 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order and all citizens are precluded from moving any Court for the enforcement of the said specified rights\".\n\nAfter having decided the questions actually calling for determination in that case, Gajendragadkar, J., speaking for the maiority, expressed some views on the possible pleas which may still be open to petitioners in hypothetical cases despite the Presidential Order of 1962, set out above, passed under Article 359(1). He said (at page 828):\n\n\"If in challenging the validity of his detention order, the detenn is pleading any right outside' the rights specified in the order, his right tq_ ll_love any court in that behalf is not suspended, because it is outside Art. 359 (1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the nianda tory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Art. 359(1) and the right of the detenu to move _for his release on such a ground cannot be affected by the Presidential Order.\"\n\nAgain, it was observed (at page 828-829) :\n\n\"Take also a: case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide. It i~ hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged.\n\nIt is true that 1a mere allegation that the detention or malafide would not be enough, the detenu will have to prove the malafides. But in the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359(1) and the Presidential Order.\n\nThat is anothr kind of plea. which is outside the purview of Art. 359 (1) \".\n\nThe two passages set out above, stating what may be the position in purely hypothetical cases, are the mainstrays of some of the argu-\n\n• •\n\nADDL. DIST. MAGISTRATE v. S. S. SHUKLA (Beg, /.) 357\n\nments for the petitioners. But, none of the Counsel for the petition- A ers has stated how these observations, are applicable to facts of the case of the particular petitioner for whom he appears.\n\nAssuming, however, that the hypothetical cases inilicate good grounds on which a Habeas Corpus petition could be allowed even in an Emergency, it was certainly not decided in Makhan Singh's case (supra) what the process could be for ascertaining that one of these grounds exist. lf • that process involves a consideration of evide:nce in support of a plea, B '\n\nsuch as that of mala fides, in proceedings under Article 226,, the most important evidence would be grounds of detention.\n\nThese unds constituted the lever which could have been and was used in past . ' by Courts to reach decisions on various pleas, such as the plea that , the order was not passed after due application of mind to the facts of the detenu's case or that the' satisfaction reached was not with regard to legally relevant grounds at all. No such means are available c now.\n\nThis difficulty was certainly not in the way at the time of the decision in Makhan Singh's case (supra). - I am, therefore, of the opinion that pleas which involve any adduction of evidence would, at any rate, be entirely excluded by the combined effect of the terms of the Presidential Order of 27th June, 1975, read with the amended provisions of Section 16A(9) of the Act. A D perusal of S. Pratap Singh v. State of Punjab,(') will show the kind of evidence which often becomes necessary to justify a plea of \"malice in fact\".\n\nPleas about vires of the detention order itself (e.g. whether it is based on irrelevant grounds or was not passed after due applica- • ti on of mind) often require investigation of questions of fact involving scrutiny 0£ actual grounds of detention which is hit by the embargo against an assertion of a right to move for enforcement of the right F. to personaflreedom and prohibition against disclosure of grounds.\n\nSo long as the executive authorities of the State purport to act under the Act, their preliminary objection against further hearing will prevail\n\nnnfoss, of course, the officer purporting to detain had, in fact, not been invested at all with any authority to act in which case the detenlion would, in my opinion, be on the same :rooting as one by a private person who has no legal authority whatsoever to detain. But, such F ... a defect has to be apparent either on the face of the order or admitted in the return. Moreover, it can be cured by an adoption of the order ' by the State. • Detentions which not only do not but c:ould not possibly have ally apparent, ostensible,. or purported executive authority of the State what- I soever to back them, could be equated with those by private persons.\n\nThe suspension of enforcement of specified fundamental rights operates G only to protect infringements of rights by , the State and its authorised agents, acting or purporting to act, in official capacities which they could and do hold.\n\nA claim to an order of release from such a patell'lly illegal detention, which is not by the State or on its behalf, could be enforced even during the current Emergency. But there is no such case before us.\n\nAll the cases before us are, as far, as I know.\n\nH of detentions by duly empowered official under, prima facie, good orders.\n\nThe possibility, however, of so unlikely a hypothetical case\n\n(I) (1964] 4 S. C. R. 733.\n\nwhere there is a lack of legal power to act, which could be easily removed by the executive authorities of the State concerned '.hemse; ves, whenever they desire to do so, is only mentioned to illustrate my view that the test of legality, applied by Courts, is not entirely abrogated and abandoned in the current emergency.\n\nBut, it can be Only one which should be applicable without going into facts lying behind the return.\n\nThe presumption of validity 0£ a duly authen'.icated ordor of an officer authorised/ to pass it is conclµsive in Habeas Corpus proceedings during the current Emergency.\n\nState of Madhya Pradesh & Anr. v. Thakur Bharat Singh,( 1) was anether decision of the Constitution Bench of this Court relied upon s:rongly on behalf of detenus.\n\nIn that case, an order prohibiting a petitioner from residing in a specified area under Section 3 (l )(b) of the Madhya Pradesh Public Security Act, 1959, which was found to be void, because the provision infringed Article 19 of the Constitution, was held to be challengeable during an Emergency despite the provisions of Art. 358 of the Constitution.\n\nThe ground of the decision was thl)t, although, the empowering provision could not have been challen!led if it was contained in an enactment made during the emergency, yet, i as the provision was made by an Act passed at a time when Article 19 was operative,, the invalidity of the provision could be demonstrated despite the existence of the emergency.\n\nI do not think that there is any such case before us. It seems to me to be possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality,\n\nwhich is not suspended, could be affirmed even apart from enforcement of a specified fundamental right.\n\nI think it was placed on such a footing by Shah J., speaking for this Court.\n\nState of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr.,( 2) another decision of the Constitution Bench of this Court, was also cited.\n\nThere, an illegal order prohibiting the sending out of jail by a detenu of a book on\" matters of scientific interest only, for publication, was quashed by a High Court, under Article 226 of the Constitution,, despite the Presidential order under Article 359 of the Constitution, on the ground that there was no condition at all in the Bombay Conditions of Detention Order, 1951, authorising the Government of Maharashtra to prohibit the publication of a book of purely scientific interest just because the petitioner happened to be detained under , the Defence of India Rules, 1962.\n\nThe High Court's view was affirmed by this Court.\n\nThis case 11as nothing to do with preventive detention.\n\nIt is a case in which this Court held that an ultra vires order could be set aside.\n\nThis could be done under the residuary jurisdiction of the High Court, which could operate for \"any other purpose\". The mere existence of the emergency could not, it was held, suspend this power.\n\nThe test applied was of bare illegality outside Article 19 of the Constitution.\n\n(I) f!967J 2 S. C. R. 454.\n\n(2) 119661 Suop. S. C R. 702.\n\n• ,\n\n•. -\n\n. '\n\n...\n\nADDL. DIST. MAGISTRATE v. 5. 5. SHUKLA (Beg, J.) 35 9\n\n.. , In Dr. Ram Manohar Lohia v. State of Bihar & Ors.,(') this Court did, in a petition under Article 32 of the Constitution apply the test of a satisfaction required on relevant grounds, by Rule 30, subrule 1, Defence of India Rules, 1962, as a condition precedent to detention, because the grounds of detention were mentioned in the detention order itself so that they coajd be used to determine whether the detention order fell within the purposes of the Act. The writ petition was allowed. The alleged: satisfaction of the District Magistrate, who was the detaining authority, was found, on the ground given for detention, to fall outside Rtile 30. It was held that the Presidential Order under Article 359 was not intended to condone violations of the Defence of India Act or the rules made thereunder and did not authorise ultra vires or mala fide detentions. It was pointed out here that\n\nsatisfaction about the need to detain in the interests ofl \"law and order\" was not the same thing as one in tht~ interests of \"public order''. In this case, a well-known distinction between \"public order\" and \"law and order\", was drawn by Hidayatullah, J., in the following terms :\n\n\"It will thus appear tha~ just as \"public order\" in the rulings of the Court (earlier cited) was said to comprehend disorders of Jess gravity than those affecting \"security of State'', \"law and order\" also comprehends disorders of less gravity than those affecting \"public order\". One has to imagine three concentric circles. Law and order represents the larges~ circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that arr, act may affect law and order but not public order just as an act may affect public order but not security of the State.\n\nBy using the exnression \"maintenance of law and order\" the Di.strict Magistr-ate was widening his own field of action and was adding a clause to the Defence of India Rules\".\n\nI take the decision of. this Court in Dr. Lohia's case to mean tha', if the order, on the face of it,, is bad and does not satisfy the requirements of the law authorising detention, the detenu may be released.\n\nF ..\n\nSarkar, J., pointed out there:\n\n• •\n\n\"The satisfactiGn of the Government which jnstifies the order under the rule is a subjective satisfaction.\n\nA court cannot enquire whether grounds existed which would have createdithat satisfaction on which alone !he order could have been made in the mind of a reasonable person. If that is so-and that indeed is what the respondent State contends-- it seems to me that when an ord(ft is on the face of it not in terms of the rule, a court cannot equally enter into an investigation whether the order of detention was iii. fact, that is to say, irrespective of what is stated in it, in terms of the rule.\n\nIn other words, in sucli a case the State cannot be heard ta say or prove that the order was in fact made,, for example, to prevent acts prejudicial to public order which would •\n\n(!) [19661 I S. C. R. 709.\n\nSUPREME COURT REPORTS [1976] SUPPLEMl!NTARY\n\nbring it within the rule though the order does not say so.\n\nTo allow that to be done would be to uphold a detention without a proper order\".\n\nThe case was also decided on a consideration of evidence on the ground that there was an area of enquiry opened up by the grounds given for entry by the Court.\n\nI do not know how any decision could have been given in Dr. Lohia's case if grounds of detention were not found to be bad on the very face of the order stating those grounds, or, if there was no door left open for judicial scrutiny due to a provision such as Section 16A(~) of the Act before us.\n\nThus, the Jaw considered and applied in Dr. Lohia'3 case was different from the law we have to apply under a different set of circumstances as explained above.\n\nIn K. Anandan Nambiar & Anr. v. Chief Secretary, Government of Madras & Ors.,(1 ) a writ petition under Article 32 of the Constitution by a Member of Parliament during the currency of an emergency and a Presidential Order, was dismissed although his locus standi to maintain the petition was affirmed on the following ground :\n\n\"The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed, is invalid on grounds other than those based on Arts. 14, 19, 21 and 22,, and if that plea is well-founded, the last clause of the Presidential Order is not satisfied and the bar created by it suspending the citizens' fundamental rights under Articles 14, 21 and 22 cannot be pressed into service\".\n\nApparently, the view adopted in Nambiar's case (supra) was that to question the validity of the provision under which the detention order is made could not be equated with an allegation of infringement of procedure established by Jaw.\n\nMoreover, this decision was also in a different context with a different set ofi applicable provisions.\n\nNone of the cases before us involves the assertion that the power under which the detention order purports to be made itself dia not exist in the eye of law.\n\nIn Durga Dass Shirali v. Union of India & . Ors.,(') a Habeas Corpus petition against a detention order under Rule 30 of the Defence of India Rules, 1962, was again dismissed.\n\nBut, it was held that Article 358 and the Presidential Order under Article 359 ( 1) did not debar the petitioner from assailing his detention on the ground of rnala fides or on the ground that any of the ground<I mentioned in the order of detention is irrelevant.\n\nThis case is also distinguishable on the ground that the context,, from the point of view of the applicable Jaw, was different.\n\nIn J ai Lal v. State of West Bengal, (3) this Court, after taking evidence by affidavits into account and considering the pleas of mala fides, rejected the petitioner's case although the petitioner was held,\n\non the strength of earlier decisions of this Court, entitled to raise the\n\n(I) [1966] 2 S .• C. R. 406.\n\n(2) [1966) 2 s. c. R. 573. •\n\n(3) f19661 Supply. s. o. R. p. 4, 64.\n\n' '\n\n; '\n\n• • ;\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 361\n\npleas of mala fides despite the Proclamation of emergency and the A Presidential order.\n\nAgain, the context and the applicable Jaw there were different.\n\nWe, however, see that, despite the Proclamation of emergency and a Presidential Order under Article 359 (1), this Court has held that High eourts, in exercise of their supervisory jurisdiction, could entertain Habeas Corpus petitions and enforce the principle of legality B. against the detaining authorities.\n\nNo doubt, the executive and the legislative organs of the State were fully aware of the nature and effect of the decisigns of this Court. It is, therefore,. not surprising that, by means of a differently phrased Presidential Order of 17th June. 1975, and the amendment in the Act, introducing rather drastic provisions of Section 16A of the Act, .th1: intention has been made clear that preventive detention should be a matter controlled exclusively by C\" the executive departments of the State.\n\nIt was contended by Mr. Tark:unde that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers.\n\nIt is very difficult for me to see the bearing of any such doctrine on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few D doubts unresolved.\n\nHowever, as arguments based on this doctrine were advanced, I will deal with the manner in which, I think, laws relating to preventive detention fit in with the extent to which our constitution recognises the doctrine.\n\nIn Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab,(') Mukherjea, C.J., speaking for this Court, said :\n\n\"The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts of branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate ; issumptions, by one organ or part of the State, of functions that essentially belong to another.\n\nThe executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature\" .\n\nHe further added :\n\n\"Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the' primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the c_oniidence of the legislative branch of the State\".\n\nG '\n\nIf an order of preventive detention is not quasi-judicial, as it H cannot be because of the impossibility of applying any objective\n\n(I) A. J. R 1955 S. C. 549.\n\nA standards to !he need for ; r ini a particular case, there could be no question of violating any principle of separation of powers by placirig preventive detention exclusively within the control of executive authorities of the State for the dnraliM, of Jhe Emergenc¥.\n\nThat seems to me to be the effect or the emergency provisions of the Constitution and the amendments of the Act already dealt with by me.\n\nB Commenting upon Liversidge's case (supra) in \"The Law Quarterly Review\" (1942) (Vol. 58-p. 2),, the celebrated jurist and authOrity on English Constitutional history and law, Sir William Holdsworth, supporting majority decision there, opined :\n\n\"The question turns not, as Lord Atkin says upon whether the common law or the statnte Jaw has postulated a 'reasonable' cause for a decision or an action, but upon the question whether or not the deciswn or the action to be taken on a reasonable cause raises a justiciable issue.\n\nClearly the .question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justiciable,, but a political. or administrative issue\".\n\nHe added:\n\n\"On principle this dis.!inction seems to me to be clearly right. If the issue is justiciable, if, that is, it raises an issue within the legal competence of the Court to try, the Court can decide on the facts proved before it whether a cause or a suspicion is reasonable, for it 1cnows the law as to what amounts in the circumstances to a cause or a suspicion which is reasonable.\n\nIf, on the other hand, the issue is not justiciable, if, that is, it tnrns, not on a knowledge of the law as to what amounts in the circumstances to a reasonable cause or suspicion, but on political or administrative considerations, it can have no knowledge of the weight to be attached to facts adduced, to prove the reasonableness or unreasonableness of the cause or suspicion ...... for it has neither the knowledge nor the means of acquiring the knowledge necessary to adjudicate upon the weight to be attached to any evidence which might be given as to the existence of circumstances 'of suspicion or as to the reasonableness of belief.\n\nSince, therefore, it is impossible to apply an objective standard through th_e agency of the Courts, the only possible standard to be applied-is, the subjective standard, so that the Secretary of State's statement that he had a reasonable cause for his belief must be conclusive\".\n\nIf the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that what lies in the executive field, as indicated .above,, should not be subjected to judicial scrutiny H or judged by judicial standards of correctness, I am unable to see how the Courts can arrogate unto themselves a power of judicial superintendence which-they do not, under the law during the emergency, possess.\n\n, . -\n\n• '\n\n• • • • •\n\n.. •\n\n' •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 363 ·\n\nDean Roscoe Pound, in the Green Foundation Lectures on \"Justice A According to Law\" (Yale University Press, 1951) begins his answer to the question as to what justice is by a reference to the jesting Pilate, who would not stay for the answer because he knew that philosophers disagreed so much, in their answers, that there could be no completely satisfactory answer.\n\nHe divides justice itse!I into three heads, according to the three types of bodies or authorities which could administer it, and discusses the advantages and disadvantages of each : B Legislative, Executive, Judicial. He rejects \"Legislative Justice\", said to be most responsive to popular will, as too \"uncertain, unequal, and capricious\". He said that its history, even in modern times; was filled with \"legislative lynchings\", and that this kind of justice was too susceptible to \"the influence of personal solicitation, lobbying, and even corruption\", and .. subject to guests of passion, prejudice, and partisanship .. He thought that executive or administrative justice, C which becomes inevitable in arrying out vast. schemes of . modern socialis.tic control and planning of economic, social, and cultural life of the people by the .State was also, despite its own mechanisms of control against misuse of power, fraugh.t. with serious dangers indicated by him. Finally, Dean Pound finds . judicial justice, though not entirely immune from error-and, sometimes, grievous and costly error-to be superior to the other two types of justiCe despite its own D inherent shortcomings as compared with executive or administrative justice for special types of cases. ·\n\nNow, the question before> us is not whether Courts should apply the high standards of \"judicial justice\" to the facts of each individual case which are not before us for consideration at all .. , The question before us is purely one of the interpretation of laws as we find them. If, E on a correct interpretation of the legal provisions, we find that the jurisdiction of Courts was itself meant to be ousted, for the duration of the emergency, to scrutinise the facts or reasons behind detention orders purporting tQ' have been made under the Act,, because the juilicial process suffers from inherent limitations in dealing with cases of this type, we are bound, by the canons of \"jndicial justice\" itself, to dxlare that this is what the laws mean; · .\n\n It appears to me that it does not follow from a removal of the normal judicial superintendence, even . over questions of vires, of detention orders, which may require going into facts behind the returns, that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any anthority except when, on the face of the return itself, it is demonstrate in a Court of Law that the. detention does not even purport to be in exercise G of the execntive power or anthority or is patently outside the Jaw authorising detention. It seems to me that the intention behind emergency provisions and of the Act is that,. although such executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should bet.honestly snpervised and controlled by the hierarchy of executive anthorities themselves. . It enhances the powers and, therefore, the responsibilities of the Executive.\n\nA maxim of jnstice is sometiffies said to be : \"Let the heavens fall but justice must be done\". As applied to judicial justice, it means\n\nthat justice mus~ accord with the highest standards of _objective, impartial, unruffled dictates of a clear judicial conscience working \"without fear or favour, alfection or ill-will\".\n\nII( does not mean that the object of \"judicial justice\" is either to make \"the heavens fall\" or that it _should oo oblivious to consequences of judicial verdicts on the fate\n\nof the nation.\n\nIt fully recognises the legal validity of the principle adopted by .the English House of Lords i~ both Sadiq's case {supra) and Liversidge's case {supra) : \"Salus Popu/i Est Supreme Lex\" (regard for the public welfare is the highesa law). This is the very first maxim given Broom's Legal Maxim under the first -head : \"Rules founded on public policy\" (See Broom's \"Legal Maxims\" p. I).\n\nIt is not my object to animadvert here at length on any weaknesses in our legal or judicial system.\n\nI would, however, like to point ou'. that judicial justice can only be \"justice according to law\". It tenJs more often to accord with legal justke than moral justice. Not only are the fact finding powers of Courts limited by rules of evidence and procedure, but the process of fact finding and adjudication can miss their objects due to the buying power of money over venel witnesses and the_ capacity of the wealthy to secure the best forensic talents in the country even if we do' not take mici accoui1t. the liabiliiy. of judges, like thel rest of human beings, to err. Ends of justice can_ be frustrated by all kinds of abuses of the processes of Courts.\n\nThe machinery of executive justice, th9ugh nothide-bound by technical rules of evidence and procedure, can' also' be and often is inordinately dilatory. Its wheels can. be clogged by red-tape and by corrupt clerical underlings if their_ pahns are nof greased by honest citizens.\n\nEven those in the upper echelons of the bureaucracy carr be sometimes hopelessly unable to see the, tme.objeets, of 'an administrative scheme or of the policy embOdied in a statute. They tend to be more anxious to 'please their superiors than to _do justi_ce so that matters in which executive heads may not get interested are liable to be neglected for years and. even forgotten, whereas others,- in which they are interested, received speedy attention. -They_ are not even aided by lawyers who, whatever else may be said about them, have undoubtedly imagination, courage, independence, and devotion to their client's interests. In any' case, executive justic(l lacks the appearance of detachment. Justiciable disputes between the State.and the citizen, on principles of natural 'justice, require independent -authorities for their resolution. It is for this reason that Article 226 of-. the COnstitution places administrative action and inction, even. at the highest levels, under judicial superintendence, when it impinges on rights of persons, although this may have given_ rise _to problems of its own either due to misuse by litigants of the powers of Hig,'i Courts under Article 226 of the Constitution or want of clarify in the drafting of our statutes or the difficulties experienced by the executive officers. of Government in understanding the .laws or the manner in _which .their own duties are to be carried out. ·\n\nConsiderations, such as those mentioned above, arising out of alleged carelessness with which, according to the learned Cou))\".el fo; the detenus, detentions . are sometimes ordered, were' placed liefore us so\n\n, . \\\n\n' •\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, J.) 365\n\n1hat we may not deny powers of rectification of apparent errors of A detaining officers to High Courts. It was stated by one learned Counsel that a. detention order was once issued against a person who was dead.\n\nObviously, no detention order could be executed against a dead person .and no writ petition could be moved on behalf of such a person.\n\nI have, however, no doubt, that the machinery of the preventive detention is not so defective as to prevent executive authorities at the highest ievels from doing justice in appropriate ases where real injustice due B to misrepresentations or mis-apprehensions of fact is brought to their notice.\n\nNot only are the highest executive authorities, under whose supervision the administration of preventive detention laws is expected to take place, better able than the High Courts, acting 'under Article 226 of the Constitntion, to go into every question of fact and are in a much better position to know all relevant facts, but their knowledge of the meaning of laws to oo administered and the policies underlying C them could not be less, even if they are not better, known to them than to the High Courts on such a matter as preventive detention. As already indic; ated, it raises essentially matters of policy.\n\nCourts cannot decide what individuals with what kind of associations and antecedents should be detained. In some cases,, the associations and affiliations of individua)s with groups or organisations may certainly be matters of common public knowledge.\n\nBut, it is only the i; nember- D ship and associations of persons whic~ may be matters of public knowledge.\n\nThe nature of information, and the marmer in which individuals or organisations concerned may do something, which may constitute a danger to the security of the State, are matters of appraisement of situations and policies on which infonnation could certainly not be broadcast.\n\nI, therefore, think that a challenge to the validity of Section 16A(9) based either on the submission that grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well-founded.\n\nI will indicate below the safeguards which exist in the Act itself for obtaining redress on the executive side in cases' of preventive detention.\n\nAs' was held by\n\nthis Court in Ram Jawaya Kapur's case (supra), there is no such F strict separation of powers under our Constitntion as one finds in the American Constitution.\n\nNo particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers.\n\nSection 3., sub. sec. 3 of the Act shows that the detaining officer G has to submit a report forthwith on a case of preventive detention, together with grounds of detention and particulars of th~ case, for the approval of the State Government.\n\nThe detention order itself, unless approved by the State Government, lapses autQmatically after 12 days.\n\nIn special cases, covered by Section 8 of the Act, the proviso to Section 3, sub. sec. 3, makes the initial order, subject to the approval of the State Government,, operative for 22 days. In cases covered by H Section 16A(2) and (3) of the Act, in which no grounds of detention are to be sup_plied to the detenu, the State Government ha.s to review and confirm the\\ order if the detention is to. continue beyond 15 days.\n\nSection 14 of the Act provides for rev<J!Oation of detention orders without prejudice to the provisions of Section 21 of the General Clauses Act, 1897.\n\nThe power of revocatiou may be exercised not only by the detaining ollicer concerned, but by the State Government or the Central Govermnent also.\n\nTempor'!!)' release of persons detained is also provided for by Section 15 of the Act on the order of the appropriate Government, so as to prevent undue hardship and to meet special contingencies.\n\nThe provisions of Article 353(a) of the Constitution also enable the Union Govermnent to issue directions to a State Government relating to the manner in which a State's executive power is to be exercised during the Emergency. Means of redress, in cases such as those of mistaken identity or misapprehension of facts or detentions. due to false and malicious reports circulated by enemies, are thus still open to ai detenu by approaching executive authorities.\n\nThere is no bar against that. What is not possible is to secure a release by an order of a Court in Habeas Corpus proceedings after taking the Co\\lrt behind a duly authenticated prima facie good return.\n\nAn argument before us, to which I would. like to advert here, was that, notwithstanding the emergency provisions,, some undefined or even defined principles of Rule of Law, outside the emergency provisions,. can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution because the Rule of Law has been held by this Court to be a part of the inviolable \"basic structure\" of the Constitution. It was submitted that, as this basic structure was outside even the powers of amendment of the Constitufon under Article 368 of the Constitution, it could not be affected by emergency provisions or by provisions of the Act.\n\nWe were asked to atleast interpret the emergency provisions and the Act in such a way as to preserve what was \\represented to be the \"Rule of Law\" as a part of the basic structure of the Constitution.\n\nIt seems to me that the theory of a \"basic structure\" o[ the Constitution cannot be used to build into the Constitution an imaginarv part which may be in conflict with Constitutional provisions.\n\nThe Constitution cannot have a base cut away from the super-s'.ructurc.\n\nIndeed, as explained above, it seems to me that the emergency provisions could themselves be regarded as part of the basic structure o' the\n\nConstitution.\n\nAt any rate, they are meant to safeguard the basis of all orderly Government according to law.\n\nSpeaking for myself, I do not look upon the theory of a basic structure of the Constitution as anything more than a part of a wellrecognised mode of construing a document.\n\nThe Constitution,, like any other document, has to be read and construed as a whole.\n\nThis is the cormnon principle which was applied, though in different ways and with differing results, both by Judges taking the majority as well as minority views in Kesavananda B/UJrti's case (supra). Some of the learned Judges thought that, by an application of this rule, the scope of the .power of amendment, contained in Article 368 of the Constitution, was limited by certain priniples which, though not expressly laid down in Article 368, could be read into the word ''amendment\" as implied limitations upon powers under Article 368. On the other\n\n- •\n\n' •• , .. .\n\nADDL. DIST. MAGISTRATE V. S. S. SHUKLA (Beg, f.) 367\n\nhand,, other learned Judges (including myself) took the view that, A considering the provisions of the Constitution as a whole, the powers of amendment of the Constitution in Article 368, which operated on all parts of the Constitution itself and embraced even the power of amending Article 368 of the Constitution, could not reasonably, be so limited.\n\nThe theory, therefore, was nothing more than a method of determining the intent behind the constitutional provisions. It could not and did not build and add a new part to the Constitution.\n\nB~ It was then urged that wan~ of /Jona {ides was expressly left open for determination by Courts even in an emergency in Liversidge's case.\n\nIt must no:, however, be forgotten that Liversidge's case was not a decision upon a habeas corpus proceeding, but, it came to the House of Lords at an interlocutory stage of a suit for damages for false imprisonment when Liversidge was denied access to particulars of gr011nds C: of his detention.\n\nThe question considered there was whether be could ask for them as a matter of right.\n\nThe House of Lords denied him that right.\n\nIn Greene's case (supra),, which was he&fd with Liversidge's case\n\n(supra) by the House of:Lords, the decis.ion was that the retu, rn made on behalf of the Secretary of State could not be questioned.\n\nIt is true that even in Greene's case (supra), a theoretical exception was made D. for a case o! want of bona {ides.\n\nI call it \"theoretical\" because such a case is perhaps not1 easily conceivable in England.\n\nIt also requires some explanation as to what could be meant by holding that' a return is \"conclusive\", but the bona {ides of the order can be challenged. The\n\nexplanation seems to me to be that want of bona {ides or \"malice in fact\" was placed on the same footing as fraud, which nullifies and invalidates the most solemn proceedings. It may, however, be pointed E out that, in Greene's case (supra), it was not held that mala fides or any olher invalidating fact could be proved during the emergency in habeas corpus proceedings.\n\nAn explanation of an almost formal exception for a case of want of bona {ides could be that the reservation of such w plea was meant only for such proceedings, in which \"malice in fact\" could reasonably be gone into and adjudicated upon.\n\nThe position before us, however,, is very clear.\n\nSection 16A(9) imposes F a bar which cannot be overcome in Habeas Corpus proceedings.\n\nIn addition, a specific suspension or enforcement of the right of personal freroom against executive authorities .places the presumption arising from a duly authenticated order of a le.gally authorised detaining officer on a higher footing than a merely ordinary rebuttable presumption for purposes of proceedings under Article 226 of the Constitution.\n\nTiiese are, as already indicated, summary proceedings.\n\nI mav Point out here that the term \"mala fide\" is often very loosely used.\n\nEven in England, the scope of malice is wide enough to include both \"malice in law\" and \"malice in fact\".\n\nLord Haldane in Shearer\n\nv. Shields,(') said:\n\n\"Between 'malice in face and 'malice in law' there is a broad distinction which is not veculiar to any system of jurisprudence. The person who in, llicts , a' wrong or, an injury upon any person in contravention of the law. is not allowed\n\n--(1)(1914] A.C. 808.\n\n\n[1976] SUPPLEMENHRY\n\nto say that he did so with an innocent mind.\n\nHe is taken to know thellaw and can only act within the law.\n\nHe may, therefore, be guilty of 'malice in law', although., so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. 'Malice in fact' is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act\".\n\nNow, applying the broad concepts of \"malice in Jaw\", as stated above, it has otten been argued before us, in cases of preventive detention, that the burden is upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopted in a case of deprivation of personal liberty.\n\nTo ask the executive authorities to satisfy such a requirement, in accordance with what bas been called the principle in Eshuqbayi Eleko's case (supra) would be in my opinion,, to nullify the effect of the suspension of the enforceability of the procedura~ protection to the right of personal freedom.\n\nTo do so is really to make the Presidential Order under Article 359 (1) of the Constitution ineH:ective.\n\nThere£ore, no question of \"malice in law\" can arise ini Habeas Corpl.IS. proceedings when such a protection is suspendend.\n\nAs regards the issue of \"malice in focf', as I have alreadJ. pointed out, it cannot be tried at all in a Habeas Corpus proceeding although it may be possible to try it in a regular suit the object of whlch is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not protected by the terms of, Section 16 of the Act.\n\nThe possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers.\n\nMr. Mayakrishnan. learned Counsel for one of the detenus, contended that state of emergency, resulting from the Presidential Order of 27th June,, 1975, cannot be equated with a situation in which Martial Law has been proclaimed. The argument seems to be that if the jurisdiction of Courts to enforce the right to personal freedom is affected, the resulting position would be no different from that which prevails 1l when Martial Law is declared.\n\nThere is no provision in our Constitution for a declaration of Martial Law.\n\nNevertheless, Article 34 of the Constitution recognises the possibility of Martial Law in this country.\n\nIt provided :\n\n\"34. Notwithstanding anything in the forq!oing provi- <; sions of this Part, Parliament may by law indemnify any person in the servie of the Union 'or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or, other act done under martial law in such area\".\n\nH As there is no separate indication in the Constitution of conditions in which Martial Law could be \"proclaimed\", it could be urged that a Presidential Order under Article 359(1) bas a similar effect and\n\n- • r\n\n• '\n\nADDL. DIST. MAC; sTRATE' V. S. S. SHUKLA (Beg, J.) 3~0\n\nwas intended to provide for situations in which Martial Law may have to be declared in any part of the country. But, a Presidential Order under Article 359(1) of the ConstitutIOn would, oruinanly, have\" V>ider\n\nrange and efiet throughout the country than the existence of Martial Law in any particular part of the country. The Presidential Proclamations are meant generally to cover the. country as a whole. \"Martial Law\" is generally of a locally restricted application. Another difference is that conditions in which what is call.ed \"Martial Law\" may prevail result in taking over by Military Courts of powers even to try offences; and, the ordinary or civil Courts will not interfere witih this special jurisdiction under extraordinary conditions.\n\nSuch a taking over by Military Courts is certainly outside the provisions of Article 359(1) of the Constitution taken by itself.\n\nIt could perhaps fall under Presidenth I nowrrs uw'\"r Articles 53 and 73 read with Article 355.\n\nArticle 53(2) lays down :\n\n\"53 (2) Without prejudice to the generality of the foregoing provision the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law\".\n\nAnd, Article 3 5 5 provides:\n\n\"355. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.\"\n\nA similarity in results, however, between Martial Law and conditions resulting from a Presidential Order under Article 359 ( 1) is that, if no E provision is made by an Act of Indemnity, the civil liabilities of military or civil officers, acting mala fide and outside the law, are not removed ipso facto by either Martial Law or the Proclamation of Emergency.\n\nIn Halsbury's Laws of England (4th Edn. vol. 8, para 982, page 625), an explanation of Martial Law, as it is known in British Consti- F tutional Law, is given as follows :\n\n\"The Crown may not issue commissions in time of peace to try civilians by martial law; bnt when a state of actual war, or of insurrection, riot or rebellion amounting to war exists, the Crown and its officers may use the amount of force necessary in the circmnstanccs to restore order.\n\nThis use or force is sometimes termed \"martial law\". When once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities, bttt it is for the civil courts to decide, if their jursdiction is invoked, whether a state of war exis!JS which justifies the application of martial law.\n\nThe oowers Rueb as they are, of the military authorities cease and those of the civil courts resumed ipso facto with the termination of the State of war; and in the absence of an act nt Indemnity, the civil courts may inquire into the 24-833SCil76\n\n\n[1976] SUPPLEMENTMY\n\nlegality of anything done during the state of war.\n\nEven if there is an Act of Indemnity couched iu the usual terms, malicious acts will not be protected.\n\nWhether this power of using extraordinary measures is really a prerogative of the Crow, or whether it is merely an example of the common law right and duty of all, ruler and subject alike, to use the ·\n\namount of force necessary to suppress disorder, is not quite free from doubt.\n\nIt is, however, clear that so-called military courts set up under martial law are not really courts at all, and so an order of prohibition will not issue to restrain them.\n\nProbably the correct view to take of martial law itself is that it is no law at all.\n\nIt is not at all necessary for the purposes of the decision of cases before us to determine how proclamations of emergency are related to the more drastic conditions in which \"Martial Law\" if it is \"law\" at all, may come into existence due to the very necessities of a situation.\n\nIt is evident that the emergency provisions of our Constitution arc very comprehensive.\n\nThey are intended not merely to dealwith situations when actual out-break of hostilities with another country has taken place and a war is going on but also when the country's peace, progress, security and independence are threatened by dangers either internal or external or both.\n\nWhether there is a \"grave emergency'', falling within Article 352(1), is a matter entirely for the President to determine.\n\nAttempts were made by some learned Counsel to paint very gloomy pictures of possible consequences if this Court held that no relief was open to petitioners against deprivation of their personal freedoms by executive officers in an emergency of indefinite duration, when a number of cases of serious misuse of their powers by the detaining officers were said to be in evidence. 1 do not think that it is either responsible advocacy or the performance of any patriotic or public duty to suggest that powers of preventive detention are being misused in the current emergency when our attention could not be drawn to the allegations in a single case even by way of illustratio1t F of the alleged misuse instead of drawing upon one's own imag na•ic;' lo conjure up phantoms.\n\nIn fact, I asked some learned Counsel to indicate the alleged facts of any particular case before us to enable us to appreciate how the power of preventive detention had been misused.\n\nMostly, the answers given were that the facts of the cases were not before us at this stage which is true.\n\nBut, it is significant\n\nG that no case of alleged \"malice in fact\" could be even brought to our notice. ·\n\nIt seems to me that Courts can safely act on the presumption that powers of preventive detention are not being abused.\n\nTI1e theory that preventive detention serves a psycho-therapeutic purpose may not be correct.\n\nBut, the Constitutional duty of every Govt. faced with threats of wide-spread dil; order and chaos to meet it with appropriate JI steps cannot be denied.\n\nAnd, if one can refer to a matter of common knowledge, appearing from newspaper reports, a number of detenus arrested last year have already been released.\n\nThis shows that the , whole situation is periodically reviewed.\n\nFurthermore, we under-\n\n_ ..\n\n• •\n\nADDL. DIST. MAGISTRATE V. S.S. SHUKLA (Beg, J.) 371\n\nstand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated. is almost maternal.\n\nEven parents have to take appropriate preventive action against those children who may threaten to burn down the house they live in.\n\nIf there are, under our Constitution, some supreme obligations or overridmg powers or duties, vested in superior Courns, as learned Counsel tor the detenus seemed to be contending for, to enforce the claims ot constitutionality, quite apart from the suspended powers and duties of Courts to enforce fundamental rights, I am sure that the current cmereency, justified not only by the rapid improvements due to it in the ierious!y dislocated national economy and discipline but also by the grave dangers of tomorrow, apparent to those who have the eyes to see them, averted by it, could not possibly provide the occasion for the discharge of such obligations towards the nation or the exercise of auch powers, if auy, in the Courts set up by the Constitution.\n\nWhere there are such great obligations and powers they must always be gmded by the principle already indicated : \"Sauls Populi Est Suprema Lex\". Indeed, as I understand even the majo... rity view in Golaknath's case (supra), it was that, despite the invalidity of constitutional amendments of provisions containing fundamental rights, to give effect to the view would be contrary t0 this principle.\n\nThe case for the detenus before us, however, fails on preliminary hurdles.\n\nDespite strenuous efforts, their learned Counsel were quite unable to show any constitutional invalidity, directly or indirectly, in any of the measures taken, whether legislative or executive, by or on behalf of the State.\n\nThe real question for determination by us relates only to the meaning and effect of the Constitutional and statutory provisions indicated above which are applicable during the current Emergency.\n\nA large number of other questions including even some quite remotely connected with the real question involved, were permitted by this Court to be argued because of the great concern and anxiety of this Court when problems relating to personal liberty are raised.\n\nOn the interpretation of the relevant provisions adopted by me, the validity of detention orders purporting to be passed under the Act cannot be challenged in Habeas Corpus proceedings.\n\nJudicial proceedings in criminal Cciurtl, not meant for the enforcement of fundamental rights, are not, either at the initial or appellate or revisional stages, covered by the Presidential order of 1975.\n\nHabeas Corpus petitions are not maintainable in such cases on another ground.\n\nIt is that the prisoner is deemed be in proper custody under orders of a Court.\n\nMy answer to the two questions set out in the beginning of this judgment, which I compressed into one, is as follows :\n\nA prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it, recording purported satisfaction to detain the petitioner tinder the main- H tenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a writ of Habeas Corpus. Once such an order is shewn\n\nto exist in response to a notice for a writ of Habeas Corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Secnrity Act in Hab.oas Corpus proceedings.\n\nThe preliminary objection of the State must be accepted in such a case.\n\nThe result is that the appeals before us are allowed and the judgment and order of the High Court in each case is set aside.\n\nThe High Comt concerned will itself now pass an order on each petition in accordance with law as laid down by this Court and the provisions of Article 359 (I) of the Constitution.\n\nCHANDRACHUD, J.\n\nDuring the last few years, many questions of far-reaching constitutional importance have engaged the attention of this Court but these appeals, perhaps, present problems of the gravest magnitude.\n\nThey involve an adjustment between two conflicting considerations, the liberty of the individual on one hand and exigencies of the State on the other.\n\nThis balancing of the most precious of human freedoms-the liberty of the subject-as against the most imperative of the State's obligations-the security of the State-gives rise to multi-dimensional problems quite beyond the scope and compass of each right considered separately and in isolation.\n\nCan the freedom of the individual be subordinated to the exigencies of the State and if so, to what extent ? The Constitution concedes to the Executive the power of Preventive detention, but in the name of national security can that jurisdiction of suspicion be so exercised as to reduce the guarantee of personal liberty to a mere husk ? Detention without trial is a serious inroad on personal freedom but it bears the sanction of our Constitution.\n\nThe Constituent Assembly composed of politicians, statesmen, lawyers and social workers who had attained a high status in their respective specialities and many of whom had experienced the travails of incarceration owing solely to their political beliefs, F resolved to put Article 22, olauses (3) to (7) into the Constitution, may be as a necessary evil.\n\nBut does that mean that, more as a rule than as an exception, any person can be detained without disclosing the grounds of detention to him or to the Court which may be called upon to try his Habeas Corpus petition'?\n\nAnd can such grounds and the information on which the grounds are based be deemed by a rule of evidence to relate to the affairs of the State, therefore, confidential and therefore privileged ?\n\nBlind, unquestioning obedience does not flourish on English soil, said Lord Simonds in Christie v. Leachinsky(').\n\nWill it flourish on Indian soil ?\n\nThese broadly are the sensitive questions for decision and importantly, they arise in the wake of Proclamations of Emergency issued by the President.\n\nPart XVIII of the Constitution, called \"Emerency provisions\", H consists of Articles 352 to 360.\n\nArticle 352(1) provides that if the President is satisfied that a grave emergency exists whereby the secu-\n\n( 1) [1947] A. c. 573, 591.\n\n- • r • •\n\n• •\n\n• '\n\n• .,\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, !.) 3 7 3\n\nrity of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.\n\nA Proclamation issued under clause (1) is required by clause (2) (b) to be laid before each House of Parliament and by reason of clause (2) (c) it ceases to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. By clause ( 3) of Article 352, a Proclamation of Emergency may be made before the actual occurrence o! war or of external aggression or internal disturbance, if the President is satisfied that there is imminent danger thereof.\n\nClause ( 5) (a) makes the satisfaction of the President under clauses (1) and (3) final, conclusive and non-justiciable. By clause ( 5) (b), neither the Sureme Court nor any other court has jurisdiction, subject to the provisions of clause (2), to entertain any question on any ground regarding the validity of a proclamation issued under clause (I) or the continued operation thereof.\n\nArticle 358 provides that :\n\n\"While a Proclamation of Emergency 1s m OfJeration, nothing in Article 19 sbll restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but lot the provisions containod in that Part be competent to make or to take, but any Jaw so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.\"\n\nArticle 359 ( 1) empowers the President, while a Proclamation of Emergency is in operation, to declare by order that :\n\n\" ... the right t0 move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.\"\n\nClause (lA), which was inserted retrospectively in Artiole 359 by section 7 of the Thirty-eighth Amendment Act, 1975, provides :\n\n\"While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done 0r omitted to be done before the law so ceases to have effect.\"\n\nClause ( 3) of Article 359 requires that every order made unde1 clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.\n\nArtiole 352 was resorted to for the first time when h06tilities broke out with China.\n\nOn October 26, 1962 the President isued a Proclamation declaring that a grave emergency existed whereby the security of India was threatened by external aggression.\n\nThis prochcmation was immediately followed by the Defence of India Ordinance, 4 of 1962, which was later replaced by the Defence of India Act, 1962.\n\nOn November 3, 1962 the President issued or, Order under Article 359(1) of the Constitution, which was later amended by an Order dated November 11, 1962 stating that:\n\n\"the right of any person to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issueJ under clause ( 1) of Article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made threunder.\" (Emphasis supplied).\n\nArticle 14 was added to the Order of November 3, 1962 by the amendment dated November 11, 1962.\n\nThe emergency declareJ on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352(2) (a) of the Constitution.\n\nThe Defence of India Act, 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26, 1962 and for a period of six months thereafter.\n\nThe Act of 1962 expired ori. July 10, 1968.\n\nThe maintenance of Internal Security Act, 26 of 1971, (MISA), was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan. Section 3(1) of that.Act provides as follows:,\n\n\"3. (I) The Central Government or the State Government may,-\n\n(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial te>---\n\n(i) the defence of India, the relations of India with foreign powers, or the security or India, or\n\n(ii) the security of the State or the maintenance of public order, or\n\n(iii) the maintenance of supplies and servic~ essential to the community, or\n\n(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or\n\n• '\n\nADDL. Dls'r. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 375\n\nwith a view to making arrangements for his expulsion from India, ·\n\nit is necessary so to do make an order directing that such person be detained.\"\n\nSection 8 of the Act requires that the grounds on which the order of detention is made shall be communicated to the detenu within a B certain period but that the authority making the order may not disclose facts which it considers to be against the public interest to disclose.\n\nConsequent on the Pakistani aggression, the President issued a Proclamation of Emergency on December 3, 1971 on the ground that the security of India was threatened by external aggression.\n\nBy an order dated December 5, 1971 issued under Article 359(1) of the <', onstitution, the right of 'foreigners' to move any court for the enforcement of rights conferred by Articles 14, 21 and 22 was suspended .\n\nIn September 1974 the MISA was amended by Ordinance 11 of 197 4 to include sub-section ( c) in section 3 (1), by which the right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act, 1947.\n\nOn November 16, 1974\n\nthe President issued a Declaration under Article 359(1) suspending D the right of persons detained under section 3 (I) ( c) of the MISA to move for enforcement of the rights conferred by Article 14, Article 21 and clauses (4), (5), (6) and (7) of Article 22 of the constitution .\n\nOn June 25, 1975 the President issued a Proclamation under Article 352(1) declaring that a grave emergency existed whereby the security of India was threatened by internal disturbance.\n\nOn June 27, 1975 the President issued an Order under Article 359(1) which reads a3 follows :\n\n\"G.S.R. 361 (E)-In exercise of powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any coun for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 •>f\n\nthe Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (I) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th of June, 1975 are both in force.\n\nThe Order shall extend to the whole of the territory of India.\n\nThis Order shall be in addition to and not in derogation of any Order made before the date of this Order undcx Clause (1) of Article 359 of the Constitution.\"\n\nVarious persons detained under section 3 (1) of the MISA filed petitions in different High Courts for the issue of the writ of Habeas Corpus.\n\nWhen those petitions came up for hearing, the Government\n\nraised a preliminary objection to their maintaimbility on the ground that in asking for release by the issuance of a writ of habeas corpus, the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Article 21 of he Constitution only.\n\nThe right to move for enforcement of the right conferred by that Article having been suspended by the Presidential Order dated June 27, 1975 the petitions, according to the Government, were liable .to be dismissed at the threshold.\n\nThe preliminary objection has been rejected for one reason or another by the High Crurts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.\n\nBroadly, these High Courts have taken the v; ew that despite the Presidential Order it is open to the detcnus to challenge their detention on the ground that it is ultra vires, as for example, by showing that the order on the face of it is passed by an authority not empowered to pass it, or it is in excess of the power delegated to the authority, or that the power has been exercised in breach ef the conditions prescribed in thai behalf by the Act under which the order is passed, or that he order is nc•' in str; ct conformity with the provision of the Act.\n\nSome of these High Courts have further held that the detenus can attack the order of detention on the ground that h is malafide, as for example, by showing that the detaining authority did not apply its mind to the relevant considerations, or that the auth0rity was influenced by irrelevant considerations, or that the authority was actuated by improper motives.\n\nBeing aggrieved by the findino recorded by these flioh Courts on the prelimin:iry point, the State Governments and the Government of India have filed these appeals. some under certificates granted by the High Courts and some by special leave granted by this Court.\n\nThe Hih Courts nf Andhra Pradesh, Kera:la and Madras have upheld the preliminary objection.\n\nDuring the pendency of these appeals and while the hearing was in prnrress. the President issued an order dated January 8, 1976 under Article 359(1) declaring that the right to move any court for the enforcement of the rirrhts conferred by Article 19 and the proceedings pending in any court for the enforcement of those riehts shall remain suspended dnring the operation of the Proclamations of Emergency dated December 3, 1971 and June 25, 1975.\n\nOn behalf of the appellants, the appeals were argued by the learned Attorney-General and the learned Additional Solicitor-General.\n\nThe learned Advocates-General of various States argued in support of their G contentions.\n\nA string of counsel appeared on behalf of the respondents, amongst them being Shri Shanti Bhushan, Shri V. M. Tarkunde, Shri R. B. Jethmalani, Shri S. J. Sorabji, Shri A. B. Dewan, Shri C. K.\n\nDaph•ary, Dr. N. M. Ghatate, Shri G. C. Dwivedi, Shri Santokh Singh, Shri Sharad Manohar, Shri Daniel Latifi and Shri Mayakrishnan.\n\nThe learned Advocate-General of Gujarat generally supported their submissions.\n\nH The learned Attorney-General contended that Article 21 is the sole repository of the right to life and personal liberty and if the right to move any court for the enforcement of that right is suspended by\n\n.. •\n\n• •\n\n\"·\n\n• '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 377\n\nthe Presidential Order issued under Article 359 ( 1), the detenus have no locus standi to file the writ petitions and theretore these petitions must be dismissed without any further inquiry in, o the relevance of the material on which the grounds of de.en, ion are based ur the relevance of the grounds or the bona des of the detaining authority.\n\nIf the MISA permits the non-disclosure of grounds and indeed prev, n s their disclosure, there is no question of inquirmg into the reasons or grounds of detention and courts must accept at its face value the subjective satisfaction of the detaining authority as recorded in the order of detention. \"There is no half-way house\" asserted the Attorney-General. But, not inconsistently with the basic submission that the detenus have no locus slandi to file the petitions for habeas corpus, he conceded that the court may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorised to pass it, or if it is passed for a purpose outside those mentioned in section 3 (I) of the MISA or if it does not bear any signature at all.\n\nThe learned Additional Solicitor-General indicated during the course of his argument the limits of judicial review in the event of the court rejecting the main submission of the Attorney-General.\n\nHe contended that section !6A(9) of MISA contains but a rule of evidence and is therefore not open to attack on the ground that it encroaches upon the jurisdiction of the High Court under Article 226 of the Constitution.\n\nSince section !6A(9) is not unconstitutional, no court can ask for the prodnction of the file relating to a detenu or ask for the disclosure of the grounds of detention.\n\nIf such disclosure is not made, no adverse inference can be raised by holding that by reason of non-disclosure, the detenu's case stands unrebutted.\n\nThe learned Additional Solicitor-General contended that there was no warrant for reading down section 16A(9) so as to permit disclosure to the court, to the exolusion of the parties and if anv inquiry is permissible at all into a habeas corpus petition, the inquiry must be limited to the following points : (i) Whether the order is made in exercise er purported exercise of power conferred by a law; (ii) If such law was pre-emergency law, is it a valid law; (iii) whether the authority which passed the order is duly empowered to do so by the law; (iv) Whether the person sought to be detained is the person named in the order of detention; (v) Whether the stated purpose of the rle•ention is one that comes within the law; (vi) Have the procedural safeguards enacted by the law been followed; and (vii) Where grounds are furnished (i.e. when 16-A does not apply) do such grounds ex-facie justify •he apprehension of the detaining authority or is it vitiated by a logical non-sequitur ? Such an inquiry, according to the learned counsel, can never extend to an objective appraisal of the material and the information for the purpose of testing the validity of the subjective satisfaction of the detaining authority.\n\nThe arguments advanced on behalf of the respondents covered a\n\nwide range but they may be summarized thus : H\n\nI. The object of Article 359 (I) and the effect of an order issued under it is to remove restraints against the\n\nLegislature so that during the emergency, it is free to make Jaws in violation of the fundamental rights mentioned in the Presidential Order.\n\n2. Under a Constitution which divides State functions into Executive, Legislative and Judicial, the executive functions must be discharged consistently with the valid laws passed by the Legcslature and the orders aad decrees passed by the Judiciary. The suspensioll of the right to enforce fundamental rights cannot confer any right on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace. Since there is a valid law regulating preventive detention, namely, the MISA, every order of detention passed by the Executive must conform to the conditions prucribed by that law.\n\n3. Article 359(1) may remove fetters imposed by Part m but it cannot remove those arising from the princink ot rule of law or from the principle of the limited power of the Executive under the system of checks and balances based on separation of powers.\n\n4. The obligation cast on the Executive to act in accordance with the law does not arise from any particular Article of the Constitution but from the inherent compulsion arising from the principle of rule of law whicll is a central feature of our constitutional system and is a basic feature of the Constitution.\n\nThe suspension of the right to enforce Article 21 does not automatically entail the suspension of the rule of law.\n\nEven during emergency, the rule of law is not and cannot be suspended.\n\n5. The Presidential Order under Article 359(1) may be1r\n\nthe enforcement of fundamental rights mentioned in the order by a petition under Article 32 before the Supreme Court.\n\nBut, the Presidential Order cannot bar the enforcement of rights other than fundamental rights by a petition filed under Article 226 in the High Court.\n\n6. Common law rights as well as statutory rights to personal liberty can be enforced through writ petitions filed under Article 226, despite the Presidential Order issued under Article 359(1).\n\nSimilarly, contractual rights, natural rights and non-fundamental constitutional rights like those under Articles 256, 265 and 361 (3) of the Constitution, can be enforced under Article 226.\n\nArtiole 226 empowers the High Courts to issue writs and directions for the enforcement of fundamental rights, \"and for any other purpose\".\n\n7. The essence of the inquiry in a Habeas Corpus petition is whether the detention is justified by law or is ultra\n\n....\n\n• '\n\n' •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 379\n\nvires the law.\n\nSuch an inquiry is not shut out by the suspension of the right to enforce fundamental rights.\n\n8. If the Presidential Order is construed as a bar to the maintainability of the writ petitions under Article 226 of the Constitution, that Article shall have been amended without a proper and valid constitntional amendment.\n\n9. Article 21 of the Constitution is not the sole repository of the right to life or personal liberty.\n\nThere is no authority for the proposition that on the conferment of fundamental rights by Part Ill, the corresponding pre-existing rights merged with the fundamental rights and that with the suspension of fundamental rights, the corresponding pre-existing 6ghts also got suspenJed.\n\n10. Suspension of the right to enforce Article 21 cannot put a citizen in a worse position than in the prc-Constimtion period. The pre-Constitution right of liberty was a right in rem and was totally dissimilar from the one created by Article 21. The pre-Constitution right was merely a right not to be detained, save under the authority of law.\n\n11. Civil liberty or personal liberty is not a conglomeration of positive rights.\n\nIt is a negative concept and constitutes an area of free action because no Ja\\v exists curtailing it or authorising its curtailment. •\n\n12. Section 16A(9) of the MISA is unconstitutional as it encroaches upon the High Courts' powers under Article 226 of the Constitntion by creating a presumption that the grounds on which the order of detention is made and any information or materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State, so that it will be against the public interest to disclose the same.\n\n13. Section 18 of MISA as amended by Act 39 of 1975 which came into force with effect from June 25, 1975 cannot affect the maintainability of the present petitions which were filed before the Amendment.\n\n14. The dismissal of writ petitions on the ground that such petitions are barred by reason of the Presidential Order issued under Article 359 (1) would necessarily mean that during the emergency no person has any right to life or personal liberty; and\n\n15. If the detenus are denied any forum for the redress of H their grievances, it would be open to the Executive to whip the detenus to starve them, to keep them in solitary confincn1cnL and even to si1oot them. \\Vhich would\n\nbe a startling state of affairs in a country governed by a written Constitution having in it a Chapter on Fundamental Rights.\n\nThe Presidential Order cannot permit the reduction of Indian citizens into slaves.\n\nThe validity of the 38th and 39th Constitution (Amendment) Acts was n6t challenged by the respondents.\n\nThe key to these rival contentions can be found in the emergency. provisions contained in Chapter XVIII of the Constitution.\n\nThe\n\nPresiential declaration of emergency is made final, conclusive and non-1ust1ciable by clause (5) of Article 352, which was introduced by the 38th Amendment retrospectively.\n\nBut apart from the fact that the Constitution itself has given finality to declarations of emergency made by the President, it is difficult to see how a Court of law can look at the declaration of emergency. with any mental reservations.\n\nThe facts and circumstances leading to the declaration of emergency are and can only be known to the Executive, par:icularly when an emergency can be declared, as provided in Article 352(3), before the actual occurrence of war, external aggression or internal disturbance, so long as the President is satisfied that there is imminent danger thereof.\n\nThe actual occurrence of war or external aggression or internal disturbance can be there for anyone to see but the inuninent danger of these occurrences depends at any given moment on the perception and evaluation of the national or international situation, regarding which the court of law can neither have full and tmthful information nor the means to such information.\n\nJudge and Jury alike may form their personal. assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossibie to examine in courts of law.\n\nThe High Courts whose judgments are under appeal have, with the greatest respect, failed to perceive this limitation on the power of judicial review, though in fairness to them it must be stated that none of them has held that the declaration of emergency is open to judicial scrutiny.\n\nBut at the back of one's mind is the facile distrust of ex.ecutive declarations which recite threat to the security of the country, particularly by internal disturbance.\n\nThe mind then weaves cobwebs of suspicion and the Judge, without the means to knowledge of full facts, covertly weigbs the pros and cons of the political situation and substitutes his personal opinion for the assessment of the Executive, which, by proximity and study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance.\n\nA frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one's own pre-disposition, is conducive to a more realistic appraisal of the emergency provisions.\n\nA declaration of emergency produces far-reaching consequences.\n\nWhile it is in operation the executive power of the Union, by reason of Article 353, extends to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised.\n\nSecondly, the power of Parliament to make laws with respect to any matter includes, during emergency, the power to make laws conferring powers and imposing duties or authorising the conferring of powers\n\n• ,\n\nf • •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 381\n\nA and imposition of duties upon the Union or officers and authorities\n\nJ of the Union as respects that matter, notwithstanding that the matter is not enumerated in the Union List.\n\nArticle 354 confers power on the President to direct that the provisions cf Articles 268 to 279, ' which deal with distribution of revenues between the Union and the States, shall have e!Iect subject to such exceptions or modifications as the President thinks fit, but not extending beyond the expiration of B • the financial year in which the proclamation cases to operate.\n\n~ Proclamation of emergency automatically curtails the operation of Artiole 19.\n\nAs provided in Article 358, while the Proclamation is in .-. operation nothing in Article 19 shall restrict the power of the State\n\nto make any law or to take any executive action which the State would but for the provisions contained in Part III be competent to make or to take.\n\nAny law so made ceases to have effect to the c extent of the incompetency as soon as the proclamation ceases to operate.\n\n\"\"~ Then comes Article 359 which is directly in point. It authorises the President to issue an order declaring the suspension of the right to move any court for the enforcement of such of the rights conferred by Part III as the President may specify in his Order. Clause (lA) which was introduced in Article 359 by the 38th Amendment Act D\n\n..., retrospectively has, inter alia, transported the provisions of Article 358 into Article 359 during the operation of an Order made by the President \\ under Article 359(!). The Orders issued by the President in the instant case under Article 359(1) provide for the suspension of the • right to move any court for the enforcement of the rights conferred ' by Articles 14, 19, 21 and clauses ( 4) to (7) of Article 22.\n\nArticle 21 E of the Constitution runs thus :\n\n; \"No person shall be deprived of his life or personal liberty except according to procedure established by law.\"\n\n> The principal question for decision in these appeals is whether, notwithstanding the fact that the Order issued by the President under Article 359 (1) suspends the right of every person to move any court for the enforcement of the right to personal liberty conferred by F Article 21, it is open to a person detained under a law of preventive .. detention like the MISA to ask for his release by filing a petition • in the High Court under Article 226 of the Constitution for the writ of habeas corpus.\n\n' The writ of habeas corpus is described by May in his 'Constitutional • History of England'(') as the first security of civil liberty.\n\nJulius G Stone in 'Social Dimensions of Law and Justice(2), calls it a '\n\npicturesque writ with an extraordinary scope and flexibility of application.\n\nThe Latin term \"habeas corpus\" means 'you must have the body' and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum. The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody.\n\nThe writ is of highest con~\n\nH stitutional importance being a remedy available to the 'lowliest subject A against the niost powerful government. -(!) Ed !9lrvol. II, p. 130 (Chapter XI).\n\n(2) Ed. 1966, p,. 203.\n\nThe libcrty of the individual is the most cherished of human freedoms and even in face of the gravest emergencies, Judges have played a historic role in guarding that freedom with zeal and jeaiou<y, though within the bounds, the farthest bounds, of constitutional power.\n\nThe world-wide interest generated by the lively debate in Liversidge v. Sir John Anderson and Anr.(1) has still not abated.\n\nAnd repeated citation has not blunted the edge of Lord Atkin's classi• dissent where he said :\n\n\"I view with apprehension the attitnde of judges who on a mere qnestion of construction when face to face w'th claims involving the liberty of the subject show themselves more executing minded than the executive. . .... In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. . ..... In this case I have listened to argument• which might have been addressed acceptably to the eourt of King's Bench in the time of Charles I.\"\n\nSir William Blackstone in his 'Commentaries on the Laws of England'(') says that the preservation of personal liberty is of great\n\nimportance to the public because if it were left in the power of ever the highest person to imprison anyone arbitrarily there would soon be an end of all other rights and immunities. \"To bereave a man of life, or by violence to confiscate his estate, without accus,1tion or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom; but confinement of the person, by secretly hurrying him to gaol, where\n\nhis sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.\" The learned commentator goes on to add : \"And yet, sometimes, when the state is in real danger, even this may be a necessary measure.\n\nBut the happiness of our constitution is, that it is. not left to the executive power to determine when the danger of the state is so great, as ta render this measure expedient; for it is the parliament only, or -legislative power, that, whenever it sees proper, can authorize the Crown, by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected persons without giving any reason for so doing.\"\n\nMay in his 'Constitutional History of England'(') says that during the course of the last century every institution was popularised and every public liberty was extended but long before that period Englishmen had enjoyed personal liberty as their birthright. It was more prized and more jealously guarded than any other civil right. \"The Star Chamber had fallen : the power of arbitrary imprisonment had been wrested from the Crown and Privy Council : liberty had been •'1larded by the Habeas Corpus Act .... \".\n\nSpeaking of the writ of habeas corpus May says that it protects the subject from unfounded suspicions, from the aggressions of power and from abu>es in tl1e\n\n(i)-·[l 942]A.-C. 206; Lord Atkin, p. 244.\n\n(2) 4th Ed .• Vol I. pp. 105 to 107. ·(3) Ed. 1912. p. 124, 130.\n\nI • ,\n\nf • •\n\n.. •\n\n, . '\n\n• • '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, !.) 3~ :1\n\nadministration of justice. \"Yet this protective law, which giveg every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension.\n\nRarely, however, has this been suffered without jealousy, hesitation, and remonstrance; and whenever the perils of the State have been .held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion.\n\nParliament alone, convinced of the exigency of each occasion, has suspended, for a time, the rights of individuals, in the interests of the State.\"\n\nDicey in his Introduction to the Study of the Law of the Constitution (I) says that :\n\n\"During periods of political excitement the power or duty of the courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous limitation on the authority of the executive government.\n\nHence has arisen the occasion for statutes which are popularly called Habeas Corpus Suspension Acts.\"\n\nE.C.S. Wade and Godfrey Phillips observe in their Constitutional Law( 2) that in times of grave national emergency, normal constitutional principles must if necessary give way to the overriding need to deal with the emergency.\n\nAccording to the learned authors :\n\n\"It has always been recognised that times of graft national emergency demand the grant of special powers to the Executive. At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament.\n\nModern war demands the abandonment of personal liberty in that the duty of compulsory national service necessarily takes away for the time being the right of the individual to choose his occupation.''\n\nThe learned authors refer to the English practice of passing Hab&as Corpus Suspension Acts in times of danger to the State. These Acts prevented the use of habeas corpus and as soon as the penod of suspension was over anyone who for the time being had been denied the assistance of the writ could bring an action for false imprisonmoat.\n\nSuspension did not legalise illegal arrest, it merely suspended a partirnlar remedy and therefore, a practice grew under which at the clOl!e\n\nof the period of suspension an Indemnity Act would be pas8Cd in order to protect officials from the consequences of any illegal acts which they might have committed under cover of the suspension of the prerogative writ.\n\nThomas M.\n\nCooley says in the Constitutional Law\" ( 3) in the\n\nU.S.A.\n\n(I) 10th Edition.\n\n(2) 8th Ed .. Ch111Jter 48. 717, 718.\n\n(3) 4th Ed., Chll!lter XXXIV, pp. 360-361.\n\n\"General Principles that though the right\n\nof to\n\nthe writ of habeds corpus by which the liberty of the citizens is protected against arbitrary arrests is not expressly declared in the American Constitution, it is recognised in Article 1, section 9,\n\ncl. 2 which says that :\n\n\"The privileges of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.\" It would appear that in America something simllar lo the passing of Acts of Indemnity has been done by making provisions in State Constitutions.\n\nThus, though the liberty; of the individual is a highly prized freedom and though the writ of habeas corpus is a powerful weapon by\n\nwhich a common man can secure his liberty, there are times in the history of a Nation when the liberty of the individual is required to be subordinated to the larger interests of the State.\n\nIn times of grave disorders, brought about by external aggression or internal disturbance, the stability of political institutions becomes a sine qua no11 of the guarantee of all other rights and interests: \"To assert an absolute exemption from imprisonment in all cases, is incoasistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible.\",(') The \"clear and present danger test\" evoked by Justice Holmes in Sche11ck\n\nv. V11ited States('), may well be extended to cases like the present where there is a threat of external aggression.\n\nOn the heels of American entry into the first World War on June 15, 1917, the Congress adopted the Espionage Act creating three new offences which went beyond the prohibition of spying and sabotage. It prescribe<l a punishment of a fine of 10,000 dollars and 20 years' imprisonment.\n\nA year later, the Act was amended by what is popularly called the Sedition Act which rendered it illegal even to say anything to obstruct the sale of United States bonds or to say anything contemptuous regarding the forw of Government of the United States.\n\nA unanimous conrt upheld Schenck's conviction under the Act for propagating that compulsory service in the Armed Forces was \"a monstrous wrong against hnmanity in the interest of Wall Street's chosen few\".\n\nThe judcrnent was delivered in 1919 when the war was already over and Holmes J. held that things that can be said in times of peace will not be endured during times of war and no court wHI regard them s protected by any constitutional right.\n\nThe emergency provisions were incorporated into our Constitution on the strernrth of experience gained in England and U.S.A.\n\nBut the object of Article 359 is to confer wider power on the President than the power to merely suspend the right to file a petition for the writ af habeas corpus.\n\nArticle 359 aims at empowering the President to suspend the right to enforce all or any of the fundamental rights conferred by Part III. It is in order to achieve that object that Article\n\n(I) Blackstone's Commentari•• on the Laws of England, 4th Ed .. Vol. Ill, pp. 125-126.\n\n(2) 249 u. s. 47 (1919).\n\n' . '\n\n' • -\n\n- •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 385\n\n359 does not provide that the President may declare that the remedy by way of habeas corpus shall be suspended during emergency. Personal liberty is but one of the fundamental rights conferred by Part III and the writ of habeas corpus is peculiar to the enforcement of the right to personal liberty. It must follow that the suspension of the right to enforce the right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21. ~· But then it is urged on behalf of the respondents that by their writ petitions, respondents did not seek to enforce the right to personal liberty conferred by Article 21 or possessed by them apart from it.\n\nThey were really seeking a declaration that the order of detention was illegal for the reason that it did not comply with the requirements of the Jaw under which it was passed.\n\nIn support of this argument reliance is placed upon a passage in H.W.R. Wade's Administrative Law(') to the effect that habeas corpus is a remedy not only !or the enforcement of the right to personal liberty but is also a remedy for the enforcement of the principle of ultra vires.\n\nThis argument lacks substance and overlooks the realities of the situation.\n\nIt may be open to a detenu by filing a petition for the writ o[ habeas corpus to contend that order under which he is detained is ultra vires of the statute to which the order owes its existence.\n\nBut one must have regard to the sustance of the matter and not to mere form.\n\nThe real and substantial relief which the detcnu asks for by a writ of habeas corpus is that he should be freed from detention and the\n\n• , reason for the relief is that the order of detention is ultra vires.\n\nIt is clear, apart from the form in which the relief may or may not be clothed, that the respondents through their writ petitions were moving the High Courts for enforcing their right to personal liberty.\n\nThe history of the writ of habeas corpus which is succinctly narrated in the late Mr. M. C. Setalvad's 'The Common Law in India'( 2) shows that the writ of habeas corpus which was in its inception a purely procedural writ gradually developed into a constitutional remedy furnishing a most powerful safeguard for individual freedom.\n\nMr. Setalvad quotes that the writ has been described as \"the key that unlocks the door to freedom\".\n\nRespondents were surely not interested in obtaining an academic declaration regarding the ultra vires character of their detention.\n\nThey wanted the door to freedom to be opened by the key of the habeas corpus writ.\n\nEqually untenable is the contention that Article 226 which occurs G in Chapter V, Part VI of the Constitution is an entrenched provision and, therefore, under Article 368 no amendment can be made to Article 226 without ratification by the Legislatures of not less than one-half of the States. It is true that Article -226 is an entrenched provision which cannot suffer an amendment except by foliowing the procedure prescribed by the proviso to Article 3G8(2).\n\nBut the Presidential Order is issued under the Constitution itself and if its true H , construction produces a certain result, it cannot be said that some\n\n(I) 3rd Ed., pp, 127, 128.\n\n(2) Pages 37,41 (Ed. 1960, Hamlyn Lectures).\n\n27-833 SC!/76\n\nother Article of the Constitution stands thereby amended.\n\nArticle 359 (1) provides for the passing of an ordr by the President declaring that the right to move for the enforcmg of fundamental nghts mentioned in the Order shall be suspended.\n\nThat may, m effect, affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus.\n\nBut that does not bnng about any amendment of Artide 226 within the n; eauing o[ Article 368, which speaks of amendments to the Consl!tut10n by the Parhament in the exercise of its constitutional power.\n\nArticle 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Articles cannot amount to an amendment of the other.\n\nIt is also not correct to say that any particular interpretation of C Article 359 (1) will mean the abolition of the jurisdiction and power of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution.\n\nThe true implication of the Presidential Order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the Order. In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential D Order merely takes away the locus standi of a person to move these Courts for the enforcement of certain fundamental rights during the operation of the Proclamation of Emergency.\n\nIt is important to appreciate that the drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being tq deprive the individual concerned of his normal right to move the Supreme Court or the High Court for the enforcement of the fundamental rights con- E !erred by Part III of the Constitution. In Sree Mohan Chowdhury v.\n\nThe Chief Commissioner, Union Territory of TripuraC) a Constitution Bench of this Court, dealing with an Order issued by the President on November 3, 1962 under Article 359(1), observed:\n\n\" ... Unquestionably, the Court's power to issue a writ irt the nature of habeas corpus has not been touched by the President's Order, but the petitioner's right to move this C0urt for a writ of that kind has been suspended by the\n\nOrder of the President passed under Art. 359 (I). The President's Order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of Arts. 21 and 22.\n\nThus, as a result of the President's Order aforesaid, the petitioner's right to move this Court, but not this Court's power under Art. 32 has been suspended during the operation of Emergency, with the result that the petitioner has no locus standi to enforce his right, if any, .during the Emergency.\"\n\nAccording to the respondents, the limited object of Article 359(1) is to remove restrictions on the power of the Legislature so that during the operation of the emergency it would be free to make laws in violation of the fundamental rights specified in the Presidential Order.\n\nThis argument loses sight of the distinction between the provisions of\n\noJ [l964i-3-s.c. R. 442, 4s1.\n\n' .. '\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandraclzud, J.) 3 8 7\n\nArt. 358 and Art. 359(1A) on the one hand and 0£ Art. 359 (1) on the other.\n\nArt. 358, 0£ its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with Art. 19 and on the power of the Executive to take action under a law which may thus violate Art. 19.\n\nArticle 358 does not suspend any right which was available under Art. 19 to any person prior to the Proclamation of Emergency.\n\nUnder Art. 359(1) the President is empowered to suspend the right of an individual lo move any court for the enforcement of the rights confrred by Part III as may be mentioned in the Order.\n\nConsequent upon such Order, all proceedings pending in any court for the enforcement of tl1e rights so mentioned remain suspended during the period that the Proclamation is in force or such shorter period as the Order may specify.\n\nArticle 359 (I) is thus wider in scope than Art. 358.\n\nThis distinction has an important bearing on the main point under consideration because it shows that it was not enough to provide that nothing in Art. 19 shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III, be competent to make or take.\n\nIn order to effectuate the purposes of emergency, it was necessary further to provide that no person would have any right to move for the enforcement of his fundamental rights mentioned in the Presidential Order and that pending proceedings in that behalf shall remain suspended during the operation of the emergency. It seems elementary that a fundamental right can be enforced as much in regard to a law which takes away that right contrary to the provisions of the Constitution as against the Executive, if it acts contrary to the provisions of a law or without the authority ' of law.\n\nIn view of he language of Art. 359(1) and considering the distinction between it and the provjsions of Art. 358, there is no il!stification tor restricting the operation of Art. 359 ( l) as against laws made by the Legislature in violation of the fundamental rights.\n\nReliance was placed by the respondents on the decisions of this Court in Sre, e Mohan Chowdhury v. The Chief Commissioner, Union\n\nTerritory of Tripura(l) and Makhan Singh v. State of Punjab(') in support of their contention that Art. 359(1) operates in the legislative and not in the executive field.\n\nThese decisions do not support such a proposition.\n\nOn the contrary, it is clear from the two decisions that the effect of the Presidntial Order undr Art. 359(1) is to take away the locus standi of a person to move any court for the , enforcement of his fundamental rights which are mentioned in the\n\nOrder.\n\nNeither of the two cases deals directly with the question whether the operation of Art. 359 (l) is restricted to the legislative tield but, if at all, the. ratio of those cases may be logically extended\n\nto cover executive acts also.\n\nDuring times of emergency, it is the Executive which commits encroachments on personal liberties and the object of Art. 359(1) is to empower the President to suspend the right to move any court for the enforcement of a right to com- • plain against the actions of the Executive, no less than against the\n\n(!) [1964] 3 S. C. R. 142.\n\n(2) [1964] 4 s. c. R. 79'7.\n\nA Jaws, passed by the Legislature, if either the one or the other contravenes any of the fundamental rights mentioned in the Order.•\n\nThis position was controverted by the respondents from several angles.\n\nIt was contended that in a Constitution which divides State functions into Executive, Legislative and Judicial. the executive functions must be discharged consistently with the laws passed by the Legislature and the orders and decrees passed by the judiciary, The suspension of the right to enforce fundamental rights cannot confer any privilege on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace.\n\nTherefore, the argument proceeds, there being a valid Jaw regulating preventive detention, namely the MISA, every order of detention passed by the Executive must conform to the conditions prescribd by that Jaw.\n\nThe current of thought underlying this argument was highlighted by a learned counsel for the respondents by saying that it is strange that in the face of a law passed by the Parliament, which in passing the Jaw must assume that it will be obeyed, the Executive can flout the law with impunity by relying on the Presidential Order issued under Article 359 ( 1).\n\nYet another point of view presented on this aspect of the case was that permitting the Executive to defy and disobey the Jaw made by the Legislature is tentamount to destroying one of the important basic features of the Constitution that the Executive is bound by the Jaws made by the Legislature.\n\nFinally, it was urged that the Preamble to the Constitution speaks of a Sovereign Democratic Republic and, therefore, the Executive which is subordinate to the Legislature cannot act to the prejudice of the citizen save to the extent permitted by laws validly made by the Legislature which is the chosen representative of the people. ·\n\nIn view of the true scope and object of Article 359(1), which has already been dealt with above, these arguments have to be rjected.\n\nIn the first place, it is difficult to appreciate the argument of 'basic features' because we are not concerned to pronounce upon the validity of an amendment made to the Constitution by a parliamentary measureo.\n\nWe are concerned to understand the scope of Article 359 ( 1) and what it implies.\n\nThat Article is as much a basic feature of the Constitution as any other and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the Jaws made by the Legislature, therefore, Article 359 ( 1) which is an emergency measure, must be construed consistently with that position.\n\nThe argument of basic feature is wrong !or yet another reason that Article 359(1) docs not provide that the Executive is free to disobey the laws made by the Legislature.\n\nAt the cost of repetition it must be said that what Article 359 ( l) achieves is merely the suspension of the right of an individual to move a court for the assertion of his fundamental rights which have been mentioned in the Presidential Order, even if such rights are co.ntravened either by the Let; islature or by the Executive.\n\nTo pernut a challenge m a court o! Jaw to an order of detention wl1ich is an executLve action, on the ground that the order violates fundamental right mentioned in the Presidential Order, is to permit the detenu to enforce a fundamental right during emergency in a manner\n\n' < •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 38 9\n\nplainly contrary to Article 359 ( 1). The language of that Article, it is admitted on all hands, is clear and unambiguous.\n\nThe constitutional consequences of a Proclamation of Emergency are grave and far-reaching.\n\nLegislatures can, during emerencies, make laws in violation of the seven freedom guaranteed by Article 19; the President has the power to suspend the right to move for the enforcement of all or any of the fundamental rights mentioned in the order issued under Article 359 ( 1); the Executive power of the Union extends during emergencies to giving directions to any State or to the manner in which the executive power thereof is to be exercised. This particular power conferred on the Union Executive is in total violation of the provisions of Article 162 of the Constitution and indeed of the federal structure which is one of the principal features of our Constitution; if any State Executive fails to comply with the directions given by the Union Executive under Article 353(a), the \"President's\n\nrule\" can be imposed on that State under Article 356, in which event the Parliament is entitled under Article 357 (1) to confer on the\n\nPresident the power of the Legislature of that State to make laws.\n\nThe Parliament can even authorize the President to delegate such legislative power to any other authority.\n\nThe democratic structure of the Constitution stands severely eroded in such a situation. Finally, Parliament acquires during emergencies the power to make laws on matters which are numerated in the State List. If consequences so fundamentally subversive of the basic federal structure of the Constitution can ensue during emergencies, it is not as revolting as may be appear at first sight that even if the Executive does not obey the mandate of the Legislature, the citizen is powerless to move any court for the protection of his fundamental rights, if these rights are mentioned in the Presidential Order.\n\nA facet of the same argument was presented on behalf of the respondents with even greater force.\n\nIt was urged that Art. 359 (I) may remove fetters imposed by Part III but it cannot ever remove the fetters arising from the principle of rule of law or from the principle of the limited power of the Executive under a system of checks and balances based on separation of powers. The obligation cast on the Executive to act in accordance with law does not, according to the respondents, arise from any particular article of the Constitution but it arises from the inherent compulsion of the rule of law which is a central basic feature of our constitutional system.\n\nThe suspension of the right to enforce Article 21 cannot automatically entail the suspension of the rule of law because, even during an emergency the\n\nargument proceeds, the rule of law is not and cannot be suspended. The Executive has a limited authority under the Indian Constitution and it can act within the residual area as it pleases, so long as it does not act to the prejudice of the citizen. It is alwavs incumbent on the Executive to justify its action on the basis of law and this, according to the respondents, is the principle of legality or the rule of law.\n\nThe re.spndents' argument that all executive action which operates\n\no .th~ pe1ud1ce of a person must have the authority of law to support 1t is 111d1sputably valid in normal situations.\n\nIn the absence of a Proclamation of Emergency and in the apsence of a Presidential Order\n\nunder Article 359 (1) of the kind that we have in the instant case, the Executive is under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law, its action is liable to be challenged by an appropriate writ.\n\nThat the rule of law must prevail in normal times is the rule of law under the Indian Constitution.\n\nBut it is necessary to clear a misconception.\n\nEven though the compulsion to obey the law is a compulsion of normal times, Article 358 takes in those cases only in which the executive purports to act under the authority of a law.\n\nIt does not envisage that the executive can act without the apparent authority of law.\n\nIn other words, Article 358 enables the Legislature to make laws in violation of Article 19 and the Executive to act under those laws, despite the fact that the laws constitute an infringement of the fundamental rights conferred by Article 19.\n\nThe argument of the respondents that the Presidential Order under Article 359 (1) cannot ever suspend the rule of law requires a close examination, particularly in view of some of the decisions of this Court which apparently support that contention.\n\nIn State of Madhya Pradesh & Anr. v. Thakur Bharat Singh(') the State Government, on April 24, 1963 made an order under section >- 3 of the Madhya Pradesh Public Security Act, 1959 directing that the respondent shall , not be in any place in Raipur District, that he shall immediately proceed to and reside in a named town and that he shall report daily to a police station in that town. The order was challenged • by the respondent by a writ petition under Articles 226 and 227 of • the Constitution on the ground that section 3 infringed the fundamental rihts guaranteed by Article 19 (1 )( d) and ( e) of the Constitution.\n\nThe respondent succeeded in the High Court which declared a part of the order invalid on the ground that section 3 (1 )(b) of the Act was violative of Article 19 (1 )( d) of the Constitution.\n\nIn appeal. it was contended in this Court on behalf of the State Government that so long as the state of emergency declared on October 20, 1962 was in force, the respondent could not move the High Court by a petition under Article 226 on the plea that bv the impued order his fundamental right guaranteed under Article 19(1 )(d) was infringed.\n\nTt was further contended on behalf of the State Government that even if section 3 (1) (b) was held to be void. Article 358 protected legislative as well as executive action taken after the Proclamation ' of Emergency and therefore the order passed bv the Government • afte_r the emergency was declared could not he challenged as infringing Article 19.\n\nDescribing this latter argument as involving \"a grave ' fallacv\". a Constitution Bench of this Court dismissed the Swte's anneal holding, tat for acts done to the prejudice of the respondent after the declaration of emergencv under Article 352. no immunitv from the nrocess of the Court could be claimed under Article 358 of\n\nth~ Constitution since the order was not suoported by any valid lep.is- !at10n.\n\nShah .T. who sooke on behalf of the Bench observed in his Judgment that all executive action which operates to the prejudice of any person must have the authority of law to support it and that the -------------- (!) ['1967] 2 s. c. R. 454.\n\n• '\n\n' ' •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, !.) 391\n\nterms of Article 358 do not detract from that rule.\n\nArticle 358, according to this Court, did not purport to invest the State with arbitrary authority to take action to the prejndice of citizens and others but it merely provides that so long as the Proclamation of Emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid.\n\nIt is important to bear in mind that Bharat Singh's case was concerned with a pre-emergency law, though the impugned order 'Yas passed thereunder during the operation of emergency. The law havmg been passed in 1959, which was before the declaration of emergency, it had to comply with Article 19 and if it did not, it was void to he extent of the inconsistency.\n\nSince the law was held to be violative of Article 19 it could not claim any protection under Article . 358.\n\nThat article lifts restrictions on legislative power \"while a proclamation of Emergency is in operation,\" that is to say, it enables laws to be made auring the emergency, ever if they conflict with Article 19. The executive is then free to act under those laws.\n\nBut, if the law is void for the reasou that having been made prior to the emergency it violates Article 19, or if there is no law at all under the purported authority of which the executive has acted, the executive acti, on is n0t protected by Article 358.\n\nBharat Singh's case is distinguishable for the additional reason that it was only concerned with the effect of Article 358 and no question arose therein with regard to any executive action infringing a fundamental right mentioned in a Presidential Order issued under Article 359 (1).\n\nI have already indicated the vital difference between Article 358 and Article 359(1).\n\nThe latter bars the enforcement of any fundamental right mentioned in the Presidential Order, thereby rendering it incompetent for any person to complain of its violation, whether the violation is by the Legislature or by the Executive.\n\nIn other words, Article 359(1) bars the remedy by depriving an aggrieved person of his locus to complain of the violation of such of his fundamental rights as are mentioned in the Presidential Order.\n\nRespondents also relied in support of the same submission on the decisions of this Court in District Collector of Hyderabad & Ors. v.\n\nM/s. ibrahim & Co. etc.,(') Bennett Coleman & Co. and Ors. v. Union of India & Ors., (2) and Shree Meenakshi Mill' Ltd. v.\n\nUnion of India. (3) These decisions are founded on the same principle as Bharat Singh's case and are distinguishable for the same reason.\n\nIn Ibrahim's case. the existing licences of recognised dealers in sugar were cancelled by the State Government and a monopoly licence was given to a Cooperative Stores thereby preventing the dealers by a mere executive order from carrying on their business.\n\nA question arose in the appeal whether the order of the State Government cancelitlg the licences of the dealers was protected under Articles 358 and\n\n(1) [1970] 3 S. C. R. 498.\n\n(2) [1973] 2 S. C. R. 757, 773-775.\n\n(3) [1974] 2 S. Q. ]l, 398, 405, 40~ anti 428.\n\n359 of the Constitution as the President had declared a state of emergency on October 20, 1962.\n\nThis question was answered in the negative on the ground that the executive order which was immune from attack is only that order which the State was competent to make but for the provisions contained in Article 19.\n\nSince the executive action of the State Government was invalid apart from Article 19, it was not immune from attack merely because a Proclamation of Emergency was in operation. The important point of distinction is that in lbrahim's case, the impugned order was not made under the authority reserved by the Defence of India Ordinance or the rules made thereunder but was issued merely in pursuance of the policy laid down by the Central Government in entrusting the distribution of suar exclusively to co-operative societies. In Bennett Coleman Company'~ case the impuned Newsprint Control Policy was an emanation of the old policy which was enunciated prior to the Proclamation of Emergency. Relying on lbrahim's case and Bharat Singh's case, this Court held that Article 358 does.not authorise the taking of detrimental executive action during the emergency without any legislative authority or in purported exercise of power conferred by a pre-emergency law which was invalid when enacted.\n\nThe decision in Bennett Coleman Company's case was followed in Meenakshi Mills' case where the executive action taken during the emergency did not have the authority of any valid law and the impugned orders having been made under a pre-emergency law were not immune from attack undr Article 358.\n\nRespondents relied on a passage in the iudj!lllent of Ramaswami J. who spoke on behalf of the' Court in Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors. etc. v. Om Parkash & ors. etc.,(') to the effect that whatever legislative power the executive administration pOSiSesses must be derived d'irectlv from the delegation of the legislature and exercised validly only within the limits prescribed.\n\nThe Court emphaticallv reiected the notion of inherent or autonomous law-making power in the executive administration of the country and observed that the rule of law rejects the conception of the Dual State in which governmental action is placed in a nrivilcgcd position of immunity from control by law on the ground that such a notion is foreign to our basic constitutional concents.\n\nRcsnonden!s also relied upon the decision of the Privv Council in E<huqbavi Eleko v. Officer Administerinl! the Government of Nil!eria(2) where Lord Atkin observed that in accordance with tl1e British jurisprudence, no member of the Executive can interfere with the liberty or property of a British subiect except on the condition that he can support the Ie1rnlitv of his action befor 0 a Court of Justice.\n\nOur attention was repeatedl\\i drawn to a further observation mane bv Lord Aktin that it is a tradition of British iustice thnt Judes shN1lr1 Mt shrink from dccidin~ such issnrs in the face of the executive.\n\nThese observations have been considered bv this Comt in Makhan Singh's case where, speaking on behalf of the majority, Gajendragad\n\n(1) [19681 3 S. C.R. 655. 660-661.\n\n(2) [t 931.l A. C. 662 .• 670.\n\n• ,\n\n, ' '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 393\n\nkar J. said that the sentiments expressed by Lord Aktin were noble and eloquent but it was necessary ta have regard to the provisions of our Constitution by which we c•.e governed and which has itself made emergency provisions in order to enable the nation to meet the challenge of external aggression or internal disturbance.\n\nThe principle enunciated in Eleko's case, howe; er lofty and stirring, has no relevance here because we have to consider the meaning and effect of Article 359(1) which has no parallel in the English law.\n\nEleko's principle is unquestionably supreme in times of peace and so is the validity of the observations made by Ramaswami J. in Om Prakash's case.\n\nBoth o! !hose cases were concerned with a totally different problem, the problem of peace, not of war or internal disturbance.\n\nThe 'Rule of Law' argument like the 'Basic Feature' argument is intractable.\n\nEmergency provisions contained in Part XVIII of the Constitution which are designed to protect the security of the State\n\narc as important as any other provision of the Constitution. If the true construction and effect of Article 359(1) is as I have stated it to be, it is impossible to hold that such a construction violates the rule of law.\n\nThe rule of law, during an emergency, is as one finds it in the provisions contained in Chapter XVI!! of the Constitution.\n\nThere cannot be a brooding and omnipotent rule of Jaw drowning in its effervescence the emergency provisions of the Constitution.\n\nThe Advocate General of Gujarat had peculiar problems to voice, arising out of the fluid and uncertain political situation in his State.\n\nHe was unable to appreciate how the Executive Government of the State could defy a parliamentary mandate contained in the MISA, either as regards the procedural or the substan!ive part of that Jaw.\n\nE Whatever may be the requirements of emergency, he seemed to contend, the Gujarat Government could not, save at grave peril to its existence, defy the provisions of a law made by the Parliament.\n\nThe anguish and embarrassment of the learned Advocate General is understandable, but the short answer to his contention is that, on the record. the Government of Gujarat has not been asked to flout the MISA and indeed no one can dispute the right of the State Government to ensure F compliance with the Jaws of the land.\n\nIndeed, that is its plain and foremost duty. The important consideration is that in the event of State Government coming to pass an order of detention in violation of MISA. the detcnu will have no right to enforce bis corresoonding fundamental riht if it is mentioned in the Presidential Order.\n\nThe learned Advocate General built his argument as if, during emergencies, the executive is under an obligation to flout the laws of the land. Article G 359 ( l) neither compels nor condones the breaches by the executive of the laws made by the'legislature.\n\nSuch condonation is the function of an Act of Indemnity.\n\nJ must now take up for consideration a very important pbnk of the respondents' argument tha'. Article 21 is not the sole repository of the right to life and personal liberty.\n\nThis argument has been H presented before us from aspects too numerous to mention and scores of instances have been cited to buttress it.\n\nThis was to some exfcnt jnevitable because quite a few counsel argned the same point and each\n\nhad his peculiar, favourite accent. T will try to compress the arguments without, I hope, sacrificing their thematic value.\n\nThe respondents' arguments may be put thus :\n\n(l) Article 21 is not the sole repository of the right to personal liberty because that right can be found in Articles 19(1 )Cb), 20 and 22 also. In view of the decision in the Bank Nationalisation(') case, which overruled Gopalan's( 2 ) case, these rights are not mutually exclusive and therefore the suspension of the right to enforce Article 21 cannot affect the right conferred by Articles 19, 20 and 22.\n\n(2) Article 21 is not the sole repository of the right to personal liberty because, ( i) an accused convicted of murder and sentenced to death can assert his rig:]lt to life by challenging the conviction and sen'.ence in appeal, in spite of the Ptesidential Order under Article 359( 1); (ii) if a person is wrongfully confined, he can ask for his personal Jibert_y by prosecuting the offender in spite of the Presidential Order; and (iii) if a money-decree is passed against the Government, the decree can be enforced even if the right to enforce the right to property is suspended by the Presidential Order.\n\n( 3) Prior to the enactment of the Constitution statutory, contractual and common law rights were in existence and those rights can be taken away only by the Legislature.\n\nThey cannot be affected by the Presidential Order.\n\nThe pre-Constitution common law and statutory ri¥hls to personal liberty continued in force by reason of Article 372 of the Constitution, since those rights were not repugnant E to any provision of the Constitution. If the fundamental right to personal liberty is suspended by the Presidential Order, the pre-Constitution laws will begin to operate by reason of the theory of eclipse.\n\nThere is no authority for the proposition that on the conferment of fundamental rights by the Constitution, the corrcspondin~ pre-existing rights merged in the fundamental rights and that with the suspension of fundamental rights, the corresponding pre-existing rights also F got suspended.\n\nArticle 21 is different in content from the common faw right to personal liberty which was available against private individuals also.\n\nSince Article 21 merely elevates the right of personal liberty to the status of a fundamental right, the pre-Constit11tion rights cannot be suspended by the Presidential Order.\n\nThe object of Article 21 is to give and not to take.\n\nIn fact, the very language of that Article shows that instead of conferring the right to personal liberty, G it assumed its existence in the first place and then proceeded by a negative provision to prohibit its deprivation.\n\nExamples of such pre- Constitution rights are :\n\n(i) rights available under the Indian Penal Code and the Criminal Procedure Code; (ii) rights available under the law of torts. especially the right to sue for damages for false imprisonmont; and (iii) the remedy of habeas corpus available under section 491, Criminal Procedure Code, since the year 1923.\n\n(.!) fl970] 3 s. C. R. 530. 578.\n\n12) [19501 S. C. R. 88,\n\n', •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 395\n\n( 4) Non-fundamental constitutional rights like those ansmg under Articles 256, 265 and 361(3) or natural righ'.s or contractual rights or the statutory rights to personal liberty are not affected by the Presidential Order.\n\nStatutory rights can only be taken away in terms of the statute and not by an executive fiat.\n\nBy reason of Article 256. the executive power of every State must ensure compliance with the laws made by the Parliament.\n\nThe executive power of the States must therefore comply with section 56 and 57 of the Criminal Procedure Code and a person aggrieved by the violation of those provisions can enforce his statntory right to personal liberty in spite of the Presidential Order.\n\nBy Article 265 no tax can be levied or collected except by authority of Jaw.\n\nA person affected by the violation of this provision can enforce his right to property even if Article 19 is suspended. If a process happens to be issued against the Governor of a State in contraventio11 of Article 361 ( 3), the Gover' nor can eKercise his right to personal liberty despite the Presidential Order under Article 359( l). Similarly, in cases not covered by sec!ion l 6A of the MISA, if the Advisory Board opines that the detention is unjnstified, the detenu can compel the Government to accept that opinion, in spite of the Presidential Order.\n\n(5) faen after the passi_ng of a Presidential Order, Parliament may create new rights to personal liberty and such rights can be enforced in spite of the Presidential Order.\n\n' ( 6) Civil liberty or personal liberty is not a conglomeration of ' positive rights.\n\nIt operates in an area of free action and no law can\n\npossibly curtail it.\n\n(7) If a law affecting the fundamental right to personal liberty is void for want of legislative competence,, it can be challenged in pite of the Presidential Order.\n\n( 8) The suspensio11 of the right to enforce personal liberty cannot confer a licence on executive officers to commit offences against the law of the land, and if they do so, they can be brought to book in spite of the Presidential Order.\n\nI look at the question posed by the respondents from a different angle.\n\nThe emergency provisions of the Constitution are designed to protect the Security of the State and in order to achieve that purpose, various powers have been conferred on the Parliament and the President by Chapter XVIII. of the Cons'.itution.\n\nOne of such powers is to be found in Article 359(1) under which the President, during the operation o~ the emergency, can issue an order suspendin~ the right to move any court for the enforcement of alt or any of the fundamental rights conferred by Part Ill.\n\nProceedings commenced prior to the issuance of such an order, including proceedings taken prior to the declaration of the emergency itself, automatically remain suspended during the emergency or for such shorter period as the President may in his order specify.\n\nThe object of empowering the President to issue an order unde~ At'ticle 359(1) suspending the enforce)llent of the right to personal liberty conferred by Part III of tht;\n\nConstitution cannot be to save all other rights !o personnl liberty except the one conferred by Part Ill, which to ntc seems totally devoid of meaning and purpose. There is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right, leaving all other rights to personal liberty intact and untouched.\n\nIn times of emergencies the executive, unquestionably though unfortunately, is constrained to take various for1111S of action in derogation of the rights of citizens and others, including the cherished right to personal liberty.\n\nThe Constitution aims at protecting the executive, during the operation of emergency, from attacks on the action taken by it in violation of the rights of individuals.\n\nAccordingly, in so far as the right to personal liberty, for example, is concerned one of the objects of the emergency provisions is to ensure that no proceeding will be taken or continued to enforce that right against the executive during the operation of the emergency.\n\nThe executive is then left free to devote its undiluted attention to meeting the threat to the security of the State.\n\nThis purpose cannot ever be achieved )y interpreting Article 359 (I) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency, except to the extent to which the right is conferred by Part III of the Constitution, The existence of the right to personal liberty in the pre-Constitution period was surely known to the makers of the Constitution.\n\nThe assumption underlying the respondent's argument is that in spite of that knowledge, the Constituent Assembly decided that all those rights will reign supreme in their pristine glory even during the emergency and what will remain in abeyance is only the enforcement of the right to personal liberty conferred by Part Ill.\n\nThe right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era. If the argument of the respondents is correct, no action to enforce the right to personal liberty can at all fall within the mischief of the presidential Order even if it mentions Articles 19, 20, 21 and 22 because, every preliminary objection by the Government to a petition to enforce the right to personal liberty can be effectively answered by contending that what is being enforced is either the natural right to personal liherty or generally, the pre-Constitution right to personal liberty.\n\nThe error of the respondents' argument lies in its assumption, and in regard to the argument of some of the counsel in the maior articulate premise, that the qualitative content of the non-constitutional or preconstitutional right to personal liberty is different from the content of the right to personal liberty conferred by Part III of the Constitution.\n\nThe right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less.\n\nThat right along with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it.\n\nArticle 359 (1) enables the President to suspend the enforcement even of those rights which were sanctified by being lifted out of the common morass of human rights.\n\nIf the enforcement of the fundamental\n\n• . '\n\n• -\n\n....\n\n. '\n\n\" • •\n\nADDL. DIST. MAGISTRATE v. s. s. SIIUKLA (Chandrachud, J.) 397\n\nrights can be suspended during an emergency, it is hard to accept that the right to enforce non-fundamental rights relating to the same subject matter should remain alive.\n\nArticle 359 (1) contains three important clauses : ( 1) The Proclamation of Emergency must be in operation at the time when the President issues his order; (2) The President mnst issue an order declaring the suspension o[ the right to move any court; and ( 3) The power of the President to declare such suspension can extend to such rights only as are conferred by Part III.\n\nIf ihese three conditions are satisfied, no person can move any court for the enforcement of such of the rights conferred by Part III as are mentioned in the Presidential Order.\n\nThe first and foremost question to ask when a proceeding is filed to enforce a right as against the Government while a Proclamation of Emergency is in operation is, whether the right is mentioned in the Presidential Order and whether it is Vhe Kind of right conferred by Part III. Article 21, for example, confers the right to life and personal liberty.\n\nThe power of the President therefore extends under Article 359(1) to the suspension of the right to move any court for the enforcement of the right to life and personal liberty.\n\nThe President cannot suspend the enforcement of any right unless that right is included in Part III which confers fundamental rights.\n\nThe President, in my opinion, would be acting within the strict bounds of his constitutional power if, instead of declaring the suspension ot the right to enforce the right conferred by Article 21 he were to declare th at \"the rigb t not to be deprived of life and personal liberty except according to procedure established by law\" shall remain suspend during the emergency.\n\nArticle 359(1) does not really contemplate that while declaring the suspension of the right to move any court, the President must or should specify the Article or the Articles of the Constitution the enforcement of rights conferred by which shall be suspended.\n\nWhat Article 359 ( 1) contemplates is that the President can declare the suspension of the right to move any court for the enforcement of the rights mentioned in Part III.\n\nThe words \"conferred by Part III\" which occur in Article 359 ( 1) are not intended to exclude or except from the purview of the Presidential Order, rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the posl- Constitution era, apart from the Constitution.\n\nThe emphasis of the Article is not the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are\n\nconferred by Part III.\n\nTo put it differently, the words \"conferred by Part III\" are used only in order to indentify the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of the President so as to put those rights which exist or which existed apart from the Constitution, beyond the reach of the Presidential Order. The respondents by their petitions are enforcing their right to personal liberty and that right is a right conferred by or mentioned in Part III of the Constitution.\n\nAs I have said above, if instead of saying that the right to enforce the right conferred by Article 21 shall be suspended the President were to say that the right not to be deprived of life or personal liberty except according to procedure established by Jaw will remain suspended, no argument of the kind made before us could reasonably bave been made.\n\nThe true effect of the Presidential Order, though worded in the way it is, is the same as it would have been, had it been worded in the manner I have indicated.\n\nIt therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution, either by way of a natural right, statutory right, common Jaw right or a right available under the law of torts.\n\nWhatever may be the source of the right and whatever may be its justification, the right c in essence and substance is the right to personal liberty.\n\nThat right having been included in Part III, its enforcement will stand suspended if it is mentioned in the Pvesidential Order issued under Article 359(1).\n\nThe view which I have taken above as regards the scope and meaning of Article 359 (1) affords in my opinion a complete answer to the contention of the respondents that since Article 21 is not the sole repository of the right to personal liberty, the suspension of' the ri!jht to enforce the right conferred by that Article cannot affect the right to enforce the right of personal liberty which existed apart from that Article.\n\nI have held that on a true interpretation of the terms of the Presidential Order read with Article 359(1), what is suspended is the right to move for the enforcement of the right to personal liberty\n\nE whether that right is conferred by Consitution or exists apart from and independently of it.\n\nOtherwise, the Constitution has only done much ado about nothing.\n\nAll the same I would like, briefly, to deal with the argument of the respondents on its own merit, particularly the illustrations cited in support of that argument.\n\nIt is true that in view of the decision in the Bank Nationalisation case,(') the right conferred by Articles 21 and 19 cannot be treated as mutually exclusive.\n\nBut the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another.\n\nThe \"right conferred by Article 21\" is only a description of the right of personal liberty in order to facilitalie its exact identification and such a description cannot limit the operation of the Presidential Order to t!hose cases only where the right to personal liberty is claimed under Article 21.\n\nThe circumstance that the pre-Constitution rights continued in force after the enactment of the Constitution in view of Article 372 does not make any difference to this position because, even assuming that certain rights to personal liberty existed before . the Constitution and continued thereafter as they were not repugnant to any provision\n\n(1) [1970] 3 S. C.R. 530, 578.\n\n• •\n\n\" • •\n\ni • •\n\n' ..\n\n' .\n\nAODL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 399\n\nof the Constitution, all rights to personal liberty having the same content as the right conferred by Article 21 would fall within the mischief of the Presidential Order.\n\nThe theory of 'eclipse' has no application to such cases because that theory applies only when a pre-Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts.\n\nWhen the repugnancy is removed, the eclipse also is removed and the Jaw becomes valid. .\n\nAs regard~ the doctrine of _'merer' it is unnecessary to go to the\n\nlengt~ of saymg that _every pnor nght to personal liberty merged in the nght to personal liberty conferred by Part Ill.\n\nWhether it merged or not, it cannot survive the dcdaration of suspension if the true C effect of the Presidential Order is the_ suspension of the right to enforce all and every nght to personal liberty.\n\nIn that view, it would also make no difference whellher the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III.\n\nAs regards the illustrations, it is neither proper nor possible to take each one of them sepanttely and answer them.\n\nHypothetical illustrations cannot establish a point and practical difficulties have to be solved as and when they arise.\n\nBut some of the more important illustrations taken by the respondents' counsel seem to me to have a simple answer.\n\nFor example, when an accused challenges his conviction for murder and the sentence of death imposed on him for that offence, his remedy by way of an appeal is not barred by the Presidential Order because he is only trying to get rid of a judgment which holds him guilty of murder.\n\nIt is not he who moved the court for his personal liberty but it is the prosecution \\Mhich dragged him to the court to prove the charge of murder against him.\n\nThe accused only defends the charge of criminality whether it is in the trial court or in a higher court.\n\nSimilarly, if a person is wrongfully confined, the prosecution of the offender is not intended or calculated to secure the personal liberty of the victim. 11he court may in proper cases pass an order releasing the complainant from wrongful confinement but the true object of !'he prosecution is to punish the person who has committed an offence against the penal law of the land.\n\nAs regards decretal rights against the Government, what the decree-holder enforces in execution is not his right to property.\n\nThe original cause\n\nof action merges in the decree and therefore what is put into execution G is the rights arising under the decree.\n\nThe illustration regarding the issuance of a process against the Governor o! a State need not be pursued seriously because such an event is hardly ever likely to happen and if it does, the gubernatorial rights may possibly withstand the Presidential Order under Article 359(1).\n\nAs regards the flouting of the opinion of the Advisory Board by the Government, a writ of mandamus compelling the Government to obey the mandate of the law may perhaps stand on a different footing as the very nature of such a proceeding is basically different.\n\nLastly, it is unrealistic to believe that after the passing of the Presidential Order suspending the\n\nexisting constitutional rights, Parliament would create new rights to personal liberty so as to nullify the e!iect of the Presidential Order.\n\nThe easier way for the Parliament would be to disapprove of the Proclamation of emergency when it is placed before it under Article 352(2) (b) of the Constitution or to disapprove of the Presidential Order issued under Article 359(1) when it is placed before it under Article 359 (3) of the Constitution.\n\nBut as I have said earlier, it is difficult to furnish a clear and cogent answer to hypothetical illustrations.\n\nIn the absence of necessary facts one can only make an ad hot answer, as I have attempted to do regarding the possible issuance of a process against the Governor of a State.\n\nActually, Article 361 (3 J speaks of a \"Process\" for the arrest or imprisonment of a Governor issuing from any court.\n\nFundamental rights can be exercised as against judicial orders but the circumstances in which such a process may come to be issued, if at all, may conceivably affect the decision of the question whether a presidential Order issued Under\n\nArticle 359 ( l) can bar the remedy of an aggrieved Governor. 1 In so far as the illustrative cases go, I would like to add that Article 256 which was chosen by the respondents as tlic basis of an illustration does not seem to confer any right on any individual.\n\nThat Article appears in Part XI which deal• with relations between the Union and the States.\n\nA failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grienvance at the instance of the private party that Article 256 has not been complied with by a State Government.\n\nAs regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation, I prefer to express no firm opinion though the greater probability is that such a challenge may fail in face of a Presidential Order of the kind which has been passed in the instant case.\n\nI have held above that the existence of common law rights prior to the Constitution will not curtail the operation of the Presidential Order by excepting those rights from the purview of the Order.\n\nI may add that the decision of this Court in Dhiru bha Devisingh Gohil v.\n\nThe State of Bombay(') is an authority for the proposition that if any pre-Constitution right has been clevated as a fundamental right by its incorporation in Part III, the pre-existing right and the fundamental right are to be considered as having been grouped together as fundamental rights ''conferred\" by the Constitution.\n\nThe decision in Makhan Singh v. State of PunjabC) also shows that once right to obtain a direction in the nature of habeas corpus becane in J 923 a statutory right to a remedy after the enactment of section 491 of the Code of Criminal Procedure, it was not open to any party to ask for a writ of habeas corpus as a matter of common law.\n\nTt was contended for the respondents that the High Court have jurisdiction under Article 226 to issue writs and directions not only for the enforcement of fundamental rights but \"!or any other pur- H pose\" and since by their petitions they had really asserted their non-\n\n(!) [1955] 1 S. C. R. 691.\n\n(2) [1964] 4 S. C. R. 797,. 818,.819.\n\n. .\n\n' •\n\nf • •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 401\n\nfundamental ri~ the High Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential Order.\n\nThis argument cannot he accepted because the entire claim of the resondents is that the order of detention are in violation of the MISA, which in substance means that the respondents have been deprived of their personal liberty in violation of Article 21 of the Constitution.\n\nBy that Article, no person can be deprived of his life or personal liberty except according to procedure es(ablished by law.\n\nThe grievance of the respondenm is that they have been deprived of their personal liberty in violation of the procedure established or prescribed by I.he MISA.\n\nIn substance therefor they are complaining of I.he violation of a fundamental right, which it is not open to them to do in view of the Presidential Order by which the right to move any court for the enforcement of the right conferred by Article 21 has been suspended.\n\nThis judgment, long as it is, will be incomplete wit.bout at least a hrief discussion of some of the important decisions of . this Ccrurt\n\nwhich were referred to during the course of arguments time and again.\n\nBefore doing so, a prefatory observation seems called for.\n\nThe Earl of Halsbury L. C. said in Quinn v. Leathem(') that the generality of the expressions which may be found in a judgment are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expressions are to be found.\n\nThis Court in the State of Orissa v. Sudhans11 Sekhar Misra & Ors.,(') uttered the caution that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.\n\nCounsel have not done any such shearing but I thought I might beging the study of cases with a self-admonition.\n\nA decision of this Court on which the greatest reliance was placed by the respondents is Makhan Singh v. State of Punjab(\") The appellants therein were detained under Rule 30(l)(b) of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance, 1962.\n\nThey applied for F their release to the Punjab and Bombay High Court under section 491 ( 1) (b) of the Code of Criminal Procedure, their contention being that certain section of the Defence of India Act and Rule 30 ( 1) (b) of the Defence of India Rules were unconstitutional since they wntravened their fundamental rights under Articles 14, 21 and 22 ( 4)\n\n(5) and (7) of the Constitution.\n\nThe High Court held that in view of the Presidential Order which was issued on November 3, 1962 G under Art. 359(1) of the Constitution, the petitions of habeas corpus filed by the appellants were barred.\n\nBeing aggrieved by the orders dismissing their petitions, the detenus filed appeals in this Court which were heard by a Constitution Bench consisting of 7 Judges.\n\nThe judgment of the majority was delivered by Ganjendragadkar J.\n\nSubba Rao J. gave a dissenting judgment.\n\n(I) [1901] A. C. 495, 506.\n\n(2) [1968] 2 S. C.R. 154, 163.\n\n(3) [19641 4 S. C. R. 797. 28-833 Sup. CT/76\n\nSUPREME COURT RBPORTS\n\n[1976] SUPPLEMENTARY\n\nBoth the majority and the minority judgments agree that the Presidential Order would take away the right to move 11he Supreme Court under Art. 32 and the High Court under Art. 226 for the enforcement of the rights mentioned in the Order.\n\nBut while the majority took the view that the petition under section 491 of the Criminal Procedure Code was also barred, Sub ha Rao J. held that the petitioners' right to ask for relief by filing an application under section 491 was not affected by the Presidential Order.\n\nThis difference in the view of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book after April l, 197 4 when the new Code of Criminal Procedure came into force.\n\nThe conclusion of the Court in Makhan Singh's case may be C summed up thus:\n\n1. Art. 359 is reasonably capable of only one construction as its language is clear and unambiguous.\n\n2. The suspension of Art. 19 contemplated by Art. 358 removes during the pendency of the emergency the fetters created on the legislative and executive powers by Art. 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Art. 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter.\n\n3. As soon as the Proclamation ceases to o)lerate, the legislative enactments passed and 1lhe executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed nnder Art. 19 because as soon as the emergency is lifted, Art. 19 which was suspended during emergency is automatically revived and begms to operate.\n\n4. Art. 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. What the Presidential Order purports to do by virtue of the power conferred of the President by Art. 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights.\n\n5. The Presidential Order cannot widen the authority of\n\nthe legislatures or the executive; it merely suspends the rights to move any court to claim a relief on the ground that the rights conferred by Part III have been contravened if the said right are specified in the Order. If at the expiration of the Presidential Order, Parliament passes any legislation to protect executive action taken during the pendency of the Presidential Order and afford indemnity to the executive in that behalf, . the validity and the effect of such legislative action may have to b<: carefully scrutinised.\n\nf ; •\n\n• ,,. • •\n\n• -\n\n• •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA ( Chandrachud, J.) 4 0 3\n\n6. The words \"the right to move any court\" which occur in Art. 359(1) refer to the right to move any court of competent jurisdiction including both the Supreme Court and the High Court.\n\n7. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so muCih the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and whether before granting the relief claimed by the citizen it would be necessary for the Court to enquire into the question Whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified fundamental rights that is a proceeding which falls under Art. 359(1) and wonld, therefore, be hit by the Presidential Order issued under the said Article.\n\n8. The right to ask for a writ in the nature of habeas corpus which could once have been treated as matter of Common Law has become a statutory right after 1923, and after section 491 was introduced in the Cr. P. C., it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provision of s. 491 ( 1 )(b) itself.\n\n9. Whether or not the proceedings taken under s. 491 (1 )(b) fall within the purview of the Presidential Order, must depend upon the construction of Art. 359(1) and the Order, and in dealing with this point, one must look at the substance of the matter and not its form.\n\n10. It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under Art. 226(1) of Art. 32(1) of the Constitution, or he may take a proceeding under s. 491 (l)(b) of the Code.\n\nBut despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constttution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking to enforce is the same.\n\nTherefore the prohibition contained in Art. 359(1) and the Presidential Order will apply as much to proceedings under s. 4 91 (1) (b) as to those under Art. 226(1) & Art. 32(1).\n\n11. If the detenu is prohibited from asking for and order of release on account of the Presidential Order, it would not\n\nbe open to him to claim a mere declaration either under A s. 491 or under Articles 32 or 226 that the detention is unconstitutional or void.\n\n12. The right specified in Art. 359(1) includes the relevant right, whether it is statutory, constitutional or const1tutionally guaranteed.\n\nAfter recording these conclusions the majority judgment proceeded to consider the question as to 'vhich are the pleas which are open to a person to take in challenging the legality or the propriety of his detention, either under section 491 (I) (b) or under Art. 226 ( 1) . The conclusions of the Court on this que; stion arc as follows:-\n\n(a)\n\n(b)\n\n\"If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended, because it is outside Art. 359 (1) and consequently outside the Presidential Order itself.\" (Emphasis supplied) Accordingly if a detenu is detained in violation of the mandatory provisions of the Act it would be open to him to contend that his detention is illegal. \"Such a plea is outside Art. 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order.\"\n\nThe exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged.\n\n( c) It is only in regard to that class of cases foiling\n\nunder s. 49l(l)(b) where the legality oft~ detention is challenged on grounds which fall under Art. 359(1) and the Presidential Order that the bar would operate.\n\nIn all other cases falling under s. 491 (1) the bar would be inapplicabie and proceedings taken on behalf of the detcnu will have to be tried in accordance with law.\n\n( d) If a dete!lu contends that the operative provision of the law under which he is detained suffers tram the vice of excessive delegation and is therefore invalid, the plea thus raised by the dtenu cannt at\n\nte threshold be said to be barred by the Presidential Order.\n\nIn terms, it is not plea which is relatable to the fundamental rights specified in the said\n\nO:de~. It is a piea which is independent of the said nghts and its validity must be examined. (The Court, however, rejected the contention that the impugned provisions of the Act suffered from the vice of excessive delegation.)\n\n• ' '\n\n• ,\n\n, • \"'\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 4 0 5\n\nNo judgment can be read as if it is a statute. Though the judgment of the majority contain the conclusions set out in (a) to ( d) above, I see no doubt that these conlusins owe their. justification to the peculiar wording of the Pres1dent1al Order whch was issued in that case. The Order dated November 3, 1962, which was the subject matter of Makhan Singh's case, has been et out at the beginning of this judgment. That order susl?ends the nght of a p~.r son to enforce the rights conferred by Articles 14, 21 and 22 1f such person has been deprived of any such rights under the Defence of India Ordinance 1962 ( 4 of 1962) or any rule or order made\n\nthereunder\".\n\nThe' Presidential Order dated June 27, 1975 with which we are concerned in the instant case does not contain any clause similar to the one extracted above from the order dated November 3, 1962.\n\nThe inclusion of that clause in the earlier Order has a significant impact on the question under consideration because, under the earlier Presidential Order the right lo move the court was taken away only if a person was deprived of his rights under the Defence of India Ordinance or under any rule or order made under the Ordinance.\n\nA petition for habeas corpus filed during the operation of the Presidential Order dated November 3, 1962 was not barred at the threshold because the detenu was entitled to satisfy the court that though his detention purported to be under the Defence of India Ordinance or the Rules it was in fact not so.\n\nThe detenu could establish this by satisfying the court that the detaining authority had no power to detain him, which could be shown by pointing out that t11e pre-conditions of the power to detain were not fulfilled.\n\nIt was also open to the petitioner to establish that the order was vitiated by ma/a {ides because a mala fide order has no existence in the eye of law and mala {ides would take the order out of the statute.\n\nThe same state of affairs continued under the two subsequent Presidential Orders dated November 16, 1974 and December 23,\n\n1974. All the three orders were conditional and were dependent for their application on the fulfilment of the condition that the person concerned was deprived of his rights under the Defence of India Ordinance or any rule or order made under it. The !'residential Order of June 27, 1975 makes a conscious and deliberate departure from the three earlier orders, the object obviously being to deprive the detenu of the argument that he has been detained under an order only purports t? have been passed under a particular Act but is in fact '!1 dergahon thereof, the terms of the Act having not been comph_ed with.\n\nThe Or?er ofun~ 27, 1975 is not subject to any condil!on-precedent fr I!s apphcatron and, therefore, there is no 'question of the _detenu sahsfymg the court that any pre-condition of the power of detention has not fulfilled. Some of the observations in Makhan Singh case may appear to support the argument that certain pleas which are referred to therein are outside the scope of Article 359(1) itself. With l!; feat respect,. thos.e observations eally mean that the pleas are outside .0e Pres1dentral Order.\n\nArticle 359(1) is only an enabling prov1s10n and the validity of a plea cannot he tested with reference to 0at Article.\n\nThe right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359(1).\n\nA It is the Presidenial Order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about.\n\nIt would be useful in this connection to refer to the decision of this Court. in Dr. Ram Manohar Lohia v. State of Bihar & Ors.(') The appellant therein was also detained under rnle 30(1) (b) of the Defence of India Rules, 1962, and he moved this Court under Article 32 of the Constitution for his release.\n\nThe petition was argued on the basis that it was filed for the enforcement of the right to personal liberty under Articles 21 and 22 of the Constitution. A preliminary objection was raised on behalf of the Government that the petition was barred by reason of the Presidential Order dated November 3, 1962, the same as in Makhan Singh's case (supra) Sarkar J., who shared the majority view repelled the preliminary objection by saying that the petition could have been dismissed at the threshold if the Order of November 3, 1962 were to take away all rights to personal liberty under Articles 21 and 22.\n\nAccording to the learned Judge, the particular Presidential Order did not do so in that, it was a conditional order which deprived a person of his right to move a court for the enforcement of a right to personal liberty only if he was deprived of it by the Defence of India Act or any rnle or order made under it. \"If he has not been so deprived, the Order does not take away his right to move a court.\" This shows that if the first Presidential Order was unconditional like the Order in the instant case, Dr. Labia's petition would have been rejected by this Court at the threshold.\n\nThe judgment of Hidayatullah J., who on behalf of himself and Bachawat J. concurred with the view of Sarkar <J., also shows that the conditional Presidential Order left an area of inquiry open as to whether the action was taken by a competent authority and was in accordnce with the Defence of India Act and the rnles made thereunder.\n\nYet another case arose under rnle 30(1) (b) of the Defence of F India Rules, 1962 involving the interpretation of the first Presidential Order dated November 3, 1962.\n\nThat case is K. Anandan Nambiar & Anr v. Chief Secretary, Government of Madras & Ors.(') Gajendragadkar C. J., who delivered the judgment of the Constitution Bench referred to Makhan Singh's case and pointed out that the sweep of the Presidential Order dated November 3, 1962 was limited by its last clause and, therefore, it was open to the detenu to contend that the G order of detention was contrary to the conditions prescribed in that -behalf by the Defence of India Act or the mies made thereunder.\n\nIn State of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr.( 3 ) the respondent, who was detained under an order passed under section 30(1) (b) of the Defence of India Rules, 1962, sought permission from the State Government for publishing a book which H he had written while in jail.\n\nOn the Govermnent refusing the per-\n\n(l) [1966] 1 S. C. R. 709.\n\n(3) [1966] l S. C.R. 702\n\n(2) [t 966] 2 S. C. R. 406.\n\nI '\n\n,, ' •\n\n- ,\n\n' •\n\n> ..\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 407\n\nmission, he filed a petition under Article 226 of the Constitution for an appropriate direction and after that petition was allowed ?Y e A High Conrt, the Government of Maharashtra filed an appeal m this Conrt.\n\nSubba Rao J., who delivered the judgment of the Bench, observed while dismissing the appeal that the President's Order dated November 3, 1962 was a conditional order and, therefore, if a person was deprived of his personal liberty not under the Act or a rule or B order made thereunder but in contravention thereof, his right to move the conrt in that regard would not be suspended.\n\nThese judgments bring out clearly the ratio of Makhan Singh's case which arose out of the first Presidential Order dated November 3, 1962.\n\nThe Presidential Order with which we are concerned in the instant case is not subject io the pre-condition that the detenu should have been deprived of his rights under any particular Act and, therefore, there is no scope for the inquiry whether the order is consis- C tent or in conformity with any particular Act.\n\nThis important distinction has not been fully appreciated in some of the judgments under appeal.\n\nThe observations contained in the majority judgment in Makhan Singh's case that the exercise of a power mala fide is Wholly oumide the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether in spite of the\n\nPresidential Order dated June 27, 1975 it is open to the respondents to show that the order of detention in any particular case is vitiated by ma/a fides.\n\nThe proposition that a mala fide order has no exis\" teoce in the eye of law is not peculiar to Makhan Singh's case but has been accepted in various decisions of this Court, two of them being Jaichand Lall Sethia v. State of West Bengal & Ors.(2), and Durgadas Shirali v. Union of India & Ors.(2) A mala fide exercise of power does not necessarily imply any moral tnrpitude and may only mean that the statutory power is exercised for purposes other than those for which the power was intended by law to be exercised.\n\nIn view of the fact that an unconditional Presidential Order of the present kind affects the locus standi of the ootitioner to move any court for the enforcement of any of his fundamental rights mentioned in the Order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the law.\n\nSo long as the statutory prescription can be seen on the face of the order to have been complied with, no further inquiry is permissible as to whether the order is vitiated by legal ma/a fides .\n\nAs regards ma/a fides in the sence of malice-in-fact, the same\n\nposition must hold good because the Presidential Order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order.\n\nMakha11 Singh's case as also Jaichand Lall Sethia's and Durgadas Shira/i's arose under the Defence of India Rules, 1962 and the relevant Presidential Order which applied was the one dated November 3, 1962 which, as stated above, was a condi- H\n\n(I) [1966] Supp. S. C. R. 464.\n\n(2) (1966] 2 S. C. R. 573.\n\ntional order.\n\nIf in any given case an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case.\n\nBut short of such ex-facie vitiation, any challenge to a detention order on the ground of actual ma/a {ides is also excluded under the Presidential Order dated June 27, 1975.\n\nSection 16A(9) of the MISA which was introduced by the Third Amendment Ordinance, 16 of 1975, with effect from June 29, 1975 must make a significant difference to the question whether in spite of the Presidential Order, it is open to a detenu to challenge hi5 detention on the ground of mala {ides.\n\nPrior to the enactment of section 16A(9), the detaining authority was under an obligation by reason of section 8 ( 1) of the\n\nMISA to communicate to the detenu the grounds of detention.\n\nThe only exception was as stated in section 8 (2), that the detaining authority need not disclose facts which it considers to be against the public interest to disclose.\n\nSection 16A (1) provides that the pro- D visions of section 16A shall have effect during the period of operation of Proclamation of Emergency issued on December 3, 1971 and on June 25, 1975 or for a period of 12 months from June 25, 1975 whichever period is the shortest.\n\nBy sub-section (2) of sectionJ 6A, the case of every person against whom an order of detention was made under the MISA on or after June 25, 1975 but before the commencement of section 16A on June 29, 1975 is required to be E reviewed by the appropriate Government for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency.\n\nIf the answer be in !Jh!' affirmative, the Government is required to make a declaration to that effect.\n\nBy sub-section (3), whenever an order of detention is made under the Act after June 29, 1975 the officer making the order of detention or the appropriate Government is similarly required to F consider whether the detention of the persons is necessary for dealing effectively with the emergency.\n\nIf so, a declaration is required to be made to that effect.\n\nSub-section (9)(a) of section 16A provides that the grounds on which an order of detention is made against any person in respect of whom a declaration is made under sub-section\n\n(2) or sub-section (3) of section 16A and any information or materials on which such grounds are based \"shall be treated as confidential G and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or d.isclose any such grounds, information or material or any document containing such ground, information or material.\" Clause (b) of section 16A (9) provides that no person against whom an order of detention is made under sub-section\n\nH ( 1) of section 3 shall be entitled to the communication or disclosure of any such ground, information or material, as is referred to in clause\n\n(a) or the production to him of any document containing such ground, information or material.\n\nI >\n\n; •\n\n.. • •\n\n• •\n\n' \\.\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 409\n\nI will deal with the constitutionality of section 16A(9) later but on !be assumption !bat it is valid, it is plain that not only is a detenii in regard to whom !be necessary declaration is made not entitled to be furnished witb the grounds of detention or the material or information on which the grounds are based, but neither the Government nor the officer passing tbe order of detention can communicate or disclose the grounds, material or information since !bey are deemed to refer to matters of State and against the public interest to disclose.\n\nIn view of this cast-iron prohibition, it is difficult to see how, at least those detenus falling witl1in sub-sections (2) and (3) of section 16A can possibly establish, even prima facie a charge of factual ma/a fides .\n\nIt is the grounds of detention from which generally a plea of ma/a fides is spelt out and if the court bas access to the grounds, the material and the information, it becomes possible to unravel the real motive of detention.\n\nIn the absence of these aids, a charge of factual ma/a fides can only be a fling in the air and cannot hope to succeed. The observation in Makhan Singh's case, therefore, that the exercise of a power ma/a fide can al ways be successfully challenged would not apply to cases falling under sub-sections (2) and (3) of section 16A. by reason of the provisions contained in sub-section (9) of that section.\n\nTurning to the constitutional validity of section 16A(9), tbe contention of the respondents is that clause (a) of section 16A(9) by which the grounds of detention and tbe information and materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against !be public interest to diclose is not a genuine rule of evidence but is designed to encroach upon the jurisdiction of !be High Courts under Article 226 of the Constitution and is, therefore, void.\n\nIt is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes into direct conflict with the High Court's jurisdiction under Article 226 because it would be impossible for any High Court to consider the validity of an order of detention when a petition for habeas corpus comes before it, if the law prohibits the disclosure of the grounds of detention and the necessary information or materials to the High Court.\n\nIt is a relevant consideration for examining the charge that the true purpooe of section 16A ( 9) is to encroach on the powers of the High Court under Article 226, that the operation of section 16A itself is limited to the period during which the two proclamations of emergency dated December 3, 1971 and June 25, 1975 are in operation or for a period of 12 months from June 25, 1975 whichever period is !be shortest.\n\nFollowing the proclamations of emergency, the President has issued orders under Article 359(1).\n\nBy the order dated June 27, 1975 the vory locus standi of the detenu to enforce any of his fundamental rights mentioned in the Presidential Order is taken away and consequently, there is no matter of substance into which the High Courts in the exercise of their writ jurisdiction can legitimately inquire.\n\nThe injunction contained in section 16A(9) is from this point of view innocuous, for it purports to create a check\n\non a power which for all practical purposes has but a formal existence.\n\nSection 16A ( 9) is in aid of the constitutional power conferred by Article 359(1) and further effectuates the purpose of the Presidential Order issued under that Article.\n\nIf so it cannot be declared unconstitutional.\n\nQuite apart from this position, I am unable to agree that the rule enunciated in section 16A(9) is not a genuiune rule of evidence. It is true that grounds of detention used to be disclosed before the emergence of section 16A(9) but that does not mean that the grounds on which the order of detention is based or the information or materials on which the grounds are based arn not or cannot be of a confidential nature. More likely than not, such grounds, material and information would be of a confidential nature relating to matters of State which would be against the public interest to discolse.\n\nInstead of leaving each individual matter to be judged under section 123 of the Evidence Act by the Head of the Department concerned, who can give or withhold the permission as he thinks fit, Parliament would appear to have considered that since the grounds, material and information in detention cases are of a confidential nature, it would be much more satisfactory to provide that they shall be deemed to refer to matters of State.\n\nIf section 16A(9) is unconstitutional so would sections 123, 124 and 162 of the Evidence Act.\n\nSection 123 gives the necessary discretion to the Head of the Department concerned.\n\nBy reason of section 124, the High Court cannot compel any public officer to disclose communications made to him in official confidence if the officer considers that the public interest would suffer by the disclosure.\n\nBy section 162, the High Court cannot inspect a document if it refers to matters of State.\n\nBut these provisions do not constitute an invasion of the High Court's jurisdiction under Article 226.\n\nThe writ jurisdiction of the High Court under that Article has to be exercised consistently with the laws made by competent legislatures within the area of their legislative power.\n\nI do not think that it is open to any High Court to say that the law may be otherwise valid but since it interferes with the High Court's power to undertake the fullest enqiury into the matter before it, the law becomes unconstitutional.\n\nThe principles of res iudicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise o~ their jurisdiction.\n\nThese are not for that reason unconstitutional qua the High Court's jurisdiction under Article 226.\n\nCounsel for the respondents cited the parallel of section 14 of the Prewntive Detention Act, 1950 which was struck down by this Court in A. K. Gupa/an v. The State('). Sub-section (1) of that section provided, in substance, that no court shall, except for certain purposes, allow any statement to be made or any evidence to be given before it of the substance of any communication of the grounds on which a H detention order was made against any person or of any representation made by him.\n\nSub-section (2) of section 14 made it an offence for\n\n(I) [1950] S. C. R. 88.\n\n• I\n\n• ' .\n\n• •\n\n' • •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, J.) 411\n\nany person to disclose or publish without the previous authorization of the Government any contents or matter purporting to be contents of any communication or representation referred to in sub-section ( 1).\n\nThe right to enforce Article 22 of the Constitution was not suspended by any Presidential Order when Gopalan's case was decided and therefore the court was entitled to find whether that Article was complied wit11.\n\nThe limits of judicial review have to be co-extensive and commensurate with the right of an aggrieved person to complain of the invasion of his rights.\n\nSince in Gopalan' s case, it was open to the detenu to contend that the grounds of detention did not bear any connection with the order of detention, the Court was entitled to examine the grounds in order to determine whether the plea of the detenu was well-founded.\n\nAs section 14 debarred the court from examining the material which it was entitled under the Constitution to examine,' it was declared ultra vires. (See pages 130-131, 217- 218, 244, 285 and 333).\n\nIn the instant case the Presidential Order deprives the respondents of their very locus standi and therefore, section l 6A(9) cannot be said to shut out an inquiry which is other wise within the jurisdiction of the High Court to make.\n\nReliance was also placed by the respondents on the decision of this Court in Mohd.\n\nMaqbool Damnoo v.\n\nState of lammu and Kashmir(') in which it was observed that the proviso to section 8, which was inserted by the Jamrnu and Kashmir Preventive Dentention (Amendment) Act, 1967, would have been unconstitutional if it had the same effect as section 14 of the Preventive Detention Act was found to have in Gopalan's case Damnoo's case did not involve any question of privilege at all and in fact the relevant file was produced by tile Government for the perusal of the High Court.\n\nThe case also did not involve any question under Article 359 ( 1) and the effect of a provision like section 16A(9) was not even hypothetically considered by the Court . ._\n\nThe view of the Bombay High Court that section 16A(9) mav be read down so as to enable the court to examine the forbidden material is impossible to sustain.\n\nWhat use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclrn; ed to a party before it? The High Court, at tlhe highest, could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict.\n\nI am, therefore, of the opinion that the challenge made by the respondents to the constitutionality of section 16A(9) must fail.\n\nSection 18 need not detain me long because it merely declares that no person who is detained under the Act shall have any right to personal liberty by virtue of natural law or common law, if any, The 'natural law' theory was discarded in Kesavananda Bharati's(2)\n\n(1) [197212 S. C. R. 1014. (I) [!973] Supp. S. C. R. 1.\n\ncase and likewise the common law theory was rejected in Makhan Singh's case.\n\nThe section only declares what was the true Jaw prior to its enactment on June 25, 1975.\n\nThe amendment o! 'ection 18 by the substitution of the words \"in respect of whom an order is made on purported to be made under section 3\" in place of the words \"detained under this Act\" does not render the section open to a challenge on the ground of excessive delegation.\n\nThe words \"purported to be made\" have been inserted in order to obviate the challenge that the detention is not in strict\n\nconformity with the MISA.\n\nSuch a challenge is even otherwsie barred under the Presidential Order.\n\nThe object of the added provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen to be in Jess than absolute conformity with the MISA.\n\nThe executive is bound at all times to obey the mandate of the legislature but the Presidential Order bars during a certain period the tight to complain of any deviation from that rule.\n\nIn numerous cases detcnus have been released by this Court and by the High Courts on the gronud that there is no nexus between the grounds of detention and the object of the law under which the• order of detention is made or that the acts complained of are too distant in point of time to raise an apprehension that the past conduct of the detenu is likely to project itself into the future or that the grounds are too vague for the formation even of subjective satisfaction or that irrelevant and extraneous considerations have materially influenced the mind of the detaining authority.\n\nOn some few occasions detention orders have also been set aside on the round of factual ma/a {ides.\n\nAn unconditional Presidential Order obliterates this jurisprudence by striking at the very root of the matter.\n\nLocU$ of the detenu is its chosen target and it dep1ives him of his legal capacity to move any court for the vindication of his rights to the extent that they arc mentioned in the Presidential Order. In their passion for personal liberty courts had evolved, carefully and Jabori ously, a sort of \"detention jurisprudence\" over the years with the sole object of ensuring that the executive does not transcend its duty under the law.\n\nIn legal theory that obligation still remains but its violation will now furnish no cause of action, at least to an extent, and to a significant extent. Amidst the clash of arms and conflict of ideologies, Jaws will now be silent but in times when the Nation is believed to be going through great strains and stresses, it may be necessary to entrust sweeping powers to the State.\n\nAnd it is no small comfort that those powers are granted with the consent of the Parliament.\n\nThe people of this country are entitled to expect when thev go to the ballot-box that their chosen representatives will not willingly suffer an erosion of the rights of the people.\n\nAnd the Parliament, while armini; the executive with great and vast powers of Government, may feel llairly certain that such powers will be reasonably exercised.\n\nThe periodical reviews of detention orders, the checks and counter-checks which the Jaw provides and above all\n\n' , .\n\n• •\n\n.~ '\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Chandrachud, !.) 413\n\nthe lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse.\n\nUltimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.\n\nI find it not so easy to summarize my conclusions in simple, straightforward sentences.\n\nThe many-sided issues arising before us do not admit of a monosyllabic answer-'yes', or 'no'. All the same these broadly are my conclusions :\n\n(!) The Order issued by the President on June 27, 1975 under Article 359(1) of the Constitution does not suspend the fundamental principle that all executive action must have the authority of law to support it.\n\nNor does the Presidential Order give to the executive a charter to disobey the laws made by the Parliament, which is the supreme law-making authority.\n\n(2) The aforesaid Presidential Order, however, deprives a person of his locus standi to move any court, be it the Supreme Court or the High Court, for the enforcement of his fundamental rights which are mentioned in the Order.\n\nSuch deprivation or suspension ensures during the period that the Proclamation of Emergency is in froce. or for such shorter period as may be specified in the Order .\n\n(3) The dominant purpose of the petitions filed by the respondents in the High Courts is to obtain an order of release trom detention by enforcing the right to personal liberty. The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed.\n\nThe former plea is barred by reason of the Presidential Order.\n\nThe latter plea is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for.\n\n(4) The Presidential Order dated June 27, 1975 bars any investigation or inquiry into the question whether the order of detention is vitiated by ma/a fides, factual or legal, or whether it is based on xtrane ous considerations or whether the detaining authority\n\n'.had reached his subjective satisfaction validly on proper and relevant material.\n\n( 5) Whether or not Article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under Article 226 of the Constitution for the release of a person detained under the MISA, no relief by way of releasing the detenu can be granted because no person has the legal capacity to move any court to ask for such\n\nrelief. The Presidential Order takes away such legal capacity by including Article 21 within it.\n\nThe source of the right to personal liberty is immaterial because the words\" \"conferred by\" which occur in Article 359(1) and in the Presidential Order are not words of limitation.\n\n( 6) The Presidential Order does not bring about any amendment of Article 226 and is not open to challenge on that ground.\n\n(7) The Presidential Order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court, nor does it bar the execution of decrees passed against the Government, nor does it bar the grant of relief other or less than the release of the detenu from detention.\n\n(8) Section 16A(9) of the MISiA is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of the High Court under Article 226.\n\nThere is no warrant for reading down that section so as to allow the court to inspect the relevant files to the exclusion of all other parties.\n\n' '\n\n( 9) Section 18 of the MISA does not suffer from the 1 vice of excessive delegation and is a valid piece of legislation. •\n\nAnd so we go back to The Zamora(')', Rex v.\n\nHalliday('), Liversidge v. Anderson('), Greene v. Secretary of State('). A jurisdiction of suspicion is not a forum for objectivity; \"Those who are responsible for national security must be the sole judges of what the national security requires\"; \"However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrified by legal enactment, namely, national success in the war, or escape from national plunder or enslavement\".\n\nAs a result, perhaps the only argument which the court can entertain . is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of the order the stated purpose of detention is within the terms of law.\n\nThese questions, in almost an cases, will have an obvious answer.\n\nCounsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down.\n\nSuch misdeeds have not tarnished the record of Free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.\n\n(!) [1916] 2 A. c. 77.\n\n(2) [1917] A. C. 260, 271.\n\n(3) [1942] A. C. 206.\n\n(4) [1942] A. c. 284.\n\n' ' \\\n\n.... '\n\n• \" ,.\n\n-, .\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 415\n\nBHAGWATI, J.-These appeals by special leave raise issues of gravest constitutional importance.\n\nThey affect personal liberty which is one of our most cherished freedoms and impinge on the rule of law which is one of the great principles that lies at the core of constitutional democracy and gives content to it. Does a Presidential Order\n\nunder Article 359, clause (I) specifying Article 21 silence the mandate of the law and take away personal liberty by making it unenforceable in a court of law, or does judicial scrutiny of legality of detention stand untouched and unimpaired, so that, despite such\n\nPre; idential Order, a person who is illegally detained can seek his freedom by invoking the judicial process. That is the agonizing question before the Court.\n\nThe facts giving rise to these appeals have been fully set out in the judgment of my Lord the Chief Justice and it is not necessary for me to reiterate them as nothing turns on the facts. None of the writ petitions out of which these appeals arise has in fact been finally disposed of on merits.\n\nBarring the writ petitions before the Rajasthan High Court and the Nagpur Bench of the Bombay High Court, where one additional question has been considered, the only question that has been dei:ided in these writ petitions is as to their maintainability in view of the Presidential Order dated 27th June, 1975 issued under Article 359, clause (1) of the Constitution. The High Courts of Allahabad, Madhya Pradesh, Andhra Pradesh, Delhi, Karnataka and Rajasthan and the Nagpur Bench of the Bombay High Court before whom these writ petitions were heard on the preliminary issue as to maintainability, took the view that the Presidential Order, dated 27th June, 1975, did not wholly bar the maintainability of these petitions, but left open certain grounds of challenge which could yet be urged against the validity of the order of detention.\n\nThese different High Courts were not agreed upon what were the grounds of challenge which were thus available to an applicant despite the Presidential Order dated 27th June, 1975.\n\nThere were differences of opinion amongst them, but for the purpose of the present appeals, it is not necessary to refer to those differences as they are not mater; al.\n\nThe Rajasthan High Court and the Nagpur Bench of the Bombay High Court also considered the interpretation and validity of section 16A, sub-section (9) of the Maintenance of Internal Security Act, 1971 and while the Rajasthan High Court accepted the interpretation of that sub-section canvassed on behalf of the Government and upheld its validity even on that interpretation, the Nagpur Bench of the Bombay High Court held the sub-section to be valid by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on which the order of detention was based.\n\nSince in the view of these\n\nHih Courts, the writ petitions filed by the detenus were maintainable, though on certain limited grounds of challenge, each of the writ petitions was directed to be set down for hearing on merits. Thereupon each of the aggrieved State Governments obtained special leave to appeal against the decision of the concerned High Court and that is how the present appeals have come before this Court.\n\nTwo questions arise for consideration in these appeals.\n\nThey have been formulated by the learned Attorney General appearing on behalf of the Union of India in the following terms :\n\n( 1)\n\n(2)\n\nWhether, in view of the Presidential Order dated June 27, 1975 under clause (!) of Article 359, any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under MISA on the ground that the order of detention or the continued detention is for any reason, not under or in compliance with MISA is maintainable ?\n\nIf such a petition is maintainable, what is the scope or extent of judicial scrutiny, particularly, in view of the said Presidential Order mentioning, inter alia, clause (5) of Article 22 and also in view of sub-section (9) of section 16A of MISA?\n\nSo far as the second qnestion is concerned, it may be pointed out straightaway that the learned Attorney General with his usul\\l candour conceded that if his first contention in regard to maintainability of a writ petition for habeas corpus is not accepted and the writ petition is held maintainable, the area of judicial scrutiny would remain the same as laid down in the decisions of this Court, subject only to tlie qualification that the grounds, information and materials, on which the order of detention is based, would not be available either to the detenu or to the High Court by reason of suspension of enforcement of the right conferred by clause (5) of Article 22 and the enactment of section 16A, sub-section (9) of the Maintenance of Internal Security Act, 1971.\n\nThe only point which wonld, therefore, reqnire to be considered under the second question is in regard to the interpretation and validity of sub-section (9) of section 16A.\n\nBefore we proceed to consider the first question which turns on the true interpretation and effect of the Presidential Order dated 27th June, 1975, it wonld help to place the problem in its proper perspective if we first examine what is an emergency and how institutions and procedures different from those in normal times are necessary to combat it. It would be both profitable and necessary to embark upon this inquiry, because Article 359, clause (1) under which the Presidential Order dated 27th June, 1975 has been issned is a consequential provision which comes into operation when a Proclamation of Emergency is issued by the President under Article 352. It is evident that a national emergency creates problems for a democracy no less than for other governments. A totalitarian Government may handle snch a situation without embarrassment. But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy.\n\nThe question arises-and that was a question posed by Abraham Lincoln on July 4, 1861 : can a democ-\n\n' , .\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 417\n\nA _,\n\n' ' '\n\nratic constitutionai government beset by a national emergency be strong enough to maintain its own existence without at the same time being so strong as to subvert the liberties of the people it has been instituted to defend.\n\nThis question is answered affirmatively by the incontestable facts of history if we have regard to the experience of emergency governments of three large modern democracies-the United States, Great Britain and France. There is no reason why the Indian experience should be otherwise, if the basic norms of constitutionalism in assumption of emergency powers are observed.\n\nWhat are these ba5ic norms in a constitutional democracy and what is the purpose. behind assumption of emergency powers are matters which I shall presently discuss. But before I do so, let me first consider what are the different types of emergency which may plague the government of a country.\n\n• •\n\nThere are three types of crisis in the life of a democratic nation, three well defined threats to its existence both as nation and democracy.\n\nThe first of these is war, particularly a war to repel invasion when\n\n\"a State must convert its peace-time poltiical and social order into a war-time fighting machine and over-match the skill and efficiency of D the enemy\".\n\nThere may be actuatl war or threat of war or preparations to meet imminent occurrence of war, all of which may create a crisis situation of the gravest order. The necessity of concentration of greater powers in the Government and of contraction of the normal political and social liberties cannot be disputed in such a case, particularly when the people are faced with a grim horror of national enslavement. The second crisis is threat or presence of internal subversion calculated to E disrupt the life of the country and jeopardize the existing of the constitutional government.\n\nSuch activity may stem from a variety of causes.\n\nPerhaps the most common is disloyalty to the existing form of government, often accompanied by a desire to effect changes by violent means.\n\nAnother cause may be strong disaffection with certain government policies.\n\nCommunal demands for States within the Federal on linguistic or religious lines may fall within this category.\n\nOr the F presence of powerful lawless elements with perhaps no political motivation, but for various reasons beyond the scope of ordinary machinery of the law, may give rise to this problem.\n\nThe third crisis, one recognised particularly in modern times as sanctioning emergency action by constitutional government, is break \\!own or potential break down of the economy. It must be recognised that an economic crisis is as direct a threat to a nation's continuing constitutional existence as a G war or internal subversion.\n\nThese are three kinds of emergencies which may ordinarHy imperil the existence of a constitutional democracy.\n\nNow, it is obvious that the complex system of government of a .... constitutional democratic State is essentially designed to function under H normal peaceful conditions and is often unequal to the exigencies of a national crisis.\n\nWhen there is an emergency arising out of a national\n\n29-833 Sup Cl/76\n\ncrisis, a constitutional democratic government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions.\n\nThis alteration invariably involves government of a stronger character. The government has to assume larger powers in order to meet the crisis situation and that means that the people would have fewer rights.\n\nThere can be no doubt that crisis , government means strong and arbitrary government and as pointed out by Cecil Carr in his article on \"Crisis Legislation in Great Britain\" published during the Second World War \"in the eternal dispute between Government and liberty, crisis means more government and less liberty.\" In fact Scrutton, L.J. never a fulsome admirer of government departments, made the classic remark in his judgment in Ronnfeldt v. Phillips(') that war cannot be carried on according to the principles of Magna Carta and there must be some modification of the liberty of the subject in the interests of the State.\n\nThe maxim salus populi suprema lex esto, that is publicsafety is the highest law of all, must prevail in times of crisis and the people must submit to\n\ntmporary abdication of their constitutional liberties in order to enable the government to combat the crisis situation which might otherwise destroy the continued existence of the nation.\n\nWhile dealing with the emergency powers which may be assumed by a constitutional democracy to deal effectively with a national crisis, it is necessary to refer to the celebrated writ of habeas corpus. It is the most renowned contribution of the English common law to the protection of human liberty. It is one of the most ancient writs known to the Common Law of England. It is a writ of immemorial antiquity \"throwing its roots deep into the genius\" of the Common Law. It is not necessary to trace the early history of this writ which is to be found in the decision of this Court in Kanu Sanyal v. District Magistrate, Darjeeling & Ors. (2). Suffice it to state that by the 17th Century this writ had assumed great constitutional importance as a device for impugning the validity of arbitrary imprisonment by the executive and by invoking it, a person unlawfully imprisoned could secure his release.\n\nAs pointed out by Holdsworth in Vol. 1 of his \"History of English Law\", \"its position as the most efficient protector of the liberty pf the subject was unquestioned after the great Rebellion\". It was for this reason that men began to assign as its direct ancestor the clauses of the Magna Carta which prohibited imprisonment without due process of law.\n\nThis may not be strictly accurate, but there can be no doubt that, far more effective than any other remedy, this writ helped to vindicate the right of freedom guaranteed by the famous words of the Magna Carta. The decision in Darners case(3) was a set-back in the struggle for liberty since it eroded to some extent the effectiveness of the writ by taking the view that a return that the arrest was \"by the special command of the King\" was a good and sufficient return to the writ, which meant that a lawful cause of imprisonment was shown.\n\nBut the Petition of Right, 1627 overruled this decision by declaring such a case of imprisonment to\n\n(I) 35 Times Law Reports 46.\n\n(2) [19731 2 s. c. c. 674.\n\n(3) (1627) 3 ST !.\n\n< ' .\n\n{' '\n\nl ;\n\n' j •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 419\n\nbe unlawful. In the same way, it was enacted in the Habeas Corpus A Act, 1640 abolishing the Star Chamber that any person committed or imprisoned by order of the Star Chamber or similar bodies or by the command of the King or of the Council should have his habeas corp11$.\n\nThere were also various other defects which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as an instrument of securing the liberty of the subject unlawfully detained, reforms were introduced by the B Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 1816 was enacted by which the benefit of the provisions .of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ. The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, C as pointed out by Lord Halsbury, L.C., in Cox v.\n\nHakes,(') it has throughout \"been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege\".\n\nNow, in the United States of America, the right to this important writ of habeas corpus by means of which the liberty of a citizen is protected against arbitrary arrest, is not expressly declared in the Constitution, but it is recognised in Article I, Placitum 9, clause (2) of the Constitution which declares that \"The! privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it\". Cooley in his \"General Principles of Constitutional Law in the U.S.A.\" points out: \"The p!'ivilege of the writ consists in this : that, when one complains that he is unlawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper court or magistrate for an examination into the cause of his detention, and shall be discharged if the detention is found to be unwarranted. The susp.ension of the privilege consists in taking away this right to an immediate hearing and discharge, and in authorising arrests and detentions without regular process of law.\" The suspension of the privilege of the writ does not legalise what is done while it continues : it merely suspends for the time being the remedy of the writ. ·\n\nThe decision of Chief Justice Taney in ex P. Merryman(2) contains the leading American discussion of the suspension of the writ of 'fiabeas corpus in a temporary emergency. In the spring of 1861, the eve of the American Civil War, President Lincoln was confronted by a state of open insurrection in the State of Maryland following the fall of Fort Sumter on April 15. Railroad communication to the northern United States bad been severed by the Marylanders on April 20 and the Sixth Massachusetts Militia reached Washington only after fighting its way through the City of Baltimore. In these circumstances and under the increasing thref!_t of secession, President ; Lincoln issued a Proclamation on April 27 authorising General Pinfield Scot to suspend\n\n(I) [1890] 151 A. C,, 506.\n\n(2) 17 Fed. Cas. 144 (C. C. D. Md. 1861).\n\nthe writ of habeas corpus \"at any point on or in the vicinity of the military line which is now, or shall be used between the City of Phila• delphia and the City of Washington\". Another Proclamation of July 2 extended this power to a similar area between Washington and New York. John Merryman who was a Marylander openly recruited a company of soldiers to serve in the Confederate Army and became their drill master and in consequence he was arrested by the army of Lincoln and held pri.se>ner in Fort McHenry. He applied for a writ of habeas corpus and, despite the Presidential authorisation suspending the writ, the Supreme Court presided over by Chief Justice Taney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and the President cannot exercise it except as authorised by law.\n\nHistory tells us that President Lincoln declined to implement the order of the Supreme Court and this would . have led to a major constitutional crisis, but the Congress hastened to resolve the controversy b_y enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it. It would, therefore, be seen that even in United States of America, where personal liberty is regarded as one of the most prized possessions of man, the Congress has the power to suspend the writ of habeas corpus and this p6wer has been exercised in the past, thongh very sparingly.\n\nSo also in GreaJ Britain the writ of habeas corpus which, as May points out, \"is nnquestionably the first security of liberty\" and which \"protects the subject from unfounded suspicions, from aggressions of power\" has been suspended, again and again, in periods of public dallj!er or apprehension. Parliament, convinced of the exigencies of the situation, has on several occasions suspended, for the time being, the rights of individuals in the interests of the State. This of course has had the effect of arming the executive with arbitrary power of arrest by making it impossible for a person detained to secure his release even if his detention is illegal. It has resulted in great diminution in the security of personal freedom, for, suspension of habeas corpus is verily, in substance and effect, suspension of the right of personal liberty granted in Magna Carta, But it has been justified on the ground that whatever be the temporary danger of placing such power in the hands of the Government, it is far less than the danger with which the constitution and the society are threatened, or to put it differently \"when danger is imminent, the liberty of the subiect must be sacrificed to the paramount interests of the State\". Moreover, on each occasion when the writ of habeas corpus has been suspended, the suspension of the writ has invariably been followed by an Act of Indemnity \"in order to protect officials concerned from lhe consequences of any incidental illegal actswhich they might have committed under cover of suspension of the propagative writ\". During the period of emrge!'cy, many illegali_ties mi~t ave _been committed by the executive Ill order to deal with a cns1s situation and all such illegalities have been retrospectively legalised by an Indemnity Act. • I a¥ now ttrrn to_ consider the emergency provisions under our Constltut10n. Unlike many of the older constitutions, our Constitution speaks in detail on the subject of emergency in Part XVIII. That Part\n\ny • •\n\n\" •\n\n• , • ..\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 421\n\n, consists of a fasciculus of Articles from Article 352 to Article 360.\n\nA Article 352 enacts that if the President is satisfied that a grave emergency exists whereby the security of India or of any part ?f the erritory\n\nthereof is threatened, whether by war or external aggre; ss1on or mternal disturbance, he may, by _Proclamat10n, mak~ a declaratJort to that effect and such Proclamation is required to be laid before each House of Parliament and approved by resolutions of both Houses before the expiration of two months. It is not necessary that there should be actual B occurrence of war or external aggression or internal disturbance in order to justify a Proclamation of Emergency. It is enough if there is imminent danger of any such crisis. It will be seen that this Article provides for emergencies of the rst two types .mentio~d above .. The third type of emergency threatemng the financial stab1hty of India or any part thereof is. dalt with in Article 360 .but we are r:o~ concerned with it and hence 1t 1s not necessary to consider the prov1S1ons of that C Article. So far as the emergencies Qf the first two types are concerned, the constitutional implications of a declaration of emergency under Article 352 are much wider than in the United States or Great Britain.\n\nThese are provided for in the Constitution itself. In the first place, Article 250 provides that while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters D enumerated in the State List, which means that the federal structure based on separation of J'.lOWers is put out of action for the time being .\n\nSecondly, Article 353 declares that during the time that Proclamation of Emergency is in force, the executive power of the Union of India\n\nhall extend to the giving of dirl!ction to any State as to the manner in which the executive power thereof is to be exercised and this provision also derogates from the federal principle which forms the basis of the E Constitution. If there is non-compliance by any State with the directions given by the Union under Article 353, such non-compliance may attract the provisions of Article 356 and 'President's rule' may be imposed under that Article and in such eyent, Parliament may nnder Article 357, clause (1), confer on the President the powr of the legislature of thei State to i:nake la'Ys or to delegate snch legislative power to any other authonty. This not only contradicts the federal F principle, but also strikes at the root of representative form of government.\n\nThen.thre are two Articles, Article 358 and Article 359, which set out certam important consquences of Proclamation of Emergency 2nd they read as follows :\n\n''.358: Whi!e a Proclamation of Emergency is in operation, nothmg .m article 19 shall restrict the powerof the State as deed m. Part III to make any law or to take any executive\n\nct1on which the State would but for the provisions contained m that Part be competent to make or to take, but any law so made shall, to the extent of the. incompetency, cease to have effect as soor: as the Proclamation ceases to operate, except as respects thmgs done or omitted to be done before the law so ceases to have effect.\"\n\n\"'~59. (1) WJ:ere a Proclamation of Emergency is in operation, the President may by order declare that the right to\n\nmove any court for the enforcement of such of the rights conferred by Part III as may b.e mentioned in the order and all proceedings pending in any court for the enforcement . o! the rights so mentioned shall remain snspended for the period during which the proclamation is in force or for such shorter period as may be spefified in the order. (lA) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part confenfog those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in !hat Part be competent to mak~ or to take but any law so made shall, to• the extent of the mcompetecy, cease to have effect as soon as !he order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.\n\n(2) An order made as aforesaid! may extend to the whole or any part of the territory of India.\n\n( 3) Every order made under clause (I) shall, as soon as may be after it is made, be laid before each House of Parliament.\" It may be pointed out that clause (IA) did not form part of Article 359 when the Constitution was originally enacted but it was introduced with retrospective effect by the Constitution (Thirty-eighth Amendment) Act, 1975. We are not directly concerned in these appeals with the interpretation of Article 358 and clause (lA) of Article 359, but in order to arrive at the proper meaning and effect of clause (I) of Article 359, it will be relevant and somewhat useful to compare and contrast the provisions of Article 358 and clause (IA) of Article 359 on the one hand and clause .(1) of Article 359 on the other.\n\nIt would be convenient at this stage to set out thef various steps taken by the Government of India from time to time in exercise of the emergency powers conferred under Part XVIII of the Constitution.\n\nWhen hostilities broke out with Pakistan in the beginning of December 1971, the President issued a Proclamation of Emergency dated 3rd December, 1971 in exercise of the powers conferred under clause ( 1) of Article 352 declaring that \"a grave emergency exists whereby the security of India is threatened by external aggression\". This was followed by two orders, one dated 5th December, 1971 and the other dated 23rd December, 1974, issued by the President under clause (1) of Article 359. It is not necessary to repq;>duce the terms of these two Presidential Orders since they were subsequently rescinded by a !\\residential Order dated 25th December, 1975 issued under clause(!) of Article 359. Whilst the first Proclamation of Emergency dated 3rd December, 1971 based on threat of external aggression continued in force, the President issued another Proclamation of Emergency dated 25th June, 1975 declaring that \"a grave emergency exists whereby the security of India is threatened by internal disturbance\". This Proclamation of Emergency was also issued in exercise of the powers conferred under Article 352, clause ( 1) and it was followed by a fresh Presi-\n\n' • •\n\n• •\n\n~ • •\n\n\\. ..\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 42 3\n\ndential Order dated 27th June, 1975 under clause (1) of Article 359.\n\nA The President, by this Order made under clause (I) of Article 359, declared that \"the right of any person, (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proc!amatious of Emergency made under clause (1) of Article 352 of the Constitu- B tion on the 3rd December, 1971 and on the 25th June, 1975 are both in force\".\n\nThe writ petitions out of which the present appeals arise were filed after the issue of this Presidential Order and it was on the basis of this Presidential Order that it was contended on behalf of the State Governments and the Union of India that the writ petitions were not maintainable, since, by moving the writ petitions, the detenus sought enforcement of the right of conferred by Article 21. This con- C tention was substantially negatived by the High Courts and hence the present appeals were brought by the State Governments and the Union of India raising the same contention as to the maintainability of the writ petitions. It may be pointed out that whilst the present appeals were pending before this Court, the President issued another Order dated 8th January, 1976 under clause (1) of Article 359 suspending the enforcement of the rights conferred by Article 19. This Presiden- D tial Order is not material, but I have referred to it merely for the sake of completeness. ·\n\nNow the orders of detention challeng~ by the detenus in the different writ petitions were all expressed to be made in exercise of the powers conferred by section 3 of the Maintenance of Internal Security Act, 1971. The detenus challenged them on various grounds, namely, the orders of detention were not in accordance with the provisions of the Act, they were not preceded by the requisite subjective satisfaction which constitutes the foundation for the making of a valid order of detention, they were actuated by malice in law or malice in fact or they were outside the authority conferred by the Act. The substance of these grounds, according to the Union of India and the State Governments, was that, by these orders of detention, the detenus, were deprived of their personal liberty otherwise than in accordance with the procedure established by law. This constituted infraction of the fundamental right conferred by Article 21 and the writ petitions of the detenus were, therefore, clearly proceedings for enforcement of that fundamental right. But by reason of the Presidential Order dated 27th June, 1975, the right to move any court for enforcement of the fundamental right conferred by Article 21 was suspended during the neriod when the Proclamations of Emergency dated 3rd December, 1971 and 25th June, 1975 were in force and, therefore, the detemis had no locus .<tandi to file the writ petitions and the writ petitions were barred.\n\nThe answer to this contention given on behalf of the detenus was-and here we are setting out only the broad general argument-that Article 21 merely defines an area of free action and does not confer any right and hence it is outside the scope and ambit of Article 359, clause (1) and consequently outside the Presidential Order itself. It was also urged on behalf of the detenus that it is a basic principle of the rule of\n\nA )aw that no member of the executive can interfere with the liberty of a person except in accordance with law. The principle of the rule of law was recognised and declared by the Judicial Committee of the 1- Privy Council in Eshugbayi Eleko v. Officer Administering the Goyernment of Nigeria(') and it was uniformly administered by courts m\n\nIndi~ as the law 9f the la_nd firior to .the cog into foce of the Co:i-\n\nB stitution. It was consequent y law m for m the terntory of India immediately before the commencement of the Constitution and by reason of Article 3 72, it continued in force ever after the coming into ' force of the Constitution and since then it has been repeatedly recognised and adopted by this Court as part of Indian jurisprudence in several deeided cases. Moreover, apart from being continued under ' Article 3 72 as law in force, this principle of the rule of law stems from • • the constitutional scheme itself which is based on the doctrine of disc tribution of powers amongst different bodies created by the Constitution. Under the constitutional scheme the executive is a limited executive and it is bound to act in accordance with law and not go against it. This obligation of the executive not to act to the detriment of a - person without the authority of law can be enforced under Article 226 by issue of a writ \"for any other purpose\". When a detenu files a peti-\n\nD tion under Article 226 challenging the validity of the order of detention on the ground that it is not in accordance with the Act or is outside the authority conferred by the Act, he seeks to enforce this obli- .\" gation against the State Govermnent and the< suspension of enforcement of the fundamental right under Article 21 does not affect the • maintainability of his writ petition. The detenus also contended that in any event the right to personal liberty was a statutory right and the ' E suspension of the fundam.ental right conferred by Art. 21 did not carry • with it suspension of the enforcement of this statutory right. The Union of India and the State Governments rejoined to this contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was no common law or statutory\n\n\"- right in a person not to be deprived of his personal liberty except in accordance with law, apart from that contained in Article' 21 and,\n\n- .\n\nF therefore, the writ petitions filed by the detenns were in substance and effect petitions for enforcement of the right conferred by Article 21 and hence they were not maintainable. . _\n\n> Before we proceed to consider these contentions which have been advanced before us, it is necessary to remind ourselves that the emer- • gency provisions in Part XVIII of the Constitution make no distinc- ( lion whether the emergency is on account of threat to the security of • G India by war or external aggression or on account of threat to the security of India by internal disturbance. The same provisions are applicable alike in both situations of emergency, irrespective of the reason for which emergency, has been declared. The legal consequences are the same and, therefore, whatever interpretation we place on Article 359, clause (1) in the present case which relates to declaralion of emergency on account of internal disturbance would apply H equally where the emergency is declared on account of war or external aggression by a hostile power. If we take the view that thePresidential Order und.er Article 359, clause (1) suspending enforcement of ...\n\n( 1) [19311 A. C. 662.\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 425\n\nArticle 21 does not bar the remedy of a detained person to seek his A _, release on the ground that his detention_ is illeg'.'1, it would be open to a detained person to challenge the legality of his detent101:1 even when there is emergency on account of war or e\".trna! aggression, ase, barring Article 359, there is no other prov1s1on m the Co; istitu!Ion which can even remotely be suggested as suspendmg or takmg away the right to move the Court in cases of illegal detention. The conse- B • quence would be that even in a perilous situation when the nation is engaged in morta.l combat wi.th aµ enemy,_ the cour~ would be free to examine the legality <?f detention and even if a deten!lon ha~ been mde .i for efficient prosecul!on of the war or protectmg the nation agamt enemy activities, it would be liable to be struck down by the courts if some procedural safeguard has been violated though it may be bona fide and through inadvertence.\n\nThis would imperil national security c .and the Government of the day would be helpless to prevent it. The qnestion is : whether such is the interpretation of Article 359, clause ... ( 1). Of course, if that is the only possible interpretation, we must give effect to it regardless of the consequence, leaving it to the constituent authority to amend the Constitution, if it so thinks fit.\n\nBut we may ask ourselves : could the Constitution-makers have intended that even in times of war or external aggression, there should be no D power in the President, as the head of the Nation, to bar judicial \" scrutiny into legality of detention. It may be pointed out that even in • the United States of America, the President has power under Article I Placi!um 9, clause (2) of the United States Constitutlun to suspend J the privilege of the writ of habeas corpus \"when in cases of rebellion • or invasion the public safety may require it\". The British Parliament has also on several occasions in the past suspended the writ of habeas E corpus by legislative enacl!nent, though in limited classes of casei;. The Constitution-makers were obviou&ly aware that even in these countries\n\nJ. which are essentially democratic in character and where the concept of constitutional government has had its finest flowering, the power to exclude judicial review of legality of detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the State and they must have realised that this was a necessary F power in times of national peril occasioned by war or external aggres- .. sion. Could the Constitution-makers have intended to omit to provide ' for conferment of this power on the head of the State in our Constitution? \\ • • We must also disabu~~ our mind of any notion that the emergency declared by the rolamation dated 25th June, 1975 is not genuine, or G to borrw an adjective used by one of the lawyers appearing on behalf of the iterveers, is '.phoney', This emergency has been declared by the President m exercise of the powers conferred on him under Article 352, clause (1) and the validity of the Proclamation dated 25th June 1975 declaring this emergency has not been assailed before us.\n\nMr'.\n\nShanti Bhushan and the other learned counsel appearing on behalf of the detenus in fact conceded before us that, for the purpose of the pre- H ..... sent appeals, we may proceed on the assumption that the declaration of emergency under the Proclamation dated 25th June 1975 is valid.\n\nBut if this emergency is taken as valid, we must eqully presume that\n\nit is genuin<; and give full effei:t to it, without any hesitation or reservallon.\n\nWith these prefatory observations T will now turn to e.xamine clause ( 1) of Art. 359 under which the Presidential Order has been issued. The language of this clause is clear and explicit and does not present any difficulty of construction. It says that where a Proclamation of Emergency is in operation, the President may by order suspend the nght to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order.\n\nAny or all of the rights conferred by Part III can find a place in the Presidential Order. Whilst the Presidential Order is in force, no one can move any court for the enforcement of any of the specified fundamental rights. I shall presently discuss whether Article 21 can be' said to confer any right, but assuming it does-and, as will be evident shortly, that is my conclusion-the right to move any court for the enforcement of the fundamental right ,.guaranteed by Article 21 may be suspended by specifying it in the Presidential Order. When that is done, no one can move any court, and any court would mean any court of competent jurisdiction, including the High Courts and the Supreme Court,, for enforcement of the right conferred by Article 21.\n\nThe words \"the right to move any court for the enforcement'' are wide enough \"to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified fundamental rights\". Vide Makhan Singh v.\n\nState of Punjab(').\n\nTherefore, there can be no doubt that in view of the Presidential Order which mentions Article 21, the detenus would have no locus standi to\n\nmaintain their writ petitions, if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21.\n\nThat should logically take me straight to a consideration of the question as to what is the scope and content of the right conferred by Art. 21 for without denning it, it would not be possible to determine whethe; the right sought to be enforced by the detenus in their writ petitions is the right guaranteed under Article 21 or any other distinct fight But before I examine this question, it would _be. convenint first to deal with clause (IA) of Arllcle 359 and ascertam its meamng and effect Clause ( lA) of Art. 359 did not find a place in the Constitution when it was originally enacted, but it was inserted with retrospective effect by the Constitution (Thirty-eighth) Amendment Act, 1975 ..\n\nIt provides that while an order made under cl. ( 1) o~ Article ?59 mentionincr any of the rights conferred by Part III is m operation, nothing in\" that Part conferring those rights shall restrict the power of the State to make any law or to take any execntive action which the State would, but for the provisions contained in that Part, be competent to make or to take. It will be noticed that the language of cl. {IA) of Art. 359 is in the same terms as that of Article 358 awi the decisions interpreting Article 358 wonld, therefore, afford considerable guidance in the interpretation of cl. (IA) of Art 359. But before I\n\n(1) [19641 4 S. C, R. 797.\n\nv . '\n\n• r\n\nI \" •\n\nr . ..\n\n\\. )\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 427\n\nturn to those decisions, let me try to arrive at the proper meaning of that clause on a plain interpretation of its language.\n\nIn the first place, it is clear that clause (lA) of Art. 359 is prospective in its operation, for it says that, while a Presidential Order is in operation, nothing in the Articles mentioned in the Presidential Order shall restrict the power of the State to make any law or to take any executive action which the State would, but for the provisions contained in Part III, be competent to make or to take. This clause does not operate to validate a legislative provision or executive action which was invalid because of the constitutional inhibition before the Proclamation of Emergency._ Secondly, it may be noted that the fundamental rights operate as restrictions on the power of the State, which includes the executive as well as the legislature.\n\nWhen a Presidential Order is issued under article 359, clause (1), the fundamental right mentioned in the Presidential Order is suspended, so that the restriction on the power of the executive or the •legislature imposed by the fundamental right is lifted while the Presidential Order is in operation and the executive or the legislature is free to make any law or to take any action which it would, but for the provisions contained in Part III, be competent to make or to take.\n\nThe words \"but for the provisions contained in that Part\", that is, but for the fundamental rights, means \"if the fundamental rights were not there\". The question which has, therefore, to be asked is : if the fundamental rights were not there in the Constitution, would the executive or the legislature be competent to make the impugned law or to take the impugned executive action'?\n\nIf it could, it would not be restricted from doing so by reason of the particular fundamental rigi\\t mentioned in the Presidential Order.\n\nThe Presidential Order would, therefore, have the effect of enlarging the power of the executive of the legislature by freeing it from the restriction imposed by the fundamental right mentioned in the Presidential Order, but it would not enable the legislature or the executive to make anv law or to take any executive action which it was not otherwise competent to make or to take. Now it is clear that, if the fundamental rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the preiudice of a person except by authority of law and in conformity with or in accordance with law and. therefore, even if the Presidential Order mentions Art. 21, clause (IA) of Article 359 would not enable the executive to deprive a person of his personal liberty without sanction of law and except in conformity with or in accordance with law. If an order of detention is made by .the executive without the authority of law, it would be invalid and its invalidity would not be cured by clause (IA) of Article 359, because that clause does not protect executive action taken without lawful authority. An unlawful order of detention would not be protected from challenge under Article 21 by reason of clause (IA) of Article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of Article 21, except in so far as his right to move the court for that purpose may be held to have been taken away by clause (1) of Article 359. This interpretation of clause (lA) of Article 359 is clearly supported by the decision of this Court in State of Madhya Pradesh v.\n\nThakur Bharat Singh(') and the subsequent decisions following it, which relate to the inteniretation oil th~ similarly worded Article 358.\n\nWhat happened in Bharat Singh's case (supra) was that whilst the Proclamation of Emergency dated October 20, 1962 was in operation, the State Government made an order under sub-section ( 1) of section 3 of the Madhya Pradesh Pub!iq Security Act, 1959 directing that Bharat Singh shall not be in any place in Raipur District and shall immediately proceed to and reside in Jhabua. Bharat Singh challenged the validity of the order inter alia on the ground that sub-section ( 1) of section 3 of the Ac~ infringed the fundamental rights guaranteed under clauses (d) 1md (e) of Article 19(1). The State Government sought to meet the challenge by pleading the bar of Article 358. But this Court held that Article 358 had no application because sub-section ( 1) of section 3 of the Act which was impugned in the petition was a pre-emergency legislation. This Court, speaking through Shah, J. observed:\n\n\"Article 358 which suspends the provisions of Art. 19 during an emergency declared by the Presrdent under Art. 352 is in terms prospective : after the proclamation of emergency nothing in Art. 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take. Article 358 however does not operate to validate a legislative provision which! was invalid because of the constitutional inhibition_ before the proclamation of emergency.\"\n\n~ This Court accordingly proceeded to consider the vaJidity of section 3, sub-section (1) of the Act and held that clause (b) of that sub-section was unconstitutional as it infringed the fundamental rig11ts under clauses ( d) and ( e) of Art. 19 ( 1) and if it was void before the Proclamation of Emergency, \"it was not revived by the Proclamation\".\n\nBut on this view, another contention was put forward on behalf of the State Government and that was that Article 358 protects not only legislative but also executive action taken after the Proclamation of Emergency and, therefore, executive action taken by the State would not be liable to be challenged on the ground that it infringes the fundamental rights under Art 19, and consequently,. the Order of the State Government, though ma!le under void law was protected against challenge under Art. 19. This contention was also rejected by the Court in the following words :\n\n\"In our judgmnt, te ar¥ument involves a grave fallacy. All executive action which operates to the prejudice of any person must have authority of law to support it and the terms of Art. 358 do not detract from that rule. Article 3.58 does not prport to invest the State with arbitrary autho-\n\n~1ty to take ac.tton to the prejudice of citizens and others : 1t merely provides that so long as the proclamation of cmer·\n\n(1) [1967] 2 S .. C. R 454.\n\n' • •\n\n• • •\n\nI -\n\n......\n\n' T\n\n• • •\n\n' , A\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 429\n\ngency subsists laws may be encted, and executive action may A be taken in pursuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid.\n\nThe view taken by the Court was that it is only where executive action is taken in pursuance of lawful authority that it is immune from challenge under Art. 19 and in such a case even if it conflicts with the fundamental rights guaranteed under tha! Article, it would be valid.\n\nBut where executive action is taken without lawful authority, as for example, where it is taken without the authority of any law at all or in pursuance of a law which is void, it is not protected from challenge under Art. 19 by Article 358 and it would be void to the extent it violates article 19.\n\nThe same view was taken by this Court in District Collector of Hyderabad v. Mis.Ibrahim & Co.(') where this Court said, without referring expressly to the decision in Bharat Singh's case (supra) that\n\n\" the executive ordr immune from attack is only that order which the State was competent, but for the provisions contained in Art. 19, to make\", and that \"executive action of the State Government, which is otherwise invalid, is not immune from attack merely because the Proclamation of Emergency is in operation when it is taken\". The reference here was to immunity from ttack under Art. 19 and it was held that executive action which was contrary to law and hence invalid, was not protected from attack under Art. 19 by reason of Art. 35i.\n\nSo also in Bennett Coleman & Co. v. Union of lndia(2 ); this Court referred to the decisions in Bharat Singh's case (supra) and Ibrahim's case (supra) and observed : \"Executive action which is unconstitutional is immune during Proclamation of Emergency. During the Proclamation of Emergency Art. 19 is suspended. But it would not authorise the taking of detrimental executiv~ action during the emergency affecting fundamental rights in Art. 19 without any legislative authority or any purported exercise of power conferred by any pre-emergency. law which was invalid when enacted\".\n\nThis Court also said to the same effect in Shree Meenakshi Mills Ltd. v. Union of India(') : \"-- if it can be shown that the executive action taken during the emergency has no authority of a valid Jaw, its constitutionality can be challenged\".\n\nThese observations clearly show that whern executive action is taken :Witliout any legislative authority or in pursuance of a law which is void, 1t would not be protected by Art. 358 from challenge under Art. 19 and it would be unconstitutional to the extent to which it conflicts with that Article.\n\nG. ' If this be the interpretation of Art. 358 as laid down in the decisions of this Court, a fortiori a like interpretation must be placed on clause ( lA) of Art. 359, as both are closely similar \\n form as well as lan.guage. It must, therefore, be held that even though a Presidential Order issued under clause (1) of article 359 mentions Art. 21 where it is found that a detention has not been made in pursuance' of lawful\n\n( 1) f\\970] 3 S. C. R. 49'8. -...\n\n(2) [1973] 2 S. C. R 757,\n\n(S) [1974] 2 S. C. R. 398.\n\nA authority or in other words, the detention is without the nuchoncy of law, whether by reason of there being no law at all or by reason of the law under which the detention is made being void, clause (1 A) of Art. 359 would not protect it from challenge under Art. 21 and it would be in conflict with that Article. The only question then would be \\\\hether the detcnu would be entitled to challenge1 the validity of the detention as being in breach of Art. 21, in view of clause (1) of Art. 359 read with the Presidential Order mentioning Art. 21.\n\nNow, at the outset, a contention of a preliminary nature was advanced by Mr. Shanti Bhushan, learned Advocate appearing on behaif of some of the detenus, that clause ( 1) of article 359 can have no operation in cases where a detenu seeks to enforce his right of personal liberty by challenging the legality of his detention. Mr. Shanti Bhushan contended, and in this contention he was strongly supported by Mr. Jethmalani, that personal liberty is not a conglomeration of positive rights but is merely a negative concept denoting an area of free action to the extent to which law does not curtail it or authorise its curtailment and such a negative right cannot by its very nature be the subject of conferment under Art. 21.\n\nThe argument of counsel based on this contention was that when Art. 359 clause ( 1) speaks of suspension of \"the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order\", it cannot include reference to the right of personal liberty in article 21, because it cannot be said of such a right that it is conferred by art. 21.\n\nIt was urged that article 21 cannot thereore appropriately find a place in a Presidential Order under clause (1) of article 359 and even if it is erroneously mentioned there; it can have no legal sequitur and cannot give rise to the consequences set out in clause ( 1) of article 359.\n\nThis argument was sought to be supported by reference to two well known text books on jurisprudence, one by Salmond and the other by Holland and the Declaration of the Rights of Ma11 and the Citizen adopted by the French National Assembly was also relied upon for this purpose.\n\nThere is, however, no merit in this argument.\n\nThe words 'rights conferred by Part III' cannot be read in isolation, nor can they be construed by reference to theoretical or doctrinaire considerations.\n\nThey must be read in the context of the provisions enacted in Part III in order to determine what are the rights conferred by the provisions in that Part.\n\nPart III is headed \"Fundamental Rights\" and it deals with fundamental rights under seven heads, namely, right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies.\n\nArts. 19 to 22 occur under the heading \"Right to Freedom\" and what is enacted in Art. 21 is a right, namely, the right to life and personal liberty.\n\nIt is true that Art. 21 is couched in negative language, but it is axiomatic that to confer a right it is not necessary to use any particular form of language.\n\nIt is not uncommon in legislative practice to use negative language for conferring a right. That is often done for lending greater emphasis and strength to the legislative enactment One instance may be found in s. 298, sub-s. (1) of the Government of India Act, 1935 which provided that no subject of His Majesty domiciled in India shall on\n\n' • t -\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.)\n\n43I\n\n• grounds only of religion, place of birth descent, colour or any of them A be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India.\n\nThough this provision was couched in negative language, the Judicial Committee of the Privy Council in Punjab Province v. Dau/at\n\nSingh(') construed it as conferring a right on every subject of His Majesty, domiciled in India.\n\nB Similarly, Art. 14 also employs negative language and yet it was construed to confer a fundamental right on every person within the territory of India, S. R. Das, C.J., pointed out in Basheshar Nath v.\n\nThe Commissioner of Income Tax, Delhi & Rajasthan(2) that it is clear from the language of Art. 14 that \"The command of that Article is directed to the State and the reality of the obligation thus imposed C on the State is the measure of the fundamental right which every person within the territory of India is to enjoy.\" (emphasis supplied).\n\nArticle 31, clause ( 1) is also couched in negative language : it is almost in the same form as Article 21.\n\nSpeaking about Article 31, S. R. Das, J. observed in State of Bihar v. Maharajadhiraj Kameshwar Singh of Dharbhanga & Ors.('). \"It confers a fundamental right in so far as it protects private property from State action.\n\nThe only D limitation put upon the State action is the requirement that the authority of law is prerequisite for the exercise of its power to deprive a person of his property.\n\nThis confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right. It is to emphasise this immunity from State action as a fundamental right (that the clause has been worded in negative language ... \" (emphasis supplied).\n\nE If Article 31 (1), by giving a limited immunity from State action, confers a fundamental right, it should follow equally on a parity of reasoning that Article 21 also does so.\n\nIn fact, this Court pointed out in so many terms in P. D. Shamdasani v. Central Bank of India Ltd. (4 ) : that clause (1) of Art. 31 \"is a declaration of fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty\".\n\nF Then again in R. C. Cooper v. Union of India(') this Court in a majority judgment to which ten out of eleven judges were parties said :\n\n\"-it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms.\n\nIn some cases it is an express declaration of a guaranteed right: Art. 29(1), 30(1), 26, 25 and 32, in others G to ensure protection of individual rights they take specific forms of restrictions on State action-legislative or executive -Arts. 14, 15, 16, 20, 21, 22(1), 27 and 28; --The enunciation of rights either express or by i111plication does not follow a uniform pattern. But one thread runs through\n\n( 1) 73 Indian Appeals 59.\n\n(2) [1959] Supp. (1) S. C. R. 529.\n\n(3) [1952] S. C. R. 889 at p. 988.\n\n(4) [1952] S. C.R. 391.\n\n(5) [1970] 3 S. C. R. 530.\n\n\n[1976] SUPPLEMENTARY • A them; they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits.\n\nPart III of the Constitution weaves a i - pattern of guarantees on the texture of basic human rights.\"\n\nThis statement of the law establishes clearly and without doubts that Article 21 confers the fundamental right of personal liberty.\n\nB Let us, for a moment, consider what would be the consequences if Art. 21 were construed as not conferring a right to personal liberty.\n\nThen there would be no fundamental right conferred by Art. 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is\n\ninfringement of Art. 21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under Art. 32, for that Article is available only for enforcement of the rights conferred by Part III.\n\nThat would be a startling consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individu:>l against illegal detention.\n\nLet it not be forgotten that the Supreme Court has exeri:ised this jurisdiction in a large number of cases over the last 25 years and set many detenus at liberty where it found that they were illegally detained.\n\nAll this exercise of jurisdiction in the past would be rendered illegal and void.\n\nEver since the commencement of the Constitution, this Court has always regarded Article 21 as conferring the fundamental right of personal liberty which can be enforced in this Court by a petition under Article 32 and there is no justification for departing from this well settled constructional position.\n\nWhat then is the scope and ambit of this fundamental right conferred by Article 21 ? The first question that arises in this connection is : what is the meaning and content of the word 'personal liberty' in this Article?\n\nThis qnestion came up for consideration before a Bench of six judges of this Court in Kharak Singh v. State of U.P. & Ors.(1).\n\nThe majority judges took the view \"that 'personal liberty' is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those dealt with in the several of clauses of Article 19 (1).\n\nIn other words, while Article 19 (1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue\".\n\nThe minority judges, however disagreed with this view taken by the majority and explained their position it\\ the following words : \"No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'persona!. liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach.\n\nBoth are independent fundamental rights, though there is overlapping.\n\nThere is no question of one being carved out of another.\n\nTI1e fundamental right of life and personal liberty have many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law\n\n(!) [1964] I S. C. R. 332.\n\n. l\n\n' • •\n\n• •\n\nI r •\n\n--)\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 433\n\nto sustaiu the action, but that cannot be a. complete answer unless' Af. the said law satisfies. the test laid' down in Artiole 19(2.) so far a~· the attributes covered by Article 19 (l) are concerned.\" There can be n<> doubt that in view of the decision1ofthisCourt in.R. C. Cooper's case (supra) the minority view must be regarded as correct and the majority view must be held to have been overruled.\n\nNo attribute of personal liberty can be regarded as having been carved out of Article 21.\n\nThat Article protects all attributes of personal liberty against executive action which, is. not: supported by law. It is not necessary for the purpose of the present appeals to decide what those attributes are or to identify or define them. It is enough to say that when a person is detained, there is deprivation of personal liberty within the meaning of Article 21.\n\nNow Article 21 gives. protection against deprivation of personal liberty but what is the nature and extent of this protection '!\n\nIn the first place, it may be noted that this protection is only against State action and not against private individuals. Vide P. D. Shamdasani v.\n\nCentral Bank of India Ltd. (supra) and Smt. Vidya Verma v. Dr. Shiv Narain(').\n\nSecondly, it is clear from the language of Art. 21 that the protection it secures is a limited one. It says and I am quoting D here only that part of the Article which relates to personal liberty, that no one shall be deprived of his personal liberty except by the procedure prescribed by .Jaw.\n\nThe meaning of the word 'law' as used in this Article came to be considered by this Court in A. K. Gopalan\n\nv. State of Madras( 2 ) and it was construed to mean 'enacted law' or 'State law'. Kania, C.J., observed : \"It is obvious thatlaw must mean enacted law'', and to the same effect spoke Patanjali E Sastri, J., when he said : \"In my opinion 'law' in Art. 21 means 'positive or State made law'\".\n\nSo also Mukherjea, J., said that his conclusion was that \"in Art. 21 the word 'law' has been used in the sense of State made law\", and Das, J. too expressed the view that law in Art. 21 must mean State made law.\n\nThe only safeguard enacted by Article 21, therefore, is that a person cannot be deprived of his personal liberty except according to pr0Cedure prescribed by 'State F made' law.\n\nIf a law is made by the State prescribing the procedure for depriving a person of his personal liberty and deprivation is effected strictly in accordance with such procedure, the terms of Article 21 would be satisfied and there would be no infringement of the right guaranteed under that Article.\n\nNow, based on the phraseology \"except according to procedure established by law\" in Article 21, an argument was advanced on behalf of the detenus that it is only where procedure prescribed by the law has not been followed in making the order of detention that Article 21 is at1rapted and the right conferred by that Article is breached and not where an order of detention is made without there being anv law rt all or where there is a law, outside the authority conferred b.y it. It was urged that where an order of detention is challenged as mala\n\n(1) [1955] 2 S. C .. IR. 983.\n\n(2) [1950] S. C. R. 88.\n\n833 SCI/76\n\nfide or as having been made without the requisite subjective satisfaction, the challenge would not be on the ground of breach of the procedure prescribed by the Act but it would be on the ground that the order of detention is outside the authority of the Act and such a challenge would not be covered by Article 21. This argument is, in my opinion, wholly unsustainable. It is clear on plain natural construction of its language that Article 21 imports two requirements : first, there must be a law authorising deprivation of personal liberty, and secondly, such law must prescribe a procedure. The first requirement is indeed implicit in the phrase \"except according to procedure prescribed by law\".\n\nWhen a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation. Article 21 thus provides both substantive as well as procedoral safeguards.\n\nThis was pointed out by Patanjali Sastri, J. in A. K. Gopalan v. State of Madras (supra) at page 195 of the Report where the learned Judge said :\n\n\"If article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non-citizens to be found in the Constitution ?\n\nAre they denied such right altogether ? If they are to have no right of. personal liberty, why is the procedural safeguard ht article 21 extended to them? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that article 21,-presents an example of the fusion of procedural and substantive rights in the same provision-the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation.\"\n\nMahajan, J. also pointed out in the same case at page 229 of the Report:\n\nArtice! 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure establsihed by law; in other words, it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such' deprivation.\"\n\nS. R. Das, J. too spoke in the same strain when he negatived the argument \"that personal liberty as a substantive right is protected by Article 19 ( 1) and article 21 gives only an additional protection by prescribing the procedure according to which that right may be taken away.\" It would, therefore, be seen that both the safeguards of Article 21, substantive as well as procedural, have to be complied with in order that there should be no infraction of the right conferred by that Article. Where there is a law authorising deprivation of personal liberty, but a person is detained otherwise than in conformity with the procedure prescribed by such law, it would clearly constitute\n\nt ..\n\n• •\n\n• • •\n\n• •\n\n--~\n\n' , .\n\n' ' •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 435\n\nviolation of Article 21. And so also there would be breach of Article 21, if there is no law authorising deprivation of personal liberty and yet a person is detained, for then the substantive safeguard provided in the Article would be violated.\n\nTherefore, when a detenu challenges .an order of detention made against him on the ground that it is mala fide or is not preceded by the requisite subjective satisfaction, such' challenge would fall within the terms of Article 21.\n\nIt is also necessary to point out two other ingredients of Article\n\n21. The first is that there must not only be a Jaw authorising deprivation of personal liberty, but there must also be a procedure prescribed by law, or in other words, law must prescribe a procedure.\n\nVide observations of Fazal Ali, J. at page 169, Patanjali Sastri, J. at page 205, Mahajan, J. at pages 229 and 230 and S. R. Das, J. at page 319 of the Report in A. K. Gopalan's case (supra). Article 21, thus, operates not merely as a restriction on executive action against deprivation of pers, onal liberty without authority of Jaw, but it also enacts a check on the legislature by insisting that the Jaw, which authorises deprivation, must establish a procedure. What the procedure should be is not laid down in this Article,-but there must be some procedure and at the least, it must conform to the minimal requfrements of Article 22.\n\nSecondly, 'law' within the meaning of Article 21 must be a valid law and not only must it. be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the fundamental. rights enumerated in Part Ill. Vide Shambhu Nath Sarkar v. The State of West Bengal(1) and Khudiram Das v. The State of West Bengal & Ors.(2 ) •\n\nIt was contended by Mr. Jethmalani on behalf of some of the detenus that when a Presidential Order suspends enforcement of the right conferred by Art. 21, its effect is merely to suspend enforcement of the aforesaid two ingredients and, therefore, the only claims which a detenu is interdicted from enforcing, whilst the Presidential Order is in operation, are : (1) that the Jaw authorising deprivation does not prescribe a procedure, and (2) that it does not impose reasonable restrictions on the freedom guaranteed under Art. 19.\n\nThis contention is plainly erroneous and does not need much argument to refute it. In the first place, the requirement that the Jaw which authorises . deprivation of personal liberty should not fall foul of Article 19, or for the matter of that, with any other fundamental right set out in Part III, is not a requfrement of Article 21, but it is a requfrement of Art.\n\n13. Secondly, the effect of suspension of enforcemenf of Article 21 by the Presidential Order is that no one can move any court for enforcement of the right conferred by Art. 21, whilst the Presidential Order is in opration. The righ'. conferred by Article 21 is the right not to; be depnved of personal liberty except according to procedure pr.escnbed by la'.\"'.\n\nTherefore, when the. xecutive detains a person without there be1.ng any lw at all authonsmg detention or if there is such law, otherwJSe 111an m accordance with its provisions that would clearly be in violation of the right conferred by Art. 21 ad such vio-\n\n(1) [1974] I S .. C.R. !.\n\n(2) [1975] 2 s. c. R. 832.\n\nlation would a fortiori be immune from challenge by reason of the Presidentfal Otdet: ·It musr follow fuevitably from this that when a detenu 7hallenges an order of letention OD; !he ground that it i~ mata fide or IS nonn accordance with the prov!Slons -0f the Act or 1s outside the authority conferred by the Act, he would be seeking to enforce tlie right of personal liberty com erred on him under Art. 21 and that would be inhibited by' the Presidential Order.\n\nThat takes me to a consideration of the concept of the rule of law on which so much reliance was placed on: behalf of the detenus in order to save their writ petitions from the lethal effect of the Presidential Order. The contention on behalf of the detenus was that their writ petitions were for enforcement of the right of the personal liberty based on the principle of the rule of law that the executive cannot interfere with the liberty of a person except by authority of law and that was not within the inhibition of the Presidential Order. The question is : what is this principle of the rule of law and does it exist under our Constitution as a distinct and separate constitutional principle, independently and apart from Article 21, so as to be capable of enforcement even when enforcement of Article 21 is suspended by the Presidential Order. •\n\nThe Great Charter of Liberties of England, commonly known as the Magna Carta, was granted under the seal of King John in the meadow called Runnymede on 15th June, 1215. This was followed within a couple of years by a revised version of the Charter which was issued in the name of Henry III in 1217 and ultimately with slight amendments, another Charter was re-issued by Henry III in 1225 and that document has always been accepted as containing the authorised text of Magna Carta.\n\nWhenever reference is made to Magna Carta, it is to the Charter of 1225 which is also described as \"9 Henry III\n\n(1225) \". Magna Carta, according to Sir Ivor Jennings symbolises \"what we should now call the rule of law, government according to law or constitutional gove=ent\" which means that all power should come from the law and that \"no man, be he king or minister or private person is above the law\". It recognised that \"the liberties of England, which means the liberties of all free men--depended on the observance of law by King, lord and commoner alike\", and \"without law there is no liberty\".\n\nCap. XXTX con.tains the famous cl\"use of the Magno Carta which provided that : \"No free man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor \\Vilil we commit him to nri<; on, cxccr:tinf! bv thf'. legal judgment of his peers, or by the laws of the land.\" Thus;' for the first time the great principle was enunciated-though even before, it was always part of the liberties of the subject-that no one shall be imprisoned or deprived of his liberty except by the authority of the law of the land.\n\nThe power of the King to arrest a person or to deprive him of his liberty was circumscribed by law. That is why Bracton said about the middle of the 13th Century \"-the king himself ought not !Cl!\n\n• • -\n\n' •\n\n.. \" ' •\n\n...\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 43 7\n\nunder man l; mt uuder Qod and under the law, because the law makes the King.\n\nTherefore, let the King attribute to the law what the law attributes to the King, namely, lordship and power, for there is no king where will governs and not law\".\n\nMagna Carta was confirmed again by . the successive kings on the insistence of Lords and commons and the rule of law embodied in Magna Ca.rta governed the actions of the King vis-a-vis his subjects.\n\nBut this great principle of liberty was placed in jeopardy in the 17th Century when a claim was made by the King that he had a prerogative right to arrest and detain a subject and this prerogative right was necessary for the defence of the Realm.\n\nWhen the King sought to raise moneys from the subjects without the sanction of the Parliament, it was resisted by Darnel and others and they were on that account committed to prison under the orders. of the King.\n\nOn the application of these persons, who were so imprisoned, a writ of habeas corpus was issued and the return made. to it on behalf of the King was that they were imprisoned per speciale mandate Domini Regis (1627 St. Tr. I warnel's case). This return was considered sufficient and the writ was discharged. The effect of this decision was that King needed no authority of law in order to deprive a subject of his personal liberty.\n\nBut the Parliament was quick to nullify this decision by enacting the Petition of Right, 1628 and it reaffirmed the right to personal liberty in section 3 of that Act and declared such a cause of imprisonment to be unlawful.\n\nThe principle that the Executive cannot interfere with the liberty of a subject unless such interference is sanctioned by the authority of law was thus restored in its full vigour.\n\nBlackstone in his Commentaries on the Laws of England, vol. 1, 4th ed. p. 105 stated the principle in these terms : E \"- the law of England regards, asserts and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, -0f changing situation, or removing one's person to whatsoever place one's own inclination may direct; for imprisonment or restraint, unless by due course of law-It cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws.\n\nHere again, the language of the Great\n\n•• '\n\nCharter is, that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land.\" (emphasis supplied)\n\nSince then, the validity of this principle has never been doubted and G the classical statement of it is to be found in the oft quoted passage from the judgment of Lord Atkin in Eshugbayi (Eleko) v.\n\nOfficer AdministerinR the Government of Nigeria (supra) where the learned Law Lord said :\n\n\"The Governor acting under the Ordinance acts solely \" under executive powers, and in no sense a Court.\n\nAs the\n\ncxective he can only act in pursuance of the powers given to him by law.\n\nIn accordance with British jurisprudence no member of the executive can interfere with the liberty or\n\nproperty of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.\" Since in this country prior to the commencement of the Constitution, we were administering British jurisprudence, this constitutional principle was equally applicable here. That was the direct result of the binding authority of the decision of the Privy Coun- .cil in the aforementioned case. But quite apart from that, the courts in India uniformly accepted this constitutional principle as part of the law of the land.\n\nVide Secretary of Srate for Indi11\n\nv. Hari Bhanji(') and Province of Bombay v. Khushaldas Advani(').\n\nBose, J., in P. K. Tare v. Emperor(3) quoted with approval the aforesaid passage from the judgment of Lord Atkin and pointed out that before the executive can claim power to override the rights of the subject \"it must show that the legislature has empowered it to do so\".\n\nThe learned Judge also referred to the following passage from the dissenting judgment of Lord Atkin in Liversidge v. Anderson(4 ) \"It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting( that the Judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive; alert to see that any coercive action is justified in law.\" (emphasis supplied), and, pointing out tbat Lord Macmillan and L<Jrd Wright also agreed with this principle, observed that these principles of liberty \"to which Lord Atkin refers, apply as much to India as elsewhere\".\n\nSo also in Vimlabai Deshpande v. Emperor(') the same two passages, one from the judgment of Lord Atkin in Eshugbayi's case (supra) and the other from the judgment in Liversidge's case (supra) were referred to with approval by Bose and Sen, JJ.\n\nIt was also accepted by a Division Bench of th~ Calcutta High Court consisting of Malik and Remfry, JJ. in Jitendranath Ghosh v.\n\nThe C/u'ef Secretary to the Government of Bengal(') that \"-- in F accordance with British jurisprudence, and with the jurisprudence of British India, no member of the excutive can interefere with the liberty or property of a British subject, or of a foreigner in our land, except on the condition that he can, and, if duly called upon, must support the legality of his action before a court of justice\". The Division Bench pointed out that \"the courts can, and in a proper case must consider and determine the question whether there has been a fraud G on an Act or an abuse of powers granted by the legislature, Eshugbayi Eleko's case\".\n\nAmeer Ali, A.C.J., and S. R. Das, J. also quoted with approval in Tn re : Banwarilal Roy(') the aforesaid passage from the judgment\n\n(1) [1882] I. L. R. 5 Mad. 273.\n\n(2) [1950] S. C. R 621.\n\n(3) A. J. R. 1943 N,.g, 26. ( 4) [1942] 42 A. c. 206.\n\n(5) A. r. R. 1945 Nag. 8.\n\n(6) J. L R. 60 Cal. '64 at 377.\n\n(7) (48 Cal. Weekly Notes 766 M 780)\n\n• • I\n\n• ' •\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, /.). 439\n\nof Lord Atkin in Eshugbayi Eleko's case (supra) and relied on the decision in Jitendranath Ghosh's case (supra) and particularly the observations from the judgment in that case which I have just reproduced.\n\nThese observations clearly show that in our country, even in pre-constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in .accordance with , law.\n\nIt would be seen from the above discussion that, even prior to the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts. It was clearly 'law in force' and ordinarily, by reason of Article 372, it would have continued to subsist as a distinct and separate principle of law even after the commenccm_ent of the Constitution. But when the Constitution was enacted, some aspects of this principle of rule of law were expressly recognised and given constitutional embodiment in different Articles of the Constitution.. Thereafter they did not remain in the realm of unwritten law.\n\nArticle 21 enacted one aspect of the principle of rule of law that executive cannot deprive a person of his life or P.ersonal liberty without authority of law and added a requirement that the law which authorises such deprivation must prescribe a procedure. Another aspect of the principle of rule of law was enacted in clause ( 1) of Article 31, namely, that no one shall be deprived of his property save by authority of law.\n\nThat is why it was pointed out by Shah, J. in R .C. Cooper's case\n\n(supra) that \"Clauses (1) and (2) of Article 31 subordinate the exercise of the power of the State to the basic concept of the rule of law\".\n\nA third aspect was constitutionailsed in various sub-clauses of clause ( 1) of Article 19 inhibiting executive action unsupported by law, which conflicted with the different freedoms guaranteed in these subclauses. Then Article 265 recognised and enacted a yet fourth aspect, namely, that no tax shall be levied and collected witkout authority of law.\n\nArticle 19, clause (1), Article 21, Article 31, clause ( 1) and Article 265 thus embody different aspects of the principle of rule of law.\n\nWe are concerned in these appeals only with Article 21 and, therefore, I shall confine my discussion only to that\n\nArticle .\n\nNow, to my mind, it is clear that when this principle of rule of w that the executive cannot deprive a person of his liberty except ·\"by\n\nauthority of law, is recognised and embodied as a fundamental •irjit and enacted as such in Article 21, it is difficult to comprehend how it conld continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture.\n\nI fail to see how it could continue in force under Article 372 when it is expressly recognized and eml; iodied as a fundamental right in article 21 and finds a place in the express provisions of the Constitution.\n\nOnce this principle is recognised and incorporated in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State.\n\nThis position\n\nindeed become incontrovertible when we notice that, while recognising and adopting this principle of rule of law as a fundamental right, the Constitution has defined its scope and ambit and imposed limitation on it in the shape of Article 359A, clauses (1) and (lA). When the constitution-makers have cleariy intended that this right should be subject to the limitation imposed by Article 359, clause ( 1) and ( lA), it would be cocytrary to all canons of construction to hold that th~ sa!11e ' right continues to exist independently, but free from the hm1tat10n imposed by Article 359, clauses (1) and (lA). Such a construction would defeat the object of the constitution-makers in inlposing the linlitation under Article 359, clauses (1) and (lA) and make a mockery of that linlitation.\n\nThe conseqnence of such a construction would be that, even though a Presidential Order is issued under clause\n\n(1) of Article 359 suspending the right to move the court for enforcement of the right guaranteed nnder Article 21, the detenu would be entitled to ignore the Presidential Order and challenge the order of the detention on the ground that it is made otherwise than in accordance with law, which is precisely the thing which is songht to be interdicted by the Presidential Order.\n\nThe Presidential Order would in such a case become meaningless and ineffectual.\n\nCan an interpretation be accepted which would reduce to futility Article 359, clause (1) in its application in relation to Article 21 ? Could the constitution-makers have intended such a meaning ? The only explanation which could be offered on behalf of the detenus was that the object of Article 359, clause ( 1) is merely to prevent a person from moving the Supreme Court under Article 32 for enforcing the right of personal liberty and it is not intended to effect the enforcement of the right of personal liberty based on the rule of law by moving the High Court under Article 226. :But this explanation is wholly unconvincing.\n\nIt is difficult to understand why the constitution-makers should have intended to bar only the right to move the Supreme Court under Article 32 in so far as the right of personal liberty is concerned.\n\nThere would be no point in preventing a citizen from moving the Supreme Court directly under Article 32 for securing his release from illegal detention, while at the same time leaving it open to him to move the High Court for the same relief and then to come to the Supreme Court in appeal, if necessary.\n\nThat would be who!ly irrational and meaningless.\n\nTherefore, the only way in which meaning and effect can be given to the Presidential Order suspending the enforcement of the right of personal liberty guaranteed under Article 21 is by holding that tl!'e principle of rule of law, that the executive cannot interfere with the personal liberty of any person except by authority of law, is enacted in Article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty, independently and apart from that Article.\n\nConsequently, when the enforcement of the right of personal liberty conferred by Atricle 21 is suspended by a Presidential Order, the detenu cannot circumvent the Presidential Order and challenge the legality of his detention by falling back on the snpposed right of personal liberty based on the principle of rule of law.\n\nIt was also said on behalf of the detenus that under our constitutional set up, the executive is bound to act in accordance with law and\n\n' . '\n\n' ' •\n\n,..\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 441\n\n~·; i~ ; this obligation of the executive arises from the very basi~ of the doctrine of d_istribution of powers amongst different bodies created by the Constitution as also from the terms of Articles 73, 154 and 256 of the Constitution.\n\nThis obligation, contended the detenus, could be enforced against the executive under Article 226 by issue of a writ \"for any other purpose\". Now, it is true that under our Constitution, the executive is a limited executive and it is bound to act in al!Cordance with law and cannot disobey it. If the Maintenance of Internal Security Act, 1971 says that the executive shall be entitled to detain a person only on the fulfilment of certain conditions and according to a specified procedure~ it cannot make an order of detention if the prescribed conditions are not fulfilled or the specified procedure is not followed.\n\nThe executive is plainly and indubitably subordinated to the law and it cannot flout the mandate of the law but must act in .accordance with it.\n\nThe Judicial Committee of the Privy Council pointed out this constitutional position in Eastern Trust Company v.\n\nMckenzie Mann & Co. Ltd.(') in an appeal from the Supreme Court . of Canada : \"The non-existence of any right to bring the Crown intQ\n\nCourt--does not give the Crown immunity from all law, or authorize the interference by the Crown with private rights at its own mere will-It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. (emphasis supplied)\",. This rule must naturally apply with equal force in our constitutional set up and that was recognised by this Court in Rai Sahib Ram Jawaya Kapur v .\n\nThe State of Puniab (2 ) where Mukherjea, J., speaking on behalf of the Court said : \"In India, as in England, the executive bas to act subject to the control of the legislature\" and proceeded to add : \"- the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution---'' In Bharat Singh' s case (supra) also, this Court pointed out : \"Our federal structure is founded on certain fundamental principles.: (I) the sovereignty of the people with limited Government authority i.e. the Government must be conducted in accordance with the will of the majority of the people.\n\nThe people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people;\n\n(2) There is distribution of powers between the three organs of the State-Legislative, executive and judicial-each organ having some check direct or indirect on the other; and (3) the rule of law which includes iudicial review of arbitrary executive action\".\n\nThe obligation of the executive to act according to law and not to flout or disobey it is, therefore, unexceptionable and cannot be disputed.\n\nBut this obligation, in so far as personal liberty is concerned, is expressly recognised and enacted as a constitutional provision inter alia in Article 21 and when the Constitution itself has provided that the enforcement of this obligation may be suspended by a Presidential Order, it is difficult to see how the intention of the constitution-makers can be allowed to be defeated by holding that this obligation exists independently of article 21 and it can be enforced desoite the ]imitation im- -posed by the constitutional provision The same reasoning which I\n\n---~ (J) fl9!5J A. C. 750.\n\n(2) [19551 2 S. C. R. 225.\n\nA have elaborated in the preceding paragraph would equally apply to repel the present argument.\n\nBefore I go to the decided cases, I must refer to one argument which strongly supports the view I am taking. It is almost conclusive.\n\nIt is an argument for which I must express my indebtedness to Prof.\n\nP. K. .q'ripathi. In an article written on 'Judicial and Legislative Control over the Executive during Martial Law' and published in the Journal Section of All India Reporter at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial Law may support the conclusion that a Presidential Order mentioning Artcile 21 takes away, wholly and completely, the right of an individual to obtain a. writ of habeas corpus challenging the legality of his detention.\n\nI must of course hasten to make it clear that there is no Martial law anywhere in the territory of India at present and I am referring to it only in order to buttress the conclusion otherwise reached by me.\n\nThe cocnept of Martial law is well known in the British and America1t. jurisprudence.\n\nWhen a grave emergency arises in which the execn- • tive finds itself unable to restore order by employing the ordinary civilian machinery and it becomes necessary for it to use force, it may declare what is commonly termed 'martial law'.\n\nMartia_l law means that the executive calJs the military to its aid and the military,. acting under the general authority of the executive, proceeds to quell violence by violence.\n\nWhen martial law is in force, it is well settled that the courts cannot issue a writ of habeas corpus or otherwise interfere with the military authorities or the executive to protect the life or liberty of an individual, even if illegal or mala fide action is taken or threatened to be taken by the military authorities or th~ executive.\n\nTo give only one example : In Ireland in John Allen's case('), the martial law authorities ordered all persons to deposit their fire arms within twenty-four hours with the army authoritieg on pain of death.\n\nJohn Allen, who failed to obey, was arrested ant! sentenced by the military tribunal, which was, in law, a mere body of army men advising the officer commanding, to death, and the martial' law authorities announced the day and date when he was to be executed.\n\nThe court was moved on behalf of John Allen on the ground that the order of the military tribunal was invalid, but the court refused to interfere on the theory that when martial law is pro-· perly declared, the court will not issue habeas corpus during the period when martial law is in force. It is the bl!sic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issne the writ of habeas corpus or pass any similar orders.\n\nNow, under our Constitniton there does not appear to be any express provision conferring power on the executive to declare martial law.\n\nBut it is implicit in the text of Article 34 of the Constitution that the Government may declare martial law in any area within the territory of India.\n\nWhat are the legal implications and consequences of declaration of martial law is not provided any where in the Cons--\n\n(!) [1921] 2 Trish Report' 241.\n\n\\ --\n\n' • f\n\n• •\n\n-• '\n\n' ' .\n\n' ,\n\n.. ,\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, /.) 443\n\ntitution. It is, therefore, obvious that merely declaring martial law would not, by itself, deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to life and liberty. In our country, unlike England, the right to life and liberty is secured as a fundamental right and the right to move the Supreme Court for enforcemdent of this right is also guaranteed as a fundamental right.\n\nAlso the power to issue a writ or order in the nature of habeas corpus has been expressly conferred on the High Courts by a constitutional provision, namely, Article 226.\n\nTherefore, the declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Article conferring the right to life and liberty as also of Articles 32 and 226 and, unless the right of an individual to move the courts for enfoij; ement of the right to life and liberty can be suspended or taken away by or under an express provisions of the Constitution, the individual would be entitled to enforce the right to Jife and liberty under Article 32 or Article 226 or by resorting to the ordinary process of law, even during martial law.\n\nThat would be contradictory of the basic and essential feature of martial law and make it impossible to impose effective martial law anywhere at any time in the territqry of India.\n\nSuch a consequence could never have been imagined by the constitution-makers. They could never have intended that the Government should have the power to declare martial law and yet it should be devoid of the legal effect which must inevitably fol!ow when martial law is in force.\n\nMoreover, Article 34 itself presupposes that acts contrary to law may be committed by the military authorities or the executive during the time when martial law is in force and that is why it provides that after the martial law_ eases to be in force, Parliament may by law indemnify \"any person in the service of the Union or of a State or any other person in respect of anyact done by him in connection with the maintenance or restoration of order in any area-where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area\".\n\nThis provision clearly postulates that during the time that martial law is in force, no judicial process can issue to examine the legality of any act done by the military authorities or the executive in conneCtion. with the maintenance or restoration of order.\n\nBut, how is this result to be achieved under the Constitution?\n\nThe only provision in the constitution which authorises temporary suspension or taking away of the right of an individual to move any court for enforcement of his iight to life and liberty is Artkle 359, G clause (I). If the Presidential Order under clause (1) of Article 359 suspending enforcement of the fundamental right under Article 21 were construed not to have the effect of barring an individual from moving the court for impugning the legality of the act of the executive interfering with bis life or liberty, on the assumption that in doing so, he is merely enforcing his right to life or personal liberty based on the rule of law, the result would he that even when and where martial law is in force, courts will continue to have the power to examine the lega- H lily of the act of the executive, because, as expla'neu earlier, the mere\n\nSUPREME COURT REPORTS (1976] SUPPLEMEN'l'ARY\n\ndeclaration of martial law does not, under our Constitution, have the effect of taking away that power.\n\nThat would be plainily an insufferable situation which would carry the power of courts even beyond that claimed by the United States courts in the case of the ex parte Milligan(') which case went to the farthest limit and which has for that reason been criticised by great authorities like E. S. Corwin and has not been consistently followed even by the United States Supreme Court Vide Moyer v. Peabody(') and Duncan v. Kolu111meku. ( 3) There can be no two opinions that during martial law the courts cannot and should not have power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including the ground of mala fide.\n\nBut, if the courts are to be prevented from exercising such power during martial law. that situation can be brought about only by a Presidential Orr issued nnder Article 359, clause (I) and in no other way and the Presidential Order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21 must be construed to bar challenge\n\nto the legality of detention in any court, including the Supreme Court and the High Courts, whilst the Presidential Order is in operation.\n\nI may also in this connection refer to the decision of the House of Lords in Attorney General v. De Keyser's Royal Hotel.(') There, in May 1916, the Crown, purporting to act under the Defence of Realm Consolidation Act, 1914 and the Regulations made thereunder took possession of a hotel for the purpose of housing the Headquarters' personnel of the Royal Flying Corps and denied the legal right of the owners to compensation.\n\nThe owners yielded up possession under protest and without prejudice to their right and by a Petition\n\nof Right, they asked for a declaration that they were entitled to compensation under the Defence Act, 1842.\n\nThe Crown was plainly liable to pay compensation under the Statute, but it sought to justify its action in taking possession of the hotel without payment o[ compensation, under the sanction of the Royal Prerogative.\n\nThe question . which, therefore, arose for consideration before the House of Lords was whether the Royal Prerogative was available to the Crown for taking possession of the hotel without compensation, when the.statute authorised taking of such possession but on condition on payment of compensation.\n\nThe House of Lords unanimously held that, in view of the statutory _rrovision on the subject, the Royal Prerogative to take property Without payment Of compensation did not subsist anu\n\nthe principle laid down was that where by Statute, the Crown is empowered to do what it might heretofore have done by virtue of its prerogative, it can no longer act under \"the prerogative and must act under and subject to the conditions imposed by the statute.\n\nLord Dunedin in the course of his speech observed :\n\n\"None the less, it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules.\" ----·---·- (I) ( 1866) 4 Wallace 2.\n\n(2) (1909) 212 U.S. 76.\n\n(3) (1945) 327 u. s. 304.\n\n(4) [1920] A. C. 508.\n\n/ . '\n\n,...\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 44 5\n\nLord Atkinson quoted with approval the following pregnant passage A from the judgment of the Master of the Rolls in the same case :\n\n., , .\n\n\"Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative.\n\nWhere, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a parti-\n\n4ular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised.\n\nOtherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disrgard them and fall -ack on prerogative?\",\n\nand pointed out that the question posed by the Maqster of the Rolls C was llllanswerable.\n\nThe learned Law Lord then proceeded to add :\n\n\"It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do.\"\n\n• The other learned Law Lords who participated in the decision also made observations to the same effect in the course of their speeches .\n\n. ... J Now it is obvious that the contention of the detenus in the present • case is very similar to that advanced on behalf of the Crown in De Keyser's Royal Hotefs case (supra). It ahnost seems to be an echo , of that contention and it must inevitably be answered the same way.\n\nWhen the right of personal liberty based on the rule of law which ...f existed immediately prior to the commencen1ent of the Constitution has been enacted in the Constitution as a fundamental right in Article 21 with the limitation that, when there is a Proclamation of Emergency, the President may, by Order under Article 359, clause (1) suspend its enforcement, it is impossible to imagine how that right of personal liberty based on the rule of law can continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Article 359, clause (!). It would be meaningless and futile for the constitution-makers to have imposed this !inti- ' talion in regard to enforcement of the right of personal liberty gua- , ranteed by Article 21, if the detenu could, with impunity, disregard such limitation and fall back on the right of personal liberty based on the rule of law.\n\nThere is a decision of this Court in Dhirubha Devisingh Gohil v.\n\nThe State of Bombay(!) which olearly supports this view. The question which arose for determination in this case was whether the Bombay Taluqdari Tenure Abolition Act, 1949 was a valid J?iece of _, legislation.\n\nWhen this Act was. enacted by the Bombay Legislature,\n\n(1) [!955] ! S. C.R. 691.\n\nthe Government of India Act, 1935 was in force and the validity of this Act was challenged on the ground that it was in violation of section 299, sub-section (2) of the Government of India Act, 1934.\n\nSince this Act was included in the Ninth Schedule to the Constitution by the Constitution of India (First Amendment) Act, 1951, the State contended that by reason of Article 31-B, this Act was immune from attack of the kind pnt forward on behalf of the petitioner. Art. 31-B provides ipter alia that none of the Acts specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such act or provision is inconsistent with or takes away or abridges any of the right conferred by any provisions of Part III.\n\nThe petitioner disputed the applicability of Art. 31-B on the ground that the protection under that article was confined only to a challenge based on the provisions of Part Ill of the Constitution arid did not extend to a challenge based on violation of s. 299, sub-s. (2) of the Government of India Act, 1935.\n\nThe petitioner relied on the words \" is inconsistent with or takes away or abridges any rights conferred by any provisions\"\n\nof Part Ill and contended that inconsistency with or taking away or abridgement of the right conferred by s. 299, sub-s. (2) of the Government of India Act, 1935 was not within the protection of Art\n\n31-B.\n\nThis contention of the petitioner was negatived and it was held by this Court speaking through Jagannatha Das, J. :\n\n\"When Article 31-B protects is not a mere .\"contravention of the provisions\" of Part III of the Constitution but an attack on the grounds that the impugned Act is \"inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part.\" One of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a Jaw authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law.\n\nThat is also the very right which was previously secured to the person under section 299 of the Government of India Act.\n\nThe challenge now made to the validity of the impugned Act is based on the alleged violation of that right.\" \" But it is urged, that even so, article 31-B protects only the violation of the fundamental right in so far as \"if was conferred by Part III of the Constitution\" and that this right cannot be said to have been \"conferred\" by the Constitution.\n\nWe cannot agree with this contention.\n\nThis is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency of the Legislature and which in substance was a fundamental right, was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution. - There is therefore\n\nnoh!ng inapproprite in referring to this right which was preex1sting, along with the other fundamental rights for tl1e first time secured by this Constitution, when grouping them\n\n,-. ;\n\n' •\n\n\\_ ' ,-\n\n• ' \" >\n\n' \\ .\n\n' ,\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 44 7\n\ntogether, as fundamental rights \"conforred\" by the Constitution.\"\n\nThis Court held that when Article 31-B protected the Act against attack on the grouud that the Act is \"inconsistent with or takes away °' abridges any of the rights conferred by any provisions of \"Part III,\n\nthe protection extended to giving immunity against violation of the B right secured by section 299, sub-section (2) of the Government of India, 1935 because that was the very right lifted into the category of fundamental right and enacted as Article 31, clause (2) of the Contitution and it could accordingly with appropriateness, be referred to as the right conferred by Article 31, clause (2). On the parity of reasoning, it may be said that the right based on the principle of rule of law that no one shall be deprived of his life or personal liberty C except by authority of law, which was a pre-existing right, was lifted into the category 'of fundamental right and enacted as Article 21 and hence it became a fundamental right conferred by Article 21 and ceased to have any distinct and separate existence.\n\nThe maxim 'expressum facit cessare tacitum' that is what is expressed makes what is silent cease, would also clearly be applic D able in the present case. This maxim is indeed a principle of logic and common sense and not merely a technical rule of construction.\n\nIt was applied in the construction of a constitutional provision in Shankara Rao Badami v. State of Mysore(').\n\nThe argument which was advanced in that case was that the existence of public purpose and the obligation to pay compensation were necessary concomitants of compulsory acquisition of private property and. so the term 'acqui E sition' in Entry 36 of List JI of the Seventh Schedule to the Constitution must be construed as importing by necessary impliction the two conditions of public purpose and payment of adequate compensation, and consequently, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1955, which provided for acquisition of the rights of the inamdars in inam estates in Mysore State without payment of just and adequate compensation was beyond the legislative F competence of the State Legislature. This argument was rejected on the ground that the limitations of public purpose and payment of compensation being expressly provided for as condtions of acquisition in Article 31(2), there was no room for implying either of these limitations in the interpretation of the term 'acquisition' in Entry 36 . of List II. Ramaswamy, J., speaking on behalf of the Court observed: G\n\n\"It is true that under the Common law of eminent domain as recognised in Anglo-Saxon jurisprudence the State\n\ncannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss.\n\nBut when these limitations are expressly provided for in Article 32(2) and it is further enacted that no law shall be made which takes away or abridges\n\n(I) [1969] 3 $. c. R. 1.\n\nthese safeguards, and any such law, if made, shall be void, there can be no room for implication, and the words 'acquisition of property' in entry 36 inust be understood in their natural sense of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose.\n\nIn other words, it is not correct to treat the obligation to pay compensation as implicit in the legislative entry 33 of List I or legislative entry 36 of List II for it is separately and expressly provided for in Article 31(2). The wll known maxim expresum facit cessare taciturn is indeed a principle of logic and commonsense and not merely a technical rule of construction.\n\nThe express provision in Article 31(2) that a law of acquisition _i, n order to be valid must provide for compensation will, therefore, necessarily exclude all suggestion of an implied obligation to provide for cpmpensation sought to be imported into the meaning of the word \"acquisition\" in entry 36 of List II.\n\nIn the face of the express provision of Article 31(2), there remains no room for reading any such implication in the legislative heads.\"\n\nSimilarly, in the present case, on an application of the maxim cxpressum facit cessare taciturn, the express provision in Article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution.\n\nI find myself fortified in this Cionclusion by the view taken on a similar question under the Irish Constitution which also contains a catena of articles conferring fundamental rights Kelly in his book one, 'Fundamental Rights in the Irish Law and Constitution' points out \"that the various fundamental rights which were previously notionally present in the common law have been subsumed in and replaced by the written guarantees\" and, therefore,, these rights cannot be found elsewhere than in the Constitution.\n\nThe decision of the High Court of Justice in Ireland in 'State (Walsh and others) v. Lennon and others\"(') has also adopted the same view.\n\nThe petitioners in this case, who were detained in Arbour Hill Military Detention Barracks aw'aiting trial on a charge of murder before a Military Court established under Emerncy Powers (No. 41) Order, 1940, made an application to the High Court for an order of habeas corpus directed to the Governor of the Detention Barracks in which they were held and for an order of prohibition directed to1the President and members of the Military Court before whom it was ordered by Emergency Powers (No. 41F) Order, 1941 that they should be tried.\n\nThe application inter alia challenged the validity of the Emergency Powers (No. 41 F) Order, 1941 on the ground that it was ultra vires the Government, as it directed that the Military Court, which was to try the peti:tioners. should try them together and so precluded the Court from exercising its discretion and control over its own procedure and was thus violative of the right of a citizen to insist that he shall not be\n\n(I) 1942 Irish Reports 112.\n\n• I\n\n> •\n\n...\n\n• •\n\n! •\n\nADDL •. DIST. MAGISTRATE v. S. S. SHUKLA (Bhagwati, !. ) 449\n\ntried on a criminal charge save in due course of law and wa& also in conflict with the right of a citizen to personal liberty.\n\nThe right of personal liberty was guaranteed by Article 40, s. 4, sub-section ( 1) of the Constitution, while the right of a citizen charged with a criminal offence to insist that he shall not be tried save in due course of law was to be found in Art. 38, section 1.\n\nThe respandents relied on Article 28, section 3, sub-section (13) of the Constitution which provided : \"Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety an~ the preservation of the State in time of war or armed rebellion or to nulify anyact done or purported to be done in pursuance oll any suclj law.\" and contended that by reason of this provision,\" the Emergency Powers (No. 41 F) Order, 1941 was protected from challenge on the ground of contravantion of Article 38, section 1 and Article 40, section 4, sub-section\n\n(1) of the Constitution.\n\nThis contention clearly had the effect of putting the petitioners out of court and,, therefore, they sough'. to get\n\nround this difficulty by arguing that the constitutional rights, which they claimed to have been infringed were derived not from the written constitution, but from the Common Law, and consequently, Article 28, section 3, sub-section (3) of the Constitution did not stand in their way.\n\nThis argument, which was very similar to the present argumen• advanced before us, was unhesitatingly rejected by all the three judges who took part in the decision.\n\nMaguire J. said :-\n\n\"The contention is that the constitutional principles which assure to a citizen his personal liberty,, his right to resort to this Court for an order of habeas corpus, hi~ right that he shall not be tried on a criminal charge save in due course of law, have as their source the Common Law, and exist side by side with these rights in the written Constitution.\n\nIn support of this contention reliance is placed on the decision of the Supreme Court in Burke's Case (1940) LR. 131>), particularly on the passage in the judgment of Mnmaghan J. at p. 171, where he says 'certain constitutional principles are stated in the Constitution but many other important constitutional principles have been accepted as existing in the law then in force.' \"\n\nI do not find in the judgment of Murnaghan J. or elsewhere in the judgments in that case any basis for the contention that these rights are to be found in a body of J:Pnciples which exist side by side with the written Constitution, having their source in the Common Law, and of equal validity with the principles stated in the Constitution, and which on the argument here,. would have the added virtue that they are uncontrolled by Art. 28, s. 3, sub-s. 3.\n\nThe constitutional rights relied upon in this case find clear exprei; sion in Artiole 40 and 38 of the Constitution.\n\nIn my view they cannot be found elsewhere than in the Constitu- -\n\ntion.\n\nThe advantages of a written Constitution are manifest.\n\nSuch a Constitution can. ang our Constitution does, give\n\n31-833SCI/76\n\nrights such as these definite and clear expression. Our Constitution can, and does, protect them against being whittled away save with great difficulty.\n\nThe framers oE !he Constitution have provided that, after the passage of a limiied time, many, though not all , of the rights which it gives are pu'. beyond !_he reach of interference by ordinary law.\n\nThe. framers have, however, deliberately inserted Art. 28, s. 3, sul:>-s. 3, which is clearly designed to prevent the Courts from invoking anything in the Constitution to invalidate enactments passed, or to nullify acts done, or which purport to be dohe,. in pursuance of Acts passed for securing the public safety or the preservation of tlic State in time of war.\" ·\n\nC Gavan Duffy, J. also observed to the same effect:\n\n\"The applicants seek, in the alternative, to base their claims to habeas c.orpus and prohibiion upon antecedent rights of personal liberty and: regular trial at Common Law; but, whether or not the imminent Common Law of Ireland needed generally any Art. 50 (containing the laws in force) to retain its vigour, the particular Common Law principles here invoked must both, in my opinion, of nocessity have merged in the express provisions declaring how the two corresponding rights are to be in force under the new polity established by An Bunreacht.\"\n\nAn\\] so did Martin Maguire, J. when he said :\n\n\"It is argued, in the alternative, that, apart from the Constitution and existing side by side with it., there is a body of constitutional law, founded on Common Law, and comprising the same constitutional rights which the prosecutors seek to assert, and in respect of which they demand the relief claimed in these proceedings.\n\nThis argument involves the propositions that the St.1te has two Constitutions, the pne\n\nenacted by the people, written and defined; the other unwritten and undefined, and that the latter may be innked, or called in aid, to the extent even. of defeating the clear terms of the Constitution where a conflict real or apparent is alleged between them.\n\nThern is no authority for these :proposi:ions.\n\nI am unable to accept this argument.\"\n\nOn this view, all the three iudii; es of the High Court held that the Emergency Powers (No 41-F) Qrder,, 194! was immune from challenge by reason of Article 28, section 3, sub-section (3) of the Constituticn.\n\nThis decision was taken in appeal and affirmed by the Supreme Court, but this point about the continuance of the common law rights side by side in the constitution, was not examined since it was obvious that the Emergency Powers (No. 41 F) Order, 1941 oould not be set at naught on the ground of repugnancy to any supposed Common Law rights, 11 will be seen that there is a close analogy between this decision of the Higb. Court and t!te preseA.t case\n\n~ ' '\n\n' '\n\n' '\n\n..,\n\nt •\n\n...\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.)\n\n45 I\n\nand the observations of the three judges quoted above are directly A applicable here.\n\nThe detenus, however, strongly relied on the decisions of this Court in Bharat Singh's case (supra), Ibrahim & Co.'s case (supra) Bennet Coleman & Co.'s case (supra) and Shree Mecnakshi Mills' case (supra) in support of their contention that the principle of rule of law that the executive cannot act to the prejudice of a person except by authority of law contmues to exist as a distinct and independent principle unaffected inter alia by the enactment of Articl~ 21.\n\nI have already .referred to these decisions earlier and it will be evident from what I have said, that these deci_sions do not lay down any sueh proposition as is contended for on behalf of the detenus.\n\nWhat these decisions say is only this, namely, that Article 358 protects against challenge under Article 19 only such executive action as is taken under lawful authority and if any executive action is taken without authority of law o~. i.11 pursuance of a law which. is void, it will not be protected from challenge under Article 19 by Article 353 and it will\n\nbe void to the extent to which it conflicts with Article 19. These decisions, properly read, do not support the thesis put forward on behalf of the detenus.\n\nThe detenus then relied on the decision of this Court in Bidi Supply Co. v. Union of India. C) There, an omnibus order was made under section 5, suf>.section (7A) of the Income Tax Act transferring cases of the petitioner form one place ta anotli.er.\n\nThe petitioner challenged this order as being outside the power conferred under section 5, sub-section (7A) and hence violative of the fundamental rights guaranteed to him by Articles 14, 19 (I) (f) and (b) and 31 of the Constitution. This Court held that the omnibus order made in !his case was not contemplated or sanctioned by sub-section (7A) of section 5 and, therefore, the petitioner was still entitled to the benefit of the provisions of sulrsections ( 1) and (2) of section 64 and since the Income Tax authorities had by an executive order,. unsupported by law, picked out the petitioner for discriminatory treatment, there was violation 0£ the equality clause of the Constitution and hence the petitioner was entitled to relief under Article 32 of the Constitution setting aside thel impugned order.\n\nS.R. Das, C.J., speaking on behalf of the Court. observed :\n\n\"As said by Lord Aktin in Eshugbayi Eleko's case the executive can only act in pursuance of the powers given to it by law and it cannot interfere with the liberty, propert.r aJUI rights of the subject except on the condition thal it ca11\n\nsufJPort the legality of its . action before the Court. Here there was no such order of transfer as is contemplated or sanctioned by sub-section (7A) of section 5 and, therefore. the present assessee still has the right, along with all other Bidi merchants carrying on business. in Calcutta,. to have his assessment proceedings before the Income-'ax Officer of tho area in which his place of business is situate.\n\nThe incometax authorities have by an executive order, unsupported by\n\n(!) [1956] S. C. R 267.\n\nJaw, pis; ked out this petitioner and transferred all his cases by an omnibus order unlimited in point of time.\"\n\n(emphasis supplied).\n\nand since the action of the Income-tax authorities was contrary to sub-sections (1) and (2) ofsectiou 64, the impugned order was held to be bad.\n\nHence it will be noticed that the impugned order operated to the prejudice of the petitioner by affecting his rights under section\n\n(1) and (2) of Section 64 but it did nOli affect any of his rights under Article 19 or Article 21 or clause Cl) of Article 31 and therefore, the principle of rule of Jaw that the executive cannot act to the prejudice of a person without authority of law could be legitimately invoked. It continued to be in law in force to the extent to which it was not recognised and enacted in any provision of the Constitution.\n\nThe next decision to which I must refer in this connection is Bishan Das & Ors. v. The State of Punjab.(') This was a petition under Article 32 of the Constitution and the action of the officers of the State Government impugned in this case was forcible dispossession of the petitioners of properties which were in their management and possession.\n\nThe challenge to the impugned action of the officers of the State Government was based on violation of the fundamental right guaranteed under clause ( 1 ) of Article 31.\n\nThis Court upheld the challenge and struck down the impugned action as being without the authority of law and\\ while doing so, made the following observations which were strongly relied onp on behalf of the detenus : \"Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State! and its officers is destructive of basic principle of the rule 0£ law-the action of the Government in taking thei law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the nile of law-We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference Ito any law or legal authority\". (emphasis supplied).\n\nThese observations made in the context of a petition fot enforcement of the fundamental right under Article 31, clause ( 1) clearly show that this Court regarded the principle of rule of J:aw that no person shall be deprived of his property \"without reference to any law or legal authority\" as embodied in Article 31, clause ( 1) and did not rely upon this principle of rule of law as a distinct and independent principle apart from Article 31, clause (1) : otherwise the petition under Article 32 would not have been maintainable and this Court could not have granted relief.\n\nThe tast decision to which I must refer is the decision of this Court in Staie of Bihar v. Kameshwar Prasad Verma. (2) That was a case arising out 0£ a petition fot a writ of habeas corpus filed Ul•der Article 221i for release of on, e Bipat Gope from illegal detention.\n\nThis Cottrt held that the State Government had failed to show under what lawfn1 authority Biriat1 had been re-arrested and in the absence of such lawful authorify, the detention was illegal.\n\nKapnr, J., speaking on behalf of the Court referred with approval to the observations of Lord Atkin\n\n(1) [1962] 2. S. C. R. 69. (I) [19631 2 S. c, R. 183.\n\n~ . ;\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 453\n\ni; n !f:shugbayi Eleo' s case (supra) and pointed out : \"It is the same A\n\n~· iunsprudence which has been adopted in this country on the basis of which the courts of this country exercise jurisdiction\". These observations were relied upon on beha!Ji of the detenus to contend that the principle of rule of law in Eshugbayi Elekos case (supra) was held by this Court to have been adopted in this country and it must. therefore, be enforced indepe; idently of Article 21. But I do not thiiik that is the effect of these observations. What Kapur, J., said was only B this, name\\y that the principle of rule of law in Eshugbayi Eleko's case\n\n(supra) had been adopted in this country.\n\nHe did not make1 it clear -; how it had been adopted nor did he say that it had been adopted as ' . a distinct and independent principle apart from the fundamental rights.\n\nThere can be no doubt that the principle in Eslwgbayi Eleko' s case (, supra) had been adopted in this country in Article 21 to the extent to which it protects personal liberty. It will, thererefore,, be seen c that there is no decision of this Cour1i which says that there is a right -\n\nof personal liberty based on the rule o~ law distinct and independent from that guaranteed by Article 21.\n\nI must now turn to the decision of this Court in Makhan Singh v.\n\nState of Punjab (supra) on which very strong reliance was placed on behalf of the detenus.\n\nThat was a decision given in a batch of D \\. . twenty-six appeals from the decisions of the High Courts of Bombay and Punjab.\n\nThe appellants in these six appeals were detained respectively by the Punjab and the Maharashtra State Goevrnments under Rule 30 ( 1 )(b) of the Defence of Indi; t Rules made by the Central \"\n\nGovernment in exercise of the powers conferred on it by s. 3 of the Defence of India Ordinance, 1962. They applied to the Punjab and the Bombay High Courts respectively under s. 491 (1) (b) of the E Code of Criminal Procedure and. alleged that they had been improperly ' and illegally detained.\n\nTheir contention was that s. 3 ( 2 )( 15 ) (i) ... and s: 40 of the Defence of India Act, 1962 which replaced the Defence of India Ordinance and Rule 30(1) (b) under which they were detained were constitutionally invalid because they contravened their fundamental rights under Arts. 14, 21 and 22(;4) (5) and (7) of the Constitution and so they claimed that an order should be passed in \" ... their favour directing the re_spective State Governments to set them at liberty.\n\nThere was in operation at that time a Proclamation of • Emergency dated 26th October, 1962 issued by the President under • Art. 352, clause ( 1) on account o~ the Chinese aggression.\n\nThe Presi- • dent had also issued an order dated 3rd November, 1962 under Art. • 359, clause (1) suspending the right of any person to move any court for tl1e enforcement of the rights conferred by articles 21 and 22 \"if G , such person has been deprived of any 1such rights under the Defence of India Ordiance, 1962 (4 of 1962) or any rule or order made thereunder.\" The contention of the State Governments based on this Presidential Order was--and that contention found favour with botl1 High Courts-that the Presidential Order created a bar which preeluded the appellants from maintaining the petitions under s. ... , 491 (1 )(b) of the Code of Criminal Procedure. On this ci>ntention, H two questions arose for determination before this Court. The first was as to what was the trne scope and effect of the Presidential Order and the second was whether the bar created by the Presidential Order\n\noperated in respect of applications made by the appeilants under s. 49 J (1 )(b) of the Code of Criminal Procedure.\n\nThis Court in a majority j11dgment delivernd by Gajendragadkar, J., analysed the provisions of Art. 359, clause (1) and held that the words \"any court\" in that Article must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the opecificd rights can be enforced by the citizens\".\n\nThe majority judgment then proceeded to add: \"The sweep of Art. 359(1) and the Presidential Order issued under it is thus wide enowh to include all claims made by citizens in any court of competcn( jurisdiction when 1t is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the ci'.izen is, in substance, seeking to enforce any of the said specified fundamental rights.\" Having thus disposed of the first question, the maiority judgment went on to consider the second question and after analysing the nature of the pr_oceedings under s. 491 (I) (b) of the Code of Criminal Procedure, held that the prohibition contained in Art. 359, clause ( l) and the Presidential Order would apply \"as much to proceedings under s. 49_1 (I )(b) as to those under Art. 226( 1) and Art. 32(1)\". It was obvious that on this view, the petitions under s. 491 ( 1 ) (b) were not maintainable,, since the only gronnd on which they challenged the orders of detention was that the provisions of s. 3(2)(15)(i) as well as rule 30(1)(b) were invalid as offending against Articles 14, 21 and 22 and in the circnmstances it was not necessary for thi' Court to express any opinion on the question as to what were the pleas available to a citizen under the Presidential Order in chal'.cnging the legality or propriet;}I. of his detention.\n\nStill, however, the 1na.jority judgment proceeded to give its opinion on this question in the following terms :\n\nIt still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under s. 49J(l)(b) of the Code or Art. 226(1) of the Constitu-. tion.\n\nWe have already seen that the right to move any court which is suspended by Art. 359(1) and the Presidential Order issued under it is the right for the enforceme.nt of such of the rights conferred by Part II1 as may b<I mentioned in the Order. If in challenging the validity ef his detention order, the detenu is pleading any right outside the rights\n\nspecified in the Order, his right to move any court in that behalf is not suspended, because it is outside Art. 359(1) and consequently outside the Presidential Order itself.\n\nLet us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.\n\nIn such a case, i: may be open to the detenu to contend that his detention is illegal for the reasoii that the mandatory provisions of the Act have been contravened.\n\nSuch a plea is outside Art. 359 (1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order.\n\n... . '\n\n• ' ' •\n\n• -\n\n> •\n\n' • ..\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Blwgwati, !.) 455\n\nTake also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered 111alafide. It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is ma!afide would not be enough : :he detenu will have to prove the ma!afides.\n\nBut if the malafides are alleged, the detenu cannot be precluded from substm1tiating hi~ lea on the ground of the bar crea'.ed by Art. 359(1) and the Presidential Order. That is another kind of plea which is outside the purview of Art. 359(1).-Wc ought to add that these categories of pleas have been mentioned by us by way of illustration,. and so, they should not be read as exhausting aU the pleas whicll do not fall within the purview of the Presidential Order.\"\n\nThe strongest reliance was placed on behalf of the detenus on these observations in the majority judgment. It was contended on behalf of the detenus that the observations clearly showed that if an order of detention is challenged on the gronnd that it is in violation of the mandatory provisions of the Act or is made malafide, such a plea would he outside Art. 359, clause ( 1) and would not be barred by a Presidential Order specifying Art. 21.\n\nThe detenus, in support of this contention leaned heavily on the words 'such a plea is outside Art. 359(1) ; wd th¥ right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order\",\n\nand \"that is another kind of plea which is outside the purview of Art. 359Cl)\" occurr_ing ill these observations and urged that such a plea was held to be permissible because it was outside the purview\n\nof Art. 359, clause (1) and not because it was outside the terms of the particular Presidential Order.\n\nNow, at first blush, these observations do seem to support the contention of the detenus. But there are two very good reasons why I do not think these observations can be of much help in the deter-' mination of the question before us.\n\nIn the first place, the question as to what were th.e other p}eas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential Order dated 3rd November, 1962, was not in issue before the Court and did not faU_ to be decided and the aforesaid observations made by the Court on this question were, therefore, clearly obiter.\n\nThese observations would und9ubtedly be entitled to great weight, but, as pointed out by this Court in H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Baluuiur & Ors. v. Union of India(') \"an obiter cannot take the place of the ratio.\n\nJudges are not oracles\".\n\nThese observations do not, therefore, have any binding effect and they cannot be regarded as oonclusive on the point.\n\nMoreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him\n\n(1) [1971] 3 S. C. R. 9.\n\nand to. confine such observations, even though expressed in broad terms, 111 the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit.\n\nIt is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the; opposite result of uncertainty and even obscl!fity\n\nas regard the case in hand.\n\nIt may be noted that, in this case the Presidential Order dated 3rd November, 1962, which came up for consideration before the Court,, was a condi:ional order, inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred by Articles 21 and 22, only if he was deprived of any such rights under the Defence of India Act, 1962 or any rule or order made under it. It was in the context of this Presidential Order that the aforesaid observations were made by this Court. It is obviou_s that, on the terms or this Presidential Order, if a. person was deprived of his personal liberty otherwise than in accordance with the provisions of the Defence of India Act, 1962 or any rule or order made under it, his right to move the Court for enforcement of his right of personal liberty under Article 21 would not be barred by the Presidential Order.\n\nThat is why it was said in this case, that, if the detention is illegal for the reason that the mandatory provisions of the Defence of India Act,, 1962 or any rule or order made thereunder have been contravened or that the detention has been ordered ma/a fide, such a plea would not fall within the terms of the Presidential Order and hence it would be outside the purview of Art. 359, clause (I). That is the only way in which these observations can and must be understood.\n\nIt was pointed out by the House of Lords as far back as 1901 in Queen v. Leatham(')' \"Every judgment\n\nmust be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but are governed and qnalified by the particular facts in which such expressions are to be found.\" This Court had also occasion to poirit out in the State of Orissa v. Sudhansu Sekhar Misra(') that the observations in a judgment must be \"only in the context of the qnestion that arose for decision.\" It would not he right, as observed by this Court in Madhav Rao v. Union of !India (supra), \"to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition on the law on a question\" particularly \"when the question did not even fall to be answered in that judgment\".\n\nHere, in the present case, unlike the Presidential Order dated 3rd November, 1962, which was a conditional Order, the Presidential Order dated 27th June, 1975 is, on the face of it,, an unconditional one andi as snch there is a vital difference in effect between the Presidential Order dated 3rd November, 1962 and the present Presidential Order.\n\nIn fact, it appears that because of the interpretation and effect of the Presidential Order dated 3rd November, 1962 given in this case an~ the subsequent cases followin.g it, the President deliberately and advisedly departed from the earher precedent and\n\n(1) (1901] A. C. 495.\n\n(2) [1968] 2 s. C. R 154.\n\n.,_ . '\n\n' '\n\n• •\n\n....\n\n-• •\n\n' ,,\n\n...\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 45 7\n\nmade the present Presidential Order an unconditional one. These observations made in the context of a conditional Presidential Order cannot, therefore, be read as laying down that a plea that an order of detention is not in accordance with the provisions of law or is ma/a fide is outside the purview of Art. 359,, clause (1) and would not be barred even by an unconditional Presideutial Order such as the one we have in thei present case.\n\nTitis distinguishing feature of Makhan Singh's case (supra) was in fact highlighted and emphasised in the subsequent decision of this Court in A. Nambiar v. Chief Secretary.(') There Gajendrngadkar, C.J ., stressed the conditional nature of the Presidential Order dated 3rd November, 1962 and indicated that it was in view of the last clause of the Presidential Order, that the aforesaid observations were made by this Court in Makhan Singh's case.\n\nThe learned Chief Justice explained the position in the following words :\n\n\"In Makhan Singh Tarsikka v. The State of Punjab a Special Bench of this Court has had occasion to consider the effect of the Proclamation of Emergency issued by the President and the Presidential Order with which we are concerned in the present W!it petitions.-this Court took the precaution of pointing out that as a result of the issue of the Proclamation of Emergency and the Presidential Order, a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus on the ground that his detention has been ordered mala fide.\n\nSimilarly, it was pointed out tha~ if a detenu contends that the operative provisions of the Defence of India Ordinance under which he is detained suffer from the vice o£ excessjve delegation, the plea thus raised by the detenu cannot, at the threshold, be said to be barred by the Presidential Order, because, in terms, it is not a plea which is rela!eable to the fundamental rights specified in the said order.\n\nLet us refer to two other pleas which may not fall within the purview of the Presidential Order. If the detenu, who is detained under an order passed under Rule 3011)(b), contends that the said Order has been passed by a delegate outside the authority conferred on him by the appropriate Government under s. 40 of the Defence of India Act, or it has been exercisecl inconsistently with the conditions presciibed in that behalf,, a preliminary bar against the competence of the detenu's petition cannot be raised under the Presidential Order, because the last clause of the Presidential Order would not cover such a petition, and there is no doubt that unless the case falls under the last clause of the Prtsiderriial Order, the bar created by it cannot be successfu/lv invoked against a detenu.\n\nTherefore, our conclusion is that the learned Additional Solicitor-General is not justified in contending that the present petitions are incompetent under Art. 32 because of the Presidential Order.\n\nThe petitioners contend that the relevant Rule under which the\n\n(I) !1966] 2 S. C. R. 406.\n\nimpugned orders of detiCntion have been passed, is invalid on grounds other than those based on Arts. 14, 19, 21 and 22,, and lf that plea is well-founded, the last clause of the Presidential Order is not satisfied and the bar created by it suspending the citizens' fundamental rights under Articles 14, 21 and 22 cannot be pressed into service.\"\n\nThese observations, and particularly the portions underlined by me, clearly show that it was because of the conditional nature ot the Presidential Order that the view was taken that if a dctenue contends that tl>e order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf\", that is, it is not in accordance with the provisions of law, such a plea would not be barred at the threshold by !he Presidential Order.\n\nThe conditional nature of the Presidential Order was also stressed by this Court in State of Maharashtra v. Prabhakar Pandurang Sangzgiri(') where this Court, speaking through Subba Rao, J., pointed out that in view of the last clause of the Presidential Order, \"if a person was deprived of his personal liberty not under the Act or a rule or order made thereunder, but in contravention thereGf, his right to move the said courts\", that is the High Court and the Supreme Court \"in that regard would not be suspended.,.\n\nIt was then contended on behalf of the detenus that in any event the right of personal liberty is a natural right which inheres in every one from the moment of his birth and this right can. always be enforced by the detcnus under Art. 226 by a writ \"for any other purpose\" and the Presidential Order does not operate as a bar.\n\nWhen, in answer to this contention the Union of India and the State Governments relied on His Holiness Kesavananda Bharati Sripadagalavaru\n\nv. :tlate of Kera/a,(') the detenus urged that Kesavananda Bharati's case (supra) did not say that there is no natural right inhering in a person, but all that it said was that natural rights do not stand in the way of amendment of the Constitution.\n\nKesavanand Bharati' s case (supra) according to the detenus, did not negative the existence and enforceability of natural rights. But this contention of the detenus is clearly belied by the ob>ervations from the judgments of at least seven of the judges who decided Kesavanand Bharati's case (supra).\n\nRay, C. J. said at pages 419 of the Report: \"Fundamental rights are conferred by the Constitution. There are no natural rights under our Constitution.\" Palekar, J., also said at page 594 of the Report : \"The so called natural rights-have in course of time-Jost their utility as such in the fast changing world and are recognised In modern political constitutions only to the extent that organised society is able to respect them.\" So also Khanna, J. said at page 703 of the Report : \"-- the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the State. It is up to the State to incorporate natural rights, or such\n\n(I) J1966] 1 s. c.. R. 702.\n\n(2) [1963] Supp. S. C. R. !.\n\n' .\n\n...\n\n...\n\n• •\n\n• •\n\n_.. ' ;\n\n' •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 459\n\nof them as are deemed essential, and subject to such limitations as A are considered appropriate, in the constitution of the laws made by it But independently of the constitution and the laws of the State, natural rights can have no legal sanction and cannot be enforced.\" Mathew, J., too, spoke to the same effect when he said at page 814 of the Report : \"Although called 'rights', they are not per se enforceable in courts unless recognised by the positive law of a State\".\n\nBeg, J. also discounted the theory of natural rights at pages 881 and B 882 of the Report and Dwivedi, J. observed a! page 910 of the Report that to regard fundamental rights as natural rights overlooks the fact that some of these rights did not exist before the Constitution and \"were begotten by our specific national experience\".\n\nChandrachud, J., was equally emphatic in saying at pages 975 and 976 of the Report that 'There is intrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our C constitution-makers-The natural theory stands, by and large, repudiated today-The belief is now widely held that natural rights have no other than political value\".\n\nIt may be pointed out that Subba Rao, J., also in l.C. Golak Nath & Ors. v.\n\nSlate of Puniab( 1) at page 789 of the Report rejected the theory of natural rights independent and apart from fundamental rights in Part· III.\n\nHe said : \"Fundamental rights are the modern name for what have been tradi-\n\nD tionally known as natural rights\".\n\nThere is, therefore, no scope for the contention that even if the enforcement of the Fundamental right conferred by Article 21 is suspended by the Presidential Order, the detenu can still enforce a supposed natural right of personal liberty in a court of law.\n\nI may also refer to one other argument advanced on behalf of E the detenus that in any event the right not to be deprived of personal liberty except by authority of law is a statutory right which can be enforced despite the Presidential Order suspending enforcement of the right of personal liberty guaranteed under Article 21. I agree and there can be no doubt about it that if the positive law of the State decrees that no person shall be deprived of his personal liberty except according to the procedure prescribed by law, the enforcement of such F statutory right would not be barred by the Presidential Order. But l am afraid, the premise on which this argument is founded is incorrect .\n\nThere is no legislation in our country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law.\n\nOn the contrary, section 18 of the Maintenance of Internal Security Act, 1971 enacts that no person in respect of whom an order of detention is made or purported to be made under G section 3 shall have any right to personal liberty by virtue of natural law or common law. if any.\n\nThe Indian Panel Code in section 342 undoubtedly makes it penal to wrongfully confine any person and the off@nce of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law.\n\nBut it can hardly be said on that acount that section 342 of the Indian Penal Code confers a right of personal liberty. The utmost that can be said H is that this section proceeds on a recognition of the right of personal --·--------\n\n(1) [1967] 2 S. C. R. 762.\n\nA liberty enacted Article 21 and makes it an offence to wrongfully co~~ a person rn breach of the right conferred by that constitutional prov1s10n.\n\nThen I must refer to one other contention of the detenus and that is that the remedy under Article 226 can be invoked not only for the purpose of enforcement of the fundamental rights, bu! also \"for any other purpose''.\n\nThese words greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finds that the detention of a person is illegal. I! is not necessary for this purpose that the court should be moved by the detenu. It is sufficient if it is moved by any person affected by the order of detention. When it is so moved and it examines the legality of the order of detention, it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality.\n\nThe remedy of /Ulbeas corpus is a remedy in public law and hence it cannot be excluded by suspension of enforcement of the right of an individual.\n\nThis contentio• of the detenus does appear, at first sight, to be quite attractive, but I am afraid, it is not well founded.\n\nIt fails to take into account the substance of the matter.\n\nWhen an applicant moves the High Court for a writ of habeas corpus, he challenges the fogality of the order of detention on the ground that it is notJ in accordance with law. That challenge proceeds on the basis that the executive cannot deprive a person of his personal liberty except by authority of law and that is why the order of detention is bad. But once it is held that the obligation of the executive not to deprive a person of his personal liberty except in accordance with law is to be found ouly in Article 21 and no where else, it must follow necessarily that, in challenging the legality of the detention, what the applicant claims is that there is infraction by the executive of the right of personal liberty conferred under Article 21 and that immediately attracts the applicability of the Presidential Order. If we look at the substance of the matter and analyse what is it exactly that the High Court is invited to do, it will be clear that what the applicant wants the High Court to do is to examine whether the executive has carried out the obligation imposed upon it by Article 21 not to deprive a person of his personal liberty except according to the procedure prescribed by law and if it finds that the executive has failed to comply with this obligation, then to strike down the order of detention.\n\nThat is precisely what is not permitted to be done by the Presidential Order, for it plainly amountN to enforcement of the right of personal liberty conferred by Article 21.\n\nThe words \"any other purpose\" cannot be availed of for the purpose of circumv@nting the constitutional inhibition flowing from the Presidential Order.\n\nIt is necessary to point out that Art. 359 clause (1) and the Presidential Order issued under it do not have the effect of making unlawful actions of the executive lawful. There can be no dobut that the executive is bound to act in accordance with law and cannot flout the command of law.\n\nThe executive cannot also act to the detriment of a person without authority of law or except in accordance with law.\n\nIf the executive takes any action which is not supported by law or is\n\n.. ,.\n\n,..\n\n' I\n\n' .\n\n• ' -\n\n• •\n\n..... ' .\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, l.) 461\n\ncontrary to law, its action would be unlawful. This unlawful charac- A teristic of the action is not obliterated by the Presidential Order issued under Art. 359 clause (1). Article 359, clause (1) and tlie Presidential Order issued under it do no~ give any power to the executive to alter or suspend or flout the law noi: do they enlarge the power of the executive so as to permit it to go beyond what is sanctioned by law.\n\nThey merely suspend the right of a person to move any court for redress against the unlawful action of the executive, if his claim involves B enforcement of any of the fundamental rights specified in the Presidential Order. This is a position akin in some respects to that in the United States when the privilege of the writ of habeas corpus is sus\n\npended under Art. 1, Placitium 9, clause (2) of the United States Constitution and in Great Britain when the Habeas Corpus Suspension Act is passed. It must inevitably follow from tbis position that as soon as the emergency comes to an end and the Presidential Order ceases to C be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law.\n\nIt will be clear from what is stated above that whilst a Presidential Order issued under Article 359, clause (1) is in operation, the rule of law is not obliterated and it continues to operate in all its vigour.\n\nThe executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights Specified in the Presidential Order. This would be obvious if we wnsider what would be the position under the criminal law. If the executive detains a person contrary -to law or shoots him dead without justifying circumstances, it would clearly be an offence of wrongful confinement in one case and murder in the other, punishable under the relevant provisions of the Indian Penal Code, unless the case falls within the protective mantle of section 76 or 79 and the officer who is responsible for the offence would be liable to be prosecuted, if there is no procedural bar built by the Code of Criminal Procedure against the initiation of such prosecution. The Presidential Order suspending the enforcement of Article 21 would not bar such a prosecution and the remedy under the Indian Penal Code would be very much available. The offence of wrongful confinement or murder is an offence against the society and any one can set the criminal law in motion for punishment of the offender. When a person takes proceedings under the Code oi Criminal Procedure in connection with the offence of wrongful confinement or murder or launches a prosecution for such offence, he cannot be said to be enforcing the fundamental right of the detenu or the murdered man under Article 21 so as to attract the inhibition of the Presidential Order.\n\nSo also, if a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential Order issued under Article 359, clause (1 ).\n\nTake for example the class of cases of detention where no declaration has been made under sub-sections (2) and (3) of section 16A. This category would cover cases where orders of detention have been passed\n\nprior to June 25, 1975, because in such cases no declaration under subsections (2) or (3) of section 16A is contemplated and it would also cover the rather exceptional cases where orders of detention have been made after 25th June, 1975 without a declaration under sub-section (2) or sub-section (3) of section 16A. Sections 8 to 12 would continue to apply in such cases and consequently the detaining authcrit y wodd be under an obligation to refer the case of the detenu to the Advisory Board and if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the detenu, the State Government would be bound to revoke the detention order and relase the detenu.\n\nThat is the plain requirement of sub-section (2) of section 12. Now, suppose that in such a case the State Government fails to revoke the detention order and relea_se the detenu in breach of its statlllory obli-- gation under sub-section (2) of section 12. Can the detenu not enforce this statutory obligation by filing a petition for a writ of mandamus ' The answer must obviously be: he can. When he files such a petition for a writ of mandamus, he would be enforcing his statutory right under sub-section (2) of sectioJJ. 12 and the enforcement of such st:itutory right would not be barred by a Presidential Order specifying Article 21 . ll1e Presidential Order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is not complaining of absence of legal authority in the matter of deprivation of his personal liberty.\n\nI may also refer by way of another illustration to section 57 of the Code of Criminal Procedure Code, 1973. This section provides that n~ police officer shall retain .in custody a person arrested without warrant for a longer period than under all the circumstances of case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed 24 hours exclusive of the time necessary for the journey from the place of arrest te> the magistrate's court. There is clearly a legl!_l injunction enacted by this section !requiring a police officer not to detain an arrested person in custody for a period longer than 24 hours without obtaining a special order of a magistrate and to release him on the expiration of such period of 24 hours, if in the meantime such special order is not obtained. If. in a given case, an arrested person is detained in custody by the police officer for a period longr than 24 hours without obtaining an order of a magistrate, can he not apply to the magistrate that he should be directed to be released by the police officer under section 57 ? W omld such an application be barred by a Presidential Order specifyin~ Art. 21 ? I do not think so. When the arrested person mahs such an application, he seeks to enforce a statutory obligation imposed on the police officer and a statutory right created in his favour bv section 57 and that would not be barred, because what is suspended.by a Presidential Order specifying Art. 21 is the right to move the comt for enforcement of the fundamental right confered by that Article and not the right to move the court for enforcement of the statutory right to be released granted under section 57.\n\nI may take still another example to illustrate the point I am making. Take a case where an order of detention has been made without a declaration under sub-section (2) or sub-section ( 3) of section 16A).\n\n...\n\n...._\n\n• j\n\n. '\n\n• •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 463\n\nSections 8 to 12 would admittedly apply in such a case and under s. 8, A the detaining authority would be bound to communicate to the detenu , . the grounds on which the order of detention has been made and to afford him the earliest opportunity of making a representation to the appropriate government. If, in a given case, the detaining authority declines to furnish the grounds of detention to the detenu or to afford him an opportunity of making a representation, in violation of the statutory right conferred on him under s. 8, can be detenu not enforce B this statutory right by filing a petition for a writ of mandamus against the detaining authority ? Would it be any answer to such a11. applica- __. tion that the enforcement of the fundamental right conferred by Art. ' '\n\n22, clause ( 5) has been suspended by the Presidential Order ? The answer is plainly: no.· There are two rights which the detenu has in this connection: one is the fundamental right conferred by Art. 22, clause (5) and the 0th.er is the statutory right confered bys. 8. Though c the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is sus- pended, it does not mean that the other also cannot be enforced. The 'theory of reflection' which found favour with the Kerala High Court in Fathima Beebi v. M. K. Ravindranathan(') is. clearly erroneous. If the right conferred under s. 8 were a reflection of the fundamental right D conferred by Article 22, clause ( 5) as the Kerala High Court would • have us believe, the remo;; al of the fundamental right under Article 22, clause (5), which is the object reflected, must necessarily result in the effacement of the right under section 8 which is said to constitute the retlection. But even if Article 22, clause ( 5) were deleted from the\n\n~' Constitution, section 8 would still remain on the statute book until • repealed by the legislature. The Presidential Order would, not, therefore, bar enforcement of the right conferred by section 8.\n\nTo my mind, it is clear that if a petiti.on or other proceeding in \"'\n\ncourt seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential Order. I may also point out that, in the present case, if I had taken the view that there is, independently and ap!lrt from Article 21, a distinct and separate right F not to be deprived of personal liberty except according to law, I would -\n\nhave held, without the slightest hesitation, that the Presidential Order suspending enforcement of the fundamental_ right conferred by Article \" 21 does not have the effect of suspending enforcement of this distinct • and separate legal right. But since I have come to the conclnsion, for • reasons already discussed, that there is no such distinct and separate • right of personal liberty apart from and existing side by side with Article 21, it must be held that when a detenu claims that his detention is not G\n\nnnder the Act or in accordance with it, he seeks to enforce the fundamental right conferred by Article 21 and that is barred by the Presi- <lential Order. Of course, this does not mean that whenever a petition for a writ of habeas corpus comes.before the Court, it must be reiceted straightaway without even looking at the averments made in it., The Conrt wonld have to consider whether the bar of the Presidential Order\n\n~. is attracted and for that purpose, the Court would have to see whether the order of detention is one made by an authority empowered to pas~\n\n(I) (!975) Cr. I. L. J. 1164.\n\nA such an order under the Act; if it is not, it would not be State ction\n\nand the petiti.on would not be ne for enforcement ?f the right conferred by. AJ:ticle 21. .qn ths iew m regard to the mterpretation of the constitutional prov1s10n, 1t 1s unnecesasry to go into the question of construction and validity of section 18 of the Act.. ·\n\nIt was strongly urged upon us that if we take the view that the Presidential Order bars the right of a person to move a court even when his detention is otherwise than. in accordance with law, there wouJd be no emedy against illegal detention.\n\nTat would encourage the execulive to disregard the law and exercise arbitrary powers of arrest.\n\nThe result would be-so ran the argument-that the citizen would be at the mercy of the executive : every one would be living in a state of constant apprehension that he might at any time be arrested and detained : personal liberty would be at an end and ow cherished values destroyed.\n\nShould we accept a construction with such fearful consequences was the question posed before us.\n\nAn impassioned appeal was made to us to save personal liberty against illegal encroachments by the executive.\n\nWe were exhorted to listen to th~ voice of judicial conscience as if judicial conscience were a blithe spirit like Shelley's Skylark free to sing and soar without any compulsions.\n\nI do not think I can allow myself to be deflected by such considerations from arriving at what I consider to be the correct; construction of the constitutional provision.\n\nThe apprehensions and fears voiced on behalE of the detenus may not altogether be ruled out.\n\nIt i~ possible that when vast powers are vested in the executive, the exercise of which is immune from judicial scrutiny, they niay someti.mes be abused and innocent persons may be consigned to temporary detention.\n\nBut merely because power may sometimes be abused, it is no ground for denying the existence of the power.\n\nAll power is likely to be abused.\n\nThat is inseparable from the nature. of human institutions.\n\nThe wisdom of man has not yet been able to conceive of a government with p<:>wer sufficient to answer its legitimate ends and' at the same ti.me incapable of mischief. In the last analysis, a great deal must depend on the wisdom and honesty,, integrity\\and character of those who are incharge of administrati.on and the existence of enlightened and alert public opinion. It was Lord Wright who said in Liversidge v.\n\nSiglov Anderson (supra) that \"the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.\"\n\nIt is li11e that, if, in a situation of emergency, judicial scrutiny into legality of detention is held to be barred by a Presidential Order sify ing Article 21, illegalities might conceivably be committed by the executive in exercise of the power of detention and unlawful detentions might be made against which then~ would be no possibility of redress.\n\nThe danger may not be dismissed as utterly imaginary, but even so, the fact remains that when there is crisis-situation arisin~ out of an emergency, it is necessary to best the Government with extra-ordinary powers in order to enable it to overcome such crisis-situation and restore normal conditions.\n\nEJen Harold Laski conceded in his article on \"Civil Liberties in Great Britain in Wartime\" tha11 '\"he necessityof concentrating immense power in a Government waging total war is\n\n• , ·-\n\n....\n\n' '\n\n• ,\n\n,• '\n\nADDL DIST. MAGISTRATE V, S, s. SHUKLA (Bhagwati, J,) 465\n\nbeyond discussion\" and what he said there regarding a Government i:raging total war must apply equally in relation to a Government engaged in meeting internal. subversion or disturbance, for the two stand on the same footing so far as our Constitution is concerned.\n\nNow, when vast po_wers are conferred on the executive and judicial scrutiny into :the legality of exercise of such powers is excluded,, it is not unlikely . that illegalities might be committed by the executive in its eftorts to . deal with the crisis situation. Dicey, in his \"Introduction to tize'Study\n\nof Law of the Constitution\" frankly admits that it is \"almost certain that, when the suspension of the Habeas Corpus Act makes it possible for the Government to keep suspected persons in a prison for a length of time without bringing them to trial, a smaller or greater number .of unlawful acts will be committed, if not b}I' the melJl.bers of Ministry themselves, at any rate by their agents.\" But howsoever unfortunate this situation might be, that cannot be helped.\n\nThe Constitution permits judicial scrutiny to be barred during times of emergency, because it holds that when a crisis arises 1in the life of the nation, the rights of individuals must be postponed to considerations of State and national safety nrust override any other considerations.\n\nI may add that there is nothing very unusual in this situation because, as already pointed out above, such a situation is contemplated even in countries like the United States of America and Great Britain which are regarded as bastions of democracy. But at the same time it must be remembered by the executive that, because judicial scrutiny for the time being is excluded, its responsibility in the exercise of the power of detention is all the greater.\n\nThe executive is under an added obligation to take care to see that it acts within the four corne!'S of the law and its actions are beyond reproach. It must guard against misuse or abuse of power, for, though such misuse or abuse may yield short-term gains, it is a lesson of history which should neyer be forgotten that ultimately means have a habit of swallowing up ends.\n\nB.efore I leave this question, I may point out that, in taking the view I have, I am not unaware of the prime importance of the rule of\n\nlaw which, since the dawn) of political history,, both in India of Brahadaranyaka Uunishad and Greece of Aristotle, has tamed arbitrary F exercise of power by the government anc! constitutes one of the basic. tenets of constitutionalism.\n\nI am not unmindful of the famous words of Lord Atkin in his powerfnl dissent in Liversidge v, Anderson (supra) that \"amid the clash of arms\"-and much more so in a situation of emergency arising from threat of internal subversion-\"laws are not silent.\n\nThey mil)' be changed, but they speak the same language in war and in peace\", I am also conscious-and if I may once again G quote the words of that great libertarian Judge : \"Judges are no respector of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law\".\n\nBut at the same time it cannot be overlooked that, in the ultimate analysis, the protection of personal liberty and the supremacy of law which sustains it must be governed by the constiution itself.\n\nThe Constitution is the paramount and H supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law, he shall not be entitJecl to enforce his right of personal liberty, whilst a Presidential Order under\n\n3 2-833SCI/76\n\nArticle 359, clause (1) specifying Article 21 is in force,, I have to give efTect to .it.\n\nSitting as I do, as a Judge under the Constitution, I cannot ignore the plain and emphatic command of the Constitution for what I may consider to be necessary to meet the ends of justice.\n\nIt is said that Jaw has the feminine capacity to tempt each devotee to find his own image in her bosom.\n\nNo one escapes entirely. Some yield bdly, some with sophistication.\n\nOnly a few more or less effectively resist.\n\nI have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most cherished values of mankind.\n\nWithout it life would not be worth living. It is one of the\n\npilla~ of free democratic society. Men have readily laid d_own their lives at its altar, in order to secure it, protect it and preserve it. But J do not think it would be right for me tq allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the cg, nstitution a construction which its language cannot. reasonably bear.\n\nI cannot assume to myself the role of Plato's 'Philosopher King' in order to render what I consider ideal justice between tl1e citizen and the State. After all, the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support an.d its final resting .!)lace. It is in this spirit of humility and obedience to .the Constitution and driven by judicial comi:ulsion, that I have come to the conclusion that the Presidential Ordec dated 27th June, 1975 bars maintainability of a writ petition for habeas corpus where an order of detention is \"hallenged on the ground that it is ma/a fide or not under the Act or not in compliance with it.\n\nOn the view I have taken in regard to the answer to be given to the first question, it would be unnecessary to consider the second question, but since the second question has been debated fully and elaborate arguments have been advanced before us touching not only the interpretation but also the validity of sub-section (9)', (a) of section 16A, I think it will be desirable if I pronounce my opinion on this question as well. But before Iiproceed to do so, I may make it clear once again that though this question is framed in general terms and so framed, it invites the Court to consider the area of judicial scrutiny .in a petition for a writ of habeas corpus, it is not really necessary to\n\nembark on a consideration of this issue, since it. was conceded by the learned Attorney General, and in my opinion rightly, that the area of judicial scrutiny remains the same as laid down in the decision of tnis Court, subiect only to such diminution or curtailment as may be made by sutsection (9)(a) of section 16A. The learned Additional Solicitor General, who argued this question on behalf of the Union of India, took us through various decisions of English C'?urts on the issue as to what is the nature of the jurisdiction which the Court exercises in a petition for a writ of habeas corpus, and what is the manner in which such jurisdiction must be exercised. It is not necessary for the purpose of these appeals to wade through these decisions and to analyse them, bocausc the practice in our country in regard to the exercise of this jurisdiction, as it has evolved over the years as a result of the decisions of this Court, is a little different from that prevailing in England. Tl1is Court has never insisted on strict rules of pleadi!'g in cases inv.o1vi113 the liberty of a'. person nor placed. undue emphasis on the question as to on whom :he burden of proof lies.\n\nEven a postcard written by a\n\n• ..;\n\n• ..\n\n• •\n\n_. ' ;\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Blzagwati, J.) 467\n\ndetcnu from jail has been sufficient to activise this Court into examin- A ing _the legality of detention.\n\nTIJ.is Couf!: has consistently shown great anxiety for personal liberty and refused to_ throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus . has come up befoie this Court, it has almost invariably issued a rule calling upon the detaining authoiity to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is\n\nB . incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the Act.\n\nVide Naranjan Singh v. State of Madhya Pradesh,( 1) Shaikh flanif, Gudma Maj/ii & Kamal Saha v. State of\n\nWest Bengal( 2 ) and Dula! Roy v. The District Magistrate, Burdwan & Ors.( 3). It has also been insisted by this Court that, in answer to the Rule, the detaining authOiity must place all the rclcvanf facts-before C tllio Court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the deaining authority to say that a particular ground is no: taken in the petition.\n\nVide Nizamuddi11 v.- The State of West Bengal.(4 ) . Once the Rule is issued, it is the bounden duty of the Court to satisfy\n\nHself° that all the safeguards provided by law have been scruplously observed aml the citizen is not deprived of his personal liberty other- D wise than in acwrdance with law.· Vide Mohd. Alam v. State of West\n\nBenga/(5 ) and Kliudiram Das v. State of West Bengal & Ors.( 6 ) TI1is practice marks a slight departure from that obtaining in England but it has been adopted by ihis Court in view of the peculiar socioeconomic conditions prevailing in-the country. Where large masses of\n\npeople are poor, illiterate and ignorant and access to the courts is not .easy on account of Jack of financial resources, it would be most un- E reasonable to insist that the petitioner should set out clearly and specifically the grounds on which be challenges the order of detention and make out a prima facie case in support of those grounds before a Rufo -can be issued on he petition and when the Rule is issued, the detaininrr authority should not be liable to do anything more than just m;;'ct the specific grounds of challenge put forward by the petitio1icr in the petition.\n\nOf conrse, I must make it clear that where an order of F detention is challenged as ma/a fide, a clear and specific averment to t!rnt eITect would Juve to be made in the petition and in the absence of such averment, the court would not entertain the p!ca of mala fide.\n\nTk potitioner wuuld have to make out a prima facie case of ma!a fide\n\nbfore the dctainin~ authority can be called upon to 1ncct it. \\Vh.::th:::r a prima facie case bas been made out or not woul:l dopcrnl on tl1e particubr facts and circumstances of _each case, but the ks\\ would be G \\vhcther the vrinza fo.cie case made out isof sucI1 a naurc that the .\n\nC<iurt feels that it requires investigation .. The Court would then investi-\n\n~:..o.tc a:-id dec:<l~ the question of ma!a fide on th~ b:is1s cf the m:itcril\n\n~Yhio'1 rn1; be p; acc_d bdore , it by ho'.h portics.\n\nCt).A. I. rr. 1n2 s. c. 2215. ('.;:) fl97-l1 2 S. (~. R. 25R.\n\n(3) 11975] 3 s. c R.. 1-36.\n\n(4) [1975] 2 S. C.R. 593. .\n\n(5) [1974] 3 S. C.R. 379 .. ' (61 rt':f751' S. (;_ R. :c<l2.\n\nWhat is the area of judicial scrutiny in a petition for a writ of habeas corpus has been laid down by this Court inl numerous decisions.\n\nIt is not necessary to refer to al] these decisions, since there is one recent decision, namely, Khudiram Das v. State of West Bengal (supra) where the entire law on the subject has been reviewed by a Bench of four judges. of this Court.\n\nThere,, the effect of. the previous• decisions has been considered and the law has been summarised at pages 843 to 845 of the Report in a judgment delivered by me on behalf of the Court.\n\nI have carefully listened to the most elaborate arguments advanced before. us in this case .and even after giving my most serious consideration to them, I still adhere to all that I said in Khudirmn Das' s case (supra).\n\nI maintain that the subjective satisfaction of the detaining authority is liable to be subjected to judicial scrutiny on the grounds emunerated by me in Khudiram Dais case (supra) and the decision in Khudiram Das' s case (supra) lays down the correct law on the subject. The only question is : how far and to what extent sub-section\n\n(9) (a) of section 16A has encroached upon this area of judicial scrutiny and whether it is a valid)piece of legislation.\n\nNow the first question that arises for consideration is as to what is the correct interpretation of section 16A, sub-section (9) (a). That sub-section reads as follows :-\n\n\"( 9) Notwithstanding anything contained in any other law or any rule having the force of law-.\n\n(a) the grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom. a declaration is made under sub-seGtiou (2) or sub-section (3) and any infonnation or materials on which such grounds or a declarat[on under sub-section (2) or a declaration or confirmation under sub-section (3) or the non-revocation under sub-section ( 4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any snch ground, information or material or any document_ containing such ground, information or material;\" The argument urged on behalf of the detenus was that sub-section (9)(a) of section 16A should be read down and construed so as not to exclude the power of the High O:mrrl in the exercise of its jurisdiction under Article 226 to call for the grounds, information and materials on which the order of detention is made and the declaration under sub-section (2) is based with a view to satisfying itself as regards the legality of the detention. It was pointed out on behalf of the detenus that, unlike section 54 0£ the Indian Income-tax Act, 1922 and section 14 of the Preventive Detention Act, 1950, sub-section (9) (a) of section 16A does not include any reference to a court and it is clear that it is not direcd, against the Court.\n\nReliance was also placed on behalf of the detenus on the following statement of the law in Wigmore on Evidence (3rd ed.) vol. 8 at page 801, Article 2379 : \"Any statute declaring in general terms that official records are confidential should\n\n' ,\n\n. .\n\n....\n\nI '\n\n• .\n\n. .\n\nA I I\n\ni •\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 469\n\nbe liberally construed to have aii implied exceptio~ for disclosure whe_n A needed in court of justice\", and reference was also made to the decision of the English Court in Lee v. Burrell(!) in support of the proposition that in a statutory provision, like sub-section (9) (a) of section 16A, the Court must read an implied exception in favour of the Court and particularly the High Court exercising constitutional function under Article 226. It was also stressed on behalf of the detenus that if a wider construction is placed on sub-section (9) (a) B of section 16A taking within its sweep the High Court exercising jurisdictiou under Article 226, that sub-section would be rendered void as offending Article 226 and hence the narrower constructiou must be preferred which excludes the High Court from the purview of the sub-section.\n\nThis contention, attractive though it may seem because it has the merit of saving judicial scrutiny from being rendered ineffectual and illusory, is not justified by the plain language of C sub-section (9) (a) of section 16A and hence, despite these weighty considerations which have been pointed out on behalf of the detenus, 1: find myself unable to accept it.\n\nIt is true that sub-section (9) (a) of section 16A does not specifically refer to any court. It does not say in so many terms, as did section 54 of the Indian Income-tax Act, 1922, that no court shall D require any officer to produce before it the grounds, information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-section (3) is based, nor does it contain any provision, like section 14 of the Preventive Detention Act, 1950 that no court shall allow any statement to be made or any evidence to be given of such grounds, information and materials.\n\nBut there is inherent evidence in the sub-section itself to show that it is intended E to prevent disclosure of such grounds, information and materials before a court. It says that the grounds, information and materials on which the order of detention is made or the declaration under subsection (2) or sub-section (3) is based \"shall be treated as confidential and shall be deemed to refer to matters of State and to be agaiust public interest to disclose\". There is clearly an echo here of section 123 of the Indian Evidence Act. That section is intended to prevent F disclosure in a court of \"unpublished official records relating to anv\n\naffairs of State\" and likewise, sub-section (9) (a) of section 16A must also be held to be desigued to achieve the same end, namely. prevent, inter alia, disclosure in a court.\n\nThe words \"shall be treated as confidential\" and \" shall be' deemed to be against the public interest to disclose\" are very significant. If they are to have any meauing at all, they must be construed as prohibiting disclosure even to a G court.\n\nHow can the grounds, information and materials referred to in this sub-section remain 'confidential, if thev can be required to be produced before a court? How can they be permitted to be disclosed to a court when the legislature says in so many terms that it would be against the public interest to disclose them. Even if the court holds its sittings in camera, there would be a real danger of leakage and that might, iu a given case, jeopardize national security H and weaken the efforts towards meeting the crisis-situation arising\n\n(1) 170 English Reports 1402.\n\nout of the emergency.\n\nVide observations in the speech of Lord Wright at page 266 in Lil'ersidge's case (supra). Suh-sectmn (9) (aJ of section 16A cannot, therefore, b~ read down so as to imply an exception in favour of disclosure to a court.\n\nBut then it was contended on behalf of the detenus that if, on a proper construction of its language, sub-section (9) (a) of section 16A precludes the High Court in exercise of its jurisdiction under Article 226, from callmg for the production of the grounds, information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-stion (3) is based, it would impede the' exercise of its constitutional power by the Higlt Court and make ft virtually ineffective and hence it would be void as offending Article 226. This contention requires serious cpnsidcratit>n.\n\nPrima facie it appears to be formidable, but for reasons which I shall immediately proceed to state, I do not think it is well founded.\n\nThere can be no doubt that Article 226 is a constitutional provision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the fundamental right conferred by Article 21 and also for any other purpose.\n\nThe High Court has, therefore, constitutional power to examine the legality of detention and for that purpose, to inquire and determine whether the detention is in accordance with the provisions of Jaw.\n\nNow, obviously this being a constitutional power, it cannot be, taken away or abridged by a legislativ0 enactment. If there is any legislative provision which obstructs or retards the exercise of this constitutional power, it would be void.\n\nThere are several decisions of this Court which recognise and Jay down this proposition. It was said by this Court in one of its early decisions in Hari Vishnu Kama th v. Syed Ahmad !shaque & Ors.( 1) that the jurisdiction under Article 226 having been conferred by the.\n\nConstitution, limitation cannot be placed on it except by the Constitution itself.\n\nSo also n Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors.(') this Court, while considering the effect of section 105 of the Representation of the People Act, 1951 which gave finality to an order made by the Election Tribunal, observed that that section cannot \"cut down and affect the overriding powers which this Court can exercise in the matter of grant of special leave under Article 136\", and the same rule was applied to Article 226 in Raj Krushna Bose\n\nv. Binod Kanungo & Ors.( 3 ) where the Court held that section 105\n\ncannot take away or whittle down the power of the High Court under Article 226.\n\nThe same view was taken by this court in In re : The Keraln Education Bill, 1957(') where S. R. Das, C. J .. speaking on behalf of the Court said in relation to Article 226 that \"No enactment of a State legislature can, as long as that Article stands, take away or abridge the jurisdiction and power conferred on the High Court by tlmt Article\".\n\nThis Court in Prem Chand Garg v. Excise Commissioner. U.P. Allahabad(') actually struck down Rule 12 of Order XXXV of the Supreme Court Rules which required the -(!)rl955J iS~ ... 11-04.\n\n(2) fl955l I S. CR. 267.\n\n(3) [19541 S. C. R. 913.\n\n(4) [19591 S. C. R. 995.\n\n(5) [19631 Supp. I S. C. R. 885.\n\n' .\n\nI '\n\n' • I\n\n• '\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 471\n\npetitioner in a writ petition under Article 32 to furnish security for A the cost of the respondent,. on the ground that it retarted or .obstructed the assertion or vindication of the fundamental right guaranteed under Article 32 by imposing a pecuniary obligation on the petitioner. The principle of this decision must equally apply in a case where the legislative provision impedes or obstructs the exercise of the constitutional power of the High Court under Article 226. It is, therefore, clear that if it can be shown that sub-section (9) (a) of section 16A B abridges or whittles down the constitutional power of the High Court under Article 226 or obstructs or retards its exercise, it would be void as being in conflict with Article 226.\n\nNow, it is settled law that when a petition for writ of habeas corpus is filed and a Rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scrupulously observed and the liberty of the detenu has not been taken away otherwise than in accordance with law.\n\nVide Khudiram Das v. Stme of West Bengal (supra). The Court may also for the purpose of satisfying itself as regards the legality of detention, call for the record of the case relating to the detention and look into it.\n\nThat is what the Court did in Biren Dutta & Ors. v. Chief Commissioner of Tripura & Anr.(') There, an interim order was made by this Court \"directing that the Chief Secretary to the Tripura Administration •hall forthwith transmit to this Court the original file in respect of the detenus concerned\" since the Court wanted to satisfy iW:lf that the Minister or the Secretary or the Administrator had reviewed the ca.es of the detenus and arrived at a decision that their detention should be continued. So also in M. M. Damnoo v. J & K State(')\n\nthis Court required the State Government to produce the file containing the grounds of detention so that the Court could satisfy itself that \"the grounds on which the detenu has been detained have relevance to the security oflhe State\".\n\nIt would, therefore, be see[\\ that if there is a legislative provision which prohibits disclosure. of the grounds, information and materials on which the order of detention is based and prevents the Court from calling for the prodnction of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under Article 226 and would be void as offending that Article .\n\nThis was the basis on which section 14 of the Preventive Detention Act, 1950 was struck down by this Court in A. K. Gopalan's case (supra). That section prohibited the disclosure of the gronnds of detention communicated to the person detained and the representation made by him against the order of detention and barred the court from allowing such disclosure to be made exceot for purposes of a orosecution for such disclosure. It was held by this Court-in fact by all the judges who participated in the decision-that this section was void as it contravened inter alia Article 32.\n\nKanta, C. J. ob.erved at page 130 of the Report in a passage of which certain portions have been underlined by me for emphasis :\n\n(I) f1964J 8 s, c. R. 295.\n\n(2) Il 9721 2 S. C. R. 1014.\n\n\"By that section the Court is prevented (except) for the purpose of punishment for snch disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the production of the proceedings or report of the advisory board which may be declared confidential. It is clear that if this provision is permitted to stand, the Court can have no material before it to determine whether the grounds are sufficient or not.\n\nI do not mean whether the grounds are sufficient or not.\n\nIt even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in iection l2(1)(a) .\"\n\nPatanjali Sastri, J., also observed to the same effect at page 217 of the Report:\n\n\"If the 1:rounds are too vague to enable him to make any such representation, or if they are a/together irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32.\n\nThese rights and remedies, the petitioner submits, cannot be effectively exercised, if he is prevented on pain of prosecution, from disclosing the grounds to the Court. There is great force in this contention- The argument (of the Attorney General) overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view, snch as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not\n\nbona fide.\n\nAn examination of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22(5) and article 32 is thereby rendered nugatory. It follows that section 14 contravenes the provisions of article 22 (5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the representation made by him against the order of detention, and prevents the Court from examining them for the purpose aforesaid, and to that extent it must be held under article 13 (2) to be void.\" (emphasis supplied).\n\nAnd so did the other learned Judges. It is clear from what they said that inasmuch as section 14 prohibited the disclosure of the grounds of detention and prevented the Court from fooking at\n\n\"'-• •\n\n' .\n\n' •\n\n\" . '\n\nj. '\n\nADDL. DIST • .MAGISTRATE v. s. s. SHUKLA (Bhagwati, J.) 473\n\nthem for the purpose of deciding whether the detention is legal, it A was violative of Article 32 which conferred a fundamental right on a dete&11 to move this Court for impugning the legality of his .detention.\n\nThe same view was taken by a Constitution Bench of this Court in M. M. Damnoo v. J. & K. State (supra). In fact, the observations of Kania, C. J. in A. K. Gopalan's case (supra), which I have reproduced above, were quoted with approva1 in this decision.\n\nThe petitioner in this case challenged the legality of his detention by the State of Jammu & Kashmir on several grounds.\n\nOne of the grounds was that the proviso to section 8 of the Jammu & Kashmir Preventive Detention Act was void as it conflicted with section 103\n\nof the Constitution of Jammu & Kashmir.\n\nSection 103 was in the same term as Article 226 and it conferred power on the High Court of Jammu & Kashmir to issue inter alia a writ of habeas corpus Section 8 of the Preventive Detention Act required the detaining authority to communicate to the detenu the grounds on which the order of detention was made, but the proviso to that section dispensed with the requirement in case of \"any person detained with a view to preventing him from acting in any manner pre-judicial to the security of the State if the authority making the order-directs that the person detained may be informed that it would be against the public interest to communicate to him the grounds on which his detention has been made''.\n\nThe argument of the petitioner was that the proviso to\n\nection 8 of the Preventive Detention Act was violative of section 103,\n\nince it debarred the High Court and this Court from calling for the grounds of detention and thus made it virtually impossible for the High Court and this Court to examine the legality of the detention.\n\nThis Court agreed that there would have been some force in the contention of the petitioner, if the High Court and this Court were prevented from calling upon the State Government to produce the grounds of detention, but it pointed out that the proviso to section 8 was not ultra vires \"because the proviso and the Act do not bar the High Court and this Court from looking into the validity of the detention''.\n\nThis Court, after referring to the observations made by Kania, C.J. in A. K. Gopalan's case (supra) in regard to section 14 -0f the Preventive Detention Act, 1950 said :\n\n\"But fortunately there is no similar provision in this Act and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to produce before it the gronuds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law. If it were not so, we would have difficulty in sustaining the proviso.\" It wi1l, therefore, be seen that prima facie this Court was oif the view that if the proviso to section 8 had debarred the High Court and this Court from requiring the grounds of detention to be produce.cl before them, it would have been difficult to sustain that proviso.\n\nThe learned Additional Solicitor General, however, sought to <listinguish these two decisions and contended that sub-section (9) (a)\n\nof section 16A merely enacts a rule of evidence and it cannot therefore, be said to obstruct or retard the exercise of the constitutional power of the High Court under Article 226 so as to be in conflict th hat Article.\n\nNow, there can be no doubt, although at one time m the course of his arguments Mr. Shanti Bhushan contended to !he contrary, that a rule of evidence can always be enacted by the leipslature for the purpose of regulating the proceedings before the High Court under Arllcle 226.\n\nA rule of evidence merely determines what shall be regarded as relevant and admissible material for the purpose of enabling the Court to come to a decision in the exercie of its jurisdiction and it docs not in any way detract from or affect the jurisdiction of the Court and it cannot in the circumstances be violative of Article 226.\n\nBut in order that it should not fall fo~I of Article 226, it must be a genuine rule of evidence. If in the guise of enacting a rule of evidence, the legislature in effect and substance disables and impedes the High Court from effectively exercising its constitutional power under Article 226, such an enactment would be void.\n\nIt will be colourable exercise of legislative power.\n\nThe legislature cannot be permitted to violate a constitutional provision by employing an indirect method. If a legislative provision, though in form and outward appearance a rule of evidence, is in substance and reality something different, obstructing or impeding the exercise of the jurisdiction of the High Court under Article 226, the form in which the legislative provision is clothed would not save it from condemnation.\n\nLet us, therefore, examine whether sub-section (9) (a) of section 16A enacts a genuine rule of evidence or it is a colourable piece of legislation in the garb of a rule of evidence. If it is tho former, it would be valid; but if it is latter, it would be an indirect and CO\\'ert infringement of Article 226 and hence void.\n\nNow, it is well settled that in order to determine the true charac!er of a legislative provision, we must have regard to the substance of the provision and not its form.\n\nWe must examine the effect of the provision and not be misled by the method and manner adopted or the phraseology employed.\n\nSub-section (9) (a) of section 16A is in form and outward appearance a rule of evidence which says that the grounds. information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-section (3) is based shall be treated as confidential and shall be deemed to refer to matters of State and be against the public interest to disclose. But in substance and effect, is it a genuine rule of evidence ? The argument on behalf of the detenus was that it is only a legislative device adopted by the legislature for the purpose of excluding the grounds, inorati?n and materials from the scrutiny of the Court and thereby makmg it v1rtuaJlyimpossible for the Court to examine the legality of the detention and grant relief to the detenu. If the veil is removed, contended the dctenus, the position is no different from that obtaining in A. K.\n\nGopa/an's case (supra) where section 14 of the Preventive Detention Act 1950 was struck down as constitutin~ a direct assault on Article 226'.\n\nIt was pointed out that, in every ce of detention, the grounds, information and materials would not necessarily refer to matters of\n\nState and be against the public interest to disclose. Since, even orders\n\n\"' \\ '\n\n• •\n\n...\n\n\"' ' ,\n\n;. .\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 475\n\nof detention purported to be made under section 3 are brought within the purview of sub-section (9) (a) of section 16A, the grounds, information and materials in cases of such detention may be wholly unrelated to the objects and purposes set out in section 3 and in that event, they would mostly have nothing to do wit11 matters of State and it may not be possible to say that their disclosure would injnre public interest.\n\nBut even so, sub-section (9) (a} of section 16A surrounds such grounds, information and materials with the veil of secrecy and, to use the words of Mahajan, J. in A. K. Go pa Ian's case (supra), places \"an iron curtain around them\". This sub-section, according to the dctenus, compels the Court to shut its eyes to reality .and presume by a legal fiction that in every case, whatever be the actuality-and in many cases the actuality may be otherwise-the grounds, information and materials shall be deemed to refer to matters of State and shall\n\nIx against the public interest to disclose.\n\nThis contention of the detenus is undoubtedly very plausible and it caused anxiety to me, but on deeper consideration, I think it cannot be sustained .\n\nIt is significant to note that sub-section (9) (a) of section 16A is a provision enacted to meet the emergency declared under the Proclamations dated 3rd December, 1971 and 25th June, 1975. Vide subsection (1) of section 16A. It comes into operation only when there is a declaration made under sub-section (2) or sub-section (3) that the detention of the person concerned is necessary for dealing effectively with the emergency. The condition precedent to the applicability of the sub-section is that there should be a declaration under sub-section\n\n(2) or sub-section (3) in respect of the person detained. It may also be noted that though the words \"or purported to be made\" were added after the words \"an order of detention is made\" in the subseciion by tho Maintenance of Internal Security (Amendment) Act,\n\n1916. no such or similar words were added in relation to the declaration under sub-section (2) or sub-section (3). Sub-section (9)(a) of section l 6A, therefore, assumes a valid declaration under subsection (2) or sub-section (3) and it is only when' such a declaration has been made, that sub-section (9) (a) of section 16A applies or in other words it is only in cases where a person is detained in order to deal effectively with the emergency that the disclosure of the grounds. information and materials is prohibited by sub-section\n\n(9) (a) of section 16A.\n\nT have already pointed out how emergency can create a cns1s situation imperilling the existence of constitutional democracy and G jeopardizing the functioning of the social and politica:! machine. It is, therefore. reasonable to assume that where a person is detained in order to deal effectively with the emergency, the grounds, information and materials on which the order of detention is made or the declaration under sub-section (2) or sub-section (3) is based would. by and large, belong to a class of documents referring to matters of State which it would be against public interest to disclose. What was H observed by two of the Law Lords in Liversidge's case (supra) would be applicable in such a case.\n\nViscount Maugham said at page 221 of the Report. \"--it is obvious that in many cases he will be acting\n\non information of the most confidential character, which could 1wt be communicated to the person detained or disclosed in court without the\n\nreatst risk of prejudicing the future efforts of the Secretary of State m this and like matters for the defence of the realm-It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature,\" and Lord Wright also observed to the same effect at page 266 of the Report : \"In these cases full legal evidence or proof is impossible, even if the Secretary does not claim that disclosure is against the public interest, a claim which must necessarily be made in practically every case, and a claim which a jndge necessarily has to admit.\" In view of the fact that the detention is made in order to deal effectively with the emergency, the grounds, infmmation and materials would in most cases be confidential and if a claim of privilege were made under section 123 of the Indian Evidence Act. it would almost invariably be held justified.\n\nThe Legislature, therefore, taking into account the privikgcd character of the grounds, informcction and materials in the generality of cases, enacted sub-section (9) !a) of section 16A laying down a rule that the grounds, information and materails shall be deemed to refer to matters of State which it would be injurious to public interest to disclose, instead of leaving it to the discretion of the detaining authority to make a claim of privilege in each individual case and the court to decide it.\n\nThe rule enacted in sub-section (9) (a) of section 16A bears clos.e ana.Jogy to a rule of conclusive presumption and inthe circumstances, it must be regarded as a genuine mle of evidence. I may make it clear that if the grounds, information.and materials were not, by and large, of such a character as to fall within the class of documents relating to matters of State which it would be injurious to public interest to disclose, I would have found it impossible to sustain this statutory provision as a genuine rule of evidence. If the grounds, information and materials have no relation to matters of State or they cannot possibly be of such a character that their disclosure would injure public interest, tha Legislature cannot, by merely employing a legal fiction, deem them to refer to matters of State which it would be against public interest to disclose and thereby exclude them from the judicial ken.\n\nThat would not be a genuine rule of evidence : it would be a colourable legislative device -a fraudulent exercise of power.\n\nThere can be no blanket ban on disclosure of the grounds, information and materials to the High Court or this Court, irrespective of their true character.\n\nThat was the reason why section 14 of the Preventive Detention Act, 1950 was struck down by this Court in A. K. Gopalan's case (supra) and this Court said in M. M. Damnoo's case (supra) that if the proviso to section 8 had debarred the High Court and this Court from calling for the grounds of detention and looking into them, it would have been . difficult to sustain that proviso.\n\nBut here, on account of the declaration under sub-section (2) or sub-section (3), which, as I said above, must be a valid declaration in order to attract the applicability of subsectiou (9) (a) of section 16A, the grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in the sub-section genuinely partakes of the character\n\n'-.\n\n\\ '\n\n• •\n\n...\n\n...\n\nADDL. DIST. MAGISTRATE v. s. s. SHUKLA (Bhagwati, !.) 477\n\nof a rule of evidence. It may be pointed ont that if the declaration A under sub-section (2) or sub-section (3) is invalid sub-section (9) (a) of section l 6A will not be attracted and the grounds, information and materials on which the order of detention is made would not be privileged under that sub-section.\n\nI am, therefore, of the view that sub-section (9) (a) uf section 16A enacts a genuine rule of evidence an it does not detract from or affect the jurisdiction of the High Court under Article 226 and hence it cannot be successfully assailed as B invalid.\n\nI accordingly answer the first question by saying that the Presidential Order dated June 27, 1975 bars maintainability of a petition for a writ of habeas corpus where an order of detention is challenged on the ground that it is vitiated by m, qla {ides, legal or factual, or is based on extraneous considerations or is not under the Act or is not C in compliance with it.\n\nSo far as the second question is concerned, I do not think there is any warrant for reading down sub-section (9) (a) of section l 6A so as to imply an exception in favour of disclosure to the Court, and, on the interpretation placed by me on that provision, I hold that it does not constitute an encroachment on the constitutional jurisdiction of the High Court under Article 226 and is accordingly not void.\n\nIn the circumstances, I allow the appeals and D set adde the judgments of the High Courts impugned in the appeals.\n\nORDER\n\nBy majority-\n\nIn view of the Presidential Order dated 27 June 1975 no person E has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous considerations;\n\n2. Section 16A(9) of the Maintenance of Internal Security Act is constitutionally valid;\n\n3. The appeals are accepted.\n\nThe judgments are set aside;\n\n4. The petitions before the High Courts are now to be disposed of ' in accordance with the law laid down in these appeals.\n\nS.R .", "total_entities": 2458, "entities": [{"text": "ADDITIONAL DISTRICT MAGISTRATE, JABALPUR", "label": "PETITIONER", "start_char": 0, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "ADDITIONAL DISTRICT MAGISTRATE, JABALPUR", "offset_not_found": false}}, {"text": "S. S. SHUKLA ETC. ETC", "label": "RESPONDENT", "start_char": 42, "end_char": 63, "source": "metadata", "metadata": {"canonical_name": "S. S. SHUKLA ETC. ETC", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 83, "end_char": 92, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "H. R. 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"end_char": 984251, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 32", "label": "PROVISION", "start_char": 984260, "end_char": 984270, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "article 13", "label": "PROVISION", "start_char": 984599, "end_char": 984609, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 14", "label": "PROVISION", "start_char": 984735, "end_char": 984745, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 32", "label": "PROVISION", "start_char": 985020, "end_char": 985030, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 8", "label": "PROVISION", "start_char": 985566, "end_char": 985575, "source": "regex", "metadata": {"statute": null}}, {"text": "Kashmir Preventive Detention Act", "label": "STATUTE", "start_char": 985591, "end_char": 985623, "source": "regex", "metadata": {}}, {"text": "section 103", "label": "PROVISION", "start_char": 985655, "end_char": 985666, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Preventive Detention Act", "statute": "Kashmir Preventive Detention Act"}}, {"text": "Section 103", "label": "PROVISION", "start_char": 985709, "end_char": 985720, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Preventive Detention Act", "statute": "Kashmir Preventive Detention Act"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 985745, "end_char": 985756, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Preventive Detention Act", "statute": "Kashmir Preventive Detention Act"}}, {"text": "Section 8", "label": "PROVISION", "start_char": 985861, "end_char": 985870, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Preventive Detention Act", "statute": "Kashmir Preventive Detention Act"}}, {"text": "section 103", "label": "PROVISION", "start_char": 986529, "end_char": 986540, "source": "regex", "metadata": {"linked_statute_text": "Kashmir Preventive Detention Act", "statute": "Kashmir Preventive Detention Act"}}, {"text": "section 8", "label": "PROVISION", "start_char": 987003, "end_char": 987012, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 987272, "end_char": 987282, "source": "regex", "metadata": {"statute": null}}, {"text": "Preventive Detention Act, 1950", "label": "STATUTE", "start_char": 987291, "end_char": 987321, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 987840, "end_char": 987849, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act, 1950", "statute": "the Preventive Detention Act, 1950"}}, {"text": "section 16A", "label": "PROVISION", "start_char": 988155, "end_char": 988166, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act, 1950", "statute": "the Preventive Detention Act, 1950"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 988320, "end_char": 988331, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act, 1950", "statute": "the Preventive Detention Act, 1950"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 988973, "end_char": 988984, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 989032, "end_char": 989043, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 989267, "end_char": 989278, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 989691, "end_char": 989702, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 16A", "label": "PROVISION", "start_char": 989855, "end_char": 989866, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 226", "label": "PROVISION", "start_char": 990092, "end_char": 990103, "source": "regex", "metadata": {"linked_statute_text": "Constitution of India", "statute": "Constitution of India"}}, {"text": "section 16A", "label": "PROVISION", "start_char": 990440, "end_char": 990451, "source": "regex", "metadata": {"statute": null}}, {"text": "section 14", "label": "PROVISION", "start_char": 991329, "end_char": 991339, "source": "regex", "metadata": {"statute": null}}, {"text": "Preventive Detention Act 1950", "label": "STATUTE", "start_char": 991347, "end_char": 991376, "source": "regex", "metadata": {}}, {"text": "Article 226", "label": "PROVISION", "start_char": 991429, "end_char": 991440, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act 1950", "statute": "the Preventive Detention Act 1950"}}, {"text": "section 3", "label": "PROVISION", "start_char": 991782, "end_char": 991791, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act 1950", "statute": "the Preventive Detention Act 1950"}}, {"text": "section 16A", "label": "PROVISION", "start_char": 991849, "end_char": 991860, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act 1950", "statute": "the Preventive Detention Act 1950"}}, {"text": "section 3", "label": "PROVISION", "start_char": 991991, "end_char": 992000, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act 1950", "statute": "the Preventive Detention Act 1950"}}, {"text": "section 16A", "label": "PROVISION", "start_char": 992203, "end_char": 992214, "source": "regex", "metadata": {"linked_statute_text": "the Preventive Detention Act 1950", "statute": "the Preventive Detention Act 1950"}}, {"text": "section 16A", "label": "PROVISION", "start_char": 992964, "end_char": 992975, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16A", "label": "PROVISION", "start_char": 993123, "end_char": 993134, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16A", "label": "PROVISION", "start_char": 994035, "end_char": 994046, "source": "regex", "metadata": {"statute": null}}, {"text": "section 16A", "label": "PROVISION", "start_char": 994271, "end_char": 994282, "source": "regex", "metadata": {"statute": null}}, {"text": "section 123", "label": "PROVISION", "start_char": 996103, "end_char": 996114, "source": "regex", "metadata": {"statute": null}}, {"text": "Indian Evidence Act", "label": "STATUTE", "start_char": 996122, "end_char": 996141, "source": "gazetteer", "metadata": 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{"document_id": "1976_1_1_27_EN", "year": 1976, "text": "• •\n\nMOHD. YASIN SHAH\n\nALI AKBAR KHAN\n\nApril 14, 1976\n\n\"IP. N. BHAGWATI, A. c. GUPTA AND s. MuRTAZA FAZAL Au, JJ.] B\n\n<Cf. Jammu & Kashmir Representation of the People Act, S. 47(2)(c)-Scooe\n\nSection 47(2) of the Jam.mu & Kashmir Representation of the People Act enacts that the Returning Officer shall examine the nomination papers :.and shall decide all objections which may be made to any nomination and may, either on such objection or in his own motion, after such summary enquiry, if any, reject any nomination on the ground, among others, that the signature of the candidate or the proposer on the nomination paper is .not genuine.\n\nFor the general election to the State. Assembly the appellant and the Tespondent (petitioner) filed nomination papers.\n\nThe nomination paper of the respondent was rejected by the Returning Officer on the ground that when his nomination was called neither he nor anyone on his behalf was present.\n\nAfter the words 'Hence rejected' recorded on the nomination paper the Returning Officer had also added that the signature of the proposer was not\n\ngenuine.\n\nIn the election that ensued the appellant was declared elected. The respondent ili his election petition alleged (i) that though at the time of scru-· tiny the Returning Officer was informed by his proposer that the respondent had gone out to ease and requested him to wait for a while, the Returning Officer rejected the nomination paper and refused to reopen the matter even -on the respondent's request immediately thereafter and (ii) that the Returning Officer committed forgery by subsequently adding certain \\vords in the order of rejection and by over-writing the signature of the proposer on the nomination paper.\n\nThe High Court held (i) that .the Returning Officer '\\Vas not justified in law in rejecting the nomination paper of the respondent on the ground that he was not present at the time of scrutiny, and (ii) that the Returning Officer\n\nhaving become functus officio any subsequent observations which he ight have made was irrelevant and since1 the nomination paper was illej?3.lly re1ected the election was void and was liable to be set aside under s. 108 ( 1) ( c) of the Act.\n\nAllowing the appeal to this C.Ourt,\n\nHELD : The judgment otf the High COU!rt is erroneous bpth on fact and in law and is agaihst the weight of evidencei on record and , preponderance of probabilities. [27 DJ\n\n(!) Although the appellate Court should be slow to disturb a pure finding of fact based on appreciation of evidence by the- Trial Court, it is well G settled that the sanctity and purity of elect0ral processes must be maintained.\n\nThe election of a duly eleCted candidate cannot be set at naught oh the basis of interested or partisan evidence not backed by cogent circumstances or unimpeachable documents.\n\n[6 HJ\n\nRahim Khan v. Khurshid Ahmed & Ors. [1975J 1 S.C.R. 643, 656 and D. Venkata Reddy v. R .. Sultan & Ors. [1976J, 3 S.C.R. 445, referred to.\n\nIn the instant case the approach of the High Court was not correct. It H had overlooked many essential features. Secondly the High Court had observed that issue No. 1 was wide enough to include the appellant's plea that even if the order of the Returning Officer in rejecting the nomination paper on the ground of absence of the ca111didate or his proposer was wrong, it could\n\n3-S33SCI/7\n\nA still e sµppoed on the. groun~ that the SignattJ.re of the proposer was not genuine. Yet it had not determined this aspect of the matter. (27 C]\n\n(2) The order of the Returning Officer read as a whole clearly shows tat the no-!Ilination pdper. was rect~· ,, not only on the ground that the can d1date or his proposer was not present but also on the ground that the signa· tore of the proposer on the nomination paper was not genuine.\n\nIt is true that the Retummg Officer had not given any clear finding on this point bul s. 47 of the Act did not require, a well reasoned decision. All that was necessary was that the Returning Officer should apply his mind and deter. mine th~ question. in a summary manner. Even if the ground on which the nomination paper had been actually rejected was not a permissible ground, if the successful candidate could make out a case that the nomination paper could have been properly rejected on one of the grounds mentioned in s. 4'7 the rejection would not be improper and the election would be upheld.\n\n[22D-H]\n\nN. T. Veluswami Thevar v. G. Raja Nainar & Ors. [1959) SUj>p. 1 S.C.R. 623 followed. !\n\n(i) In the instant case the fact that P.W. 4 had stated in his evidence th1t when the Returning OffiC\"..er called the name of the petitioner no one on his behalf responded knocks the bottom out of the respondent's story that the proposer had been instructed to request the Returning Officer to wait :>r that the Returning Officer had not acceded to his request.\n\n[8 DJ\n\n(ii) On a perusal of the Returning Officer's original order it was clear that the entire order had been written in the same ink, with the same pen and appears to have been written in one sitting. There_ is nothing to show that the second part of the order was added subsequently because the strokes of the letters, the ink used and tire i; teneral tenor of the writing are the same throughout.\n\n[20 BJ\n\n(iii) As regards that portion of the Returning Officer's order written by him after writing \"Hence rejected\" his explanation was that while he vas writing his order and had not completed the same, objection Yl\"as taken by the appellant regarding the genuineness of the proposer's signature and since the clerk had by then put the seal, he had recorded the appellant's objection in this space Jeft and completed his order ahd signed above the seal. This was corroborated by independent witnesses and there is no reason why the Returnin~ Officer should have added a part of the orde\" 9ubsequently. [20E, 2l A]\n\n(iv) The Returning Officer, while indicating the appellant's objection re-\"arding the genuinenessi of the signature of the proposer also observed tha~ it c was not possible to verify the signature of the proposer in the absnc.e of the candidate as well as the proposer.\n\nThus the absence of the cc.nchdate and the proposer had been used, not for th~ purpose of re}ectin.e: the nomination paper, but for the purpose of supporting the concluslon of the Returning Officer that the signature wa5 not genuine. [22; Fl\n\n(v) It has been satisfactorily proved that the signature of the prO; Joser which contained' ovenvriting was not his: gehuine signature and, therefore, the nomination paper had been properly rejected and the election could nCJt be assailed under s. 108 (1 )( c) of the Act From the fats fom1d it .was clear that the over-writing present in the signature at the time of scrutmy ·:brew considerable doubt on the genuineness o! the proposer's signature.\n\nTh€- fact that the proposer and the respnndent were ab9ent at the time! of sc_utiny lends sufficient support to the inference that the signature of the proposer was not genuine. [26 C..DJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1141 of l974.\n\nAppeal from the Judgment and Order dated l 0th June 197 4 of the Jammu & Kashmir High Court at Srinagar in Election Petition o. 4 of 1972.\n\n- •\n\n• -\n\nA. K. Sen, Altai Ahmed and M. Veerappa, for the appellant.\n\nG. S. Pathak, 0. C. Mathur, Shri Narain and J. B. Dadachanji, for the Respondent. ·\n\nThe Judgment of the Court was delivered by\n\nFAZAL ALI, J.-This is an election appeal against the judgment of B the High Court of Jammu & Kashmir dated June 10, 1974, by which the learned Judge allowed the election petition filed before him by the respondent Ali Akbar Khan and set aside the election of the returned candidate Mohd. Yasin Shah who is the appellant before us. The returned candidate will, for short, be referred to by us as 'the appellant' and the respondent Ali Akbar Khan will be referred to as 'the petitioner' .\n\nIt appears that during the elections held in the year 1972 in the State C of J ammu & Kashmir both the appellant and the petitioner were the candidates for election to the Karnah Assembly Constituency of the District of Baramulla in the State of J ammu & Kashmir.\n\nThere were other candidates also some of whom had withdrawn.\n\nOne Mohd Yunis was the Congress candidate for this constituency but he was defeated.\n\nThe petitioner, according to the appellant, was merely a covering or a shadow candidate for the Congress candidate Mohd Yunis.\n\nThe D petitioner filed his nomination paper on February 7, 1972 and his proposer was P.W. 1 Ghulam Mohiuddin.\n\nAccording to the petitioner tlie nomination paper was presented to the Returning Officer R.W. 3 Abdul Rehman Mir on February 7, 1972 by the petitioner who was accompanied with his proposer Ghulam Mohiuddin who had signed as the proposer. The Returning Officer received the nomination paper and granted a receipt for the same.\n\nA sum of Rs. 250 /- being the E election deposit was also deposited and other formalities were duly observed.\n\nFebruary 9, 1972, was the last date fixed for the scrutiny of the nomination papers of all the candidates.\n\nAocording to the petitioner he reached the office of the Returning Officer at about 10 A.M. on February 9, 1972 but as he was suffering from dysentery he went to attend the call of nature and instructed his proposer P.W. 1 Ghulam Mohiuddin to take time on his behalflf the name of the F candidate was called out. The petitioner's case before the High Court was that the Returning Officer aft.er scrutinising the nomination papers aocepted all of them but rejected the nomination paper of the petitioner on the ground of l)is absence in spite of the fact that P.W. 1 Ghulam Mohiuddin requested him to wait for the petitioner who had gone to attend the call of nature.\n\nIt was further alleged that when the t>etitioner returned he beseeched the Returning Officer not to reject G his nomination paper but the Returning Officer refused to reopen the matter as the nomination paper of Mohd. Yunis the Congress candidate had been accepted.\n\nThe nomination paper of Mohd Yasin Shah the appellant was also accepted.\n\nThereafter the poll was held on March 8, 1972 and the results were declared on March 12, 1972. The appellant Mohd Yasin Shah was declared elected, while Mohd Yunis was defeated.\n\nAfter the results were declared the petitioner awlied H for a certified copy of the order of rejection of his nomination paper on April 1, 1972, and according to him the Returning Officer tried to avoid giving thC copy of the said order which was ultimately given\n\nto him on April 3, 1972, A~ 2, being a Sunday.\n\nThe sheet-anchor of the case of the petitioner was that the Returning Officer was particularly biased. against him and he rejected the nomination paper in order to support the returned candidate in whom he was interested.\n\nThe petitioner further pleaded that the only ground on which the nomination paper. was rejected was that the petitioner did not appear when the Returrung Officer called out his. name at the time of the scrutiny of his nomination paper.\n\nThe petitioner further averred that under the law the Returning Officer could not have rejected his nomination paper on the ground of his absence even if it was so.\n\nNot content with these allegations the petitioner went to the extent of making a serious and irresponsible allegation against the Returning Officer by averring that the Returning Officer had committed forgery by subsequently adding certain words in the order of rejection and overwriting the signature of the proposer Ghulam Mohiuddin on the nomination paper.\n\nThus, in short, according to the petitioner as his nomination paper was improperly rejected by the Returning Officer, the election of the appellant was void on that ground alone.\n\nThe petitioner filed the present election petition with the allegations aforesaid on April 12, 1972. It was alleged that at the time when P. W. 1 Ghu!am Mohiuddin was examined as a witness there was some overwriting on the signature of Ghulam Mohiuddin the proposer of the petitioner on the nomination form.\n\nAccordingly the petitioner made an application to the Court for permission to file an amended petition by incorporating the fact that the overwriting was brought into existence after the scrutiny of the nomination papers was over and behind the back of the petitioner.\n\nThe learned Judge, after hearing the parties, ultimately allowed the application and accordingly an amended petition was filed by the petitioner where the allegations regarding interpolation etc. were made.\n\nThe appellant was also given an opportunity to file his additional written statement.\n\nThe petition was stoutly resisted by the appellant who denied, inter alia, all the allegations made by the petitioner and contended that there was absolutely no overwriting on the signature of Ghulam Mohiuddin nor was any forgery committed by the Returning Officer.\n\nIt was further averred that as neither the petitioner nor his proposer was present when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer and as the appellant himself raised the objection that the signature of Ghu!am Mohiuddin on the nomination paper was not genuine the Returning Officer having applied his mind upheld the objection and rejected the nomination paper on the ground that the signature of Ghnlam Mohiuddin was not genuine as it could not be verifie_d. The appellat also vel1emntly denied the allegation that the Returmng Officer was m any way biased or prejudiced against the petitioner .. On the other hand it was_ averred that the Returing Officer was an mdependent officer and smce the petitioner was a candidate of the Congress if the Returning Officer could have any leaning at all it would be towards the petitioner rather than the appellant who was an independent _candidate . opposing the Congress party. The learned Judge, after taking the evidence of the\n\n• -\n\nparties, came to the conclusion that from the order of the Returning A , Officer_ it \\llOU!d. appear that the nomination paper of the petitioner was reiected mainly on the ground of his absence which was not a lawful ground on which the nomination paper could have been rejected under s. 47(2) of the Jammu & Kashmir Representation of the People Act.\n\nOn the question of the overwriting the learned Judge held that there was no doubt that there was overwritillg -on the signature of B ..\n\nP. W. 1 Ghulam Mohiuddin on the nomination form of the petitioner and perhaps the overwriting was made some time after the scrutiny.\n\nBut the learned Judge refrained from giving any finding as to who made the interpolation and in what circumstanees.\n\nAs regards the ' allegation that the Returning Officer had committed forgery the learned Judge does not appear to have accepted the same or given any clear finding on this point, and he steered clear of this fact by observing c that as the first part of the order of the Returning OJficer rejecting - the nomination paper was based on the ground of the -absence of the petitioner, the Returning Officer became functlfs officio and any subsequent observation which he may have made was irrelevant. The learned Judge further seems to have held that the petitioner was not present when the scrutiny of his nomination paper was taken up and • the Returning Officer was not justified in law in rejecting his nomi- D nation paper on that ground alone. On these findings the learned Judge\n\n~ held that as the nomination paper of the petitioner was illegally rejected the election of the appellant was void and was liable to be set aside under s. 1 08 (1 )( c) of the J ammu and Kashmir Representation of the People Act-hereinafter referred to as 'the Act', as amended upto date. ,.\n\nIn support of the appeal Mr. Altaf Ahmed learned counsel for the E _, appellant who was followed by Mr. Asoke Sen submitted that the learned Judge has misconstrued the order passed by the Returning Officer rejecting the nomination paper of the petitioner and that the judgment of the High Court is against the weight of the evidence on the record. It was also argued that the learned Judge completely overlooked some of the essential features appearing in the case which completely demolished the petitioner's case.\n\nMr. G. S.\n\nPathak F - appearing for the petitioner, however, supported the judgment of the High Court and contended that the order of the Returning Officer was mainly passed on the ground of the absence of the petitioner ' which was not justified by the provisions of s. 47(2) (c) of the Act.\n\nHe also submitted that a bare perusal of the order of the Returning • Officer would clearly show that the second part of the order reurdig\n\nthe genuineness of the signature of the proposer Ghulam Mohmdm appears to have been inserted subsequei; tly. Lastly, it was s; ibmitte?\n\nG that although this Court could reappraise the evidence for itself 1t should not interfere with the judgment of the Court n . facts unless the High Court had committed an error m its apprecrnhon of evidence or overlooked any material fact. It was further argued that this Court should keep in mind the slowness of !11~ appe!lat~ court to\n\n-\" di t b a ure finding of fact based on appreciation of eV1d_ence by H ths '!}rial tourt which had the initial advantage of watchmg_ the de':neanour of the witnesses examined by it. 1;11kre an be no 1~):1~~ with the propositions adumbrated by Mr. Pat a \" ut we wou i\n\nA to mention tl]at it is well settled that the sanctity ilild purity of electoral process in the conntry must be maintained.\n\nThe election of a duly returned candid:ue cannot be set at naught on the basis of interested or partisan evidence which is not backed by cogent circumstances or unimpeachable documents.\n\nIn Rahim Khan v. Khurshid Ahmed & Ors.( 1) this Court observed as follows :\n\n\"We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. x x x There is no x-ray whereby the dishonesty oI the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus.\n\nWe regard it as extremely unsafe, in the present climate of kilkennycat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witness.\n\nThe Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extillo\"Uish many a man's public life.\"\n\nIn D. Venkata Reddy v. R. Sultan & Ors.( 2 ) this Court, in which one of us (Fazal Ali, J.) was also a party, reiterated the principles in the following words :\n\n\"In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral proc.ess must be preserved and maintained. The valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.\n\nIn our conntry election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to. make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes.\"\n\nWe would now proceed to discuss the various aspects of the case in the light of the principles enunicated by this Court in the aforesaid cases.\n\nTo begin with, we might mention that most .o.f the facts on which evidence appears to have been led by_ the petitioner we_re not pleaded in the election petition at all.\n\nFor mstance, the defirote case made out by the petitioner in hls evidence was that at the tie of the scrutiny of the nomination papers when the name of the petitioner was called ont P.W. 1 Ghulain Mohiuddin the proposer of the\n\n(1) [1975] I S. C.R., 643, 656.\n\n(2) 11976] 3S.C.R.445, 450\n\nMO.HD. YASIN v. AU AK:llAR (Fazal Ali, ],) 7\n\npetitier was present who drew the attention 0£ the Returning Officer A to the fact that. the petitioner had gone to attend tile call of nature and that he should Vf:ait for him but the Returning Officer refused to wait and rejectid the nomination paper on the ground of the absence -0f the petitioner. It was further sought to be proved in the evidence that on return the petitioner tried to persuade the Returning Officer to reopen th\\' matter and in fact filed an application before him for recalling the order of rejection of the nomination paper but the Re- B turning Officer was so much prejudiced against him that he tore off the petition submitted before him by the petitioner. It will be noticed that neither in the original pettion nor in the amendecl one there. is any mention of the fact that P. W. 1 Ghulam Mohiuddin drew attention of the Returning Officer and asked him to wait, nor is there any mention of the facit that the petitioner on his return submitted a petition to the Returning Officer which was tom into pieces by the Return- C ing Officer.\n\nWe shall show that these facts are also not proved even by some of the witnesses examined by the petitioner. It may be pertinent to note here that while in paragraph 14 it was mentioned that when the nomination form of the petitioner was taken up it was reported to the Returning Officer that the petitioner had gone to attend the call of naiture, but significantly enough it is not mentioned therein as to who was the person who had drawn the attention of the Retmn- D ing Officer. It seems to us that even at the time of filing his amended petition which was filed after the ttrial had started the petitioner was not certain of his case and had not yet decided to allot this part to his proposer Ghulam Mohiuddin.\n\nP.Ws. 1, 2 and 6 have no doubt asserted in their evidence that P.W. 1 Ghulam Mohiudclin requested the Returning Officer to wait for the petitioner who haJ gone to attend the call of nature. P.W. 1 Ghulam Mohiuddin who was the proposer E of the petitioner and therefore the most interested witness in this case has no doubt testified to the fact .that he had drawn the attention of the Returning Officer when the nominaiion paper of the petitioner was taken up for scrutiny,. but the Returning Officer did not heed his request and rejected th~ nomination paper. This witness also stated that petitioner himself told the Returning Officer that he was going to attend the call of nature and that he should wait for him.\n\nBut the F witness does not appear to be sure of his statement as he immediately voluntee.red to state that as there was Jot of noise at that time evidently the Returning Officer did not hear him.\n\nThe petitioner also says the same thing.\n\nP.W. 2 Qazi Mohammad Abdullah also , tries to support the fact that at the time of scrutiny the petitioner was not present and Ghulam G Mohiuddin P.W. 1 informed the Returning Officer that the petitioner had gone to attend the call of nature.\n\nThis witness, however, did not support the allegation of the petitioner that a petition was submitted by him before the Returning Officer which was torn by him.\n\nThe witness stated thus :\n\n\"The petitioner die! not submit any petition before the Returning Officer in my preseni:e on the day of scrutiny.\n\nH There was no such incident in my presence such as the filing of a petition before the Returning Officer and the tearing off that 'petition by him.\"\n\nP.W. 6 the petitioner himself no doubt supported his s:se that he had gone to attend the call of n$ure when the scrutiny of his nomination paper was taken up and had instructed P.W. 1 Gbulam Mohiuddin to remain present and to ask the Returning Officer to wait.\n\nThus this fact is J!.Ot proved by any independent witness.\n\nOn the other hand the fact that Ghulam Mohiuddin did not respond to the call even though he was instructed, as the petitioner would have us believe, is admitted even by a witness of the petitioner, namely,\n\nP.W. 4 Ghulam Qadir Mir, who deposed as follows :\n\n\"At the time when the scrutiny of the nomin,; tion paper of Ali Akbar Khan was taken up, be himself was not present there.\n\nHis proposer Ghulam Mohi-ul-Din was present there.\n\nThe name of Ali Akbar Khan was called out but no one responded and so the Returning Officer wrote down that the candidate was absent and his nomination paper was being\n\nrejeced. In my presence nothing else happened there.\"\n\nIt would therefore appear from the evidence of this witness that even thongh Ghulam Mohiuddin was present he did not at all respond when the name of the petitioner was called out. This knocks the bottom out of the story put forward by the petitioner that Ghulam Mohiuddin had been instructed to ask the Returning Officer to wait or that Ghulam Mohiuddin stood up and requested the Returning Officer to wait for the j)etitioner.\n\nThus the entire story given out by P.Ws. 1, 2 and 6 on this point is falsified by one of the witnesses examined by the petitioner himself.\n\nThere is yet another circmnstance which throws considerable doubt on this part of the story of the petitioner. P.W. 5 Girdhari Lal counsel engaged by the petitioner at the time of scrutiny according to whose evidence Ghulam Mohiuddin bad signed the nomination form in his presence, was also present at the time when the scrntiny of the nomination paper of the petitioner was taken up and in spite of this fact when the name of 1the petitioner was called out and according to the witness the Returning Officer announced that since he was absent bis nomination paper was rejected this witness did not enter a protest on behalf of bis client, the petitioner, th~ the Returning Officer could not have rejected the nomination paper on the ground of the absence of the petitioner.\n\nThis somewhat unusual conduct on the part of the witness who is a lawyer of some experience clearly shows that neither Ghulam Mohiuddin was present nor the petitioner was present and it is therefore extremely doubtful if this witness was also present at the time when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer.\n\nAs against this contradictory and discrepant evidence there is consistent evidence of the appellant's witnesses R.Ws. 1, 2, 3 and 4 lo the effect that neither the petitioner nor his proposer Ghulam Mobiuddin was present when the scrutiny of the nomination paper of the petitioner was taken up.\n\nR.W. 3 is the Returning Officer himself and he appears to us to be an absolutely independent witness being a high Government officer of sufficient experience and there is abso-\n\n• •\n\nlntely no reason for him' to depose falsely against the petitioner. The A\n\n~ Returning Officer stated thus :\n\n\"When in spite of repei\\ted calls neither the petitioner nor his proposer turned up before me, then I began to write out the order on the back of <the nomination form.\"\n\nR.W. 1 Mohammad Anwar Shah Masoodi also appears to be an B I independent witness who was an active Congress worker but he did not see eye to eye with the Congress on the candidature of Mohd Yunis '\n\nfor the constituency in question.\n\nThere is nothing to show that this witness was in any way interested in the appellant.\n\nThis witness , also rn'.egorically stated that neither the petitioner nor the proposer of the petitioner turned up at the .time when the name of the petitioner was called out. c R.W. 2 Ghulam Hassan Malik who was also one of the candi- - dates from the Karnah Assembly Constituency and who is a lawyer also corroborated the evidence of the Re!turuing Officer and of R.Ws. 1 & 3 that no one stood up on behalf of the petitioner when the name of the petitioner was called ot and that the proposer of the petitioner was also not present at that time in the room.\n\nThis wit- D ' ness has further stated that no one brought it to the notice of the Returning Officer that the petitioner was ill or that he would be coming soon.\n\nThe evidence of the witnesses examined by the appellant, therefore, is fully corroborted by the evidence of P.W. 4 Gulam Qadir Mir a witness of the petitioner as shown above.\n\nFurthermore we find it difficult to believe why the Returning Ofiicer who was an independent person and a Government Officer E , would refuse to wait for the petitioner if his attention was really drawn to the fact that 1the petitioner was ill and had gone to attend the call of nature by Ghulam Mohiuddin or any body on behalf of the petitioner.\n\nThis fact, therefore, clearly shows that the case of the appellant that neither !the petitioner nor his proposer was present at the time when the scrutiny of the nomination paper of the peti- F tioner was taken up is true.\n\nEven the learned Judge is also inclined - to accept 1this part of the case of the appellant. On a consideration • of the evidence of the parties referred to above we are clearly of the opinion that the petitioner has failed to prove that at the time when the scrutiny of his nomination paper was taken up by the Returning Officer either the petitioner or his proposer Ghulam Mohiuddin was , present and made any request to the Returning Officer to wait which G was not acceded to by the Returning Officer.\n\nApart from the interested testimony of P.W. 1, 3 and 6 that the petitioner had subrnHted a petition to the Returning Officer which was torn out by him there is no reliable evidence to prove this fact.\n\nTo begin with, this fact is ne\\t at all mentioned even in the election petition filed by the petitioner even after amendment.\n\nThe petitioner H --' admits in his statement that he did not mention this fact while instructing his lawyer. Furthermore, if indee.(\\ the Returning Officer actually behaved in the manner as the petitioner would have us believe, then it was a very serious matter and the petitioner is not likely to have\n\nslept over the matter but would have filed a 'regular complaint against the Returning Officer to his higher superiors.\n\nIu fact when there was a delay of only one day in the giving of the copy of the rejection order the petitioner made a great fuss and furore over this petty lapse.\n\nIs it possible to believe that the petitioner would sit quiet if the Returning Officer had behaved in such a manner with him by tearing off the petition which was submitted to the Returning Officer? Apart from that P.W. 3 Mohammad Maqbool Mir at p. 87 of the Paper Book has clearly admitted that in his presence no petition was filed by Ali Akbar Khan before the Returning Officer.\n\nEven P.W. 5 who was the lawyer of the petitioner staj'.ed that he cannot say that Ali Akbar Khan presented any petition before the Returning Officer which the latter tore off.\n\nP.W. 4 also says tha¢ he did not see the petitioner Ali Akbar Khan or his proposer presenting any application to the Returning Officer which the latter tore off.\n\nThus the mischievous allegation made by the pe,'.itioner against the Returning Officer is completely disproved not only from his own conduct but also by the evidence of his, own witnesses as discussed above.\n\nFinally even though a very serious allegation was made against the Returning Officer personally, yet, when he was deposing as a witness for the appellant, no suggestion was put to him that any petition was presented to him which he tore off instead of taldng any action thereon.\n\nFurther while P.W. 1 Ghulam Mohiuddiu categorically stated in his evidence that the petition which was submitted to the Returning Officer was scribed by Abdul Ahad the petltion writer, yet the petitioner made no attempt to examine Abdul Ahad in order to prove this part of his case.\n\nIn these circumstances, therefore, we disbelieve this part of the case of the petitioner that he had filed any petition to\n\n1the Returning Officer for reopeniug the order rejecting his nomiuatio:1 paper. It seems to us that this allegation was a made up story and appears to have been invented in order to make out a case that the Returning Officer was biased against the petitioner and 1that is why the nomination paper of the petitioner was illegally rejected by him.\n\nThe petitioner has however miserably failed to prove this part of the case. If this story is found Ito be false, it would also demonstrate the falsity of the main allegation made by the petitioner regarding the overwriting on the signature of Ghulam Mohiuddin as also interpolation in the order passed by the Rd\\U.rning Officer rejecting the nomination paper of the IJetitioner.\n\nThis brings us now to the question as to the nature of the order passed by the Returning Officer which is Ext. RW 3/3.\n\nBefore, however, taking up this matter it may be necessary to dispose of the case of the petitioner rel'}lrding the overwriting alleged to have been made subsequently on the signature of Ghulam Mohiuddin on the nomination paper Ext. PW 5 /2.\n\nThe definite case of the petitioner was that at the time when the nomination paper was filed before the Returning Officer R.W. 3, or even at :the time of the scrutiny on February 9, 1972, there was no overwriting at all which appears to have been made snbsequently.\n\nOn the other hand the case of the appellant is 'that the overwriting was already there from before an~ in fact it was deliberately made so as to afford a ground to the pet1-\n\n- '\n\nMOl!D. YASIN V. ALI AKBAR (Fazal Ali, !.) 11\n\ntioner to set aside the election of (the appellant in case he was duly elected. It was suggested that this lacuna was deliberately left so as to invite the Returning Officer to reject the nomination paper and then use this infirmity to upset the eleclion of the appellant. In support of this case the appel!ant relied upon !he following circmill!tances :\n\n\"' ·, .• ~~ .• ;'.,:~,:r_:.j J.vt~ ··&··· ... ,·.• ..\n\n(i) that the petitioner was a mere covering or shadow candidate of the Congress and was not at all interested in contesting the election;\n\n(ii) that once the nomination paper of Mohd Yunis who was the official candidate of the Congress was accepted the petitioner was not at all interested in pursuing his election and it was for this reason that when the scrutiny of !he nomination paper of the petitioner was taken up neither the petitioner nor his proposer was present and an imaginary story was invented that the petitioner was ill and had gone. to a'.tend the call of nature and Ghulam Mohiuddin the proposer asked the Returning Officer to wait but he rejected !he nomination paper of the petitioner; and\n\n(iii) !hat P.W. 1 Ghulam Mohiuddin the proposer of !he petitioner has in an unguarded moment admiUted in his statement that on the very day when !he nomination paper was rejected i.e. on February 9, 1972, !he petitioner informed the witness that he will file a case in !he Court against Mohd Yasin !he appellant. P.W. 1 deposed thus:\n\n\"The petitioner had only •then informed me after !he rejection i:e. on 9-2-1972 !hat he will now file a case in the Court against Mohammad Yasin respondent.\"\n\nTltis statement clearly lets the cat out of !he bag and shows that the .\n\nE M'itioner's intention really was to prepare a ground for setting aside !he election of !he appellant if he was duly elected. Unless this was so, it is not understandable why the petitioner should have made such a statement to P.W. 1 on the date when the nomination paper was rejected and when he obviously did not know whether or not tme appellant would succeed iri the election.\n\nWe shall now deal with each of these circumstances relied upon by the appellant in support of his case that the entire story o~ overwriting etc. was a figment of the imagination of the petitioner's mind and perhaps the whole thing was stage-managed so as to invite the Returning Officer to reject the nomination paper of the petitioner.\n\n The appellant has clearly stated in his evidence that the petitioner was merely a covering candidate of the Congress and was put up only as a shield to take the place of Mohd Yunis if the nomination paper of Mohd Yunis was rejected. R.W. 1 who, as we have already pointed out,, was an independent wis and was an active worker of the Congress at one time bas also categorically asserted that the petitioner was a covering candidate of the Congress. The . witness stated !hus :\n\n\"The petitioner wai i Caildldate set up by the Congress that. is to say he was a covering candidate. The congress had given the mandate to Kb. Mohd Yunis but the latter\n\nA had set up the petitioner as a candidate by way of precaution.\"\n\nThe evidence of this witness appears to have a ring of truth in it.\n\nHe has clearly $lated that he did not agree with the Congress Orgamzation when a mandate was given to Mohd Yunis to stand from the Assembly constituency of Karnall, because in his opinion Mohd Yunis had lost his popularity and there was little chance of his being elected.\n\nThe result of the election demonstrated that the apprehension of this witness was und0ubt.edly correct, because while the appellant was duly returned, Mohd Yunis was defeated.\n\nIn these circumstances we do not see any reason to distrust the evidence of this witness on this point.\n\nR.W. 2 Gulam Hassan Malik who was a lawyer and also a candidate has also stated 11hat the petitioner Ali Akbar Khan was a covering candidate of Mohd Yunis.\n\nThe appellant also in his evidence categorically asserted that the petitioner was a covering candidate of the Congress for Mohd. Yunis.\n\nIt is true that , the petitioner has not admitted this fact, but the somewhat contradictory stand taken by him on this point clearly shows that he was undoubtedly a covering candidate.\n\nThe witness\n\n(petitioner) said that if his nomination paper had been accepted he would not have contested as an independent candidate but he had been assured that if the nomination paper of Mohd. Yunis as also oj the petitioner were accepted ihen the Congress was to dec.ide as to who would contest the election. At the same time the petitioner admitted thait the mandate of the Congress was given to Mohd Yunis prior to the filing up of the nomination forms. Indeed if the mandate was given by the Congress party to Mohd. Yunis alone, the petitioner was bound to be a dummy candidate only. Another intrjµsic circumstance that supports this fact is that while Mohd Yunis and other candidates filed a number of nomination papers so that if one of them was rejected on the ground of any defect or infirmity the remaining nomination forms may be accepted and the candidature of the candidates would not nm into difficulty, the petitioner admittedly filed only one nomination paper and did not think it necessary to file another nomination paper.\n\nThese facts taken together with the subsequent conduct of (the petitioner and his proposer Ghulam Mohiuddin in not being present at the time of the scrutiny of the nomination paper as found by us lends sufficient support to the case of the appellant tha.t\n\nthe petl'.ioner was merely a dummy candidate.\n\nAs regards the other circumstances that after the nomination paper of Mohd. Yunis was accepted, the petitioner was not at all interested in fighting the elections, we find that there is overwhelming evidence to support this inference.\n\nWe have already pointed out that from the evidence Jed by the parties it has been established that neither the petitioner nor his proposer were present at the time when the scrutiny of nomination paper was tqken up by .the Returning Officer on February 9, 1972.\n\nIn these circumstances. therefore. it follows as a logical corollary that the story of the petitioner that a request made to - the Returning Officer by Ghulam Mohiuddin to wait for the petitioner or\n\n- ,\n\n' '\n\nthat any petition was filed before the Returning Officer which was torn by him is a complete myth and bas been invented to give credence to the made up story bolstered up by the petitioner. Another\n\nintrinsic circumstance which shows that t.he petitioner was not at all interested in pursuing his election is the fact that the two important persons who were very much interested in his nomination paper not being rejected did not lodge any protest before the Returning Officer or took the trouble of drawing the attention of the Returning Officer that the nomination paper could not be rejected due to U1e absence Jf\n\nthe petitioner.\n\nOne of these persons was no one else but Girdhari Lal the counsel of the petitioner himself.\n\nAccording to bis evidence he knew full well that P.W. 1 Ghulam Mobiuddin bad signed the nomination paper in his presence and yet when the nomination paper was taken up for scrutiny he did not care to tell the Returning Officer that as the proposer had signed in his presence there was no que; tion. of rejecting his nomination pape_r.\n\nSimilarly Mohd. Yunis who was the official candidate of the Congress also remained completely silent and did not draw the attention of the Returning Officer when the nominat10n paper of the petitioner who was also a Congress candidate was rejected.\n\nAU these facts, therefore, lead to the inescapable conclusion that the petitioner was not at all interested in contesting the election and by his deliberate conduct he created a situation in which the nomination paper could be rejected so that if necessary he could use this lacuna to upset the election of the appellant.\n\nAs regards the last circumstance, namely, that the whole thing appears to have been stage-managed by Mohd. Yunis in order to furnish a ground for setting aside the election of the appellant in case he was elected appears to be probable, particularly in view of the admission made by P.W. 1 Ghulam Mohiuddin to which a reference bas already been made.\n\nThe best person to explain these facts would have been Mohd. Yunis himself and the petitioner has not examined him as a witness at all.\n\nIt appears from the order-sheet that Mohd. Yunis was summoned and he was present but the petitioner did not choose to examine him.\n\nIt seems to us that Mohd.\n\nYunis being fully aware that he was the architect of the whole drama did not want to face the Court.\n\nApart from this circumstance, the evidence led by the petitioner on the question that there was some overwriting in the signature of his proposer P.W. 1 Ghulam Mohiuddin on the nomination form subsequent to the date of the scrutiny is far from convincing.\n\nIn view of our finding that neither the petitioner P.W. 6 nor Ghnlam Mohiuddin P.W. I were present on February 9, 1972 when the nomination paper of the petitioner was taken up for scrutiny by the Returning Officer, these two witnesses are not at all competent to depose as to whether or pot on that date there was any overwriting in the signature of P.W. I. In these circumstances, therefore, the evidence of P.W. 1 and 6 will have to be excluded on this point. Even so it will be interesting to note that the petitioner P. W. 6 does not say that there was any overwriting on the signature of P.W. 1 Ghnlam\n\nMohiuddin on the nomination form but he states that on a perusal of the nomination paper it appears that some ink was spread over his\n\nSUPRBME COURT REPORTS\n\n[1976) SUPPLEMENTARY\n\nA signature.\n\nAn examination of the signature of Ghuiam Mohiuddin would reveal to the naked eye that there ts no question of the sprnading of any ink over the signature but what has been done is thal there is clear overwriting on the signature.\n\nP.W. 2 Qazi Mohammad Abdullah appears to be a close acq11aintance of the petitioner and had helped him in engaging the services of Girdhari Lal for the purpose of filling up the nomination paper which was also done at his own house.\n\nThis witness also states that Ghulam Mohiuddin had affixed his signature in his presence with the fountain-pen of the petitioner.\n\nHe further asserts that on the date of his deposition he found that there was an overwriting over the signature of Ghulam Mohiuddin.\n\nThis witness was one of the proposers of Mohd. Yunis who had set up the petitioner as his dummy candidate as held by us.\n\nJn these circumstances, therefore, this witness was interested and has tried to help the petitioner.\n\nMoreover he does not say that on February 9, 1972 when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer he had an opportunity to inspect the nomination paper in order to find out whether there was any overwriting on the signature.\n\nHis evidence, therefore, does not. exclude the possibility of the overwriting having been made after Ghulam Mohiuddin had signed the nomination paper at the residence of the witness and before the nomination paper was filed or its scrutiny taken up.\n\nFurthermore, the witness admits that he is also a Congress worker and knew the petitioner for the last four years.\n\nFor these reasons, therefore, in the first place the evidence of this witness is interested, and secondly it does not appear to be of any assistance to the petitioner.\n\nThe other witness examined on this point is\n\nP.W. 3 Mohd.\n\nMaqbool Mir.\n\nA perusal of the evidence of this witness convinces us that he is an utterly unreliable witness.\n\nAlthough a lawyer of sufficient experience the witness seems to have scant regard for the purity of the legal profession or the norms of professional ethics.\n\nHe was a counsel of the appellant and had , been engaged by him at the time of filing of the nommation paper and its scrutiny.\n\nHe was present on February 9, 1972 before the Returning Officer on behalf of the appellant.\n\nHe further admits that he had also agreed to become the agent of other contesting candidates.\n\nThe order Ext. R W 3 /3 clearly mentions that the witness did raise objection on behalf of the appellant regarding the genuineness of the signature of\n\nP.W. 1 Ghulam Mohiuddin and yet the witness who appears to have transferred his loyalty to the petitioner deposes with impunity that he did not raise any objection regarding the genuineness of the signature of Ghulam Mohiuddin and that the overwriting did not exist at the time of the scrutiny. The dramatic manner in whiCh he has made his appearance as a witness for the petitioner speaks volumes against the credibility of his testimony.\n\nHe admits that he had never appeared before the High Court and he happened to come to Srinagar on November 13, 1 972 to make some purchases for his uncle who was proceeding on a pilgrimage to Mecca.\n\nAs he happened to be in the Court premises his name was called out and he was directed to appear as a witness without receiving any summons from the Court.\n\nThe\n\nJ '\n\n-. ,\n\nappellant has categorically stated in his evidence that he had inform ed this witness that he might have to be examined on his behalf in the trial before the High Court and yet the witness knowing full well that he was the retained counsel of the appellant readily agreed to depose for the petitioner. Finally the witness admits that he deals with about I 00 cases per month and yet he does not pay any income-tax.\n\nIn view of these circumstances, therefore, we are not in a position to place any reliance on the evidence of this witness. In fact the learned Judge was also not inclined to place implicit reliance on the testimony of this witness and in this connection the learned Judge observed as follows :\n\n\"There have been great comments made with regard to the veracity and dependability of the statement of this witness and if the matter had rested only on the testimony of this witness, then it could have been said that some how or other this witness had changed sides and has come to depose but his testimony and the statements made by him have to be judged in the light of the other evidence and the facts :and circumstances of the case.~\n\nWe are now left with the evidence of P. W. 5 Girdhari Lal.\n\nThis witness was admittedly counsel for the petitioner and was therefore thoroughly interested in supporting the case of the petitioner.\n\nThe witness has also stated that the nomination paper bore the signature of Ghulam Mohiuddin but at the time when he was deposing there was some overwriting in his signature.\n\nThe witness says that he was present at the time of the scrutiny and had inspected the nomination form and found that the signature of Ghulam Mohiuddin did not contain any overwriting at that time.\n\nHe, however, admits that the petitioner Ali Akbar Khan was not present when the scrutiny was taken up and his nomination paper was rejected by the Returning Officer.\n\nIndeed if this was so, as a retained counsel for the petitioner, it was his dnty to point out to the Returning Officer that under s. 47 of the Act the Returning Officer was not legally competent to reject the nomination paper merely on the ground of the absence of the petitioner or his proposer. He, however, remained absolutely silent This clearly shows that either he was aware that the overwriting on the signature of Ghulam Mohiuddin was already there at the time of the scrutiny or that he did not know about it, nor did he care to examine the nomination paper at that time.\n\nThe witness admitted at p. 106 of the Paper Book that the rejection of the nomination paper on the ground of the absence of the candidate or his proposer was in his opinion improper under s. 4 7 of the Act.\n\nIn spite of this fact it is not at all understandable why he did not draw the attention of the Returning Officer to this fact, if the Returning Officer had rejected the nomination paper merely on the ground of the absence of the petitioner or his proposer. In these circumstances, therefore, there appears to have been a method in his silence which indicate that he was a privy to the whole show put up by the petitioner and wanted that somehow or the other the nomination paper of the petitioner may be improperly rejected so as to afford a ground to his client to\n\nupset the election of the successful candidate.\n\nIn these circumstances, therefore, we are not in a position to place any reliance on the evidence of this witness.\n\nThis is all the evidence that the petitioner has led in support of his case that the overwriting on the signature of Ghulam Mohiuddin was made subsequent to the scrutiny of the nomination form.\n\nB As against this there is clear and categorical evidence of the\n\nappellant Mohd. Yasin Shah R.W. 4 who stated thus :\n\n\"After examination of the nomination form, I raised objection that the signature of the proposer appeared to be doubtful and I also said that probably it is not his signature.\n\nNo one at that time appeared to rebut this objection of mine and to assert that it was the signature of the proposer.\"\n\nHis evidence was fully corroborated by the Returning Officer Abdul Rehman Mir, R.W. 3, who has clearly stated thus :\n\n\"The nomination form already marked Ext. P.W. 5/2 was presented before me in the same condition in which it is at present.\n\nI was also the Returning Officer of Lolab, Kupwara assembly constituencies besides the Karnah assembly constituency.\"\n\nWe have already pointed out that R. W. 3 is an independent witness being a high Government officer.\n\nThe allegations made by the petitioner against him have not at all been substantiated and appear to E be totally unfounded .as found by us.\n\nThere is neither any suggestion nor any evidence to show that he was in any way interested in the appellant or biased against the petitioner.\n\nOn the other hand, R.W. 3 being an independent Government officer would naturally have no leanings towards either party.\n\nFurthermore, the most important question to be determined was, if any overwriting was made, who would be interested in making the same ? It is obvious that the F Returning Officer had absolutely no motive to make any overwriting on the signature of P.W. J.\n\nThe Returning Officer has also admitted in his statement that after the scrntiny the record was deposited by 11im personally with the District Treasury Officer, Baramulla, as per the directions of the Deputy Commissioner, Baramulla, who was also the District Eelection Officer.\n\nIn these circumstances, therefore, why should the Returning Officer have taken the grave risk of tampering G with the record after the same was deposited with the District Treasury Officer on the directions of the Deputy Commissioner, Baramulla, and why should he at all do it ? Perhaps it was for this reason that the learned Judge did not like to go into this question at all and refrained from making any observation on this aspect of the matter but casually observed that the overwriting might have been brought inte existence after the scrutiny. We think that there is H absolutely no evidence to support this fact.\n\nFinally there is another intrinsic circumstance which shows that the overwriting must have been there when the nomination paper\n\n• •\n\nwas filed or was taken up for scrutiny by the Returning Officer.\n\nThe order of the Returning Officer Ext. R.W. 3 /3 clearly shows that an express objection was taken by Mohanunad Maqbool Mir on behalf of Mohanunad Yasin that the signature of the proposer was not genuine. If the overwriting would not have been there, there was absolutely no occasion for the appellant to have raised any such objection.\n\nWe have examined the signature purported to be of Ghulam Mohiuddin, P.W. 1, and we find that there is clear overwriting by which various letters of the signature of Ghulam Mohiuddin have been tampered with.\n\nThe Returning Officer has also deposed that he bad given time to the candidates to examine the nomination papers at the time of the scrutiny in order to submit objections, if any. The appellant and bis counsel examined the nomination paper of the petitioner and did raise an objection regarding the genuineness of the signature of his proposer P.W. 1.\n\nThis objection bas been recorded in the order passed hy the Returning Officer.\n\nIn view of these circumstances we see no reason at all to distrust the evidence of the Returning Officer R.W. 3 on the point that the nomination paper was in the same condition at the date of the scrutiny as it was on the date when he was deposing.\n\nThere is yet another matter on which there appears to be a serious controversy between the parties.\n\nThe petitioner's case was that the appellant Mohd. Yasin had not at all raised any objection to the genuineness of the signature of P.W. 1. Ghulam Mohiuddin on the nomination form and that the aforesaid objection was subsequently incorporated by the Returning Officer in his order by committing interpolation.\n\nOn the other hand the appellant's definite case was that after inspecting the nomination paper he raised a clear objection before the Returning Officer regarding the genuineness of the signature of the proposer Ghulam Mohiuddin and this objection was not only recorded by the Returning Officer at that very time but was also sustained.\n\nThe case of the appellant is substantially corroborated by the recitals in Ext. R.W. 3 /3 the order passed by the Returning Officer which must be presumed to be genuine as there is nothing to show that it was either interpolated or brought into existence subsequently.\n\nThe petitioner's case, however, rests purely on the oral evidence of a few interested witnesses.\n\nTo begin with, so far as the evidence of P.W. 1 Ghulam Mohiuddin and P.W. 5 the petitioner is concerned the same would be of no assistance in deciding thls question because as held by us these two persons were not present at the time of the scrutiny and therefore they were not competent to depose whether or not any objection was taken by the appellant regarding tht genuineness of the signature of Ghulam Mohiuddin.\n\nIt is tme that P.W. 3 Mohammed Maqbool Mir. who was the counsel for the appellant has stated that he never raised any objection on behalf Jf •he appellant at the time of the scrutiny.\n\nWe have already discussed the evidence of this witness and held that he was an utterly unreliable witness for the reasons which we have already given.\n\nMoreover he appears to be a turn-coat type of witness and has changed sides as obse_rved by the learned Jude. Finally his evidence is clearly contad1cted by the document Ext. R.W. 3 /3 wherein it is clearly menl!oned that the witness Mohd. Maqbool did raise objection regarding\n\n4-833 SCI/76\n\nthe genuineness of the signature of P.W. I Ghulam Mohiuddin on behali of the appellant before the Returning Officer at the time of the scrm.ny.\n\nIn these circumstances, therefore, we are not able to place any reliance on the evidence of this witness.\n\nThe last witness on the point is P.W. 4 Gulam Qadir Mir who has no doubt stated that no objection was taken by any body at the conc1:rn:..:u L11ne. 'fh1s witness, however, was an agent cf a d.tierent candidate and was not at all interested in the appellant and as, according to him, he was at some distance from the Returning Officer it is possible that he may not have heard the objection taken by the appellant before the Returning Officer.\n\nAt any rate, the evidence of this witness by itself is not suJ!icicnt to demolish other circumstances appearing in the case, particularly the recitals in the document\n\nR.W. 3/3.\n\nAs against this, R.W. I, whc, as wc have already pointed out, is an independent witness, and being a candidate himself was present at the time when the scrutiny of the nomination took place, and his interest was by no means identical with the appellant and, therefore, had no reason to depose falsely to help the appellant.\n\nThis witness D has categorically stated thus :\n\n\"Respondent No. I (appellant) at that time raised an objection that he was challenging the signature of the proposer on the nomination paper of the petitioner . • • • • • •\n\nWhen there was an objection to the nomination paper of the petitioner by Mohd. Yaseen then he (Returning Officer) scrutinised the nomination paper and passed an order which was announced in the absence of the petitioner.\"\n\nSimilarly, R.W. 3 the Returning Officer has also clearly deposed that an objection was raised by the appellant which was reccrclcd in his order.\n\nThe evidence of R.Ws. I and 3 fids amole corroboration from the recitals in the document Ext. R.W. 3/3. Apart from this R.W. 2 who is no doubt a counting agent of the appellant has testified to the fact that the appellant had raised an objection regarding the genuineness of the signature of P.W. I Ghulam Mohiuddin.\n\nAs the evidence of this witness is corroborated by two independent witnesses R.Ws. 1 & 3 we see no reason to disbelieve him.\n\nLastly there is the categorical statement of the appellant himself that he did raise an objection.\n\nIn these circumstances, therefore, we are satisfied that the evidence led by the appellant far outweighs the interested oral testimoney led by the petitioner.\n\nIn these circumstances, therefore, we find that it has been proved beyond doubt that the appellant did raise an objection regading the genuineness of the signature <if P.W. I Ghulam N!ohiuddin hcfnrc the Rf:turn; ng Officer 0n 1\"ebru~1ry 1), 1972, at the t:mc of the scrutiny of nomination papers. ·\n\nIt is, therefore. cstabl'shed that at the time when the nominalivll paper of the petitioner was taken up for scrutiny the overwriting on\n\nMOHD. 'JASIN v. ALI AKBAR (Fazal Ali, J.) 19\n\nthe signature of P.W. I Ghulam Mohiuddin was already there and there is a strong possibility that the overwriting had been deliberately made at the instance of the petitioner so as to furmsh a ground ior setting aside the election of the successful candidate if the official candidate of the Congress failed to win the election.\n\nMr. Pathak learned counsel for the petitioner submitted that a bare perusal of the order of the Returning Ofticcr would clearly show that there has been some tampering.\n\nBefore examining this contention we may mention that from the evidence and circumstances discussed above, the following facts emerge :\n\n(i) that the petitioner was a dummy candidate of the Congress;\n\n(ii) that R.W. I Mohd. Anwar Shah Masoodi had e;{- pressed his clear apprehension that there was very iittle chance of Mohd. Yunis the official candidate of the Congress to win the election, and, therefore, there was every motive for the petit; oner to have prepared some ground for asailing the election of the appellant in case he was successful;\n\n(iii) that on th.e date of the scrutiny of the no111ination\n\npapen neither the petitioner nor his proposer were present before the Returning Officer;\n\n(iv) that at the time of the scrutiny the appellant either personally or through his counsel definitely raised an objection about the genuineness of the signature of P.W. l Ghulam Mohiuddin on the nomination paper Ext. P. W. 5 /2; and\n\n(v) that the overwriting on the signature f P.W.\n\nI Ghulam Mohiuddin was present even at the date of the scrutiny and perhaps even on the date when the nomination paper was filed before the Returning Officer.\n\nIn the background of these proved facts, we would now examine whether or not the contention raised by the learned counsel for the petitioner is correct.\n\nThe order passed by the Returning Officer rejecting the nomination paper of the petitioner which is Ext. R.W. 3/3 runs thus:\n\n\"The candidate and the proposer are not present. Hence rejected, also an objection has been raised to the genuineness of the proposer's signature by one Mohd.\n\nMaqbool counsel for Mohd. Yasecn Shah candidate.\n\nI could not verify it fnr absence of candidate and the proposer.\"\n\nIt was contended by Mr. Pathak that this order runs into t\\\\o parts.\n\nBy the first part of the order the Returning Officer appears to have rejected the nomination paper merely on the ground of the absence of the candidate and the proposer.\n\nBy the second part, which\n\naccording to the counsel for the petitioner appears to have been added subsequently, the objection taken by the appellant regarding the genuineness of the proposer's signature has been record~<l, and even so, the Returning Olhcer has not given any decision on this point.\n\nWe have perused the original order passed by the Returning Officer very carefully, bnt we find that the entire or<ler has been written in the same ink with the same pen and appears to have been written in one sitting.\n\nThere is nothing to show that the second part of the order was added subsequenly because the strokes of the letters, the ink which has been used and the general tenor of the writing appears to be the same throughout.\n\nIn these circumstances, therefore, we reject the contention of the petitioner that the second part of the order was added subsequently.\n\nWe accordingly hold that the ailegations made by the petitioner against the Returning Offier in paragraph-26 of the election petition are totally unfounded and the petitioner has miserably failed to prove the same.\n\nThe entire order of the Returning Officer was written in one sitting and there can be no question of any interpolation having been made by him nor had the Returning Officer any motive to do so.\n\nNevertheless it is true that after having written the order \"Hence rejected\", the Returning Officer appears to have recorded the fact that an objection was raised regarding the genuineness of the proposer's signature.\n\nFor this R.W. 3 the Returning Officer appears to have given a very convincmg and reasonable explanation.\n\nHe says that while he was writing his order and had not completed the same, an objection was taken by Mohd.\n\nMaqbool counsel for Mohd. Yaseen regarding the genuineness of the signature of the proposer.\n\nAt that time the clerk had already put the seal and, therefore, the Returning Officer recorded the objection raised by the appellant in the space left and completed his order and thereafter he signed above the seal.\n\nThe Returning Officer R.W. 3 in this connection stated thus :\n\n\"When in spite of repeated calls neither the petitioner nor his proposer turned up before me, then I began to write out the order on the back of the nomination form ...... .\n\nAfter the scrutiny by them, Mohammed Yaseen as well as his counsel brought this fact to my notice that the signature of the proposer on the nomination form of the petitioner was not genuine. . . . . . . . . . . . The portion in my order regarding the non-appearance of the petitioner or his proposer as well as the portion regarding the objection about the genuineness of the signature were written by me contemporaneously at the time of passing the order on the nomination form in respect of the scrutiny.\n\nThe seal is not below my order but it is just in the midst of the portion of my order and the reas1\\n for this is that at the time of the scrntiny when I was passing the order, my clerk was also standing by my side and he was affixing the seal and it so happened that while I was hearing the objection in respect of this nomination form, the clerk affixed the seal at that place.\" The Returning Officer further stated in his evidence that he upheld the objection of the appellant as there was no body on behalf of the\n\ncandidate to rebut the objection raised by the appellant.\n\nThe explanation given by the Returning Officer is fully corroborated by the evidence of the appellant and his witnesses, particularly R.W. 1, who is undoubtedly an independent witness.\n\nAs we have aiready held that the Returning Officer was an independent witness and a Government official, there is absolutely no reason why he should have added.a part of the order subsequently.\n\nIt was then contended by Mr. Pathak that even though the Returning Officer recorded the objection taken by the appellant he\n\n\" has not expressed any final opinion or taken any decision in the\n\n1 matter.\n\nOur attention was drawn to s. 47(2) (c) of the Act which runs thus :\n\n\"47. (2) The returning officer shall then exan1ine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds :-\n\n* • • • • * ( c) that the signature of the candidate or the proposer on the nomination paper is not genuine.\"\n\nIt was submitted that the Returning Officer has nowhere held as a fact that the signature of the proposer was not genuine.\n\nHe has merely indicated the objection raised by the appellant but has not examined the validity of that objection and, therefore, the order must E\n\nbe read as having rejected the nomination paper merely on the ground of the absence of the candidate and his proposer. It is true that under s. 47(2) (c) which is the only relevant provision which applies to this case it was not open to the Returning Officer to reject the nomination paper merely on the ground of the absence of the candidate or his proposer.\n\nThe learned Judge seems to have accepted the petitioner's argument that on his interpretation of the order and found F that the nomination paper was rejected merely on the ground of the absence of the candidate and his prop9ser.\n\nThe learned Judge has also held that having rejected the nomination paper any subsequent observations which the Returning Officer made would have to be ignored as he became functus officio.\n\nThis interpretation of the learnecl. Judge has been adopted by Mr. Pathak learned counsel for the petitioner.\n\nOn a close and careful reading of the order of the G Returning Officer, as a whole. we are unable to agree with the interpretation put by the learned Judge or adopted by the learned counsel for the petitioner. We have already pointed out the facts proved which clearly show that at the time when the Returning ORicer pas<ed the order he had before him the signature of Ghulam Mohiuddin with an overwriting.\n\nBoth P. W. 1 Ghulam Mohiuddin and coun<el for the petitioner have categoricallv admitted in their statements that the H signature in the present form with the overwriting was not the signature of Ghulam Mohiuddin.\n\nP.W. 1 at p. 66 of the Paper Book deposed as follows :\n\n\"Question : Do you accept this signature to be )'Oun; in its present form as it stands 1\n\nAnswer : I do not accept this to be my signature in the form as it stands at present.\"\n\nSimilarly P.W. 5 who is counsel for the petitioner and in whose presence P.W. I had signed the nomination paper also admits in clear terms thus :\n\n\"In the present form I do not accept that it is the 'ignature of Ghulam Mohi-ul-Din.\"\n\nThus if the person who had signed the nomination paper \"nd the lawyer in whose presence Ghulam Mohiuddin had signed the nomination paper were convinced that the signature as overwritten was not the signature of Ghulam Mohiuddin, how can we find fault with the Returning O.'ficer if he also, on a bare perusal of the nomination paper, doubted the genuineness of the signature? The suspicion of the Returning Officer regarding the genuineness of the signature of the proposer was further reinforced .hy the fact that a specific objection on ; his point was taken hy counsel for the appellant as recorded in the order itself.\n\nThus the order read as a whole clearly shows that the nomination paper was rejected not only on the ground that the candidate or his proposer was not present but also on the ;; rnund that the si!!'lature of the proposer on the nomination paper was not genuine. It is true that the Returning Officer has not given any clear finding on this point, but s. 47 of the Act does not require well reasoned decision.\n\nAll that is necessary is that the Returning Officer should apply his mind and determine the question in a summary manner.\n\nThe Returning Ofltcer has, in the instant case, indicated objection taken by the appellant regarding the genuineness of the signature of the proposer and has also clearly observed that in view of the objection it is not possible to verify the signature in the absence of the candidate and the proposer. Thus the absence of the candidate and the proposer has been used not for the purpose of rejecting the nomination paper but f0r the purpose of supporting the conclusion of the Returning Officer that the signature of the proposer was not eenuine.\n\nEven assuming for the sake of argument that the Returning Officer had in effect and in substance rejected the nomination paper on the fround\n\nof the absence of the candidate and the proposer which was not a valid ground for rejection of the nomination paper. this does not put an end to the controversy.\n\nThere is abundant authority for the proposition that even if the ground on wbkh the nomination paper has been actually rejected is not a permissible ground. if the successful candidate can make out a case that the nomination paper could have been properly rejected on one of the grounds mentioned in s. 4 7 of the Act. the reiection would not be improper and the election would be upheld.\n\nThis Court considered this question in N. T. Veluswami The\"ar v. G. Raia Nainar & Ors.(') and observed as follows :\n\n\"The argument is that -if the jurisdiction of the Tribunal is co-extensive with that of the returning officer, then the\n\n-----~-----· ---- -----\n\n(1) [19591 Supp. (I) S. C.R. 623.\n\n• '\n\nenquiry before it must be confined to the grounds which were urged before the returning officer.\n\nNow, the observations quoted above were made statedly with reference to R. 47, and assuming that they apply to an enquiry unuer s. 100(1 )( c), the question still remains, what is the jurisdiction of the return, ng officer in hearmg objections to nomination papers'?\n\nHis jurisdiction is detined in s. 36(2), and the Tribunal rimst therefore have jurhdiction to decide all the questions which can be raised under that section.\n\nThe fact that a particular ground which could have been raised was not, in fact, raised before the returning . ,, fficer does not put an end to his jurisdition to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised.\" p. 635.\n\n\"They held, with one solitary exception, that 1t i> per- 1hissible, and indeed, it is stated in Mengh Ra1 v. B111nwndas-( 1952) 2 E.L.R. 301, 310-as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer. If the legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, iL would have said so in clear terms, and in the absence of such an expression, it would be right to interpret s. 100(1) (c) as not intended to alter the law as laid down in those decisions.\" p. 636.\n\n\"The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur-( 1954) 9\n\nE.L.R. 193-and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one )!; round by the returning officer was defective on one or more of the other grounds mentioned in s. 36(2) of the Act, and that such a plea, 1f !&ken,\n\nmust be enquired into by the Election Tribunal.\" p. 637\n\n\"An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. /. V. Narsing Rao-Special Appeal No. 1 of 1957has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an llrder of rejection of a nomination paper on grounds other than those which were put forward before the returning officer.\n\nWe are in agreement with these decisions.\" p. 637\n\nMr. Pathak learned counsel for the petitioner sought to distinguish this decision on the ground that while it is open to the Tribunal. or the High Court in the instant case, to examine -other grounds on which H the nomination paper could have been rejected. yet in the ore•ent state of pleadings no such question appears to have been raised before the High Court.\n\nThis argument does not appear to be factually\n\ncorrect.\n\nThis plea was specifically raised by the appellant in paragraph-8 of his written statement relevant part of which may be extracted th us :\n\n\"The answering respondent challenges the genuineness of the signature of the proposer of the petitioner which could neither be rebutted nor challenged by the petit:oner or his proposer as both were absent and hence the rejection of the petitioner was announced by the Returning Officer, who under the circumstances was justified under section 4 7 of the R.P. Act to reject the nomination paper of the petitioner and as such this rejection cannot be deemed to be in law as improper rejection and the petitioner cannot now challenge the same as there is no infirmity in the order of rejection by the Returning Officer.\" ·\n\nFurthermore in the additional written statement, filed by the appellant after the learned Judge allowed the petitioner to amend his election petition, this point was reiterated in paragraph 2(iv) thus:\n\n\"That the signature of the proposer on the nomination form as was also challenged before the Returning Officer is not genuine and the rejection is not improper.\"\n\nIn paragraph-4 of the said additional written statement it was stated thus:\n\n\"That the signature of the proposer Ghulam Mohi-uddin not being genuine on the nomination form the rejection is not improper and the petition is liable to be dismissed.\"\n\nThe learned Judge had framed issue No. 1 in the widest possible terms which includes rejection of the nomination paper even on the ground that the signature of the proposer was not genuine which is undoubtedly a valid ground under s. 47(2) (c) of the Act.\n\nThe issue framed by the learned Judge was as follows :\n\n\"1. Whether the nomination paper of the petitioner was improperly and illegally rejected? O.P.P.\"\n\nIt is manifest that this issue covers the decision on the question as to whether various grounds on which the nomination paper could have been improperly rejected including the ground mentioned in s. 47(2)\n\n(c) of the Act, namely, the fact that the signature of the proposer was not genuine.\n\nEven the learned Judge clearly understood the pleadings of the appellant to include the fact t11at the nomination paper was rejected because of the genuineness of the signature of the proposer.\n\nIn this connection the learned Judge in his order dated November 7. 1972 observed as follows:\n\n\"It appears from the petition that the ground was the absence of the petitioner at the time of the scrutiny of the nomination paper but it also appears from the written statement filed by the respondent as well as from the order\n\n} •\n\n. ,\n\nof the Returning Officer that the nomination paper had A also been rejected because of the genuineness of the signature of the proposer.\n\nThe nomination paper can be rejected on the question of the genuineness as contemplated by clause (c) of Section 47 of the J & K Representation of the People Act of the State.\"\n\nIt was for these reasons that the learned Judge did not think it necessary to recast the issue, because he thought that the plea taken by the appellant in his written statement was fully covered by the issue already framed.\n\nIn these circumstances, it is clear that the appellant had clearly raised the question that the nomination paper of the petitioner could be properly rejected under s. 47(2)(c) of the Act even on the ground that the signature of the proposer was not genuine.\n\nThe learned Judge committed an error in not deciding this particular plea taken by the appellant when he found that the Returning Officer had improperly rejected the nomination paper on the ground of the absence of the candidate and the proposer.\n\nWe have, however, examined the various aspects of this question and from the facts found by us it is clear that the overwriting in the signature which was present at the date of the scrutiny also throws considerable doubt on the genuineness of the signature of the proposer Ghulam Mohiuddin as clearly admitted by him and the lawyer of the petitioner himself. The fact that the proposer and the petitioner were both absent on the date of the scrutiny lends sufficient support to the inference that the signature of the proposer Ghulam Mohiuddin on the nomination form does not appear to be genuine. It is also clearly established as found by us that the appellant did raise an objection regarding the genuineness of the signature of the proposer Ghulam Mohiuddin on the nomination form and that there was no one present on behalf of the candidate to rebut or refute the objection taken by the appellant.\n\nOn the other hand P.W. 5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddin had signed the nomination form was actually present at the time o! the scrutinv and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence.\n\nLastly the siimature which contains the overwriting ex facie shows that it was not genuine: In these circumstances, therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutinv. could not have been the signat11re of P.W. I Ghulam Mol1iuddin. To add to this is the fact that P.W. I himself clearly admitted that in the present form, namely, the siJ?llature containing the over-, writing, he was not in a position to admit that it was his signature.\n\nThis as, ertion was fully supported hy P. W. 5 Girdhari Lal counsel !or the petitioner in whose presence P.W. I is said to have sirned the nomination form.\n\nThe learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him\n\nhad placed him on the horns of a dilemma.\n\nOnce it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. I was most relevant and the answer given by the witness was both clear and unambiguous.\n\nWe do not see any vagueness or ambiguity in the answer given by the \\\\itness. Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds. In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. I. For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. l was vague.\n\nIn these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P. W. l Ghulam Mohiuddin which contained the overwriting was not his genuine signature. The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine.\n\nThus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer.\n\nThis being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under s. 108 (1 )( c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, s. 108 (1) ( c) was not at all attracted.\n\nIt was lastly contended by counsel for the petitioner that this Court ought not to interfere with the decision of the learned Judge unless there were special reasons for doing so.\n\nIn support of his contention the learned counsel relied upon a deci, ion of this Court in Laxminarayan tmd another v. Returning Officer and others(') where this Court observed as follows :\n\nF \"Section l l 6A of the Act provides for an appeal to this Court from an order of the High Court dismissing an election petition. The appeal lies both on issues of law and of facts ................... The power of the appellate Court is very wide.\n\nIt can reappraise the evidence and reverse the trial court's findings of fact.\n\nBut like any other power it is not unconfined : it is subject to certain inherent limitations G in relation to a conclusion of fact. While the trial court has not only read the evidence of witnesses on record but has also read their evidence in their faces, looks and demeanour. The aonellete Court is confined to their evidence on record. aooellate Court is confined to their evidence on record. bilitv Hes is entitled to great weiQht.\" (See Saraveeraswami\n\nv. Talluri-A.I.R. 1949 P.C. 32). However, the appellate Fl court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evi-\n\n(1) [1974] 1. S. C.R. 822.\n\ndence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court.\"\n\nThe propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above.\n\nIn the instant case, however, we find that the approach of he learned Judge was not correct.\n\nWe have already pointed out a number of salient features appearing in the evidence which have rendered the case of the petitioner inherently improbable.\n\nThe learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine.\n\nThe learned Judge has not determined this aspect of the matter.\n\nIn these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the juJgment of the High Court is against the weight of the evidence on record am! prep.onderance of probabilities.\n\nFor the reasons given above, the appeal is allowed, the orc1er of the High Court setting aside the election of the appellant Mohd. Yasin Shah is quashed and the election petition filed by the petitioner is hereby dismissed. The appellant will be entitled to his costs throughout.\n\nP.B.R.\n\nAppeal allowed.\n\n• c", "total_entities": 37, "entities": [{"text": "MOHD. YASIN SHAH", "label": "PETITIONER", "start_char": 5, "end_char": 21, "source": "metadata", "metadata": {"canonical_name": "MOHD. YASIN SHAH", "offset_not_found": false}}, {"text": "ALI AKBAR KHAN", "label": "RESPONDENT", "start_char": 23, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "ALI AKBAR KHAN", "offset_not_found": false}}, {"text": "IP. N. BHAGWATI", "label": "JUDGE", "start_char": 56, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. c. GUPTA", "label": "JUDGE", "start_char": 73, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "A.C. 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{"document_id": "1976_1_28_32_EN", "year": 1976, "text": "• <:\n\nSTATE OF GUJARAT v.\n\nMUSAMIYAN IMAM HAIDER BUX RAZVJ AND ANR. ETC.\n\nETC.\n\nApril 14. 1976\n\n[A. N. RAY, CJ., M. H. BEG AND JASWANT SINGH, JJ.] Land Acquisition Acts, 1894-Secs. 4, 6 and 48-Whether cancelling Sec. 6 nJti/icatir; n an1ounts to withdrawal from acquisition-On cancellation of Sec. 6 11oti/icatio11 whether Sec. 4 noti/icatiotJ gets exhausted-fVlzither second Sec. 6 notilica11on can be issued-Acquisition for a cooperative society if for a public purpose .\n\nThe Goverhmcnt of Gujarat issued a notification under section 4 of the Land Acquisition Act, 1894. The validity of the said notification was challenged by the owners of the land.\n\nThe Government later issued a notification under section 6 of the Land Acquisition Act after holding enquiry under section SA.\n\nThe owners of the land challenged the said notification under section 6 by filing another Writ Petition. Thereafter the award was made by the Land Acquisition Officer.\n\nThe Government sanctioned a sum of Re. 1/- towards cost of acquisition.\n\nThe acquisition was for the purposes of a Cooperative Housing Society. Later on, the Government passed a resolution in supersession of the earlier resolution and sanctioned a sum of Rs. 500/- towards cost of acquisilion. The Government considered section 6 notification to be illegal and invalid and cancelled the same and issued a fresh notification under section 6 in respect of the same land. The owner of the 1and filed a further Writ Petition challenging the notification by which the earlier section 6 notification wa~\n\ncancelled and a fresh se.ction 6 notification was issued. -rhe High Court dismissed the Writ Petition against the first section 6 notification as infructuous.\n\nThe High Court allowed the other Writ Petition against tihe second section 6 notification and quashed it on the ground tha the cancellation of the first section 6 notification would in any event, tantamount to withdrawal from ncquisi tion and secondly sihce sCction 4 notification was exhausted by the fin; t section 6 notification no S4.Ibsequent notification under ~-ection 6 of the Act could thereafter be issued.\n\nAllowing the appeal by certificate\n\nHELD : 1. Acquisition of land for Cooperative Housing Society i:'i for a public purpose as laid down by\"this Court in Ratilal Shankarbhai and Ors. v.\n\nState of Gujarat A.I.R. 1970 SC 984. [31-C]\n\n2. The contention that the cancellation of the first section 6 notification amounts .to ¥'i•hdrawa1 from acquisition and no subsequent notification under section 6 of the Act can thereafle'r be issued without a fresh notification under section 4 of the Act canorlt be countenanced in view of the decis on of this Court in Girdhnri Lal Amratlal Shodan and Ors. v. State of Gujarat reported in [1966] 3 SCR 437, when a notification under section 6 of the Act is invalid the Government may treat it as ineffective and issue in its p1ace a fresh notification under section 6 and that nothing. in section 48 of the Act precludes the Government from doing so.\n\nThe cance11ation of the earlier notification is only a recognition of the invalidity of that notification anct does not amount to withdrawal from acquisit'<m.\n\n[31-C-D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appls Nos. 1870 and 1871 of 1970 and 1445 of 1971.\n\nAppeal from the Jud.gmen\\ Gujarat High Court in Special 1441 /66 respectively and\n\nand Order dated 25-4-1969 of the Civil Appeals Nos. 2l 8/6R and\n\nD. V. Patel and M. N. Shroff, for the appellants in all the appeals.\n\nS. T. Desai (In CA 1871), P. H. Parekh & Manju Jelley for Respondents.\n\nS. M. Jain, S. K. Jain and lnder Makwana for Respondent l in CAs. 1871 and 1445.\n\nB l P. K. Pillai for Respondent 2 and 3 in CA 1871.\n\nThe Judgment of the Court was delivered by '\n\nJASWANT SINGH, J.\n\nThese three appeals Nos. 1870 of 1970, 1871 of 1970 and 1445 of 1971 by certificate granted hy the High c Court of Gujarat at Ahmedabad under Article 133 ( 1) (b) & ( c) of -\n\nthe Constitution of India against its common judgment and order dated April 25, 1969 shall be disposed of by this judgment.\n\nThe facts giving rise to these appeals are : On May 20, 1961, the Government of Gujarat issued a notification und, er section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') de- B\n\n~ daring that certain pieces of land in village Vasana, Ta, Juka City,\n\n) District Ahmedabad specified in Schedule thereto were likely to be needed for a public purpose viz. for construction of houses for memhers of Yogeshwarnagar Co-operative Housing Society Limited, Ahmedabad.\n\nOn June 18, 1962, respondent No. 1 in Civil Appeal No. 1445 of 1971, owners of some pieces of the aforesaid land filed E 4 Special Civil Application No. 564 of 1962 in the High Court of Gujarat under Article 226 of the Constitution challenging the validity of the aforesaid notification dated May .20, 1961 made under section 4 of the Act and seeking to restrain the Government from proceeding further with the acquisition proceedings contending inter alia that the land could not be acquired for the benefit of the Company in which the public was not directly interested.\n\nInterim injunction sought by F tl.1e petitioner in that petition having been refused, the Additional\n\nSpecial Land Acquisition Officer, Ahmedabad, appellant No. 2 in these appeals proceeded to hold the requisite enquiry under section SA of ' the Act and submitted report to the Government on a consideration .. whereof the latter issued a notification under section 6 of the Act on April 29, 1963.\n\nThe notification inter alia stated that the lands mentioned in the Schedule thereto were needed to be acquired at the publie expense for the public purpose specified in column 4 of the Schedule G to the notification viz., the scheme undertaken by Shri Yogeshwarnagar Co-operative Housing Society Limited with the sanction of the Government.\n\nNotices under section 9(i) of the Act were served and the Special Land Acquisition Officer after holding the requisite enquiry made an award on December 21, 1963 determining the amount of compensation payable by the Government to the owners of the land.\n\nH On demand beiug made for possession of land, respondent No. I in , i Civil Appeal No, 1870 of 1970, who is the owner of some pieces of land sought to be acquired brought another Special Civil Application\n\nSUPREME COURT REPORTS\n\n[1976) SUPHEMENTARY\n\nNo. 1100 of 1963 under Article 226 of the Constitution in the High Court challenging the foresaid notification under sections 4 and 6 of the Act and on his application. the High Court passed an interim order restraining the Government from taking possession of the iands.\n\nOn April 15, ! 966, the Government of Gujarat in supersession of the earlier resolution dated December 21, 1962 whereby it had sanctioned rupee one towards the cost of acquisition, passed another resolution sanctioning contribution of Rs. 500/- towards the cost of acquic.ition.\n\nConsidering that the notification dated April 29, 1963, issued by it under section 6 of the Act was illegal and invalid, the Govcrnnrcrrt of Gujarat by notification dated April 28, 1966, cancelled its •.arher notification dated April 29, 1963 issued under section 6 of the Act and issued a fresh notification in respect of the same pieces of land under section 6 of the Act on June 6, 1966.\n\nRespondent No. 1 in Civil Appeal No. 1445 of 1971 and petitioner in Special Civil Application No. 564 of 1962 thereupon amended its application with the leave of the Court so as to include a chaUenge to the validity of the fresh notification under section 6 of the Act; The petitioner in the aforesaid Special Civil Application No. 1100 of 1963 did not amend his application but filed a fresh petition under Article 226 of the Constitution being Special Civil Application No. 218 of 1968 challenging the fresh notification under section 6 of the Act.\n\nYet another petition under Article 226 of the Constitution being Special Civil Applicauon No. 1441 of 1966 was filed in the High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of 1970 challenging the validity of the fresh notification dated June 6, 1966 issued under section 5 of the Act.\n\nAll these petitions were heard together.\n\nWhile the High Court by common judgment dated April 25, 1969 dismissed petition No. 1100 of 1963 as infructuous in view of the fresh notification under section 6 of the Act, it allowed the other three aforesaid petitions following its earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and quashed the fresh notification dated June 6. 1966 issued by the Government of Gujarat under sectinn 6 of the Act holding inter alia that the \"cancellation of the first section 6 notification would, in any event, tantamount to withdrawal from acquisition and no subsequent notification under sectic:m 6 0f the Act could, thereafter be issued without a fresh notification under section 4 of the Act.\" The appellants thereupon applied for and obtained certificate referred to above.\n\nIt is how these appeals are before us.\n\nAlthough two important points were raised in the aforesaid writ petitions viz. ( 1) whether the acquisition of land for Co-operative Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under section 6 of the Act and issue a fresh notification dated April 28, 1966 under the said section of the Act. the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankerbhai & Ors. v. Slate of Gujarat & Ors.!') Pandit Jhandu Lal & Ors. v. The State af Punjab(') and Ram\n\n(1) A. I. R. 1970 S. C. 984\n\n(2) [1961] '.! s. c. 1~ 459.\n\n• -\n\nSwarup v. The District Land Acquisition Officer, Aligarh & Ors.(')\n\nIn these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in questit>n is a public purpose or not; it cannot be contended that a housing scheme for a limited number of persons cannot be cons<dercd as a public purpose; and the need of a section of the public may be a public purpose.\n\nThe second contention raised on behalf of the contesting respondents that the cancellation of the first section 6 notification amounts to withdrawal from acqu:sition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannct be countenanced in view ot the decision of this Court in Girdharilal Amratlal Shodan and Ors. v. State of Gujarat and Ors.(') where it was categorically held that when a notification nuder section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the Act precludes the Government from doing so and that the canceHation of the earlier notification is only a recognition of the invalidity of that notification.\n\nThe following observations made therein are apposite :\n\n\"Counsel for the. appellants next submitted that on issuing the notification dated July 18, 1961 (under section\n\n6), the power of the State Government to issue a notification under section 6 was exhausted and the. Government could not issue a fresh notification under section 6.\n\nThere is no substance in this contention.\n\nThe notification dated July 18, 1961 was invalid.\n\nBy the issue of this notification, the Government had not effectively exercised its power under section 6.\n\nIn the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964.\" No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.( 3 ) which turned on another point.\n\nIn that case after the issue of the notification under section 4 ( 1) of the Act, a number of nofficat'ons in respect 0f different items of land included in the locality specified in the notification under section 4 ( 1) of the Act were issued under section 6.\n\nThe following observations made in that case are pertinent :-\n\n\"But as we read these sections (viz. sections 4, SA and\n\n6) together we can only find that the scheme is that section 4 specifies the •locality, then there may be survey and drawing of maps of the land and the consideration, whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs. This is followed by a declaration under section 6\n\n(I)\n\nA. (. R. 1972 S. C. 22GO.\n\n(2) [1956]' s. c. '1. 437.\n\n(3) fl966] c S. C.R. 557.\n\n\n(1976] SUPPLEMENTARY\n\n6pecifying the particular land needed and that in our opinion completes the process ....... At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised ....... The sequence of events from a notificatiun of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclnsion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification nnder section 4(1) is issued, the remaining 11011particularised area stands automatically released''.\n\nTum in view of the decision of this Court iu Girdharilal A mratlal Shoda11'3 case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand.\n\nIn the result, the appeals are allowed and the said judgment of the High Court is quashed.\n\nThe parties are left to bear and pay their own costs in these appeal~.\n\nP.H.P.\n\nAppeals allowed.\n\n~ .\n\n- '", "total_entities": 74, "entities": [{"text": "STATE OF GUJARAT", "label": "PETITIONER", "start_char": 6, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT", "offset_not_found": false}}, {"text": "MUSAMIYAN IMAM HAIDER BUX RAZVJ AND ANR. 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{"document_id": "1976_1_33_38_EN", "year": 1976, "text": "STATE OF GUJARAT & ORS.\n\nAMBALAL HAIDERBHAI ETC.\n\nApril 14, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.J\n\nLand Acquisition (Cotnpanies) Rules 1963-Enquiry under R. 4 whether compliance with principles of 11atural jusrice required.\n\nThe appellant initiated proreedings ul'Jder the Land ,\\cquisition . .<\\ct, 1894. for acquiring the lands of the respondents for the Sardarnagar Co-operative Industrial Sociey Ltd., in order to establish an industrial estate for small scale industries.\n\nA notification was issued under s. 4 of the . .<\\ct after following the provisiohs of- Part VIl of the Act, and in <lue course the final notification under s. 6 of the Act was issued.\n\nThe respondents challenged both the nofifications before the High Court, under Art. 226 of the Constitution on the ground that at the enquiry held by the Special Land Acquisition Officer, Baroda, under R~ 4 of t-he Land Acquisition (Companies) Rules 1963, they had not been heard in accordance with the principles of natural justice.\n\nThe }ligh court allowed the writ petitions.\n\nThe question for decision before this Court \\Vas whether the enquiry under Rule 4 requires compliance with the rules of natural justice.\n\nDismissing the. appeals, •he Court,\n\nHELD: Jn conducting the enquiry, the Collector ha<;, in the interest of fair play, to observe the principles of natural justice by afford\\ng the persons interested in the 1and a reasonable opportunity of being heard an\\l of adducing materifll before the Collector to refute the allegations of the company.\n\n[37 C-D]\n\nState of Guj<lrot ond Anr. v. Patel Chaturbhai Narsibhui & Ors. I !C.:\"751 3 SCR 284, followed.\n\nSuresh Koshy George v .. The University of Kerala .and Ors. [1969_11 SCR 317 and A. K. Kraipak & Ors. v. Union of India and Ors. [1970]1 SCR 457 refer red lo.\n\nC!vIL APPELLATE JURISDICTION : Civil Appeals Nos. 967 to 969 of 1971.\n\nAppeals by Special Leave from the Judgment and Order dated April 17/18, 1970 o~ the Gujarat High Court in Special Civil Applicions Nos. 116,, 1621 and 1622 of 1967. . (;\n\nD. V. Patel, M. C. Bhandare, M. N. Shroff for the Appellants in all the appeals. , . ; . : 'ti . . . ;.,\n\nI. N. Shroff for Respondents Rr. 1 and 2 in 967 and R l in CAs. 968-969.\n\nP. H. Parekh and Miss Manju Jelley for Respondent 3 in 967, R. 2 in 968, 969.\n\n5-833SCI/7 6\n\n34 '\n\nSUPREI\\1E COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\n... . .- . - . .· . ' ' -- The Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-, Thse , three appeals Nos. 967 to 969 of 1971 by special leave which are directed against the co=on judgment of the High Court of Gujarat dated April 17/18, 1970 in Special Civil Application Nos. 116 of 1967, 1621 of 1967 and 1622 of 1967 arise thus : - ·\n\nProceedings under the Land Acquisition Act, 1894, (hereinafter . referred to -as 'the Act') for acquisition of certain lands in villages Sayajipuri, Bapow and Savad, District Baroda, Taluka Baroda were initiated by the Gove=ent of Gujarat at the instance of Sardarnagar Co-operative Industrial Society Limited registered under the Gujarat Co-operative _Societies Act 1961 (hereinafter referred to as 'the Company') for the purpose of establishing an industrial estate for small scale industries. The acquisition being for the Company a notification was issued tinder. section 4 of the Act on July 2, 1964 after following the provisions of Part VII of the Act.\n\nAn agreement under section 41 of the Act between the State Government and the Company was entered into on April 2, 1965 and was published on October 15, 1966. The final notification under section 6 of the Act was issued on October 18, 1966. The owners of the afornsaid lands who are contesting respondents herein challenged the aforesaid notifications issued under section 4 and 6 of the Act by filing petitions under Article 226 of the Constitution of India inter alia on the ground that the provisions of the. Rule 4 of the Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as 'the Rules') made by the Central Gove=ent in exercise of the powers conferred under section .55 of the Act, which by virtue of RU!e 1 (2) of the Rules apply to acquisition of land for all companies under Part VII of the Act, have not been complied with particularly as they had not been given a right to be heard in accordance with the princiJ?les of natural justice at the enquiry held by Special Land Acquisition Officer, Baroda, appellant No. 2 herein. The plea raised by the owners of land found favour with tthe High Court which allowed the petitions, set aside the notification un<ler section 6 of the Act, and issued a mandamus commanding appellant No. 2 to complete the statutory . enquiry under Rule 4 of the Rules in accordance with the principles of natural justice.\n\nThe short but important' question which we are called upon to decide in these appeals. is , whether the enquiry under Rule 4 of the Rules requires compliance with the rules of natural justice., ·\n\nAs observed by this Court in Suresh Koshy George v. The University of Kerala & Ors.( 1) and reiterated in A. K. Kraipak & Ors. v.\n\nUnion of India & Ors. ( 2) rules of.natural justice are not rules embodied\n\n. (!) (t969] I S. C.R. 317.\n\n(2) [1970] I S. C.R. 457.\n\n. '\n\n,_ •\n\nGUJARAT STATE v. AMBALAL (laswant Singh, J.) 35\n\nalways expressly in a statute or in rules framed thereunder.\n\nThey may be imJ!lied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its content should be for a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held, and the constitution and nature of duties of the Tribunal or the body of persons appointed for that purpose. Let us, therefore,_advert to the provisions of Rule 4 of the Rules which requires the appropriate Government to be satisfied• with regard to certain matters before initiating acquisition proceedings.\n\nThe rule is in these terms :-\n\n\"4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings.-\n\n( 1) Whenever a Company makes an application to the appropriate Government for acquisition of any land, that <Government shall direct the Collector to submit a report to it on the following matters, namely :-\n\n(i) that the Company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition;\n\n(ii) that. the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed;\n\n{iii) that the land proposed to be acquired is suitable for the purpose;\n\n(iv) that the area of land proposed to be acquired is not excessive;\n\n( v) that the Company is in a position to utilise the land expeditiously; and\n\n{vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.\n\n(2) The Collector shall, after giving the company a Teasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in subrule (1) and while holding such enquiry he shall,-\n\n(i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural H Officer of the district whether or not such land is good agricultural land;\n\n(ii) determine, having regard to the provisions of sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which, in the opinion of the Collector, should be acquired for the Company; and\n\n(iii) ascertain whether the Cornpany offeied a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired.\n\nExplanation.--For the purpose of this rule \"good agricultural land\" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land.\n\n(3) As soon as may be after holding the enquiry under sub-rule ( 2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forward- D ed by that Government to the Committee.\n\n( 4) No declaration shall be made by the appropriate Government under section 6 of the Act unless-\n\n( i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if •any, submitted under section 5A of the Act; and\n\n(ii) the agreement under section 41 of the Act has been\n\nexecuted by the Company\".\n\nTo sum up, sub-rule ( l) of the above quoted rule requires the appropriate Government to which an application is made by a Company for acquisition of land to direct the Collector to submit a report on six matters set out therein.\n\nSub-rule (2) of the said rule re-emphasizes ~t. is contained in sub-rule ( 1) by making it obligatory for the Collector to hold an enqui'ry into six matters referred to in sub-rule ( 1). It also makes it obligatory for the Collector while holding the enquiry (1) to consnit the Senior Agricultural Officer of the District in case the land is agricultural land, (2) to determine the approximate amount of compensation likely to be payable in respect , of the land in question keeping in view the provisions of sections 23 and 24 of the Act and (3) to ascertain whether the Company offered a reasonable price (which is not less than the compensation so determined) to the persons interested in the land which is proposed to be acquired.\n\nA conjoint reading of sub-rules (1) and (2) leaves no room for donbt that the enquiry by the Collector, which is meant inter aliti to\n\n• •\n\nGUJARAT STATE v. AMBALAL (Jaswant Singh, l.) 37\n\nfind out whether all reasonable efforts have been made by the Company to get the land by negotiation on payment of reasonable price and such efforts have not fructified and to determine the approximate amount of compensation lik<>IY to be payable in respect of the land keeping in view the provisions of sections 23 and 24 of the Act, is of vital importance to the persons inlerested in the land.\n\nSub-rule (3) of the rule requires the Collector to submit his report to the concerned Government which in turn is required before making a declaration under section 6 of the Acno consider that report as well as the report, if any, submitted by it under section SA of the Act after ascertaining the view of the Committee constituted under Rule 3 of the Hules in regard to the Co!lector's report under Rule 4 of the Rules.\n\nAlthough the above mentioned rule is silent regarding the mode and method of the enquiry to be held by the Collector and the report of the Collector is of a recommendatory character, yet regard being had to the legislative history and purpose of the rule, and the mischief sought to be prevented, we have no hesitation in holding that, in conducting the enquiry, the Collector has, in the interest of fair play, to observe the principles of natural justice by affording the persons interested in the land a reasonable opportunity of being heard and of adducing material before the Collector to refute the allegations of the Company. The concept of natural justice which as evident from the observations made in A. K. Kraipak's case (supra), has undergone a great deal of change in recent years.\n\nThe dividing line between an administrative and quasi-judicial function is often blurred.\n\nOur view is reinforced by the following illuminating observations made by the learned Chief Justice in State of Gujarat & A nr. v. Patel Chaturbhai Narsibhai & Ors.( 1).\n\n\"The contention of the State that the enquiry under rule 4 is administrative and that the owner of the land is not en!llled to be given an opportu.nity to be heard at the enquiry cannot be accepted for these reasons.\n\nThe enquiry under rule 4 shows that the Collector is to submit a report among other matters that the Company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed.\n\nThe persons interested therein are the owners of tile land which is proposed to be acquired. The company at such an enquiry has to show that the company made negotiations with the owners of the land. The owners of the land are, therefore, entitled to be beard at such an enquiry for the purpose of proving or disproving the reasonable efforts of the company to get such land by negotiation.\n\nThe contention on behalf of the State that the owners of the land will get an opportunity when an enquiry is made under section 5-A of the Act is equally unsound.\n\nSection 17 of the Act Jlrovides that the appropriate Government may\n\n(I) [1975] 3 S. C.R. 284\n\ndirect that the provisions of section 5-A shall not apply, and if it does so direct a declaration may be made under section 6 _at any time after the pubHcqJion of the notification under section 4 of the Act.\n\nTherefore, the enquiry under section 5A may not be held.\"\n\nFor the fore, going reasons', ihe question is answered in the affirmative and the appeals are dismissed.\n\nThe parties are left to bear and pay their own costs in these appeals.\n\nM.R.\n\nAppeals dismissed; -", "total_entities": 33, "entities": [{"text": "STATE OF GUJARAT & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 22, "source": "metadata", "metadata": {"canonical_name": "STATE OF GUJARAT & ORS", "offset_not_found": false}}, {"text": "AMBALAL HAIDERBHAI ETC", "label": "RESPONDENT", "start_char": 25, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "AMBALAL HAIDERBHAI ETC", "offset_not_found": false}}, {"text": "A. N. 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{"document_id": "1976_1_39_52_EN", "year": 1976, "text": "H. C. SARIN\n\nUNION OF INDIA\n\nApril 14, 1976\n\n[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]\n\nAdn1ini, trative Law-DPpartn1ental enquiry-Principles of natural iustice.\n\nl11dian Railways Establishment Code, Vol. I r. 1730.-Right of delinquent officer to services of CNl advocate .or anothtr Railway official.\n\nThe appellant was a railway official of the Indian Railways, in London. In connection with the purchase of stock from a West German fim three charges were framed against him that he obtained illegal gratification from the proprietor of that firm and Jhat he had used official influence for personal advancement.\n\nA board ()f e.nqµiry was set up by the Government of India and the enquiry was held in London and West Germany. The board held that two of the charges were proved and the appellant was dismissed from service. He filed a writ peti~ tion in the High Court which was dismissed.\n\nJn qppeal to this Court, it was contended that the enquiry was held in grOS6 violation of the principles of natural justice 8nd requirements of Art. 311 of the Constitution; that the proprietor of the German firm made the false accusation against him ih order to escape paymentl of damages:; that the chairman of the board of enquiry was biased against him, and that the appellant was denied the services o±.' ~L professional lawyer or a rail\\vay official of his choice from India for conduc:ing his defence and for cross-examining the proprietor of the German Firm.\n\nDismis~:ng the appeal,\n\nHEW : t 1) The correspondence that wassed between the board and the E appellant .:.hows tha~ there. was no violation of any principle of natural justice, that the appellant waS given inspection of all necessary documents; that he was given adequate and asona.ble opportunity to dei'end himself und that the allegation that the chirman of the board was biased against the appellant was totally false.\n\n[46 B-C;]\n\n(2) No principle of natural justice was violated in not making available to the appeUant the services of a profsional lawyer or of another railway official from India.\n\n[51 BJ\n\n(a) The enquiry was conducted in accordance with r. 1730 of the Indian Ratlways .Establishment Code, Vo1. I, which\n\n1prescribes the procedure for hold ing a departmental .enquiry.\n\nThere is nothing in •he rule about engagement of a lawyer but the note appended to the 1 rlile provides that in. a departmental enquiry the accmed may, if he so desires, be accompanied by another railway officer, provided he is approved by the competent authority, and provided that the perSon so nominated shall not be a professional lawyer. [50 F-Gl\n\n(b) The notes are promulgated with the rules. Their function is to provide procedure, to control discretion, and to fill up gaps when rules are silent. Under •he rule, the appellant was not entitled to the services of a professional lawyer.\n\n[51 F.G]\n\nTarQ Singh etc. etc. v. State of Raiasthan and ors., [1975] 3. SCR 1002, fol~ Jowed.\n\n(c) E\\en if the note is treated as an executive instr_uction at)d not part of H the rule itself, there i• ru:i. reason why the authority should not follow tho note.\n\nThe authority \\vould still have a discretion in the matter.\n\nTn the present case, the question involved, v.; as a simple' one whether he had -taken money from the\n\nproprietor. of the German firm. No prejudice was caused to the appellant, because the propnetor was onlya lawyer in name but was actively in business and the services of a professional lawyer were not necessary to cros'Y-e--xaminc. him.\n\n[51 BJ\n\n(d) The appel1ant v/anted an officer from India to assist him in the conduc.'l of his defence.\n\nUnder the rule, he was not entitled, as a matter of righ~, to have the services of any railway officer stationed in India.\n\nHe was in fact giyen B a choice to choose either on~ stationed in London or on the Cohtinent.\n\n[51 G~H]\n\nC. L. Sabro111ania1n v. Collector of Customs, Cochin. [19721 3 SCH. 485, explained and distinguished.\n\nR. v. Secretary of State for the Honie Deparlfnent ex parte Mughal [1973] All England Law Reports, 796, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1097 of 1970.\n\nAppeal from the Judgment and order dated the 25th April 1967 of the Delhi High Court in Letters Patent Appeal No. 106-D of 1964\n\nM. N. Phadke, S. Balakrishnan and N. M. Ghatate, for the Appellant.\n\nL. N. Sinha, Sol. General, P. P. Rao and Girish Chandru, for Respondents.\n\nThe Judgment of the Court was delivered by\n\nUNTWALIA, J.-This appeal is by certificate granted by the High Court of Delhi under Article 133 (1) (a) & (b) of the Constitution of India as it stood prior to the 30th Constitution Amendment Act.\n\nNo substantial question of law is involved in this appeal. It is to be decided mostly on facts.\n\nAnd since we are in agreement with the judgment of the Division Bench of the High Court given in the Letters Patent appeal, we shall advert only to the necessary facts and the main points argued before us.\n\nShri H. C. Sarin-the appellant was employed in foe Indian Railways as Senior Railway Inspector attached to the Office of the India Stores Department at London.\n\nHe was in that job fro)ll the 6th August, 1954. The Government of India placed orders with various firms in the United Kingdom and the continent for supply of rolling stock and other materials for the Indian Railways.\n\nIn December, 1956 the appellant was deputed to the Essen Area of West Germany as Senior Railway Inspector in which capacity he had to inspect and pass the goods In the first instance at the site.\n\nAlthough this work of inspection in West Germany was entrusted to the German Federal Railway In January 1958, the appellant remained there associated with the work till Apn1 or May, 1958. In July, 1956 orders were placed with M/s Leo Gottwald and Company for supply of several breakdown cranes-both for meter gauge and broad gauge railway tracks in India.\n\nThis was a family concern of one Dr. Hans lllieter Gottwald.\n\nPrior to the appellant's going to the Essen Area\n\n- '\n\n.of West Germany, there were other Senior Railway Inspectors doing the work o! inspection including one S. N. Hussain (since deceased) immediately preceding the appellant. One of _the clauses m _th~ contract with Gottwald . was that he would be hable to pay hqmdated damages in the specified sums if he made delay in the .delivery of the cranes.\n\nEventually there being delay, the amount of such damages was quantified at a figure in the neighbourhood of £ 45,000/-.\n\nDr. Gottwald carried on business of his firm at Dusseldotf in West Germany.\n\nHe came to London on July 30, 1958 to discuss with Shri L. T. l\"vladn<cni, Railway Advisor cerla, n technical aspects of the cranes contract.\n\nA meeting took place in the morning wherein were present other officers including one Mr. Bayross.\n\nIn the afternoon, Gottwald saw S. N. Hussain at the India Stores Department when the latter told the former that delay had occurred in the supplies of cranes and consequently the firm of contractors may have to pay liquidated damages.\n\nUpon this, Gottwald disclosed that Sarin was responsible for the delay, he had t;:.kcn money by way of bribes from the firm and in such a situation the firm was not liable to pay any damages.\n\nSince the allegation made by Gottwald against Sarin was a serious one S. N. Hussain advised him to inform Madnani about it.\n\nHe did accordingly.\n\nAfter some preliminary steps Gottwald's statement was recorded on September 8, 1958 at India Stores Department where he gave a detailed account of the allegedly corrupt practices of the appellant.\n\nShri Shukla was the Director General of the India Stores Department at the relevant time.\n\nHe directed Gottwald to furnish some tentative pfoof in support of his accusation against Sarin.\n\nGottwald's seconi:I'' statement was recorded on October 21, 1958.\n\nOne Shri M, A. Hussain, I. C .. S. was the Deputy High Commissioner for India stationed in U. K. at the relevant time.\n\nOn examining the papers and the statements of Dr.\n\nGottwald given before the various officers of the India Stores Department the Deputy High Commissioner formed an opinion that prima facie the accusations against the appellant were such that required to be investigated in a departmental enquiry.\n\nHe accordingly made a recommendation to that effect to the Government of India.\n\nThe Government, however, directed a preliminary enquiry to be made by Shri N. S. Pandey, Financial Advisor to the Indian High Commission and then to start a departmental enquiry, if necesary.\n\nAccordingly, Pandey went to Gottwald's place in West Germany, made preliminary investigations and submitted a report dated January 19, 1959 finding a prima facic case made out against the delinqnent government servant.\n\nAt the instance of the Government of India, inistry of Works, Housing and Supply, charges were served upon the appellant on April 7, 1959 along with two Annexures containing various details of the accusations made by Gottwald against him.\n\nThe appellant was asked to indicate by April 15 the papers which he wanted to inspect and the papers the copies of which he required to enable him to enter his defence.\n\nHe was ask, ed to submit his written explanation by 30th of April, 1959. fa the meantime he was placed under suspension.\n\nShorn of d1tails which were to be found in the Annexures the Charge-Sheet served on the appellant contained the following three ~~: -\n\n\"CHARGE I.\n\nThat Shri H. C. Sarin, while functioning as the Senior B Railway Inspecting Officer in the India Stores Department, London, during the period between December, 1956 and May, 1958, demanded and obtained illegal gratification from the firm of Mes_srs.\n\nLeo Gottwald of Dussaldorf.\n\n:t •..\n\nCHARGE II.\n\nThat durin~ the aforesaid period and while' functioning as aforesaid, the said Shri H. e. Sarin violat\\:4, Rute' 10 of the Railway Services '(Conduct) Rµles, 19515 in that he accepted an Opel Car from Messrs: Talbots of Achen as a gift.\n\nCHARGE Ill.\n\nThat during the aforesaid period and while functioning as aforesaid, the said Shri Sarin nsed his official influence for personal advancement.\"\n\nTime for filing the written defence by the appellant was extended.\n\nIt was filed on May 27, 1959. The appellant denied all the charges against him.\n\nThe Board .. of Enquiry set up by the Government of India consisted of the {ol!Owing :\n\n( 1) Shri M. A. Hussain, ICS, Deputy High Commis- . sioner, Chairman.\n\n(2) Col. Hendricks, Deputy Director General (Inspection), I. S. D., London, Member.\n\n( 3) Shri ff. M. Duraiswamy, peputy Director General, I. S. D., London, Memtier~\n\nThe correspondence which passed between the appellant and the Board in connection with the departmental enquiry instituted against him is too voluminous to be referred to in this judgment.\n\nNo useful return will be achieved by referring to the correspondence in any detail.\n\nSuffice it to say at this stage that the correspondence does indicate a calculated design and planned attempt on !hi: part of the appellant to non-cooperate with the enquiry and an anxiety and earnestness on the part of the Board to proceed in the matter as fairly as possible in the circumstances of the case. The Board was obliged to go to Du55eldrof. bold an enquiry at the spot by examining as many as 21 witnesses there, some of whom had been cited by the appellant as his defence witnesses and to examine the relevantpapers, documents and account books of the contractor's firm.\n\nAll this proceeded ex-parte between July 14 to July 17, 1959.\n\nThe Board\n\n\\. .\n\n...\n\nreturned to London on July 19 and examined some witnesses there A. who had bce11 cited as defence witnesses by the appellant.\n\nAlmost the entire departmental enquiry had to be conducted ex-parte as the appellant would not participate in it even with a pair of tongs.\n\nThe appella11t had named S/Shri Bhalla, Sharma, Johri and Sen, Railway officers in India as his defence witnesses.\n\nHe was asked to examine them by questionnaries as it was not possible to call them to London for the purpose of the enquiry. Nor was their evidence so material as to necessitate their examination viva-voca before the Board.\n\nThe appellant refused to cooperate and did not sulimit any questionnaire.\n\nThe Board, thereupon, sent to all the. four officers aforesaid copies of the charges levelled against the appellant and asked them to state if they had anything to say in relation to them.\n\nBayross was .examined by the .Board in London on September 29, 1959 after copies of the .earlier statements of the witnesses and other papers had been supplied to the appellant on September 21, 1959.\n\nThe appellant was present on September 29 but did not actively participate i:t the enquiry, in that he did not take any part in it by crossexamining Byn:ss.\n\nThe Board submitted its report to the Government of India on November 2, 1959 holding that charges I and III had been proved against the appellant and charge II had neither been proved nor disproved. .The Government gave a show-cause notice on November 4, 1960 to the appellant asking him to show cause against his removal.\n\nHe filed his reply on January 31, 1961. Later, however, the Go\\ernment gave another show cause notice dated September 20, 1961 to the appellant to show cause as to why he should not be dismissed from service. In October/November, 1961 the appellant filed fr.ree show cause explanations in writing.\n\nHe made another representation to the Government on March 4, 1962 for holding a fresh enquiry which naturally was not acceded to.\n\nEventq, ally the appellant was dismissed from service by an order of the Government of India dated September 10, 1962. He filed a writ petition in the High Court on December 6, 1962 to challenge the order of dismis- . sal on several grounds, in nut shell, on the ground of violation\n\nof principles of natural justicein the conduct of the enquiry.\n\nA learned single Judge of the High Court by his judgment and order dated August 3, 1964 allowed the writ petition and quashed the order of dismissal without any further or consequential order. A Letters Patent appeal was filed by the Government which was disposed of by a Bench of the Delhi High Court on April 25, 1967. The judgment of' the single Judge was set aside and the order of dismissal passed against the appellant by the Government was maintained holding that, there was no violation of the principles of natural justice in any . manner.\n\nSince the amount of salary payabfo to.the appellant if the dismissal order could be found to be .bad would, indisputably. have. been man•\n\nthan Rs. 20,000/- certificate was granted under Article !33(1)(a) & (b), strictly speaking, nnder sub,.clause (b). Thus comes this appeal in this Court.\n\n. B\n\n.A Mr. M. N. Phadke, learned counsel for the appellant pressed only the following points iu support of the appeal.\n\n(1) That the appellant was not allowed to go to Germany to examine and assess various matters which \\Vere necessary for submission and conduct of his defence.\n\nIt was done so in gross violation of the principles of natural justice and requirement of Article 311 of the Constitution.\n\n(2) That copies and inspection of certain relevant and necessary documents were not allowed to the appellant by the Board. It was not possible for him to cooperate and participate in the enquiry without them.\n\n( 3) That no adequate and reasonable opportunity was given to the appellant to defend himself at the enquiry.\n\n( 4) That the accusation made by Gottwald against the appellant was maliciously false as it was made with the ulterior motive of saving his firm from the liability of liquidated damages. As a matter of fact the firm was not made to pay any damages in view of Gottwald's success in his false accusation against the appellant.\n\n( 5) That Shri M. A. Hussain. Chairman of the Board of Enquiry was highly biased against the appellant and the enquiry conducted under his stewardship was a farce.\n\n(6) That Shri S. N. Hussain was inimically disposed towards and adversely interested against the appellant.\n\n(7) That the services of a professional lawyer for crossexamining Gottwald and a Railway officer of his • choice from India were not made available to the appellant for conducting his defence.\n\nLearned Solicitor General appearing for the Union of India-the respondent-refuted all the submissions made on behalf of the appellant. In particular he focussed his submissions on point nos. 1, 5 and 7 as the other four points, counsel submitted, did not require any detailed reply.\n\nPoint No. L\n\nWhen the appellant was placed under suspension, in accordance with the relevant service rules he was asked not to leave London without permission of the Board.\n\nAs soon as tho Charge Sheet was se!:Yed on_ hi'!' )'Y his lt!er dated the l?th .April, 1959 the appeUan.~ . wanted perm1ss1on to v1S1t Germany statmg m para 6 : ,\n\n\"'In order for me to prepare my defence I would request permission to visit Germany to collect essential information\n\n- '\n\nH. c. SARIN v. UNION ( Urltwalia. !.)\n\nrequired when submitting my written defence, especially as the charges refer to periods two to three years ago.\"\n\nThe Chairman of the Board of Enquiry in his reply dated the 15 April, 1959 stated in para 3 thus :\n\n\"In regard to your request to be permitted to visit Germany, the Board would like to 'have in writing before B April 20, 1959, the purpose for which you wish to visit Germany and the names and addresses of person/persons you wish to contact and the paper /papers you may wish to examine.\"\n\nThe appellant sent his letter dated April 20, 1959 stating in para 4 ilim: C\n\n\"Regarding the visit to Germany and the persons and documents to be interviewed and seen, I thought it was plain that this depended on the inspection of documents referred to in paras 4 and 5 of your letter under reply.\n\nConsequently until I have done this properly, I shall not be in a position to know what items or facts I require to investigate or check in Germany.\n\nI shall therefore be glad if you will postpone this application of mine so that I may in due course specify the visits, persons and papers.\"\n\nThe Chairman, thereupon, by this letter dated April 21, 1959 asked the appellant to supply the information in respect of his visit to Germany by April 30, 1959. In his letter dated April 30, 1959 the appellant stated in para 3 thus : E\n\n\"I submit in view of the grave charges, false allegations, it is necessary for me to examine in detail Leo Gottwald's system of accounting, storekeeping, procedure for telephone accounting, mailing letters etc.\n\nLikewise the system of telephone connecting, booking, mailing lettern etc. at other firms mentioned by Dr. Gottwald.\n\nThis is absolutely imperative and my defence would be incomplete without this.\n\nIn the absence of full information, examination of all documents studying systems of working mentioned above, I am not in a position to submit names of persons.\n\nI would request early arrangements may please be made for me to study the systems of working mentioned above at the respective firms in Germany.\"\n\nThe Chairman in para 4 of his letter dated May 1, 1959 informed the appellant :\n\n\"In regard to your request for visiting Germany in order to examine the Leo Gottwald's system of acconnting,\n\nstore-keeping, mailing letters etc., it is felt that it is not H necessary for you to visit Germany for the purpose because witnesses pertaining to all these matters wm be called by the Board for examination and you \"'ill be given full\n\nopportunity to elicit all relevant information required by you.\"\n\nFurther correspondence followed in the matter and the appellant was not given permission to visit Germany prior to the visit of the Board of Enquiry.\n\nIn the light of the relevant correspondence which passed between the appellant and the Chairman of the Board of Enquiry we have come to the conclusion that it was not at all necessary for the appellant to visit Germany for preparing his defence.\n\nThe Board committed no m.istke and violated no principles of natural justice in refusing the perm1ss10n. No useful purpose would have been served by such a visit in the interest of the appellant's defence, if any.\n\nOn the other hand his insistence to visit Germany at the earliest opportunity smacks of some ulterior design on his part in r~Qard to his defence. -\n\nWhen the Board decided to visit Germany for holding the enquiry, it gave ample opportunity to the appellant to proceed to Germany to take part in it.\n\nThe main part of the enquiry, rather, the only substratum of the materials was to be done and collected at Dusseldorf in Germany.\n\nYet on one excuse or the other the appellant, it appears, was advised to adopt an attitude of noncooperation which was likely to forge a ground of attack on the departnal enquiry, tjiinkµig that participation in it would, perhaps, worsen his case.\n\nIt is found more often than not that Government servants who have no real defence to take against the accusations are advised, and sometimes not without success, to non-cooperate with the enquiry.\n\nIt seems to us this was one such case.\n\nThe Chairman by his letter dated June 18, 1959 asked the appellant Whether he proposed to be present at the enquiry at Dusseldorf and such other places as the Board may determine on the dates to be intimated to him. . The appellant was specifically asked this question because he cast some baseless aspertions against the Board in his letter dated the 4th June, 59.\n\nThe appellant in his letter dated the 14th June had stated in para 14 :\n\n\"In the circumstances that I have put into, and hardly been left any choice, I feel no useful purpose can be served by my attending such an enquiry or having anything further to do with such as enquiry.\"\n\nThe appellant's reply dated June 20, 1959 clearly demonstrates the unjustifiably non-cooperative attitude of the appelant He was running from pillar to post to find out some excuse to 1ustify his noncooperation at the enquiry.\n\nHe insisted that Dr. Gottwald's statement recorded in September, 1958 should be got signed by lum wht:h the Board rightly did not consider it necessary to do.\n\nAnother w1'.d stand which the appellant had taken was that the contents of his written defence submitted on May 27 were made known to S. N.\n\nHussain by some member of the Board of Enquiry-an al!egation\n\nwhich was strongly refuted by the Board.\n\nLastly in the 10th para- A graph of his letter dated June 20 the appellant said : \"What can I do Mr. Chairman in the position you have placed me, you may proceed in any way you consider reasonable, just and fair.\"\n\nIn spite of the unreasonable and unsustainable stand of the appellant, the Board of Enquiry, constituted as it was of high officials of the Government of India headed by the Deputy High Commissioner B stationed in London, time and again expressed their anxiety to make the appellant participate in the enquiry.\n\nBut the appellant under a wrong advice played a game of hide and seek, at times adopted a tantalizing attitude showing his willingness to cooperate, but backed out at the eleventh hour.\n\nTo justify this comment we just mention\n\nome of the letters viz. letter of the Board dated June 22, appellant's reply dated June 23, Board's letter dated June 26, appellant's sticking C to his previous stand in his letter dated June 29, Board asking the appellant to proceed to Germany in their letter date.d, July 2 and the appellant's reiterating his previous stand in his letter dated July 8.\n\nFrom the report of the Bc1ard it would appear that Sarin did not give a categorical answer as to whether or not he would go to. Dusseldorf on July 13.\n\nOn fue 10th July, he agreed to go and came to India Stores Department to collect his advance of T. A.\n\nBut on the D evening of July 11, he informed the Secretary to the Board that he would not proceed to Dusseldorf to be present at the oral enquiry.\n\nMr. Phadke drew our attention to Sarin's show cause reply dated January 31, 1961 in which he stated that the Board permitted him to go to Dusseldorf only if he agreed to participate in the oral proceedings there, otherwise not.\n\nHe therefore, cancelled his reservations to proceed to Dusseldorf. He also referred to the photostat copy E of the appellant's letter dated July 24, 1959 and the addendum to this letter.\n\nNothing new; the same stand was taken by the appellant.\n\nThis, to our mind, makes patent the latent factor in the mental attitude of the appellant.\n\nDid he want to go to Dusseldorf without agreeing to take part in the enquiry ? Or did he want to go there to participate in it? • ·\n\nHaving appreciated all that has been said for the appellant in support of his first point we have come to the conclusion that ifi.e\n\nappellant was not denied any reasonable opportunity of visiting Germany at the proper time to participate in the enquiry.\n\nHe ha• to thank himself for deciding not to go.\n\nPoint No. 2.\n\nIt is not necessary to enter into any detailed discussion of this point.\n\nIn agreement with the Bench of the High Court we hold that aH .relevant documents were made available to the appellant either for inspection or for copies.\n\nSome file containing the field inspection papers was not traceable.\n\nThe suspicion of the Board was\n\nthat the Prosecutor at the departmental enquiry was not to gain H anything by making the file untraceable.\n\nOn the other hand it was the appellant wh0 was to gain by it.\n\nThe very same letters exchanged between the appellant and the Board in June and July, 1959 dealt\n\nA with this aspect also.\n\nThe High Court has extracted passages from the relevant letters in this connection and has rightly held :\n\n\"It appears to us to be clear from this correspondence that all legitimate demands of the respondent for the inspection of papers which were available in the ISD office in London were fulfilled, but the respondent went on making unfounded claims in this behalf without specifying the documents. \\Ve therefore, 'hold that all documents which were available in the ISD office in London were made avail-· able to the respondent.\"\n\nPoint No. 3.\n\nIn support of the third point arguments were advanced with reference to letters dated July 18, August 6 and October 6, 1959.\n\nNotes were handed over to us referring to the other pieces of correspondence.\n\nWe have studied them but think it unnecessary to increase the bulk of our judgment by referring to the correspondence in any detail.\n\nIt merely shows that on one ground or the other the appe- Hant was adopting delaying tactics, shifting stands and excuses for not presenting himself at the enquiry either to cross-examine the prosecution witnesses or to examine his defence witnesses. All the time he was reiterating his stand taken in his letters dated June 14, and June 20. 1959.\n\nThe detailed report of the Board of Enquiry, apart from the correspondence which preceded it. is a clear proof of the anxiety ol' the Board to conduct the enquiry as fairly and fully as they could 111 the circumstances of the case.\n\nThe submission of the appellant is rejected asbeing devoid of substance.\n\nIn view of the attitude taken by the appellant of complete noncooperation in his letters dated June 14 and June 20, 19 59 no useful purpose would have been served by associating him 'With the examination of the witnesses in London.\n\nMadnani and S. N. Hussain were examined in July and August.\n\nThe appellant never expressed hi:> willingness to cooperate and be present at the examination of the witnesses in London.\n\nHis presence at the time of the examination of Bayross was a make-believe more of cooperation to colour and cloud his real attitude of non-cooperation. The Board committed no irregularity or illegality in sending a general questionnaire to SI Shri Bhalla, Sharma, .lohri and Sen in India as the appellant had refused to submit a questionnaire.\n\nCopies of all the relevant statements and papers given lo the Board at Dusseldorf were given to the appellant in September, 1959.\n\nAlthough there was some delay in supply of these papers, that did not cause any prejudice lo the appellant.\n\nH Point No. 4\n\nThis point mainly concerns the merits of the findings of the + Board of Enquiry and their final acceptance by the Government of\n\n- t\n\nIndia.\n\nWhether a charge levelled against the appellant was true or false had to be and has been judged in the light of the appellant's stand that Gottwald had a motive to accuse falsely the appellant of having ta-ken bribe from him in order to establish that he was not at fault in the delay which was mad.e in the delivery of the contracted cranes.\n\nWithout much elaboration we reject this argument. Gottwald was to gain by merely throwing the blame on the shoulders of Sarin.\n\nHe had nothing to gain and only to lose by making an accusation of having paid bribe to Sarin under his pressure.\n\nNo person would like to involve himself in the deal of payment of bribe to a Government servant merely for the purpose of explaining the delay caused in effecting the deliveries.\n\nOrdinarily bribe could be paid so that there may not be any delay in inspection.\n\nBut here was a case where it is said delay was caused in the inspection because there was delay in the payment of the bribe.\n\nIt is not for us to examine in any detail the correctness of the findings recorded against the appellant at the departmental enquiry; but in passing, we may just observe that it could not have been possible for Gottwald to make a false accusation ag11inst\n\nSarin, and then support it before the Board by examining his father, the bank records, vouchers, account books and a large number of persons working in his firm.\n\nThere was nothing in the records of this case to show that the claim of liquidated damages against the contractor was given up in view of the finding of guilt of the appellant.\n\nWe were informed at the Bar by the Solicitor General that the claim was settled and not given up.\n\nBe that as it may, we find the fourth submission made on behalf of the appellant unsustainable.\n\nPoints 5 and 6\n\nThese points may be dealt with together as they have got some inter-connection. It could not be substantiated on behalf of the appellant that S. N. Hussain had any animus against him or was adversely interested against him in the matter.\n\nSome letters with reference\n\nto the work of S. N. Hussain at Bafmingham with comments of the appellant thereon were placed before us.\n\nMr. Phadke could not F substantiate the point with reference to them.\n\nTime and again he laid stress on the fact that Gottwald made this complaint to Madnani on July 30, 1958 on being asked to do so by S. N. Hussain because\n\nhe had his own axe to grind against Sarin. This argument has been stated merely to be rejected.\n\nIt was just in the natural course of events that when S. N. Hussain was finding fault with Gottwald for the delay in the execution of the contract the latter became forced G by circumstances to blurt out the truth.\n\nThe accusation against Sarin was too serious to be taken note of by S. N. Hussain alone.\n\nNaturally, therefore, he advised him to go and make this complaint to the higher officer Madnani.\n\nNo connection between M. A. Hussainthe Chairman of the Board and S. N. Hussain-a Senior Inspector who was in Essen Area of We.st Germany immediately before the appellant, was established.\n\nIt is, an argument of desperation to sug- B gest that M. A. Husain was biased against the appellant to protect or help S. N. Hussain.\n\nThe char£e of being communal levelled against the Chairman by the appellant in his letter dated October\n\n6-833SCI/76\n\n5, 1959 written to the Government of India was obviously made with an ulterior motive after conclusion of the enquiry and sensing that it had gone against the appellant.\n\nGreat stress was led in court to show M. A. Hussain's bias on the ground that at the earlier stage in the later half of 1958 he had formed his opinion against the appellant and recommended and insisted for the starting of a departmental enquiry against him without any further preliminary enquiry.\n\nMr.\n\nPhadke Sl!bmitted that the Government turned down the proposal of M. A. Hussain and directed a preliminary enquiry to be made by Pandey.\n\nWe do not appreciate the force of this argument.\n\nIt would appear from the enquiry report that M. A. Hussain did not want, as he had no time, to be the Chairman of the Board of Enquiry.\n\nBeing a Deputy High Commissioner he was too busy in other affairs of the State.\n\nBut since the matter to be enquired into was against a high official of the Government, M. A. Hussain was appointed as the Chairman of the Board. The appellant never objected to his being on the Board, until after the conclusion of the enquiry.\n\nWe are distressed to find that the appellant was ill-advised to invent at a. late stage a crudse and false story that on the 5th October, 1959 Dorais-. wamy-a member of the Board of Enquiry had shown th.e secret file to the appellant which showed the bias of M. A. Hussain as he had dealt with the matter in the latter half of 1958.\n\nAlthough according to the statement in the Writ Petition (vide para 28) he had written his letter dated October 5, 1959 after the alleged showing of the confidential file by Doraiswamy to him, not a word is to be found in the said letter to this effect.\n\nSuch a story was put forward in the written explanations which the appellant filed in answer to the. punishment show cause notices.\n\nWe reject points 5 and 6 of the appellant.\n\nPoint no. 7\n\nThe enquiry was being conducted in accordance with Rule 1730 of the Indian Railway Establishment Code, Volume I.\n\nIn the main body of the rule where a procedure for holding a departmental enquiry has been provided for, there is nothing said in relation to the engagement of a lawyer.\n\nCertain notes are appended to the rule.\n\nThey seem to have been appended not on the basis of the executive instructions hut as parts of the rule itself.\n\nOne such note was appended as note 4, which subsequently became note 3, on September 25, 1956 by the President of India who had framed Rule 1730.\n\nThis note reads as follows\n\nG \"In a departmental enquiry, the accused railway officer may, if he so desires, be accompanied by another railway officer provided that the officer so nominated as the defence counsel is approved by the competent authority to act as such, and provided also that the person so nominated shall not be a professional lawyer.\n\nThe term 'professional lawyer includes those persons who are competent to practice H m a court of law.'\n\nIn face of the above note, treating it as a part of the rule, the appellant was not entitled to the services of a professional lawyer. Gottwald,\n\n• •\n\nas it appears, was a lawyer in name but actively in business.\n\nThe services of a professional lawyer were not necessary to cross-examine him.\n\nThe fact was a simple one as to whether he had paid money to the tune of about 24,000 D.1\\1. to the appellant from time to time.\n\nEven if we treat the note aforesaid as one based merely on the execu- . tive instructions and not a part of the rule itself, we see no reason to say that the authority was obliged not to follow the note but to go against it.\n\nAt the most it had a discretion in the matter.\n\nThe question is whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the onc!usion that principles of natural justice were violated when the services of a professional lawyer were not made available to the appellant.\n\nWe give the answers against the appellant.\n\nGreat reliance was placed for the appellant on a decision of this Court in C. L. Subramaniam v. Collector of Customs, Cochin( 1).\n\nIn this case the argument that, rule or no rule, the services of a professional lawyer should be made available at a departmental enquiry when asked for was uot accepted.\n\nWhat was held in that case was that the disciplinary authority brushed aside the request of the appellant before the Surpreme Court on a wrong ground completely ignoring the circumstances which were relevant.\n\nIt . was, therefore, said at page 490 :\n\n\"Therefore that authority clearly failed to exercise the power conferred on it under the rule.\n\nIt is not unlikely that the Disciplinary Authority's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned arlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself.\"\n\nIn Tara Singh etc. etc. v. State of Rajasthan and Ors.(') the importance which is to be attached to the note appended the rule has been emphasized by Ray, C. J. delivering the judgment on behalf of the Division Bench of this Court to which one of us (Krishna Iyer, J) is a party, in these terms :\n\n\"The notes are promulgated with the rules in exercise of legislative power.\n\nThe notes are made contemporaneously with the rules.\n\nThe function of the notes is to provide procedure and to control discretion.\n\nThe real purpose of the notes is that when rules are silent the notes will fill up gaps.\"\n\nThe appellant was not entitled as a matter of right to have the services of any railway officer stationed in India to assist him in the conduct of his defence.\n\nHe wanted an officer from India especially Shri Bhalla.\n\nIt was not possible to make available the services of an officer from India.\n\nThe appellant was given a wide field of choice either to choose any railway official stationed in London or in the continent or some other personnel of the Indian High Commission in London.\n\nThe accusations made against the appellant were not ·--------\n\n(!) [1972] 3 S. C.R. 485.\n\n(2) [1975] 3 S. C.R. 1002.\n\nsuch that required any expert or special skill.\n\nThe question was a simple one whether he had taken money from Gottwald iIJ, dischaige of his official duties.\n\nHaving appreciated all the facts and circumstances of the case we have come to the conclusion that no principle of natural justice was violated in not making available to the appellant the services of Shri Bhalla or any other railway officer stationed in India for the conduct of his defence.\n\nIn the entire background of this case we find a passage occuring at page 803 in the Judgment ol Lord Denning, Master of the Rolls in the case of R v. Secretary of State for the Home Department ex parte Mugha/( 1) quite apposite to be quoted.\n\nThe passage run& h • t us : '.'°l!\n\nC \"The rules of natural justice must not be stretched too far.\n\nOnly too often the people who have done wrong seek to invoke 'the rules of natural justice' so as to avoid the consequences.\" ·\n\nIn the result we find no merit in this appeal and dismiss it with costs.\n\nV.P.S.\n\nAppeal dismissed.\n\n(!) (1973] 3 All England Law Reports, 796. ·", "total_entities": 15, "entities": [{"text": "H. C. SARIN", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "H. C. SARIN", "offset_not_found": false}}, {"text": "UNION OF INDIA", "label": "RESPONDENT", "start_char": 13, "end_char": 27, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA", "offset_not_found": false}}, {"text": "Y. V. 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{"document_id": "1976_1_478_485_EN", "year": 1976, "text": "COMMR. OF WEALTH TAX, MADRAS & ORS.\n\nLATE R. SRIDHARAN BY L.Rs.\n\nApril 29. 1976\n\n, B . [A. N. RAY. C.J .• 1\\1. H. BEG, R. s. SARKARlA, P. N. SIIJSGAL Atf[)\n\nJASWANT SINGH, JJ.l\n\nSpecial 11.14rr1ag6.A.ct, 1954, Sec. 21-.Marriage betweell llindu assesue !I.\"'cl Cl1ristian female-Whether issue is a Hindu governed by Hindu Law .\n\n. The late' R. Sridharan married Rosa Maria. Steinbichler, a christi:tn of Austrian descent. under the Special M:.rriage Act. 1954 and a son Nicolu Sundaram was born out of the . wedlock. In the assessment proceedin.gs in\n\nrespect of income tax, wealth ta:t and expenditure tax. Sridharan claimed t<> be assessed in the status of a member of Hindu Undivided F; unily consisting\n\nof himself and his son, contending that n.c prop<:rty held by him wa.~ ancestral and Nicolas Sundaram was a Hindu. The officers dealing with these taxes rejected the contention and assessed him as :m \"individual\" on the ground that succession to the property of a person married under the Special Marriage\n\nAct, 1954, is governed by the Indian Succession. Act, 1925 and not by ordin:u-y Hindu Law and Nicolas Sundaram could not become a member of Hindu Undivided Family with his father. These orders were affirmed by the Appellate Assistant Commission·• rJ the Appellate Tribunal in appeals by Sridiur:m against the assessmen<:;.\n\nOn further app!ications made by Sridharan, !he Income Tax Appellate Tnounal referred the matter to the Hi~=:h Court which decided in favour of Srldharan but Jrr<Ultcd a certificate of fitness. Meanwhile,\n\nSridharan died, and his widow filed wealth tax returns, claiming the s::ttw of a member of Hindu Undivided Family. The Revenue authorities followed\n\nth-eir earlier decisions, and ultimately the matter was referred to the High Cowt which decided in favour of respondent Mrs. Sridharan, but granted leave to appeal to this Court. ·\n\n Dismissing the appeals, the Court,\n\nHELD : {l) Under the codifying Acts, the orthodox concept of the crm \"Hindu\" has undergone a radie3l change , and it has been given an extended meanin.e;. The Acts not only apply to Hindus but also to a lare number liilf ·\n\nother persons. Any child legitimate or illegitimate, one of whose parents is\n\na Hindu by religion and who is brought up as a Hindu, is a Hindu. [478D-EI\n\n(2) Section 21 of the special Marriage Act has no bearing on the present case. The section does not in any ow'ay impair or alter the joint family sructure between an assessee and his son. Nor docs it affect the discretion vested in a Hindu asessee to treat his properties as joint family properti<!s by taking into his fo1d his Hindu sons so as to constitute: joint family prbpertics .. [H9A-C]\n\nSlrasiri Yagnapurushdasii & ors. v. Muldas Bhundardas Vaislzya and A\"r.,.\n\nAIR 1966 S.C. J119; Blzagwan Koa v. J. C. Bose & Ors. (1904) ILR 31 C::.l.\n\n11; Lint:appa v. Emdasan (1904) 27 MaJ. 13;1\\.fotlrey Anja Ratna Raja Kumar\n\nv. Koney Narayana Rao & Ors. AIR 1953 SC 433 and Ananthaya v. Vi_, rr\"u 17 Mad. 160, referrrJ to.\n\n\\Yebstc\"rs' 3rd New Jnternat:onal Dictionary cf the Enyli-; h Lnnc::, gc; Encyclopaedia Britannica (15th Edn.): Gitarahasya by n. G. Ti!~, k l'ri::ctpks of Hindu Law (14th Edn.) pp. 671 and chap. I para 6 by. :\\f:rlla, and lii::h Law & Usage (ltth\"EJa.) pp. 2_90 by 1\\Iayne, rcfrred to.·\n\nCML APPELLATE JURisnrcno:-l': Civil Appeal Nos. 1399 to 14.03 of 1970. ·\n\n. ~\n\n.....\n\n~ ·\n\nI '\n\nC.W.T. v. R. SRIDHARAN (Jaswant Singh, 1.) 479\n\nAppeal from the Judgment and Order dated 20th December f96S A of the Madras High Court in Tax Case No. 314/64 (Reference No. 82 .of 1964) and\n\nCivil Appeal No. 301 of 1974\n\nAppeal from the Judgment and order dated 3rd April1972 of the 'Madras .f!igh Coun in Tax Case No. 328 of 1966 (Reference No.\n\n~88/66) .\n\nS. T. Desai, 1. Ram.amurthi; for the appellant (In CA 1399-1403 ;. .of 1910). j\n\n$. Swcuninmhan, Mrs. S. Gopalakrislman for the Respondent in all .the appeals. c The Judgment of the Court was delivered by\n\nIASWANT SINGH, J.\n\nThese apls Nos. 1399 to 1403 of 1970 .and 301 of 1974 by certificates granted by the High Court of Madras\n\nshall be diSposed of together by this judgment as they raise common question of law and fat.\n\nThe circumstances giving rise to thes'< appeals are : The late R.\n\nSridharan along with his father a!J.d brothers constituted a Hindu undivided family governed by Mitakshara law. On June 28, 1952, while\n\nhe was still unmarried, a partition took place between him, his brothers and his father.\n\nAs a result of this partition, a block of shares in T. V.\n\nSundaram Iyengar and Sons Private Limited and three other limited companies fell to his share.\n\nOn June 14, 1956, Sridharan married Rosa Maria Steinbchler, a Christian woman of Austrian descent, under the Special Marriage Act, 1954. On November 29, 1957, a son named Nicolas Sundaram was born out of this wedlock. For the assessment years 1957-58, and 1958-59, Sridharan was assessed to income tax and wealth tax in the status of an 'individual' on his own declaration to that effect. In the assessment proceedings in respect of income tax and wealth tax for the assessment years 1959-60, 1960-61 .and 1961-62 and in the assessment proceedings under the Expenditure Tax Act for the year 1961-62, he claimed to be assessed in the status of a member of Hindu undivided family consisting of himself and his son, Nicolas Sundaram, contending that the property held by him was ancestral and Nicolas Sundaram was a Hindu. The Income Tax Officer; Wealth Tax Officer and Expenditure Tax Officer refused to\n\naccede to the contention of Sridharan and assessed him in the status of an 'individual' as in the previous years on the grounds lhat the value of the shares and other investments standing in his name being his\n\nexclusive properties and by virtue of section 21 of the Special Marriage.\n\nAct, 1954, succession to tl}e property of a person whose marriage has\n\nbeen solemnized under that Act being governed by the Indian Succession Act, 1925, and not by the ordinary Hindu law, Nicolas Sundaram could not become a member of Hindu undivided family with his father.\n\nSridharan thereupon went up-in appeal to the Appellate Assistant Com- .missioner but remained tmsuccessful.\n\nThe orders-passed by the Tncome\n\nr.:\n\nSUPREME COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nTa~/Wealt~ ax/Expenditure Tax Oftiers and the Appellate Assis- tant CommiSSIOner were also affirmed m appeals against the . assessments respectively made under the Income-tax Acf, Wealth Tax Act and the Expenditure Tax Act by the Appellate Tribunal. In the course of its consolidated order rejecting the appeals, the oappellate Tribunal observed that although section 21 of the Special Marriage Act preserved some of the rights in the family property of the children born out of marriage solemnized under that Act, it did not clothe such offspring with the character of Hindus and therefore, there wa..c: rio Hindu undivided family of Sridharan and his son which could claim to be taxed as Hindu undivided family.\n\nThereafter on the applications made by Sridharan under section 27(1) of the Wealth Tax ct, section 66(1) of the Income-tax Act and section 25 ( 1) of the Expenditure Tax Act, the Income-tax Appellate Tribunal referred the following common question of law 'arising\n\nfrom its aforesaid decision for the opi!nion of the High CouJ1 :-\n\n\"Whether, on the facts and in the circumstances of the case, the assessee and his son constituted a Hindu undivided family for purposes of assessment under the Income-tax, Wealth-tax and Expenditure-tax Acts?\"\n\nThe High Court following the decision of this Court in Gowli Buddanna v. Commissioner of Income-tax(!) held that Sridbaran's claim to be reckoned as Hindu undivided family was well merited and the Tribunal was in error in holding that there was no Hindu undivided family of Sridharan and his son which could claim to be assessed and taxed as such either under the Income-tax Act, or Wealth Tax. Act ot the Expenditure Tax Act.\n\nThe High Court accordingly answered the question in the affirmative but granted certificate of fitness for appeal to this Court.\n\nSridharan died on April 9, 1962. A few days after the valuation date relevant for the assessmentyear 1963-64, his widow Mrs. Rosa Maria Steinbchler filed a wealthtax return claiming that the assessment for the assessment year 1962-63 should be made in the status of Hindu undivided family.\n\nThe Wealth Tax Officer following hi<; earlier decision in the assessment proceedings in respect of . the previous years rejected the claim of Rosa Maria Steinbchler holding that sbe was not a Hindu and in any case since her marriag_e with Sridharan was under the Special Marriage Act, 1954, Nicolas Sundaram had no right by birth in the properties obtained by the assessee on partition. He further held that Nicolas Sundaram could claim Sridharans property only under the Indian Succession Act, 1925 and not under the Hindu Jaw.\n\nOn appeal, the Appellate Assistant Commissioner affirmed the order of the Wealth Tax Officer. A further appeal was preferred to the Appellate Tribunal but that to9 proved abortive,_ The Tribunal, hower. referred the following question of Jaw for the opimon of the High Court:- H\n\n(l) [1966] 60 I.T.R. 293.\n\nC.W.T. v. R. SRIDHARAN (JaswanrSingl~, l.) -48!\n\n\"Whether the assessee~ Sridhanin and his son constituted ' in law a Hindu undivided fariilly' fo!\" the. P!lrpose of assess 4 ment under the Weathtax ~.; t~. 1957 ?\", - ·· .. ' '\n\n. The High Cort awered the question in the affirmative i.e. against the Revenue observing that the decision in the previous reference directly governed the facts ofthe fresh reference. ·· ·\n\nAggrieved by. this order _of -the High Court, the appellant .. applied and obtained leave to appeal to this Court under section ~29(1) of the Wealth-tax Act, 1957 and Article 133(1) (c) of the ' Constitution of India. 'This is how the appeals are befor~ us. . .\n\nCounsel appearing for the appellants and respondents have repeated before us. the contentions respectively advanced on behalf of the parties before the _High Court. ·\n\n' _ It cannot be d_isputed that a joint Hindu family consists of all perc\n\nsons lineally descended from a common ancestor and includes their wives and unmarried daughters, It cannot also be dispuled that property obtained .by Sridharan on partition between ' his father - and D brothers could become ancestral property so far as his sons, grandsons .\n\nand great grandsons were concerned. who could according to Mitakshara law acquire an interest therein by birth.\n\n The sole question' which, however, falls for our consideration in these appeals is whether Nicolas Sundaran is a lfmdu governed by Hindu law. It is a matter of common knowledge that Hinduism E embraces within itself so many diverse f()rms of beliefs, faiths, practices and worship that it is difficult to define. the term 'Hindu' with precision. . . ·\n\nThe historical and etymological genesis of the word \"Hindu\" has been succinctly explained by Gajendragadkar, C.J.' in Shastri Yagnapurushdasji & Ors. v. Muldas Bhundardas Vaishya & Anr.(1 ).\n\n' ' In Unabridged Edition of Webster's Third New _.International Dic 4 tionary of the English language, the term 'Hinduism' has been defined as meaning ''a :complex body , of social, cultural, and religious beliefs and practices evolved in and lagely confined to the Indian subcontinent and marked by a caste system, an outlook tending to view all forms and theories as aspects of one eternal being and truth, a belief in G ahimsa, karma, dharma, sansara, and moksha, and the practice of the way of works, the way of knowledge, or the way of devotion as the means of release from the bound of rebirths;-the wayof fife and form of thought of a Hindu\". ·\n\nIn Encylopaedia Britannica (lSth Edition): .th~ terni 'Hinduism' has been defined as meaning '.'the civilization of Hindus. (originally, the inhabitants of the land of the Indus , River) ... It properly denotes the Indian civilization of approximately the last 2,000 years, which ! .\n\n(1) A.l.R.1966S.C.1119.\n\n33-833 SCI/76\n\n\n[1976] SUPPLEMENTARY\n\ngradually evolved from Vedism, the religion of the ancient Indo-European peoples who settled in India in the last centuries of the 2nd\n\nmilleD.I).ium BC. Because it integrates a large variety of heterogeneous elements, Hinduism constitutes a vecy COJDplex but largely continuous whole, and since it covers the whole of life, it has religious, social, economic, literacy, and artistic aspects.\n\nAs a religion, Hinduism is an utterly diverse conglomerate of doctrines, cults, and way of lite\n\n• • . . In principle, Hinduism incorporates all fo~ of belief and worship without necessitating the selection or elimination of any. The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant, leaving others-including both Hindus and non-Hindus-whatever creed and worship practices suit them best.\n\nA Hindu may embrace a non-Hindu religion without ceasing to be a Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well-being of the world oand mankind. Few religious ideas are considered to be finally irreconcilable. The core of religion does not even depend on the existence or non-existence of God or on whether there is one god or many. Since religious truth is said to transcend all verbal definition, it is not conceived in dogm<dc terms.\n\nHinduism is, then both a civilization and a conglomerate o{ religions, with neither a beginning, a founder, nor a central authority, hierarchy, or organization. Every attempt at a specific definition of Hinduism bas proved unsatisfactory in one way or another, the more so because the finest Indian scholars of Hinduism, including Hindus themselves, _ have emphasized different aspects. of the whole\". •\n\nIn his celebrated treatise \"Gitarahasaya\", B.G. Tilak has given the r following broad description of the Hindu relgion :-\n\n\"Acceptance of the Vedas with reverence; recognition of the fact that the means or ways of salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion\".\n\nIn Bhagwan Koer v. 1. C. Bose & Ors.(J) it was held that Hindu religion is marvellously catholic and lastic_. . Its theology is m3!1ced by eclecticism and tolerance and almost unhmtted freedom of prtvate worship.\n\nIts social code is much more stringent, but mongst its different castes and sections, exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its herror of using the meat of the cow.\n\nThis being the scope and nature of the religion, if is not strange that it holds within its fold men of divergent vie~ and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hindu religion. ..\n\n(1) [1904) I.L.R. 31 Cal. 11.\n\n~ -\n\nC.W.T. V. R. SRIDHARAN (Jaswant Singh, 1.) 483\n\n'. ·-...\n\nIt will be advantageous at this stage to refer to page 671 of Mulla's A Principles of Hindu Law (Fourteenth Edition), where the position is stated thus :-\n\n\"The word 'Hindu' does not denoe any particular religion or community. During the last hundrd years and more it has been a nomenclature used to . refer comprehensively to various categories of people for purposes of personal law.\n\nIt has been applied to dissenters and non-comformists and even to those who have entirely repudiated Drahminism. It has been applied to various religious sects and bodies which at various periods and in circumstances develop_ed out of or split off from, the Hindu system but whose members have nevertheless continued to live under the Hindu law and the Courts have generally put a liberal construction upon enactments relating to the personal laws applicable to Hindus\". . .\n\nIn paragraph 6 of Chapter I of Mulla's aforesaid Treatise, the following have been enumerated as persons to whom Hindu law applies:-\n\n\"(i) not only to Hindu by birth, but also to !findus by.\n\nD religion, i.e. converts to Hinduism;\n\n(ii) to illegitimate children where both parents are Hindus;\n\n(iii) to 'illegitimate children where the father is a Christian and the mother is a Hindu .. and the children are brought up as Hindus. But tbe Hindu law of coparcenary, which contemplates the father as the head of the family and the sons as coparceners by birth with rights of survivorship, cannot from the very nature of the case apply to such children;\n\n(iv) to Jains, :Buddhists in India, Sikhs and Nambudri Brahmins except so far as such law is varied by cus:.. tom and to Lingayatwhoare considered Sudras;\n\n=~· + - - - - \"'\"· .... , .. : (v) to a Hindu by birth who, having renounced Hinduism,\n\n bas reverted to it after performing the religious rites of expiation and repentence. Or even without a formal ritual of reconversion when lie was recognised as a Hindu by his community;\n\n(vi) to sons of Hindu dancing girls of the Naik ·caste\n\nconverted to Mahomedanism, where the sons are taken into the family of the Hindu grandparents and are brought up as Hindus;· , ...\n\n, . . . .- I . . {vii) to Brahmos; to Arya Samajists; arid to Santhals of Chota Nagpur and also to Santhals of Manbhum except so far as it is not varied by cuLtom; and\n\n...\n\n\n[1976] SUPPLEMENTARY\n\n(viii) to Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872.\"\n\nThis enumeration is based upon dcisions of various courts relatin(T to old uncodified Hindu law. \"'\n\nB In Lingappa v. Esudasen(l) which related to maintenance, it was held that Hmdu law does not apply to the illegitimate children of a Hit; tdu f~er ?Y Christian mother who are rought up as Christians. Thts dectston mdtrectly leads to the conclusion that legitimate children ~. } of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu law.\n\nC In Mothey Anja Ratna Raja Kumar v. Koney Narayana Rao & Ors. (1) whole approving the observations made in Ananthaya v.\n\nVishnu(S) this Court inter alia held that under the Mitakshara law, an illegitimate son is e)ltitled to manitenance as long as he, lives, in recognition of his status as a member of his father's family.\n\nUnder the codifying Acts namely the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, the orthodox concept of the term 'Hindu' has undergone a radical change and it has been given an extended meaning.\n\nThe aforesaid codifying Acts not only apply to Hindus by birth or religion i.e. to converts to Hinduism but also to a large number of other persons.\n\nAccording to explanation (b) to section 2 ( 1) of the Hindu Succession Act, 1956, Hindu Adoption and Maintenance Act, 1956 and Hindu lVfarriage Act, 1955 as also according to explanation (ii) to section 3 ( 1) of the Hindu Minority and Guardianship Act, 1956, any child legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu.\n\nIn the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria Steinbchler. Even after his marriage, he did not renounce Hinduism but continued to profess that religion.\n\nHaving been begotten out of the aforesaid valid and lawful wedlock.\n\nNicolas Sundaram is a legitimate child and lineal descendant of Sridha~ ran.\n\nThere is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith.\n\nSridharan has also unequivocally acknowledged and expressly declared that he and his son, Nicolas Sundaram formed a Hindu undivided family.\n\nThis declaration in the circumstances is sufficient, as also found by the High Court, to establish that Nicolas Sundaram was brought up as a Hindu member of the family to wlJich his father belonged.\n\nAt page 290 of his Treatise on Hindu Law, and Usage (Eleventh Edition), Mayne says that a child i!l Indi~, under ordinary circumstances, must be presumed to have hrs father s\n\n(1) [19041 27 Mad. 13. (2) A.I.R. 1953 S.C. 433.\n\n(3) 17 Mad. 160.\n\n.. •\n\n...\n\nI..._\n\n.~ < )\n\n...\n\nC.W.T. v. R. SRIDHARAN (Jaswant Singh, !.) 485\n\nreligion, and his correspondin.g civil and social status.\n\nHe, there- A fore, have no hesitation in holding that Nicolas Sundaram is a Hindu and he could validly be a member of the Hindu undivided family headed by his father and be governed by Hindu law.\n\nSection 21 of the Special Marriage Act which has been heavily relied upon by the Revenue has, in our opinion, no bearing on the present case.\n\nThat section provides that succession to the property B of a person whose marriage has been solemnized under the Special Marriage Act, 1954 and the property of the issue of such marriage shall be governed by the provisions of the Indian Succession Act (XXXIX of 1925). In other words, the section guarantees inter alia to the issue of the person whose marrioage has been solemnized under the Special Marriage Act a collateral statutory right of succession to the estate of the latter in case he dies intestate. It does not c in any way impair or alter the joint family structure between an assessee and his son.\n\nNor does it effect, as observed by the High Court, the discretion vested in a Hindu assessee to treat his properties as joint family properties by taking into his fold his Hindu sons so as to constitute joint family properties.\n\nFor the foregoing reasons, we are of the opinion that th~ a(o;:esaid question referred to the High Court was rightly answered by it on both the occasions. In the result, we find no merit in these appals which are dismissed with costs.\n\nM.R .\n\nAppeals dismissed.", "total_entities": 45, "entities": [{"text": "COMMR. OF WEALTH TAX, MADRAS & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "COMMR. OF WEALTH TAX, MADRAS & ORS", "offset_not_found": false}}, {"text": "R. SRIDHARAN BY L.Rs", "label": "RESPONDENT", "start_char": 42, "end_char": 62, "source": "metadata", "metadata": {"canonical_name": "R. SRIDHARAN BY L.Rs", "offset_not_found": false}}, {"text": "A. N. RAY", "label": "JUDGE", "start_char": 88, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "1\\1. H. BEG", "label": "JUDGE", "start_char": 106, "end_char": 117, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 157, "end_char": 174, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Sec. 21", "label": "PROVISION", "start_char": 210, "end_char": 217, "source": "regex", "metadata": {"statute": null}}, {"text": "Cl1", "label": "PROVISION", "start_char": 260, "end_char": 263, "source": "regex", "metadata": {"statute": null}}, {"text": "Act, 1954", "label": "STATUTE", "start_char": 1014, "end_char": 1023, "source": "regex", "metadata": {}}, {"text": "Section 21", "label": "PROVISION", "start_char": 2293, "end_char": 2303, "source": "regex", "metadata": {"statute": null}}, {"text": "special Marriage Act", "label": "STATUTE", "start_char": 2311, "end_char": 2331, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "AIR 1953 SC 433", "label": "CASE_CITATION", "start_char": 2942, "end_char": 2957, "source": "regex", "metadata": {}}, {"text": "Special Marriage Act, 1954", "label": "STATUTE", "start_char": 4739, "end_char": 4765, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section 21", "label": "PROVISION", "start_char": 5782, "end_char": 5792, "source": "regex", "metadata": {"statute": null}}, {"text": "Act being governed by the Indian Succession Act, 1925", "label": "STATUTE", "start_char": 5917, "end_char": 5970, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Wealth Tax Act and the Expenditure Tax Act", "label": "STATUTE", "start_char": 6466, "end_char": 6508, "source": "regex", "metadata": {}}, {"text": "section 21", "label": "PROVISION", "start_char": 6646, "end_char": 6656, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act and the Expenditure Tax Act", "statute": "Wealth Tax Act and the Expenditure Tax Act"}}, {"text": "Special Marriage Act", "label": "STATUTE", "start_char": 6664, "end_char": 6684, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 27(1)", "label": "PROVISION", "start_char": 7056, "end_char": 7069, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act and the Expenditure Tax Act", "statute": "Wealth Tax Act and the Expenditure Tax Act"}}, {"text": "section 66(1)", "label": "PROVISION", "start_char": 7092, "end_char": 7105, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act and the Expenditure Tax Act", "statute": "Wealth Tax Act and the Expenditure Tax Act"}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7113, "end_char": 7127, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 25", "label": "PROVISION", "start_char": 7132, "end_char": 7142, "source": "regex", "metadata": {"linked_statute_text": "Wealth Tax Act and the Expenditure Tax Act", "statute": "Wealth Tax Act and the Expenditure Tax Act"}}, {"text": "Wealth-tax and Expenditure-tax Act", "label": "STATUTE", "start_char": 7505, "end_char": 7539, "source": "regex", "metadata": {}}, {"text": "Income-tax Act", "label": "STATUTE", "start_char": 7908, "end_char": 7922, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Act ot the Expenditure Tax Act", "label": "STATUTE", "start_char": 7939, "end_char": 7969, "source": "regex", "metadata": {}}, {"text": "Sridharan was under the Special Marriage Act, 1954", "label": "STATUTE", "start_char": 8632, "end_char": 8682, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Indian Succession Act, 1925", "label": "STATUTE", "start_char": 8865, "end_char": 8892, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Wealth-tax Act, 1957", "label": "STATUTE", "start_char": 9791, "end_char": 9811, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Article 133(1)", "label": "PROVISION", "start_char": 9816, "end_char": 9830, "source": "regex", "metadata": {"linked_statute_text": "the Wealth-tax Act, 1957", "statute": "the Wealth-tax Act, 1957"}}, {"text": "Constitution of India", "label": "STATUTE", "start_char": 9844, "end_char": 9865, "source": "regex", "metadata": {}}, {"text": "Special Marriage Act", "label": "STATUTE", "start_char": 17591, "end_char": 17611, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "codifying Acts namely the Hindu Marriage Act, 1955", "label": "STATUTE", "start_char": 18439, "end_char": 18489, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 18495, "end_char": 18521, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Minority and Guardianship Act, 1956", "label": "STATUTE", "start_char": 18527, "end_char": 18568, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Adoption and Maintenance Act, 1956", "label": "STATUTE", "start_char": 18577, "end_char": 18617, "source": "regex", "metadata": {}}, {"text": "section 2", "label": "PROVISION", "start_char": 18917, "end_char": 18926, "source": "regex", "metadata": {"linked_statute_text": "the Hindu Adoption and Maintenance Act, 1956", "statute": "the Hindu Adoption and Maintenance Act, 1956"}}, {"text": "Hindu Succession Act, 1956", "label": "STATUTE", "start_char": 18939, "end_char": 18965, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "Hindu Adoption and Maintenance Act, 1956", "label": "STATUTE", "start_char": 18967, "end_char": 19007, "source": "regex", "metadata": {}}, {"text": "Hindu lVfarriage Act, 1955", "label": "STATUTE", "start_char": 19012, "end_char": 19038, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 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false, "gazetteer_score": 1.0}}, {"text": "Special Marriage Act", "label": "STATUTE", "start_char": 21351, "end_char": 21371, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_1_486_488_EN", "year": 1976, "text": "S. NARAYAN IYER v.\n\nUNION OF INDIA & ANR.\n\nApril 30, 1976\n\nB [A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA, P. N. Stt!NGHAL AND\n\nJASWANT SINGH, JJ.J\n\nJurisdiction of courts under Art. 226 of the Constitution in matters of fiscal planning-Legi'slative judgments are outside the scope of /udicjgl deterniination -Reasonableness of telephone rates is a matter for legislative judgment.-lndian Telegrqph Act-Section 7(2) read with Indian Telegraph Amendment Rules, 1966.\n\nThe appellant challenged under Art. 226 the reasonableness of the increase in the telephone rental and call charges brought about by the Indian Telegraph Amendment Rules, 1966 on the ground that (I) The telephone system is a public utility service and the charges can be only in the nature of a fee which must be commensurate with the cost of renderin.g the service; and (2) The loss incurred by the Government in another establishment service is not a legitimate ground for raisin& the rates.\n\nI >\n\nD The writ petition was accepted and on appeal the judgment was reversed \"' holding that (I) the High Court could not interfere with the tariff. and (2) • the principle upon which the public utility rates regulation as developed in the United States is not applica\\Jle in our country.\n\nDismissing the appeal by certificate, the Court,\n\nHELD : ( 1) The courts have no jurisdiction under Article 226 to go into E the reasonableness of rates. These rates are decided as policy matters in fiscal planning. There is legislative prescription of rates. Rates are a matter for legislative judgment and not for judicial determination.\n\n[488A]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 325 of 1970.\n\nFrom the Judgment and Order dated 28th March 1969 of the F Madras High Court in Writ Appeal No. 490/68.\n\nK. S. Ramamurthy, K. Jayaram and R. Chandrashekhar for the Appellant.\n\nL. N. Sinha, Solicitor General of India, S. N. Prasad and Girish Chandra for the Respondents.\n\nThe Judgment of the Court was delivered by\n\nRAY C. J.\n\nThis appeal is by certificate from the judgment dated 28 March 1969 of the High Court of Madras.\n\nThe question in this appeal is whether the appellant in a writ petition can challenge the telephone rates and charges and obtain any relief in that behalf.\n\n• ..\n\nH The appellant is a retired District Manager (Telephones), Madras. . '\\ He filed a writ petitin in the High Court for a writ of prohibition, directing the General Manager (Telephooos), Madras to forbear from\n\nS. NARAYAN IYER V. UNION (Ray, C.J.) 487\n\nenforcing the revised Telephone Tarifi as per the Indian Telegraph A Amendment Rules, 1966.\n\nUnder the rules, the rental and call \"· charges were increased by 50 per cent and Trunk call charges by about 30 to 35 per cent.\n\nThe petitioner alleged that the telephone system is\n\n' J\n\n1-.\n\na public utility service and not a Revenue earning establishment and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service.\n\nThe petitioner further alleged that the loss incurred by the Government in another establish- B ment service is not a legitimate ground for raising telephone rates.\n\nThe Trial Court held that Telephone Tariff was unjust and unreasonable.\n\nThe Trial Court allowed the writ petition.\n\nThe High Court on appeal held that the High Court could not interfere with the Tariff. The High Court said that the principal upon which public utility rates regulation as has developed in the United States is not applicable here in our country. ·\n\nIt should be said at the outset that there was some discussion in the judgment on Article 19 but counsel for the appellant properly abandoned any reference to Article 19.\n\nThe appellant's contentions are three.\n\nFirst, the expression. \"rates\" in section 7 (2) of the Indian Telegraph Act means rates whiclh are to be determined should be fair, just and reasonable from the point of view of both the consumer and the producer.\n\nSecond, the Court has jurisdiction to determine whether the rates fixed by the Government are reasonable.\n\nThird, the rates are increased expressly for the purpose of off-setting the losses in the Post and Telegraph Services. If a proper allocation is made according to proper commercial accounting it will be found that there is a wrongful deduction of crores of rupees as revenue expense and unla\\\\ful debit.\n\nThese errors in the accounting have resulted in reducing the profits earned by the Telephones.\n\nThere are three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not.\n\nIf he does so, he has to pay the rates which are charged by the State for installation.\n\nA subscriber cannot say that the rates are not fair.\n\nNo one is compelling one to subscribe.\n\nSecond, Telephone Tariff G is subordinate legislation and a legislative process.\n\nUnder Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates.\n\nThese rules are laid before each House of Parliament.\n\nThe rules take effect when they are passed by the Parliament.\n\nThird, the question of rates is first gone into by the Tariff Enquiry Committee.\n\nThe Committee is headed by nonofficials.\n\nThe Tariff rates are plaoed before the House in the shape H of Budget proposals.\n\nThe Parliament goes into all the Budget proposals.\n\nThe rates are sanctioned by the Parliament.\n\nThe rates. t'herefore, become a legislative policy as well as a legislative process.\n\n48 8\n\nSUPREM.E COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nThe Courts have no jurisdiction under Article 226 to go into reasonableness of rates. These rates are decided as policy matter in fiscal planning. There is legislative prescription of rates. Rates are a matter for legislative judgment and not for judical determination.\n\nThe appeal is dismissed.\n\nThere will be no order as to costs.\n\nS.R.\n\nAppeal dismissed.\n\n... \\ ,", "total_entities": 20, "entities": [{"text": "S. NARAYAN IYER", "label": "PETITIONER", "start_char": 0, "end_char": 15, "source": "metadata", "metadata": {"canonical_name": "S. NARAYAN IYER", "offset_not_found": false}}, {"text": "UNION OF INDIA & ANR", "label": "RESPONDENT", "start_char": 20, "end_char": 40, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 62, "end_char": 77, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 79, "end_char": 88, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 90, "end_char": 104, "source": "metadata", "metadata": {"canonical_name": "R.S. 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{"document_id": "1976_1_489_496_EN", "year": 1976, "text": "4 89\n\nSIEMENS ENGINEERING & MANUFACTURING CO. OF INDIA A •\n\nLIMITED\n\nUNION OF INDIA & ANR.\n\nApril 30, 1976\n\n[P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]\n\nCustoms Tariff-Item 72cJ)-Scope of.\n\nlnterprctation-\"_Not otherwise specified\" occurring in \"n1achinery and not otherwise specified\"-Meaning of.\n\nAdministrative law-Reasoned order by Tribunals esselitial.\n\nUnder item 72(3) of the First Schedule to the Indian Customs Tariff, component parts of machinery as defined in item nos. 72, 72(1) and 72(2) and not otherwise specified are chargeable to customs duty. Item 73(21) comprises of \"electric motors, all sorts, and parts thereof\".\n\nOn the strenth of a licence for importing \"complete continuous filament Rayon Plant-with spares and accessories\". certairi spinning frames excluding pot motors were imported from Japan but not motors were imported from Germany by the appellants.\n\nThe customs authorities accepted the claim of the appe1lants that the consigntnent of pot motors fell within item 72(3) and charged import duty accordingly.\n\nSon1etime later. the Assistant Collector of Customs, claiming that customs duty on pot motors was shoit levied as they fell within item 73(21) called upon the appellants to pay the difference, against which the appellants made a representation to the Assistant Collector. But the Assistant Collector held against the appellants without giving any reasons. The appellants thereafter filed a repre.se.ntation to the CoHecto.r but he held that since the spi, np.ing frames and the pot motors Were imported under''sep'arjlte contracts from se'parate countries the two consignments could not be treated as one article and hence rejected the representation. The appellants thereupon applied to the Govern ment of India in revision but the revision application was also rejected.\n\nAllowinR the appeal to this Court.\n\nHEW: (1) (i) Item 72(3) is a specific item covering pot motors as\n\nagainst item 73(21) which is a general item. Pot motors were, therefore, F\n\nasses~:1h1e under the former and not under the latter. The original assessment of the A':ic; tant Collector was correct and the subsequent demand of differential duty which \\Vas confirmed by the Collector and the Government of Jndia was unlustified.\n\n(ii) Pot motors fell within the description given in iteD). 72(3).\n\nThey were specially rlesigned f9r use in spinning machines for manufacturing ravon thrl!ad. and thy. were indubitably essential for the working of the rayon spinning machines and were incapable of being used for any other purpose.\n\nThey were, therefore~ clearly component parts of the r3yon spinning G machines. [495-D, 494Al\n\n(2) The argument of the respondents that if any component parts of 1nachinerv were specifically dealt with in any other item, they would go out -of item 72(3) and since pot motors were electric motors \\Vithin item 72(21) they were not cov.ered by item 72(3) Wai. clf, arly unsustainable. As a matte, r\n\nof both gram1nar ap.d language the words \"not otherwise specified\" cannot 'be read as qualifying \"component parts\". They qualify \"machinery\". Otherwise the coniunction \"and\" would have no meaning. The Sentence \\voulJ. become H ungrammatical if the words \"iiot otherwise specified\" \\\\'ere read to govern \"component par.ts\".\n\nThe description of the component parts which follows the words \"not otherwise specified\" starts with the words \"namely\" which shows that it is intended to be a complete description of the component parts covered\n\nA by this item and that would also not actually fit in with component parts- \"not otherwise specified\".\n\nTherefore, pot motors could not be held to fall outside that item because they were otherwise specified in ilem 73(21). [494HJ (3)(a) Where an authority makes an order in exercise of a quasi-judicial function it must record its reruiom in support of the order it makes.\n\nEvery quasi-judicial order must be supported by reasons. [4950] M. M. Desai v. The Testee/s Ltd. & Anr. CA 245 of 1976, decided on 17th B Pee, 1975, referred to.\n\n(b) If courts of law were to be replaced by administrative authorities and tribunals and with the proliferation of administrative law, they may helve to be so replaced, it is essential that adrninistrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.\n\nThe rule requiring reasons to be given in support of an order is lite the principal of audi alteram partem, a basic principle of naturaf justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law.\n\n[496B-DJ In the instant case the Assistant Collector did not give any reasons in SUPPort of his order which was in. plain disregard of the requirernent of law.\n\nThe reao,; on given by the Collector was hardly satisfctory.\n\nHis order could have been a little more explicit and articulate so as to lend assurance that the case had been pa>perly considered by him. The Government of India too failed to give any reasons in support of its order rejecting the revision application. [496-HJ\n\nI •\n\n[The Court expressed the view that it would be desirable that in cases arising under customs and excise laws an independent quasi-judicial tribunal is set up which would finally dispose of the appeals and revision applications under these laws instead of leaving the determination of such appeals to the Government of India.\n\nAn independent quasi-judicial tribunal would inspire .., greater confidence in the public mind.]\n\n[496F] E CML APPELLATE JURISDICTION: Civil Appeal 1277 of 1968.\n\n(Appeal by special leave from the order No. 2674 of 1967 of the • Ministry of Finance, Government of India) • Hardev Singh, lshwar Chand Jain and R. S. Sodhi; for the Appellant.\n\nS. N. Prasad and S. P. Nayar, for respondents.\n\nThe Judgment of the Court was delivered by\n\nBHAGWATI, J. This appeal by special leave raises a short question as to what is the correct amount of import duty chargeable on pot motors when imported separately from Rayon Spinning frames : do they fall within Item 72(3) or Item 73(21) of the First Schedule to the Indian Customs Tariff?\n\nThe facts giving rise to the appeal are few and may be briefly stated as follows: Some time in 1956 a licence for setting up a plant for manufacture of Rayon was granted to one Kesoram Industres & Cotton Mills Ltd. under the Industries Development and Regulat10n Act, 1951.\n\nSmee the machinery and equipment required for setting up the plant were not available in India Kesoram Industries and Cotton Mills Ltd. applied for an import licence and on. the asis\" of this appli?ation, import licence was granted to them for 1mportmg complete contmu?us\n\nfilament Rayon plant-with spares and accessories\" ?f the CIF Vlue of Rs. 5 .50 crores from general currency area excluding South Afnca.\n\n... • J\n\nIt appears that Kesoram Industries & Cotton Mills Ltd. imported, on A the strength of this import licence, Rayon Spinning frames, excluding pot motors, from Japan, but so far as pot motors were concerned, they authorised the appellants to import from .Germany 4000 of these motors for initial installation of the Spinning frames.\n\nPursuant to the authority so given, the appellants placed orders for 4000 pot motors with manufacturers in Germany and imported the same in seven different consignments under the Import licence of Kesoram B Industries & Cotton Mills Ltd.\n\nThese seven consignments arrived at Calcutta port between September and December 1961.\n\nThe appellatnts claimed before the Customs authorities at the time of assessment of import duty on these seven consignments that pot motors imported by them fall within Item 72(3) of the First Schedule to the Indian Customs Tariff and were chargeable to import duty under that item at the rate of 15 percent of their accepted value.\n\nThis claim C was accepted by the Customs authorities and these seven consignments were allowed to be cleared on payment of import duty under Item 72(3).\n\nHowever, within a short time thereafter, the Assistant Collector of Customs issued seven separate notices of demand in respect of these seven consignments claiming that customs duty at the rate of 15 per cent had been short levied, because pot motors were \\!Ssessable at the rate of 20 per cent and requiring the appellants to I> pay up the difference within 15 days from the date of demand under s. 39 of the Sea Coustoms Act, I 878.\n\nThe appellants sent representations against these notices pointing out that-and we are quoting here from the representation dated 8t'h December, 1961 which is :\n\n\"These pot motors are vital component pan of the Rayon Spinning machines already imported and are not in excess of the quantity required for the first installatieln of the said plant.\n\nThe pot motors are required for 24 Spinning frames having 2 sides each.\n\nOn each side of these frames, 66 motors are connected.\n\nHence total initial requirement of pot motors for running 24 frames is 3168.\n\nIn view of general experience with this type of plant approximately 25 % additional motors are required for trial runs and commissioning 4000 Nos. of not motors should, therefore, be supplied for first. installation of the Rayon plant.\n\nThese pot motors are of very high speed and are specially designed for use in spinning frames for manufacturing rayon thread.\n\nThey run at 7700 RPM and are designed for 11 rated voltage of 130 V. at 130 cycles per second for use in circuits of less than 10 amps. As such, these motors can in no circumstances be used for any other purpose excepting as stated above.\n\nThe accessories of these motors are specially designed to suit particular size of spinning pots as well as spinning chambers.\n\nThe smooth running of these' motors is achieved after a great research by using flexible elastic and hollow shaft, special rubber bushings for support as well as specially designed bearings, to take care of severe stresses,\n\nwhich are normally encountered by these motors during operation.\n\nHence, it is inevitable that au1y deviation in the design of the above component parts would mean defeatina the purpose for which these motors are meant. \"'\n\nIn view of the above, these motors callllot be classified other tl:Pan an integral part of the Rayon Spinning plant.\n\nWe, therefore, claimed as assessment of duty under .... proviso 72(3) at the tinle of clearing.\" 1 •\n\nC The appellants did not receive any reply from the Assistant Collector in regard 'to these represe1'1tations for a period of about three years and hence they thought that their representations had been accepted and the demand for differential duty had been dropped.\n\nThis, however, turned out to be a vain hope, for seven communications dated 19th January, 1965 were received by the appellants from the Assistant Collector stating that the demand for differential duty in n respect of each of the seven consignments was confirmed and would be enforced in due course if the differential duty was not paid by the appellants.\n\nEach of those seven communications contained an intimation that \"an appeal against this decision lies to tihe Appellate Collector within three months hereof''.\n\nThe appellants, however, did not prefer an appeal to the Collector and instead tried to persuade the Assistant Collector to change his opinion by pointing ou'. the E relevant facts.\n\nIt appears that in the meantime the Assistant collector recovered the aggregate amou11t of the differential duty from the deposit account of the appellants.\n\nThe appellants once again made a representation to the Assistant Collector and requested him to refund the amount of differential duty collected by hinl but the representation did not meet with any favourable response from the Assistant Collector.\n\nThe appellants ultimately filed a representation F to the Collector on 15th July, 1965 setting out their case in regard to the assessment of customs duty and pointing out that the original assessment of customs duty made under Item 72 ( 3) was correct and that the differential duty had been 'lvrongly recovered from them.\n\nThis representation was treated by the Collector as a revision application against the orders of the Assistant Collector and on this application, the Collector made an order which was conveyed to the appel- G !ants by the Assistant Collector by his letter dated 23rd December,\n\n1965.\n\nThe Assistant Collector pointed out that the Collector had\n\n\"-examined the merits of the case in question llild it is his consideration that the duty was correctly chargeable because the Spinning Machinery excluding the pot motors were being imported under one contract from Japan and the pot motors were being imported under another contract from Germany.\n\nSeparate importation under a separate contract from a separate country would not justify treatment of the two consignments as one article, when the goods are not specified\n\n, JI\n\n< •\n\n• ..\n\nin the Tariff as one article.\n\nTherefore, he does not see any A reason to revise the Assistant Collector's order concerning the demands.\"\n\nThe appellants thereupou preferred a revision application to the Government of India, but by a short and pithy order dated 23rd September, 1967, the Government of India rejected the revision application stating that they had carefnlly considered the revision application Be but saw no reason to interfere with the order Jl\"'ISSed by the Collector.\n\nThis led to the filing of the present appeal against the order of the Government of fadia with special leave obtained from this Court.\n\nThough the appellants, initially, when the hearing of the appeal commenced, raised two or three contentions against the validity of the order of the Government of India confirming the demand for differenc tial duty, they ultimately pressed oiaJy one contention and that related to the category in which the pot motors imported by the appellants fell.\n\nThe Assistant Collector originally assessed these pot motors to customs duty at the rate of 15 per cent of their accepted V\"alue under Item 72(3), but later, demanded differential duty from the appellants on the footing that these pot motors were really asse>ssable\n\nat the rate of 20 per .cent of their accepted value under ltem 73 (21) D and'this demand was confirmed by the Collector in revision and on further revision, by the Government of India.\n\nThe appellant disputed :he correctness of these orders and contended that the original asse.sment made by the Assistant Collector was proper and the demand for differential duty was unjustified, because the correct item under which these pot motors were assessable was Item 72 (3), and not Item 73 (21), Item 72 (3), as it stood at the material time. was in the E foll owing terms :\n\n\"72(3) Component parts of machinery as defined 'in Item Nos. 72, 72(1) and 72(2) and not otherwise specified, essential for the working of the machine or apparatus and have been given for that purpose some -special shape or quality which would not be essential for their use for any other purpose but excludiag small tools like twist drills and reamers, F dies and taps, gear cutters and hacksaw blades :\n\nprovided tlrat articles which do not satisfy this condition shall also be deemed to be component parts of the machine to which they belong if they are essential to its operation and are imported with it in such quantities as may appear to the Collector of Cnstoms to be reasonable.\", G\n\nwhile Item 73(21) comprised \"Electric motors, all sorts, and parts thereof.\" The competition was between these two Items and the question is which of them covered pot motors imported by the appellant.\n\nNow, pot motors imported by the appellants were clearly compo- ,,.,.. nent parts of Rayon Spinning machines and this was not am! indeed H could not be disputed on behalf of the respondents.\n\nSince Rayon Spinning machines were admittedly textile machinery as defined in Item 72 ( l), these pot motors were covered by the opening part of\n\nItem 72(3), namely, \"component parts of machinery as defined in Item Nos. ---72(1)---\".\n\nMoreover, these pot motors were clearly and indubitably essential for the working of the Rayon Spinning machines and, as pointed out by the appellants in their representation dated 8th December, 1961, they were \"specially designed for use in spinning frames for manufacturing rayon thread\" and for the purpose, they were given special shape and quality which was not only not essential for their use for any other purpose but actually rendered them incapable of being used for any other purpose.\n\nThis position, as pointed out by the appellants in their representation dated 8th December, 1961, was not disputed either by the Assistant Collector in his communication dated 19th January, 1965 or by the Collector in his order dated 23rd December, 1965 rejecting the representation of the appellants and the Government of India also did not controvert this position in its order dated 23rd September, 1967.\n\nIf the Assistant Collector or the Collector or the Government of India did not accept the facts set ont in the representation of the appellants dated 8th December, 1961, we should have expected a clear statement to that effect in the orders of these authorities.\n\nThe Assistant Collector maintained sphinx like silence and preferred not to give any reasons for confirming the demand for differential duty.\n\nThe Collector was a little Jess reticent.\n\nHe briefly gave a reason for confirming the orders of the Assistant Collector. but that reason had nothing tel do with the nature, quality or condition of the pot motors.\n\nWhat it said was this, namely, that the pot motors were imported under a separate contract from Germany while the Spinning machinery excluding pot motors were imported from Japan and that did not \"justify the treatment of two consignments as one article.\" The Government of India also did not articulate its reasons while rejecting the revision application of the appellants, but since it confirmed the order of the Collector, we may presume that the same reason which prevailed with the Collector appealed to the Government of India.\n\nIt will, therefore, be seen that at no stage was the factual position in regard to the pot motors, as set out in the representation of the appellants dated 8th December, 1971, disputed by the Assistant Collector of Customs or the Collector or the Government of India.\n\nThe pot motors, therefore, clearly fell within the description given in Item 72(3),\n\nThe respondents, however, leaned heavily on the words \"not otherwise spcified\" in item 72(3) and cO'ntended that even if the pot motors were component parts of Rayon Spinning machines, they were not covered by Item 72(3), since they were otherwise specified in item 73 (21).\n\nThe argument of the respondents was that if any component parts of machinery were specifically dealt with in any other item, they would go out of Item 72(3) and since pot motors were electric motors within Item 73(21), they were not covered by Item 72(3). This argument is clearly unsustainable.\n\nIt seeks to read the words \"not otherwise specified\" as qualifying \"component parts\" but that is plainly incorrect as a matter of both grammar and language.\n\nStructurally, the conjunction 'and' joins the two clauses \"as defined in Item Nos. 72, 72(1) and 72(2)\" and \"not otherwise specified\" and since the former qualifies 'machinery', the latter also must be read as\n\n.... . ,\n\n. ..\n\n.. -\n\ndoing the same duty.\n\nWhat Item 72(3) contemplates are component parts of that machinery which is defined in Item Nos. 72, 72 ( 1) and 72(2) and which is not otherwise specified.\n\nThe words 'not otherwise specified' do not qualify \"component parts\" : they qualify machinery'.\n\nOtherwise, the conjunction 'and' would have no meaning.\n\nIn fact, the sentence would become ungrammatical if the words \"not otherwise specified\" were read to govern \"component parts\".\n\nThis construction also receives support from the description of the component parts which follows the words 'not otherwise specified'.\n\nThis description starts with the word 'namely', which shows that it is intended to be a complete description of the component parts covered by this item and that would not contextually fit in with\n\n\"component parts --- not otherwise specified\".\n\nThere can be no doubt that on a plain grammatical construction, the words \"not otherwise specified\" qualify \"machinery\" and not \"component parts\" and, therefore, the pot motors imported by the appellants, which satisfied the other requirements of Item 72(3) could not be held to fall outside that Item, because they were otherwise specified in Item 73 (21).\n\nItem 72(3) is a specific Item '-':hich covers these pot motors as against Item 73 (21) which is a general item and hence it must be held that these pot motors were assessable under Item 72 (3) and not under Item 73 (21).\n\nThe original assessment of these pot motors made by the Assistant Collector was, in the circumstances, correct and the subsequent, demand of differential duty made by the Assistant Collector and confirmed by the Collector in revision and by the Government of India on further revision, was unjustified.\n\nThe orders made by the Assistant Collector, the Collector and the Government of India confirming the demand for differential duty would, therefore, have to be quashed and set aside and the amount of differential duty recovered from the appellants pursuant to these orders would have to be refunded to the appellants .\n\nBefore we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them.\n\nIt is incontrovertible that the proceedings before the Assistant Collector arising from the_ notices demanding differential duty were quasijudicial proceedings and so also were the proceedings in revision before the Collector and the Government of India.\n\nIndeed, this was not disputed by the learned counsel appearing on behalf of the respondents.\n\nIt is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes.\n\nEvery quasi-judicial order must be supported by reasons.\n\nThat has been laid down by a long line f decisions of this Court ending with N. M. Desai v. The Testeels Ltd. & Anr. (') But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty.\n\nThis was in plain disregard of the requirement of law.\n\nThe Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representa-\n\n(1) C. A. 245 of 1970 decided on 17th December, 1975.\n\nA tion dated 8th December, 1961 which were repeated in the subsequent representation dated 4th June, 1965.\n\nIt is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law.\n\nBut the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been proper! y considered by him. If courts of law are to be replaced B by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Jaw, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the pcfsons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.\n\nThen alone administrative authorities and tribunals exercising quasi-judicial c function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process.\n\nThe rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-.iudicial process and this rule must be observed in its proper spirit llnd mere pretence of compliance with it would not satisfy the requirement of law. The Government D of India also failed to give any reasons in support of its order rejecting the revision application.\n\nBut we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector.\n\nThe reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing \\vith the arguments advanced on bchllf of the nppcl- E !ants while rejec:ing the revision application.\n\nWe hope and trnst that in future the Customs authorities will be more careful in adjudicating upon the proceedings which come before them and pass properly reasoned orders, so that those who are affected by such orders are assured that their case has received proper consideration at the hands of the Customs authorities and the validity of the ad indication made by the Customs authorities can also be satisfactorily tested in a F superior tribunal or court.\n\nIn fact, it would be desirable that in cases arising under Customs and Excise laws an independent quasi-jHdicial tribunal, like the Income-tax Appellate Tribunal or the Fore:gn Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India.\n\nAn independent quasi-judicial tribunal G would definitely inspire greater confidence in the public mind.\n\n• We accordingly allow the appeal, set aside the orders passed by the Assistant Collector, the Collector and the Government of India demanding differential duty from the appellants and direct the Government of India to refund to the appellants the amount of differential duty recovered from the appellants in respect of the seven consignments of 4000 pot motors imported by them.\n\nThe respondent will pay the costs of the appeal to the appellant.\n\nP.B.R.\n\nAppeal allowed.\n\n' ., I •", "total_entities": 9, "entities": [{"text": "89\n\nSIEMENS ENGINEERING & MANUFACTURING CO. OF INDIA A •\n\nLIMITED", "label": "PETITIONER", "start_char": 2, "end_char": 67, "source": "metadata", "metadata": {"canonical_name": "SIEMENS ENGINEERING & MANUFACTURING CO. OF INDIA LIMITED", "offset_not_found": false}}, {"text": "UNION OF INDIA & ANR", "label": "RESPONDENT", "start_char": 69, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ANR", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 109, "end_char": 123, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 125, "end_char": 136, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 141, "end_char": 166, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 399, "end_char": 413, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 6271, "end_char": 6285, "source": "regex", "metadata": {"statute": null}}, {"text": "First Schedule", "label": "PROVISION", "start_char": 7856, "end_char": 7870, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 39", "label": "PROVISION", "start_char": 8554, "end_char": 8559, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_1_497_504_EN", "year": 1976, "text": "• >\n\n' . .\n\nDELHI CLOTH & GENERAL MILLS CO. LTD. & ORS.\n\nA v .\n\nR.R. GUPTA, COMMERCIAL TAX OFFICER, JAIPUR & ANR.\n\nMay 3, 1976\n\n(A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nRaiastlwn Sales Tax Act, 1954-Statutory re1nedies provided under the Act not exhausted-No error apparent on the face of the record-If petition under Art. 226 lay .\n\nCo11.stitution of India, 1950-Art. 32-Absence of jurisdiction to assess not shown-If remedy lies under Art. 32.\n\nc Rayon tyre cord fabric which is a textile consisting of rayon threads in the warp and cotton threads in the weft is manufactured on weaving looms in the same manner as any other ordinary textil~. The tyre manufactureni, to whom the product is supplied, impregnate the fabric with rubber and weave it into fabric. Under Entry 18 of Schedule of the Rajasthan Sales Tax Act, 1954, rayon fabric& were exempt from sales tax.\n\nWhen the Commercial Tax Ollkcr rejected the petitioners' objections to sales tax being leviro on rayon tyre cerd fabric, the petitioners filed a petition under Article 32 of the Constitution alleging D breach Of Fundamental Rights.\n\nTn respect of certain earlier assessment years, however, the view of the Commercial Tax Officer was that the gocxls were not the end prOOuct; when, the matter was taken to the High Court, it held that, until the statntory remedies had been exhausted, no case for interference under Art. 226 arose. It did not find any error apparent on the face of the record. Hence, the appeals by !YlJCCial leave-.\n\nIn the writ petition as well as in the appeals it was contended that the goods constituted the end-Product which the petitioners sell in the market and, therefore, were exempt; fr<>m sales tax.\n\nDi1missing the pe.tition and appeals,\n\nHELD : (I ){a) It is difficult to find fault with the view of the High, Court that there was no error apparent on the face of the record and that the taxing authorities should be left lo determine whether the tyre cord fabric is more correctly capable of being described as a fabric or as merely cord passing of as a textile fabric. This is really a technical question.\n\nIn any case, it is: a question on which two vie~ may be. possible.\n\n[503C]\n\n(b) The fact that the tyre co.rd fabric manufactured by the petitioners i9 G \\VOVOll by its purchases into a fabric in the same way as is being done by the petitioners means that the tyre cord fabric serves also as raw material fOr another fabric which ultimately emerges by .subjecting the goods to a process of impreg~\n\nnating it whh rubber. The essential question to determine is the stage at which the J¥)Ods under consideration beco1ne textile fabrics if they do become that at all. [S02C; 503Al\n\n(2) This Court cannot interfere under Art. 32 with the decisioh of the H Commercial Tax Officer, because no Fundamental Right is -shown to be affected by a mere determination of the question.\n\nThere was no absence of jurisdiction of !be taxing authorities who had th! power to decide the question either rightly , or wrongly, [S03El , 34-833 Sup Cl/76\n\nARGUMENTS\n\nFor the vetitioners\n\nRespondent No. 1 did not produce or get any evidence fro111 the commercj<tl community deali.tig with rayon tyre yarn and cord and rayon tyre fabnc for the purpose of conuoverting the conclusive evidenc..-e produced by the pc•1uor\"\n\nto the elfect that in the commercial community dea1ing with the said goods the.be goods were different both fr6m the, point of view of' manufacture and abo from the point of view of ultimate endproduct and are considered to b~ different by the commercial community, \\Vhich treats rayon tyre cord fabric as fabric.\n\nThere was no evidence on the contrary to coine to the conclusion that the rayon tyre fabric was not fabric. The High Court wrongly relied on 25 STC 407 which had no application in the present case, ignoring the decision :r1 22 SIC 470 and zg STC 431. It was therefore not a case of disputed question of fact, but a case of admitted fact by the commercial community against which there was no evidence before the respondent.\n\nThe respondent committed an error apparent on the face of the record aIJLl proceeded on irrelevant and extraneous considerations.\n\nIn any event the tyre cord fabric is sold by the petitioners as an end-product to cus1omers. To what use the customers put such commodity is no concern of the appellan'.\n\nSuh error can be corrected by way of writ petition under arts. 226 and 227 of the Constitution.\n\n'The alternative remedy of appeal is not at all efficacious in the facts and circumstances of the present case inasmuch as the Commissioner and the State Government having already made up their mind to le\\ry tax, no relief could be expected by the appellants from him and the High Court should have interfered under arts. 226 and 227.\n\nFurther in this case there was no question of disputed fact;. 'The sample was admitted.\n\nThere was uncontradicted evidence that the product of the petitioners is known as rayon cord fabric by the commercial community and by common parlance. The case isi a misdirection of law on the part of the assessing authority.\n\nFor the respondent~\n\nThere was no error of Ia.w apparent on the, face of the record as. contendd by the petitioners.\n\nThe High Court rightly rejected the writ petitions on the ground that there were disputed facts ahd there are alternative remedies and full and adequate machinery under the Act itself.\n\nThe assessee mills, when paying excise duty, _paid it only as on yarn under F entry 18 of the First Schedule to the Central Excise and Salt Act. The mills did not pay additional duty under the Additional Duties of Exc:se (GOOds of Special Importance) Act 1956 on the ground that the material was not fabric.\n\nV/hen it suited the mills the material was said to be yarn and in case of sales tax it contended that it was fabric.\n\nThis fact itself was a strong indication that this was a disputed question of fact.\n\nORIGINAL JURISDICTION/CML\n\nAPPELLATE JURISDICTION : Writ G Petition No. 49 of 1973.\n\nUnder Article 32 of the Constitution and\n\nCivil Appeals Nos. 43 arid 44 of 1973\n\nAppeals by Special Leave from the Judgment and order dated the 27th October 1972 of the Rajasthan High Court in D. B. Civil Writ Petittion Nos. 398/72 and 1885/71 respectively.\n\nA. K Sen, B. Sen and H. K. Puri for the Appellants . • S. T. Desai, S. M. lain and S. K. lain for the Respondents.\n\n• \\ .\n\n. . - ' -\n\nD. C. M. V. c. T. O. (Beg, J.) 499\n\nThe Judgment of the Court was delivered by A\n\nBEG. J.-We have before us a petition under Article 32 of the Constitution and two appeals by Special leave from the judgment of the High Court of Rajasthan between the same parties.\n\nThe three cases before us raise the same question of law.\n\nIt is: Do the goods B called \"Rayon tyre Cord Fabric\" sold by the Delhi Cloth & General Mills Co. Ltd. to manufacturers of tyres, who use it for the purpose of impregnating it with rubber, fall under entry 18 of the Schedule of the Rajastban Salee Tax Act, 1954 (hereinafter referred to as 'the Act')'?\n\nThe schedule mentioned above gives a list of goods on the sale or purchase of which no tax is payable under the Act. \"The rele vant entry 18, which was omitted in 1973, reads as follows :\n\n\"18. All cotton fabrics, rayon or artificial silk fabrics, woollen fabrics, sugar and tobacco, as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957)\".\n\nSection 2(C) of the Additional Duties of Excise (Goods of Special\n\nImportance). Act, 1957, lays down: E\n\n\"2 ( C) the words and expressions 'sugar', 'tobacco', 'cotton fabrics', 'silk fabrics', 'woollen fabrics' and rayon or artificial silk fabrics' shall have the meanings respectively assigned to them in Items Nos. 1, 4, 19, 20, 21 and 22 of the First Schedule to the Central Excise and Salt Act, 1944\".\n\nThe Writ Petition of the Delhi Cloth and General Mills Co. Ltd. states that \"rayon tyre cord fabric\" is \"manufactured out of rayon yarn and cord\".\n\nIt goes .on to explain that this fabric is \"a textile consisting of rayon threads in the warp and cotton threads in the weft and is manufactured on weaving looms in the same manner as in other ordinary textile\".\n\nIt is also stated there :\n\n\"The fabric consists of more than 60% by weight of rayon and is unprocessed. The weft threads are not used merely for tying the warp threads together !or the purpose of convenient transport or storage but form an integral part of the whole fabric\".\n\n500 SUPREME COURl REPORIS I 197Cl[ SL'l'PIE~!FNl,\\l(Y\n\nThe petitioners state that the manufacturers of tyros to whom the fabric is supplied \"impregnate the fabric with rubber and weave it into a fabric in the same way as is being done by the first petitioner\".\n\nThus, the petitioners allege that they manufacture \"a textile\" and also that it serves as part of raw material for what ultimately also goes into the manufacture of a fabric.\n\nAfter indicaling the manner in which and the substance out o[ which \"rayon tyre cord fabric\" is made and its composition, the petition sets out ilcm 22 of the first schedule of the Central Excises and Salt Act, 1944, as the applicable entry covering the goods manufactured by the petitioner.\n\nThis item reads as follows :\n\n\"Rayon or artificial silk fabrics 'means all varieties of fabrics manufactured either wholly or partly from rJyon or artificial silk and includes embroidery in the piece, in strips or in the motifs and fabrics impregnated or derivatives or of other artificial plastic materials, but docs not include any such fabrics :--\n\n(i) If it contains 40% or more by weight of wo<1l.\n\n(ii) If it contains 40% or more by weight of silk.\n\n(iii) If it contains cotton and less than 60% by weight of rayon or artificial silk; or\n\n(iv) If it contains no cotton and less than 40% by weight of wool and less than 40% by weight of rayon or artificial silk\".\n\nThe petitioners assert that, from years 1966 to 1969, the respondent Commercial Tax Officer was not subjecting the goods of this description to sales mx and accepted the case of the petitioners that they were exempt from taxation.\n\nThe reasoning of the Commercial Tax Officer, in exempting these goods, is also mentioned.\n\nIt is then stated that, as some questions were put itt the Rajasthan State Legislative Assembly, on or about 20th April, 1971, asking for the reason why this particular type of goods of the petitioners were exempted from Sales tax, the Commissioner of Commercial Tax issued a letter to the Commercial Tax Officer to levy Sales tax on the \"rayon cord fabric\" manufactured by the petitioner.\n\nThereafter, notices under the proviso to S. 12(1) of the Act were issued for the years 1965 to 1969 with a view to reopening the assessments on the ground that the sales of_ these goods had ':\"r?ngly escaped assessment, but these were dropped due to some preltmmary\n\n' .\n\nI •\n\n- .\n\n• •\n\n+ I'\n\nD. C. M. v. C.T.O. (Beg, J.) 501\n\n-Objections.\n\nFresh notices were then issued and proccet!iugs for subsequent assessment years were also taken.\n\nBy orders passed on various dates, the Commercial Tax Officer rejected the petitioners' objections to Sales tax on \"rayon tyre cord fabric\".\n\nThe petitioners have, however, come up to this Court directly against the order and provisional assessment dated 21st November, 1972. It also appears from the writ petition that proceedings for the assessment year 1972-73 are still pending before the Commercial Tax Officer.\n\nCivil Appeals Nos. 43 of 1973 and 44 of 1973 by special leave are directed against a common judgment of a Division Bench of the High Court of Rajasthan, given on 27.10.1972, dismissing the appellants' Writ Petitions against the assessment order dated 26th March, 1971, for the years 1968-69 and 1969-70 made by the Commercial Tax Officer.\n\nThe view of the Commercial Tax Officer, questioned by U1e petitioners, was that the goods now sought to be taxed are not the \"end product\".\n\nThe Hih Court did not go into the merits cf the case.\n\nIt accepted the preliminary objection of the State of Rajasthan that the petitioner should first resort to alternative remedies providc<l under the Act so that the appellate authority under Section 13 of the Act may go into the whole ev'dence and decide disouted questions of fact.\n\nTI1ere is also provision for revision by the Board of Revenue under Section 14 when moved by the assessing authority. Tue High Court did not find any error \"apparent upon the face of the record\"\n\nThe taxing authorities have the jurisdiction to decide the question before them either rightly or wrongly. In any case, its view was that, until thB statuto1y remedies had not been exhausted, leaving some\n\n\"error apparent on the face of the record\" still to be rectified by the High Court, a case for interference under Article 226 of the Constitution will not arise.\n\nIt is urged on behalf of the Delhi Cloth Mills that no disputed question of fact arises.\n\nIt is submitted that, on admitted facts, it\n\ncould be decided whether the \"tyre cord fabric\" is an exempted \"fabric\" G or not. We think tliat this view over-looks several matters, indicated below, including the admission on he ha If of the Delhi Cloth Mills that, in the case before us, the \"tyre cord fabric\" manufactured by it is woven by its purchasers \"into a fabric in the same way as is being done by the first petitioner\". This certainly means that the tyre cord fabric serves as raw material for another fabric which ulumately . H emerges by subjecting the goods manufactured by Delhi Cloth Mills to a process of impregnating with rubber.\n\nA sampk of the tyre cord fabric was actually produced before us. It is said that the \"fabric\" is manufactured in the same way ac doth is woven on looms.\n\nIt consists of cords which could be said to constitute warps, running length-wise, and wefts, running brcadthwise.\n\nBut, the spaces left between them are so wide, presumably for purposes of impregnation with rubber, that it may not pass for an ordinary \"fabric\" like one of those mentioned in entry l 9 of the first scl1cJulc to he Central Excises and Salt Act, 1944, such as ''tussors\", \"corduroy\", \"gaberdine\", \"deniin'', Indeed, if the \"tyre cord fabric\" is so well established a category of rayon \"fabric'', it could . have found mention specifically in item 22 in the same way as the numerous varieties of cotton fabrics are mentioned in item 19. In answer to this argument, it could be urged that, for some reason, entry No. 22 does not enumerate rayon and silk fabrics in the same fashion as the cotton fabrics are specified by name in item 19.\n\nIt is certainly a question which appertains to the knowledge of teclmical aspects of textile weaving and production to determine at what stage threads or cords forming warps and wefts really amount to a \"fabric\". It is true that the term fabric has a wide meaning. Its first meaning given in the Oxford English Dictionary is : \"A product of skilled workmanship\".\n\nThe first example of such a product is : \"An edifice, a buildina\". The fourth example of the first meanino is:\n\n\"a manufactured material; now only a 'textile fabric', a woven stuff\".\n\nWe think that we are necessarily concerned here only with \"textiles\" as fabrics.\n\nThis is clear from entries 19 to 22(0) of the first Schedule of the Central Excises and Salt Act, 1944. Entry 22AA f is \"textile fabrics not elsewhere specified\".\n\nThis residuary entry and the descriptions in preceding entries seem to us to make it abundantly clear that we are dealing here only with \"textile fabrics\".\n\nThe case of the Delhi Clo!l1 Mills also is that the product is a \"textile\". Therefore, the essential question to determine is the stage at which the goods under consideration become a 'textile fabric\".\n\nThe meaning of the G term \"textile'', given in the Oxford Dictionary, is : \"A woven fabric; any kind of cloth\". It must acquire a body and a texture.\n\nPr.esumably it is not just the skeleton of a textile.\n\nApparently, it is more than that. But, against pushing this point of view too far it may be urged that in the technical and commercial parlance we are dealirig \\vi th a \"fabric\".\n\nIt is, therefore, difficult to find fault with the view of the High Court that there is no error apparent on the faee of the record and\n\n' - ' . •\n\n... . ' ,\n\n; • ' •\n\nD. c. M. v. c.T.O. (Beg, J.)\n\nthat the taxing authorities should be left to determine whether the \"tyre cord fabric\" is more correctly capable of being described as a fabric or as merely cord pretending to pass off as a textile fabric.\n\nThis is really a tehnical question. In any case, it is a question on which two views seem possible on apparent facts.\n\nAnd, neither of the two views can be rejected outright as untenable. It requires careful consideration of the technical processes of manufacturing, of the composition of the \"tyre cord fabric\", and an evaluation of opinions of experts on tile subject, to be able to decide the question satisfactorily. It may also require some examination of commercial usage and terminology or the language of the market in goods of this type.\n\nWe, therefore, think that the High Court was right fo not interfering with the decisions of tl1e taxing authorities at this stage.\n\nWe also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax Officer. Indeed, no fundamental right is shown to be affected by a mere determination\n\nof the question indicated above.\n\nThere is no absence of jurisdiction I> of the taxing authorities who had the power to decide the question either rightly or wrongly.\n\nIt has been ur!!:ed, on behalf of the Deihl Cloth Mills that the High Court should have interfered as the question whether the !)Te cord fabr; c is the end product or not in the final manufacture of another fabric was q:iite irrelevant. It was submitted that, 'o far as the Delhi Cloth Mills is concerned, the goods under conideration constitute the \"end product\" which they sell in the market. The example given was that of cloth which is the \"end product\" for the mills which manufacture cloth, but, it becomes the raw material for tailors and for those who make ready-made clothes to sell them. This argument overlooks that it is not so much the point of manufacture at which the Mills sell their own product which determines the nature of goods which are entitled to exemption, but it is the stage reached by this product, in the process of manufacture of fabrication of a \"textile\", which should decide the question. As we have already in' dicated, the context in which the entry occurs show5 that it is meant for \"texfle\" fabrics and nn• for any kind of fabric. Therefore. even\n\nif the tyre cord fabric may be the end product for the Delhi Clotl1 Mills, the crucial question is : Does this product constitute a fabric which is a textile?\n\nA textile fabric does not cover everything which could be made into a fabric.\n\nMere cord does not become a textile fabric just because it requires some skill to make it.\n\nThe rather wide dictionary meanings of the term \"fabric'' do not appear to us to give the exact meaning of the term \"fabric\" as\n\nused in the relevant entries entitled to exemption.\n\nIn tho entries, it evidently means a fabric which is also a textile.\n\nThe question, therefore, to be determined by the Tax authorities themselves is whether the product for which the Delhi Cloth Mill claims exemption is a textile fabric and not any other kind of fabric.\n\nHaving indicated the nature of the enquiry which must be undertaken by the taxing authorities, we find that there is no suflicient reason for overriding and discarding the High Court's view that, on what appeared to the High Court to be a question of fact, it should not decide whether the product under consideration constitutes a fabric entitled to exemption.\n\nThere was no appeal by the State of Rajasthan. It does not, therefore, seem proper for us to finally decide, on merits, the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the D appellant.\n\nWe could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record.\n\nBut, as already indicated above, we are not of this opinion.\n\nI •\n\nFor all the reasons given above, we think that the Writ Petition ' as well as the appeals by special leave are liable to be dismissed, and, we hereby dismiss them with one set of costs.\n\nP. B. R. .4 ppe(I/ dismissed.", "total_entities": 31, "entities": [{"text": "DELHI CLOTH & GENERAL MILLS CO. LTD. & ORS", "label": "PETITIONER", "start_char": 12, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "DELHI CLOTH & GENERAL MILLS CO. LTD. & ORS", "offset_not_found": false}}, {"text": "R. GUPTA, COMMERCIAL TAX OFFICER, JAIPUR & ANR", "label": "RESPONDENT", "start_char": 66, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "R.R. GUPTA, COMMERCIAL TAX OFFICER, JAIPUR & ANR", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 129, "end_char": 144, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 146, "end_char": 155, "source": "metadata", "metadata": {"canonical_name": "M. 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{"document_id": "1976_1_505_509_EN", "year": 1976, "text": "• I\n\nM/S. GAURI SHANKAR, CHANDRABHAN\n\n\\'.\n\nC.I.T., U.P., LUCKNOW\n\nMay 3, 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.J\n\nAsseJ.rn1ent jurisdiction of Income Tax Officerurisdiction to continue to assess u undivided, despite partition under personal law. a HindU family whicll\n\nhas hitherto been assessed in that status-Interpretation and scope of s. 25A(3) r<ad 1>ith s. 25A(I) of the Income Tax Act-Penalty imposed under s. 28(l)(c) of the Act for concealment of income by the Hindu Undivided Family prior to the actual date of recording of an order accepting the disruption of the Hindu\n\nVfldivided Family is proper.\n\nIn response to a show cause notice dated March 15, 1957, under s. 28(l)(c) of the Income Tax Act, before imposing a penalty for deliberate concealment of its income, the appellant, through ; ts authorised representni.:e, voluntarily agreed to a sum of Rs. 15,000/- being treated as income of I-Iindu Un<li, iJed Family. The Income Tax Officer, by his order dated March 20, 1958, added a sum of Rs. 68,550/ ... to the income of the appellant and imposed on it a penalty of R.. 26,000/- which on appeal was reduced to Rs. 15,000/-. Mean while, on March 19, 19157, the appellant filed an application under s. 25A of\n\n.iie Act for an order recording partition of joint family property in definite D portions from June 22, 1956, claimin~ that date to be the date of partition. The Income Tax Officer, after due enquiries., accepted the disruption of the Hindu Un&vided Family as claimed by his order dated March 26, 1962. This led the appellaat to contend that, in view or the orders dated March 26, 1962, of the Incooie Tax Officer, the imposition of the penalty by him on March 20, 1958, was bad in law and could not be sustained.\n\nT1le Tribunal upheld the contentions of the appellant resulting jn a reference under s. 66( 1) of the Act to the Hi~ Court of Allahabad (Lucknow Bench), which reversed the decision of the Tribnna1.\n\nHo\"WCver, the High Court granted a certificat~ of Atne\"s for E J appeal to this Court.\n\nr . •\n\nDismissing the appeals the Court,\n\nHELD: Sub--section (3) of s. 25A of the Income Tax Act en1bodies a legal fiction according to which a Hindu family which has been previously assessed as ''undivided\" is to be continued to be treated as \"undivided'' till the passing of the order under sub-s. (I) of s. 25A. So long as no order under s. 2S(A)(l) of the Act is recorded, the jurisdiction of .the Income Tax Officer to continue to\n\nasess as undivided desplte a partition under personal law, a Hindu family which has hitherto been asses.sed in that status, remain unaffected.\n\n[5080-H]\n\nAdditional lnconte Tax Officer, Quddapah v. A. Thim1nayya & Anr. SS I.T.R. 666; /dint Family of Udayan Chinubhai etc. v. Co1nmissioner of Income Tax, Gujarat (1967) 63 I.T.R. 416, applied.\n\nCommiMioner of Income Tax v. Sl>l11char Snh Bhim Salt (1957) 27 I.T.R.\n\nG 307; S. A. Raiu Chattiar & Ors. v. Collector of Madras & Anr. (1956) 29 I.T.R. 241; Mahankali Subba Rao Mahankllli Naeeswara.i Rao & Anr. v. Commissioner of Income Tax., Hyderabad (1957) 31 I.T.R. 867 and Comn1issioner of Incom~ Tax, Punjab v. Mathu Ram Prem Chand (1967) 66 I.T.R. 638, not applicable.\n\nHELD FURTIIER: In the instant case, there was not a whisper of the application under s. 25A (I) of the Act by the appellant on March 15, 1957, when H the penalty proceedings \"\"re initiated against it.\n\nEV<n on March 20, 1958, when the penalty was imposed, there was no order under s. 25A(l) of the Act. It was on1y on March 26, 1962, that the partition was recognised and order\n\n506 SUPREME COURT REPORTS (1976] SUPI'LliMENTARY\n\nA under s. 27A(l) of the Act was passed.\n\nThere was, thus, no bar to lhe imposiw tion of the impugned penalty. [509Ef'J\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 886 of 197.1.\n\n(From the judgment and order dated the 18.9.1969 of the Allahabad High Court in L T. R. Misc. Case No. 836 of 1963.)\n\nG. C. Sharma, V. N. Ganpule, D. K. Jain, Anup Shanna and P. C.\n\nKapur, for the appellant.\n\nB. Sen and S. P. Nayar, for the respondent\n\nThe Judgment of the Court was delivered by\n\nJASWA)IT SINGH, J. This is an appeal by certificate of fitness granted by the High Court of Judicature at Allahabad under section 66- A(2) of the Indian Income-tax Act, 1922 (hereinafter referred to as 'the Act') from its judgment dated September 18, 1969 in I.T.R. Misc.\n\nCase No. 836 of 1963.\n\nThe facts giving rise to this appeal are : The appellant, a Hindu undivided family consisted of Gauri Shankar, the father, and his three sons viz. Chandrabhan, Bengali Lal ai,1d Brij Kishan.\n\nGauri Shankar, the karta of the family who was incharge of the affairs of the family during the relevant year which extended from April 13, 1945 to April 12, 1946, the assessment year being 1946-47, died on April 2, 1946.\n\nHe was succeeded by his son, Chandrabhan as Karla of the family.\n\nThe appellant had, in the first instance, filed a retur,1 showing an income ot Rs. 9,701/-. On scrutiny of the relevant material, the Income Tax Oflicer found a number of discrcpencies in the accounts of the appellant and also noted the existence of cash credits to the appellant's accmmt in the books of another firm viz. M/s. Tilyani Glass Works and a certain sum deposited in an account styled as Abdul Wahid Khan & Suns.\n\nHe thereupon issued a notice dated March 15, 1957, calling upon the appellant to explain the discrepencies in the accounts as also in the cash credits and to show cause why a penalty under section 28- ( l ) ( c) of the Act be not imposed upon it. In response to the notice, a representative of the appellant appeared before the Income Tax Officer and volontarily agreed to a sum of Rs. 15,000/- being treated as its income. After hearing the Appellant's representative, the J>,1come Tax Officer felt satisfied that the nppella'.lt had deliberately concealed its income and furnished an inaccurate return. Accordingly, by his order dated March 20, 1958, he added a sum of Rs. 68,550/- to the income of the appellant and imposed on it a penalty of Rs. 26,000/-.\n\nMea, awhilc, on March 19, 1957; an application under section 25-A of the Act was made to the Income Tax Officer for an order recording partition of joint family property in definite portions, which according to the application had taken place amongst the members of the Hindu undivided family on June 22, 1956. The Income Tax Officer on bei'ng satisfied after making enquiries that a complete partition of the joint family property has taken place, recorded an order under section 25- A ( 1) of the Act on March 26, 1962, accpting the partition with effect\n\n, ' •• >\n\n. I\n\n'°'1\n\n-I I •\n\n.. ..\n\n!rum June 22, 1956, as claimed. Against the pe.ialty of Rs. 26,000/-\n\nimposed by the Income Tax Oflicer by his order dated March 20, 1958, the appellant preferred an appeal to the Appellate Assistant Commissiouer, who reduced the penalty to Rs. 15,000/-. Not satisfied with this reduction, the appellant went up in further appeal to the Inc<;>metax Appellate Tribunal and raised before it a number of connt1cms.\n\nAmong.; t other things, it was urged before the Tnbunal that smce the Hindu undivided family hact disrupted on June 22, 1956, as accepted bv the Income Tex Officer in his aforesaid order dated March 26,\n\n1962, passed under section 25-A(l) of the Act, the imposition of the pe\"rnlty by the Income-Tax Officer on March 20, 1958, after the disruption of the family was bad in law and could not be sustained. While rejecting the other contentions raised on behalf of the appellant, the Tribunal upheld this contcnti011 by its order dated March 6, 1963.\n\nThereupon the Commissioner of Income-tax, U.P. made a',1 application before the Income-tax Appellate Tribunal under section 66( 1) of the Act reqaesting that the following question of law arising from its decisi<'l1 be referred to the High Court:-\n\n\"Whether in the facts und circumstances of the case the imposition of penalty under sectida 2E (1) ( c) on the Hindu undivided family after it had disrupted within the meaning of section 25-A is bad in law''.\n\nAcceding to the request of the Commissioner of Income Tax, the Tribunal referred the above mentioned question to the High Court which answered the same in the aegative.\n\nThe appellant thereupon applied to the High Court and obtained the aforesaid certificate of fitness for appeal to thLs Court. This is how the matter is before us.\n\nRelying on Co1nniissioner of lnconie Tax v. Sanichar Salz Bhi111 Sah('), S. A. Raju Chattiar & Ors. v. Collector of Madras & Anr.(\") Malwnkali Subba Rao, Mahankali Nageswara Rao & Anr. v. Comnnssioner of Income-tax, Hyderabad(') and Commissioner of Incometax, Punjab v. Mothu Ram Prem Chand(') counsel for the appellant has reiterated before us that since the Hindu undivided family had dis- F solved on June 22, 1956 as accepted by the Income Tax Officer vide his order dated March 26, 1962 passed under section 25-A of the Act and the Act did not provide any machinery for imposition of the penalty on the Hindu family after its disruption, the imposition of penalty on March 20, 1958 was had in law and could no~ be sustained .\n\nCounsel appearing on behalf of the Revenue has, on the other ha!nd, urged that imposition of impugned penalty cannot be challenge& as in G view of section 25-A(3) of the Act, a Hindu undivided family must be deemed to have continued in existe'nce till the date of the passing of\n\nth~ order under section 25-A( 1) of the Act.\n\nPo: a proper determinatin of the question, it is necessary to refer to secuon 25-A of the Act which at the relevant time stood as under :-\n\n\"25-A. ( 1) Where, at the time of making an assessment H under section 23, it is claimed by or on behalf of a'ny member\n\n0). (1957) 27 ( T. -R.J~\n\n(2) (1956) 29 I.T. R. 241.\n\n(1) (1957) 3t l.T R. 867.\n\n(4) (1967) 66 l.T. R. GJR.\n\nSUPREME COURT REPORTS [J976j SUPPLE!>!E1'iT\"1lY\n\nd a llindu family hitherto usscssed as undivided that a partition l1as taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in defr.1ite portions, he shall record an llrdcr to that effect :\n\nProvided that no such. order shall be recorded until notices of the inqu'ry have been served on all the members of\n\nthe fa111iJy.\n\n(2) Where such an order has been passcd 1 or where any per.sun has succeeded to a business: profession or vocation formerly carried on by a Hindu undivided family, whose joint family property has been partitioned on or after the last day on which it carried on such business, profession or vocation, the Incomctax Officer shall make an assessment of\n\ni!ic total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income-tax for which he or it may be separately liable and notwithstanding <1ny!hing contained in sub-section (I) of section 14, be liable for a share of tile tax on the income so assessed according to the portion of the joint family property allotted to !1im or it; \"ml the Income-tax Officer shall make assessments accordi1wly with the provisions of section 23.\n\nProvided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family as such.\n\n(3) Where such a.n order has not been passed in respect of a Hindu family hitherto assessed as u'adividcd, such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family.\"\n\nIt will be noticed that sub-section (3) of the above quoted section embodies a legal fiction according to which a Hindu family which has been previously assessed as 'undivided' is to be continued to be treated as 'undivided' till the passing of the order under sub-scctida (I) of the section. This view gains strength from two decisions of this Court in Additional Income-tax Officer, Quddapah v. A. Thimmayya & Anr(') and Joillt Family of Udayan Chinubhai etc. v.\n\nCommissioner of Income-tax, Gujarat(') where it was held that so long as 110 order under section 25-A (I) of the Act is recorded, the jurisdiction of the Income Tax Officer to continue to assess as undivided despite partition under personal law a Hindu family which has hitherto been asseesed in that status remains unaffected. It will be profitable in this co,1nection\n\n(I) (1955) 55 I T. R. 666.\n\n12) (1957) 6J I. T. R. 4!6.\n\n• ' .\n\n...\n\n,. .\n\n.. ' •\n\nto rckr to the following observation made in A. Thimmavya's case A\n\n(supra) :-· • .• .\n\n\"The section makes two substantive provisions (i) that a Hiudu undivided family which has been assessed to tax shall\n\nb~ deemed, for the pmposes of the Act, to continue to be treated as undivided and therefore liable to be taxed in that\n\nstatu> unless an order is passed in respect of that family recording partition of its property as contemplated by subsection (I); •and (ii) if at the time of mak:i.1g an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned\n\namong: the members or groups of members in definite portions, i.e. a complete partition of the entire estate is made resulting in such physical division cf the estate as it is capabk of being made, the In, cmne-tax Officer shall hold an inquiry, and if he is satisfied that the partition had taken place .\n\nhe shall record an order to that effect. . . . . . . The Incometax Oftlccr may assess the income of the Hindu family hitherto asoesscd as undivided notwithsta,1ding partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of tho claim that 'the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided rem11in unaffected, for the pro- L'Cdtirc for n1aking asscssn1cnt of tax is statutory.\"\n\nIn face or the aforesaid decisions of this Court, it is not necessary\n\n• to hurden the record hy discussing the decisions cited by counsel for the uppL'liant.\n\n' •\n\nJn the present case, there was not a whisper of the application under section 25-A(l) of the Act by the appellant ci.:t March 15, 1957 whei; the penalty proceedings were initiated against it. Even on March F 2v, 1958, when the penalty was imposed, there was no order under section 25-A(l) of the Act. It was only on March 26, 1962, that the partition was recog; aised and order under section 25-A ( 1) of the Act was passed. There was thus no bar to the imposition of the impugned penalty. Accordingly, we find no force in the contention of counsel for the appellant and are of the opinion that the question was rightly a.1swercd in the negative by the High Court.\n\nThe appeal, therefore, fails and is dismissed but in the circumst1nccs of the case without any order as to costs.\n\nS.R Appeal dismissed.", "total_entities": 33, "entities": [{"text": "S. GAURI SHANKAR, CHANDRABHAN", "label": "PETITIONER", "start_char": 7, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "M/S. GAURI SHANKAR, CHANDRABHAN", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 80, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "A.C. 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{"document_id": "1976_1_510_518_EN", "year": 1976, "text": "MOHAN MEAKIN BREWERIES LTD.\n\nEXCISE & TAXATION COMMER. CHANDIGARH & ORS.\n\nMay 4, 1976\n\n(A. c. GUPTA AND JAswANT SINGll, JJ.]\n\nPunjab Bonded Warehouse Rules, 1957, J?.ulcs 8 tuul 9 i111po•1itio11 of duty or regulatory provision, whether ultra vires the Finallcial Co111mis.rioner's powers countervailing duty, whether illiposs/blu oflly on liquor l'Xisting witl:i11 State territory.\n\nThe appellant company carried on the business ol' manufacture, storage and t; ale of liquors.\n\nBei..ween June, 1967 and April 1969, it uansported 't'arious C quantities of liquor from its dis:illeries in Uttar Pradesh to its bonded warehouse at Chandigarh. On arrival, the consignments were examined by the Ofliccr- .:nCharge of the warehouse, and a shortage was found, exceeding the wastage a!Jowance permissible under rule 8 of the Punjab Bonded Warehouse Rules.\n\n1957. The Excise and Taxation Commissioner, exercising the powers of the Financial Commissioner, issued a show cause notice and then ordered the appellant to pay duty on the wastage in exess. The <:1PPellant's petit:ons to the Iligh Court under Articles 226 and 227 of the Constitution, \\Vere dismissed.\n\nD It was contended before this Court, firstly that Rules 8 nnd 9 of the 1957 Rules under which the duty was sought to be imposed, were ultra vires the ru11> making power of the Financial C\"Ornmissioner, and seccmdly, that these rules were iiilvalid as they went beyond the scope of Ss. J 6, 23 and 31 and Entr~ 51, List IL 7th Schedule of the Constitution, by imposing excise duty or counter vailing duty on articles \\vhich neither existed in the State. nor were removed fron1 the warehouse.\n\nE Dismissing the appeals the Courl, ~\n\nFJELD : ( 1) The. impugned rules do not in1pose any duties or prescribe the . rates thereof or create any liability in respect thereof.\n\nThey are in essence and\n\n• • I ..\n\nsubstance of a regulatory character meant to guard against perpetration of \" fraud or deception on the revenue.\n\nThey provide for and regulate the storage and subsequently the t\"emoval of liquor from the bonded warehouse, on pay nient or otherwise of the duty which is chargeable under the Fiscal Rules of 1937, issued hyl the State Government. The powers. exercised by the Financial F Commissioner were clearly available to him under sec1ions 59 and 22 of the\n\nAct and he has not overstepped the same.\n\n[5130-H; 514A]\n\n(2) Accordin~ to Section 31 of the Act read with Entry 51 of List II ot' the Seventh Sched.ule to the Constitution, countervailing duty can b~ imposed on fquor n1eant for Consumption which is :pJanufactured or produced elsewhere in India. It is immaterial whether the liqiior of which permits were obtained, was consumed within the union territory of Chandigarh or was in existeneei in that territory or not.\n\nDuty is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by tbe appellant in res pect thereof.\n\n[5170-GJ\n\nKalyani Stores v. The State of Oriss,1 & Ors. [1966] 1 S.C.R. 865, referred to.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 582 of 1971.\n\n•,, •\n\nAppeal by Special Leave from the Judgment and Order dated -., ,._ the 29th July 1970 of the Punjab & Haryana High Court in Civil Wr:it No. 2376170 and\n\n} . .\n\n./ '\n\n• • ,\n\nMOHAN MEAKIN LTD. v. E. T. c. (laswant Singh,!.) 5 1 l\n\nCIVIL APPEAL No. 1418 of 1970.\n\nFrom the Judgment Order dated 4th December 1969 of the Punjab and Haryana High Court in C.W.No. 342 of 1969.\n\nTirath Singh Munjral, G. K. Arora, B. C. Das Gupta & Co. for the Appellant.\n\nN. S. Das Behl and 0. P. Sharma for the respondent.\n\nThe Judgment of the Court was delivered by\n\nJASWANT SINGH, J.-There two Civil Appeals Nos. 1418 of 1970 and 582 of 1971, the first by certificate of fitness granted under Article 133(J)(a) of the Constitution by the Punjab and Haryana High Court and the second by special leave granted by this Court which are directed against the Judgments and orders of the said High Court dated December 4, 1969, and July 29, 1970, rendered in Civil Writ Petitions No. 342 of 1969 and No. 2376 of 1970 respectively shall be disposed of by this Judgment as they arise out of identical proceedings and raise common questions of law.\n\nThe appellant, a public limited company incorporated under the Indian Companies Act, which carried on the business inter alia of manufacture, storage and sale of varous kinds of Indian made foreign liquors and had its plants for manufacture and production of beer and distillation and production of the said liquors at Solan (in Himachal Pradesh), at Mohan Nagar (in Uttar Pradesh), at Lucknow (in Uttar Pradesh) and at Kasauli (in Himachal Pradesh) held in the years 1967, 1968 and 1969 a licence in From B.W.H. 2 under section 22 of the Punjab Excise Act (I of 1914) (hereinaft€r referred to as 'the Act') read with Rule 2 of the Puniab Bonded Warehouse Rules, 1957 (hereinafter referred to as 'the 1957 Rules') which were framed by the Financial Commissioner under section 59 read with section 22 of the Act, permitting it to run on conditions specified therein a Bonded Warehouse at Chandigarh for storage of bottled and bulk liquor 'and issue thereof under bond or on payment of dnty to the licensees of Punjab, Haryana, Himachal Pradesh etc. One of these conditions required the appellant to observe the provisions of the Act as also the Rnles framed and instructions issued thereunder from time to time.\n\nRules 7 to 10 of 1957 Rules governing the appellant's licence ran thus :\n\n\"7. No liquor shall be received in the bonded warehouse unless accompanied by a pass from the Officer-in-charge of the distillery or bonded warehouse from which it has been imported or transported.\n\nImmediately on arrival of a consignment at the bonded warehouse the officer-in-charge shall be informed and the consignment shall not be opened until the same has been examined and verified with the pass by the Officer-in-<; harge who shall also note the resu]!s in the register maintained for the purpose and also on the pass covering the consign-\n\n5 12 SUPREME COURT REPORTS [1976] SUPPL'o~IENIAltY\n\nA ment.\n\nOne copy of the pass with entries oE receipt shall be immediately returned to the Officer, who issued the pass and the other copy with entries thereon, shall be kept in the Warehouse.\n\n8. A wastage allowance not exceeding 1 per cent shall be made for the actual loss in transit by leakage or breakage of vessels or bottles containing liquor.\n\nThe allowance shall be determined by deducting from the quantity despatched the quantity received at the destination, both quantities being stated in terms of proof litres of spirit contents or in case of beer in bulk litres.\n\n9. If the report of the Ofliccr-in-chmge show, that the C wastage exceeds the prescribed limit, the licensee shall be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually l>crn removed from the Warehouse.\n\nProvided that each case of excessive wastage shall be reported to the Financial Commissioner for orders, who may in his discretion, on good cause being shown remit it whole or a part of the duty leviable on such wastage.\n\n10. Liquor shall be imported/transported under bond in accordance with the Punjab Liquor Permit and Pass Rules at the sole risk and responsibility of the licensee. The bond in form L. 37 shall be discharged, after liquor has been duly checked and proved by the Officer-in-charge and deposited in the Ware-house.\"\n\nBetween June, 1967 and April, 1969, the appellant transported, for the purpose of bottling, vartous quantities of Indian made foreign liquors from its aforesaid distilleries in Uttar Pradesh and Himachal Pradesh to its Bonded Warehouse at Chandigarh.\n\nThis was done on the strength of the permits issued by the Excise and Taxation Officer, Chandigarh. Pursuant to Rule 7 of the 1957 Rules, the Officer-in-charge of the Warehouse examined the consignments on their arrival at their destination with a view to checking and vcrifyin~ the quantities thereof with those shown in the permits <•nd discovered !hat they suffered from shortage which exceeded the wastage allowance\n\nof I per cent permissible under Rule 8 of the said Rules.\n\nAs a sequel to the detection of the aforesaid shortages, the Excise and Taxation Commissioner exercising the powers of Financial Commissioner, Chandigarh Administration, who is the first respondent herein, issued notices calling upon the appellant to show Cause why duty at the prescribed rate of Rs. 20/- per proof litre be not levied against it on the wastage in excsss of the prescribed limit \"as if the same had been removed from its Bonded Warehouse at Chandigarh.\" In the written representation submitted on behalf of the appellant in reply to the notices, it was pleaded that the liquor evaporated during transit; that\n\n' >\n\n. -\n\nr •\n\nthe Bonded Warehouse was in its initial stage and the method of meallRlllCllt of spirit was crude; thaU a~ the time of measurement, the tempcnture of spirit was not taken and that apart from evaporation, wastage occured by leakage of drums in transit.\n\nBy his detailed order& dated January 15, 1969 and February 10, 1970, the said respondent repelled all the pleas raised on behalf of the appellant and made the 11oticos absolute holding that there was no material on the record to show that anything peculiar had taken place in respect of the cnuignments in question which entitled the appellant to any remission in the duty leviable on the wastage.\n\nThe appellant thereupon prefencd to the High Court writ petitions Nos. 342 of 1969 and 2376 of 1970 under Articles 226 and 227 of the Constitution challenging tho aforesaid orders on various grounds.\n\nWhile the first writ petition was dismissed by the High Court by an elaborate Judgment and ocder dated December 4, 1969, the second one was dismissed in lilwine vide order dated July 29, 1970. While the High Court granted, 111 already indicated, a certificate of fitness for appeal to this Court apinlt it& Judgment and order dated December 4, 1969, it refused to to so in respect of its order dated July 29, 1970.\n\nTllOugh several contentions were raised by the appellant in the D •fOl'CQid two writ petitions filed by it in the High Court, counsel appearing on its behalf has assailed before us the correctness of the impugned orders passed by the first respondent on two grounds.\n\nHe hll.i in the first instance contended that Rules 8 and 9 of the 1957\n\nRuk:I uder which the duty is sought to be imposed are ultra vireo the rule making power of the Financial Commissioner.\n\nElaborating his mbmission, counsel has urged that since the State alone has, by E virtne of .Eeetion 31 of the Act, the power to impose duties mentioned • thecein, as also the exclusive power under section 58(1) of the Act to mate rules for the purpose of carrying out the provisions of the Act including those of section 31 or any other law for the time being in force relating to excise revenue and section 13 (a) of the Act prohibits the State Government to delegate the powers conferred on it by sectiollll 14, 21, 31, 56 and 58 of the Act, Rules 8 and 9 of the 1957 F Rulea are manifestly beyond the competence of the Financial Commisliioeer. This contention cannot, in our opinion be accepted as it proceeds on a misconception of the correct legal position.\n\nIt is, no doubt, true that it is the State Government alone which is empowered to imp<JIC excise duty or countervailing duty on any excisable article and to pl'escribe rates thereof as also to make rules for carrying out inter alia the purposes of section 31 of the Act, but it seems to be G overlooked that the impugned rules do not impose any one of the\n\nafocesaid duties or prescribe the rates thereof or create any liability in rClpCCt thereof. They are in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on !he Revenue.\n\nThey provide for and regulate the storage of liquor in tho Bonded Warehouse without payment at the initial stage of the duty payable under the Act and subsequently the removal of the liquor H from the W!lrehouse on payment or otherwise of the duty which, as correctly potnte_d out by the Ingh Court, is chargeable under the Fiscal Rufe. d. 1937 issued by the State Government. The powers exercised\n\n<5-833 !ICM6\n\nA by the Financial Commissioner were clearly available to him under sections 59 and 22 of the Act and he has not, in our opinion, overstepped the same. The first contention raised on behalf of appellant is, therefore, overruled.\n\nIt is next contended by counsel for the appellant that Rules 8 and 9 of the 1957 Rules are also invalid as they go beyond the scope of sections 16, 23 and 31 and Entry 51 of List II of the Seventh Schedule to the Constitution.\n\nDwelling on this contention, counsel has submitLed that as the taxing power of even the State Legislature is restuded to the imposition of excise duty or countervailing duty on an excisable article which, according to section 3 t 6) of the Act, means inter alia an alcoholic liquor for human consumption implying thereby an alcoholic liquor in. existence, the incorporation in Rule 9 of the 1957 Rules of the fiction -making the licensee liable to pay duty at the prescribed rate on wastage in excess of permissible hmit as if the said wastage had actually been removed from the Warehouse has the effect of imposing duty on an article which neither existed in the State nor was removed from the Bonded Warehouse thus violating the S(:ope and extent of the taxing power.\n\nFor a proper appreciation of the true legal position, it is necessary to advert to sections 3(6-b), 31, 32, 16 and 23 of the Act and Entry 51 of List II of the Seventh Schedule to the Constitution and the connotation of the term 'countervailing duty.'\n\n\"Section 3 ( 6-b). 'excise duty' and 'countervaling duty' mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry 51 of List II in the Seventh Schedule to the Constitution.\n\nSection 31.\n\nDuty on excisable articles.-An excise duty, ~\n\nor a countervailing duty, as the case may be at such rate or rates as the State Government shall direct, may be imposed, either generally or for any special local area, on any excis able article-\n\n(a) imported, exported or transported in accordance with the provisions of section 16, or\n\n(b) manufactured or cultivated under any licence granted under section 20, or\n\n( c) manufactured in any distillery established or any distillery or brewery licensed under section 21; \"Provided as follows :-\n\n(i) Duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the India Tarrif Act, 1894, or the Sea Customs Act, 1878.\n\n(ii) xx xx xx xx xx xx Explanation.-Duty may be imposed under this section at different rates according to the places to which\n\n;. . .. ,\n\nl '\n\nf • •\n\n..., r\n\nany excisable article is to be rell!oved for consumption, or according to the varying strength and quality of such article.\"\n\n\"Section 32.\n\nManner in which duty may be levied.- subject to such rules regulating the time, place and manner as the Financial Commissioner may prescribe, such duty shall be levied rateably, on the quantity of excisable article imported, exported, transported, collected or manufactured in, or issued from, a distillery, brewery or warehouse;\n\nProvided that duty may be levied-\n\n(a) on intoxicating drugs by an acreage rate levied on the cultivation of the hemp plant, or by a rate charged on the quantity collected;\n\n(b) on spirit or beer manufactured in any distillery established, or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used, or by the degree of attenuation of the wash or wort, as the case may be, as the State Government may prescribe;\n\n( c) on tari, by a tax on each tree from which the tari is drawn :\n\nProvided further that, where payment is made upon issue of an excisable article for sale from a warehouse established or licensed under section 22 (a), it shall be made-\n\n(a) if the state Government by notification so directs, at the rate of duty which was in force at the date of import of that article. or\n\n(b) in the absence of such direction by the State Government, at the rate of duty which is in force on that article on the date when it is issued from a warehouse.*\n\n\"Section 16.\n\nImport, export and transport of intoxicants-\n\nNo intoxicant shall be imported, exported or transported except-\n\n(a) after payment of any duty to which it may be liable under this Act, or execution of a bond for such payment, and\n\n(b) in compliance with such conditions _as the State\n\nGovernment may inpose.\"\n\n\"Section. 23.\n\nRemoval of intoxicant from distilleryno intoxicant shall be removed from any distillery, brewery,\n\n51 (-l\n\nSUPREME COURT REPORTS\n\n(1976] SUPPLECMENTARY\n\nwarehouse or other place of storage established or licensed under this Act, unless the duty, if, any, payable under Chapter V has been paid or a bond has been executed for the payment thereof.\" ·\n\n\"Entry 51 of List II of the Seventh Schedule to the Constitution- Duties on excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India :-\n\n(a) alcoholic liquors for human consumption\n\n(b) opium, Indian hemp and other narcotic drugs and narcotics;\n\nbut not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this Entry.\"\n\nTho expression 'countervailing duty' is not defined in the Act but its meaning has been made clear in the Judgment of this Court in Kalyani Stores v. The State of Orissa and Ors.(') where it was observed\n\n\"This brings us to the consideration of the meaning of the expression \"countervailing duties\" used in Entry 51.\n\nList II of the Seventh Schedule to the Constitution.\n\nThe \"expression \"countervailing duties\" has not been defined in the Constitution or the Bihar & Orissa Act 2 of 1915.\n\nWe have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51.\n\nIn its etymological sense, it means to counterbalance; to avail against with equal force or. virtue; to compensate for something or serve as an equivalent of or substitute for : sec Black's Law Dictionary, 4th Edn. 421.\n\nThls would suggest that a countervailing duty is imposed for the purpose of counterbalancing or to avail against something with equal force or to compensate for something as an equivalent. Entry 51 in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured or produced in the State.\n\nIt also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elswherc in India.\n\nThe fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of e)(cise imposed on goods manufactured in the State.\n\nThey may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transpo1t fro111 the pfacc of m111ufacturc to the taxin~' rt) fl966J 1 s.c.R. 865.\n\n.. ' '\n\n\" • •\n\n• •\n\nMOltAN MEAKIN LTD. v. E.T. c. (Jaswant Singh, J.) 517\n\nState.\n\nIt seems, therefore, that .countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State.\n\nIf no alcoholic liquors similar to those imported into the State are produced or manufactured, the right to impos(,' counterbalancing dutis of excise fovied on the goods manufactured in the State will not arise.\n\nIt may, therefore, be accepted that countervailing duties can only be levied if similar goods are actually produced or manufactured in the State on which excise duties are being levied.\"\n\n• • It will be seen that section 31 of the Act read with Entry 51 of • List II of the Seventh Schedule to the Constitution permits imJ>05ition\n\nof (i) excise duty by the State Government on any exisable article imported into or exported from or transported in accordance with the C provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on alcoholic liquors for human consumption manufactured or produced elsewhere in India.\n\nThe contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration can impose duty only if liquor is consumed in its territory is erroQeous as, according to section 31 of the Act read with the aforesaid Entry 51 of List II of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manu- • factured or produced elsewhere in India.\n\nIt is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not.\n\nWhat is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity shown in the permits left Uttar Pradesh.\n\nIn the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for hnman consumption and did leave the appellant's distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. n is also not denied on behalf of the appellant that a portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant's Warehouse and was not found therein\n\n,> and the shortage remained unaccounted for. It is thus e¥ident that duty .. is not songht to be charged on an excisable article which wa~ not in\n\ne.tistence, as contended on behalf of the appellant but is sought to be charged on liqnor which was actnally manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonabfo eplanation was tendered by the appellant in respect thereof.\n\nThere is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well.\n\nThe decision of this Court in Bimal Chandra Banerjee v. State of H Madhya Pradesh(') which is strongly relied upon on behalf of the\n\n\nappellant is not applicable to the present case. In that case, the condition introduced by the State Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants' licences prescribmg the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of wa> held to be invalid as it went beyond the provisions of sections 25, 26, 27, 62(1) and clauses (d) and (h) of section 62(2) of the aforesaid Act. In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination.\n\nC For the foregoing reasons, the respondents were right in demanding the duty on the shortages.\n\nIn the result, the appeals fail and arc dismissed with costs, limited to one set.\n\nM.R.\n\nAppeals dismissed\n\n' . • •\n\n. >", "total_entities": 47, "entities": [{"text": "MOHAN MEAKIN BREWERIES LTD", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "MOHAN MEAKIN BREWERIES LTD", "offset_not_found": false}}, {"text": "EXCISE & TAXATION COMMER. CHANDIGARH & ORS", "label": "RESPONDENT", "start_char": 29, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "EXCISE & TAXATION COMMER. CHANDIGARH & ORS", "offset_not_found": false}}, {"text": "A. c. 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"start_char": 4361, "end_char": 4374, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 22", "label": "PROVISION", "start_char": 4812, "end_char": 4822, "source": "regex", "metadata": {"statute": null}}, {"text": "Puniab Bonded Warehouse Rules, 1957", "label": "STATUTE", "start_char": 4923, "end_char": 4958, "source": "regex", "metadata": {}}, {"text": "section 59", "label": "PROVISION", "start_char": 5059, "end_char": 5069, "source": "regex", "metadata": {"linked_statute_text": "the Puniab Bonded Warehouse Rules, 1957", "statute": "the Puniab Bonded Warehouse Rules, 1957"}}, {"text": "section 22", "label": "PROVISION", "start_char": 5080, "end_char": 5090, "source": "regex", "metadata": {"linked_statute_text": "the Puniab Bonded Warehouse Rules, 1957", "statute": "the Puniab Bonded Warehouse Rules, 1957"}}, {"text": "Articles 226 and 227", "label": "PROVISION", "start_char": 9685, "end_char": 9705, "source": "regex", "metadata": {"statute": null}}, {"text": "section 58(1)", "label": "PROVISION", "start_char": 10855, "end_char": 10868, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 10971, "end_char": 10981, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 11058, "end_char": 11068, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 11670, "end_char": 11680, "source": "regex", "metadata": {"statute": null}}, {"text": "sections 59 and 22", "label": "PROVISION", "start_char": 12487, "end_char": 12505, "source": "regex", "metadata": {"linked_statute_text": "They provide for and regulate the storage of liquor in tho Bonded Warehouse without payment at the initial stage of the duty payable under the Act", "statute": "They provide for and regulate the storage of liquor in tho Bonded Warehouse without payment at the initial 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{"document_id": "1976_1_519_523_EN", "year": 1976, "text": "~ .\n\n• • ,\n\n• ,\n\nVISHWA VIJAI BHARTI\n\nFAKHRUL HASAN & ORS.\n\nMay 4, 1976\n\n[Y. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.]\n\nCivil Procedure Code-Secs. 100-103-Powers of HiRh Court to set aside finding of facts in a second appeal-If High Court must discuss evidence while going into questions of facts.\n\nEntries in record of rights-Presumptive value of-Presumption if applies ta fdrged or fraudulent entries--Efject of -fraud or forgery on a document.\n\nMahant Bharati of temple of Shankarji Maharaj gave lands belonging to the temple_ on lbeka to one Sukai for a period of 10 years. The Mabant obtained a decree for eviction against Sukai but it could not be executed because of the objectionc; raised by the respondents on the ground that they have been cultivating the lands for several years and they were entitled to continue in po..§_session as Sirdars in spite of the decree against Sukai. The lessor, therefore, instituted two separate suits under Order 21 Rule 103, C.P.C. Respondents contended\n\ninter a/ia, that they had become hereditary tenants and they must be deemed D to have become Adhivasis of the land. The trial court dismissed the suit. Tho district court reversed the finding of the trial court in appeal and held that the appellant being the Bhumidar of the lands was entitled to recover possession thereof from the respondents. The district Judge held that the entries in the record of rights showing the occupation of the respondents were fraudulent.\n\nThe Hi$h Court in second appeal upset the decree of the district court .\n\nAllowing the appeal,\n\nHELD : (I) The only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent.\n\nThis is a question of fact and the High Court had no jurisdiction to set aside the finding on that question in second appeal. The High Court erroneously assumed that 1he district Court had not given any finding on the question of fraud. The district Court had given at least half a dozen reasons for holding that the entries were fictitious and were made surreptitiously and fraudulently. [521H; 522A-H]\n\n(2) If the High Court thought that the district court had not recorded a clear finding on that issue and if the High Court were to determine under section\n\n103 C.P.C. the issue under whether the entries were fraudulent or not i• was noc.essary for it to di6cuss the evidence. But, the High Court instead placed blind and easy reliance on the entries which are utterly uninspiring.\n\n[523A-B]\n\n(3) Entries in the revenue record ought generally to be accepted at their\n\nface value and courts should not embark upon an appellate enquiry into their G correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. The distinction may be fine but it is real. Fraud\n\nand forgery rob a document of all its legal effect and cannot found a claim to possessory title. [523B-CJ\n\nClvIL APPELLATE JURISDICTION : Civil Appeal Nos. 1122 and 1123 of 1970.\n\nAppeals by special leave from the Judgment and order dated the 13th February 1970 of the Allahabad High Court in S.A. Nos. 267 and 268 of 1962.\n\nSUPREME COURT REPORTS [1976] SUPPLl!J.ll!NTARY\n\nS. C. Manchanda, S. K. Bagga, (Mrs.) Sureshta Bagga and (Ml.is) Y ash Bagga; for the Appellant.\n\nR. N. Sharma and C. P. Lal; for Respondent.\n\nThe Judgment of the Court was delivered by\n\nB CHANDRACHUD, J .-These appeals by special leave arise ou• .cf\n\nthe judgment rendered by the High Court of Allahabad on February 13, 1970 in Second Appeals 267 and 268 of 1962. ··\n\nMahan! Vishwa Nath Bharthi, the sarbrahkar of the temple of Shankarji Maharaj, Khowja, gave lands belonging to the temple, admeasuring about 44 acres, on Theka to one Snkai. The Thekanama was executed on June 5, 1942 to be effective from July 1, 1942. The lease was to enure for a period of 10 years and was due to expire on June 30, 1952. The Thekanama contained an express term that the Thekadar will not sub-let the leasehold property and that on the expiry of the period of lease he shall hand over the possession of the propert-,. to the lessor.\n\nD In spite of this term against sub-letting, on July 27, 1942 the lesaee executed a power of attorney in favour of his nephews Haqiqullah and Ghani, apparently authorising them to c.ultivate the lands on his behalf. On the expiry of the period of lease the Mahan! instituted a suit for ejectment of the lessee which was decreed on November 25, 1952.\n\nThe Mahant then filed an application for executing the decree but an objection was raised thereto by the respondents, Sanaullah and Fakhrul Hasan who are respectively the brother and cousin of Haqiqullah. They filed two separate applications objecting to the execution of the decree on the ground that they had been cultivating lhe lands tor several years and that they were entitled to continue in possession as Sirdars. On June 2, 1954 the objection raised by tl1e respondents was allowed by the executing court which passed an order that the possession of the lands which on March 13, 1953 was given to the decree-holder in execution of the decree should be re-delivered to the respondents.\n\nAccordingly, the respondents were put back in possession in July, 1954.\n\nThe lessor then instituted two separate suits under Order XXI, Rule 103 of the Civil Procedure Code, the suit filed against Fakhrul Hasan being No. 17 of 1954 and the one against SanauUah being No. 20 of 1954. His case was that the lands were given on lease to Sukai on condition that he shall not sublet them, that a decree for possession was accordingly passed against Snkai on the expiry of the lease and that the respondents had got their names entered fraudulently in the revenue record as the cultivators of the lands.\n\nRespondents took np various inconsistent pleas in answer to the suits. They contended that they were in possession of the lands with the consent of the original lessor, that they liad become hereditllry\n\n' .\n\n' > .;\n\n' •\n\nV, V. BHARTI v. F. HASAN'(Chandrachud, J.) 5 21\n\ntenants and that they must be deemed to Jrn ve become Adbivasis of A the lands.\n\nThe learned Munsiff who tried the suits framed six issues, issue No. 2 being whether the respondents were Sirdars of the lands as\n\nalleged in paragraphs 17 and 18 of their written statements. This\n\nisue was referred to the revenue court for decision.\n\nThe lessor hav- B ing died during the pendency of those suits, the appellant was substituted in his placed as the Mahant of the Math.\n\nThe revenue court found in favour of the respondents and accepting that finding the ' trial court dismissed the suits.\n\nIn appeal, the District Court took < ' the view that there was no justification for referring the particular , issue to the revenue court and that the trial court ought to have decided all the issues for itself.\n\nThe District Court accordingly rec manded the suit with a direction that the Munsiff should decide the suit afresh uninfluenced by the finding given by the revenue court.\n\nThe trial court then assessed the evidence, held in favour of the respendents and dismissed both the suits by its judgment dated Kovember\n\n17, 1961.\n\nThe District Court reversed the findings of the trial court in n appeal and held that the appellant, being the Bhumidar of the lands,\n\nwa~ entitled to recover possession thereof from the respondents.\n\nThe appeals were accordingly allowed by the District Court by its judgment dated April 18, 1962.\n\nThe respondents filed Second Appeals Nos. 267 and 268 of 1962 against the decrees passed by the District Court. The High Court E having allowed those appeals the Mahan! of the Math has filed these appeals by special leave.\n\nThe decision of these appeals involves a very narrow question as regards the power of the High Court in second appeal.\n\nSection l 00 of the Code of Civil Procedure provides to the cxtci1t material that an appeal can lie to the High Court from a decree passed in appeal by any court subordinate to it if the decision is contrary to law or to F .. some usage having the force of law.\n\nThe only question for decision before the High Court was whether the respondents were entitled to\n\nthe protection of section ZO(b) (ii) of the U.P. Zamindari Abolition '\n\nand Land Reforms Act, 1 of 1951.\n\nThat section provides, in so far\n\nA as material, that every person who was recorded as an occupant of any land in the Khasra or Khatauui of 1356 Fasli but who was not G in possession in the year 1359 Fasli shall be called an 'Adhivasi' of • the land and shall be entitled to retain possession thereof. The names of the respondents were entered as occupants in the revenue record of 1356 Fasli but after considering the entire evidence, the District t ,,\n\nCourt rejected those entries on the ground that they were fraudulent.\n\nThus, the only qnestion before the High Court was whether the entries on which the respondents relied were genuine or fraudulent.\n\nThat H is a question of fact and the High Court had no jurisdiction to set aside in second appeal the finding recorded on that question by the District Court.\n\nSUPREME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nThe High Court assumed erroneously that the District Court had not given any finding on the question of fraud and on that assumption, it accepted mechanically the entries in the revenue record showing that the respondents were in possession of the lands as occupants.\n\nThe learned District Judge, by his judgment dated April 18, 1962 had gone in great details mto the question whether the particular entries showing that the respondents were occupants of the land were genuine or fraudulent.\n\nThose entries are Bxs. A-5 to A-12.\n\nAs pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record \"surreptitiously\". The learned Judge points out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he is alleged to have entered into adverse possession of the lands.\n\nNeither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to be cultivating the lands under a power of attorney executed by Sukai, were examined by the respondents. The other respondent Sanaullah was not living in the village at all and is said to have been doing business in second-hand spares in Bombay.\n\nHaqiqullah was summoned by the appellant for producing the power of attorney dated July 27, 1942 and taking advantage of that opportunity the respondents cross-examined him. Haqiqullah, being a close relation of the respondents was only too willing to oblige them by giving pre-conceived answers in the so-called cross-examination.\n\nBut the learned trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act, he could not become a witness in the case and could not therefore have been cross-examined on the merits of the case. But, even after considering the evidence of Haqiqullah the learned District Judge recorded a finding that \"The entries were all fictitious\".\n\nHe then proceeded to examine the documentary evidence in the case and held:\n\n\"After a careful consideration of the pros and cons of the whole case I am of opinion that the Thekedar Sukai had cultivated the Sir and Khudkashi of the temple land which was given to him on Theka through his brother and his cousin, namely Haqiqullah and Ghani and these two persons in order to create permanent rights in the Theka property, had fraudulently got the names of their boys entered in the revenue records right from the inception.\n\nI am also of the opinion that these boys of the house-hold never cultivated the land and they acquired no right, title or interest in the Theka land.\"\n\nWe find it quite difficult to understand how the High Court could hold that the District Court had not recorded any \"clear finding\" that the entries in the revenue record for the year 1356 Fasli were H fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were \"fictitious\" and wem made \"surreptitiously\" and \"fraudulently''.\n\n. ' . '\n\n' .\n\n' '\n\nv. v. BHARTI v. F. HASAN (Chandrachud, !.) 5 2 3\n\nWe could have even appreciated if, under section 103 of the Code of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it thought, wrongly though, that the District Court had not recorded a clear finding on that issue.\n\nBut the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring.\n\nIt is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. 'Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.\n\nIn Amba Prasad v. Abdul Noor Khan and Ors.('), it was held by this Court that section 20 of the U.P. Act 1 of 1951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and Ors., v. Sri Ram and Anr. ( 2 ) that \"the Civil Court in ad judging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant : cases of fraud apart, the entry in the record alone is relevant\". We have supplied the emphasis in order to show that the normal presumption of corectness attaching to entries in the revenue record, which by law COJ!Stitutc evidence of a legal title, is displaced by proof of fraud.\n\nFor these masons we allow these appeals, set aside the judgment of the High Court and restore that of the District Court.\n\nThe suits filed by the appellant shall stand decreed. Respondents shall pay to the appellant the costs of these appeals in one set.\n\nP.H.P.\n\nAppeals allowed.\n\n(I) [1964]7 S.C.R. 800.\n\n(2) [1968] I S.C.R. 617, 620.", "total_entities": 14, "entities": [{"text": "VISHWA VIJAI BHARTI", "label": "PETITIONER", "start_char": 17, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "VISHWA VIJAI BHARTI", "offset_not_found": false}}, {"text": "FAKHRUL HASAN & ORS", "label": "RESPONDENT", "start_char": 38, "end_char": 57, "source": "metadata", "metadata": {"canonical_name": "FAKHRUL HASAN & ORS", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 74, "end_char": 91, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "Civil Procedure Code", "label": "STATUTE", "start_char": 118, "end_char": 138, "source": "regex", "metadata": {}}, {"text": "Order 21 Rule 103", "label": "PROVISION", "start_char": 948, "end_char": 965, "source": "regex", "metadata": {"linked_statute_text": "Civil Procedure Code", "statute": "Civil Procedure Code"}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 967, "end_char": 972, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "section\n\n103", "label": "PROVISION", "start_char": 2252, "end_char": 2264, "source": "regex", "metadata": {"statute": null}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 2265, "end_char": 2270, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 7802, "end_char": 7829, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Land Reforms Act", "label": "STATUTE", "start_char": 8224, "end_char": 8240, "source": "regex", "metadata": {}}, {"text": "section 139", "label": "PROVISION", "start_char": 10862, "end_char": 10873, "source": "regex", "metadata": {"statute": null}}, {"text": "section 103", "label": "PROVISION", "start_char": 12372, "end_char": 12383, "source": "regex", "metadata": {"statute": null}}, {"text": "the Code of Civil Procedure", "label": "STATUTE", "start_char": 12387, "end_char": 12414, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "section 20", "label": "PROVISION", "start_char": 13456, "end_char": 13466, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_1_524_531_EN", "year": 1976, "text": "f / .. ,. , . . , ;: il\n\nI' \" j:, r ..\n\n•· L\n\n. A\n\n:.0\n\nDEVARAPALLI LAKSHMINARAYAN~ REDDY & ORS .\n\nV. NARAYANA REDDY & ORS.\n\nMay 4, 1976\n\n[R. S. SARKAillA, P. N. SHINGIIAL ANI> JASWANT SINGH, JJ.]\n\nCode of Criminal Procedure, 1973, Ss. 156(3) anti 20lnresligati?n.t under-Difference bNWU/1 objcts of-Sec. 190(l){a) ''takillg cogni:wnd', meanillf o(.\n\nOn receiving a complaint :1gain;, t the appellants, for allegedly ~:ommiuin~ offences under ss. 147, 148, 307, 395, 448, 378 and 342, J.P.C., the Judicial Mngistiate, F.C. _Dhrmavaram, forwarded it to the . po!icc. under ~- 156(]) Cr.P.C. for investumtton. l11e appellants filed an npphcnlton 111 the Htgh Court under s. 482 Cc.P.C. 1973, R!r..ttDSt the 1\\f:lgi.trnte's order, but the same wa.• dismis!>ed.\n\nIt was contended befOre this Court that the complaint include.l offence$ triable exclusively by the sessions Court, and under s. 202( l) Proviso\n\nl(a), Cr.P.C. 1973, the Magitrate was prohibited from directing the police to investigate it, that be was bound to proceed with it himclf before issuing pro cess to the accused. The liPpeal was; Inter :tlia, cOntC'ltcd on the ground thJt the powers conferred on the Magistr.Jte under ~. 156(3) of the Codo nre independent of his powr to send the ca e for in vctig.1tion under s. 202 of tho Code.\n\nSection I ~60) can be invoked before the :'-la~:i strn te ttkt'5 COAnizance o! the case but s. 202 comes into operation only after he tart.; dc;1line: with the c:t'm rl<tint in ueiordnce with the pro¥iions of C:h:lpter XV.\n\nDismC,, iog the appeal of the Court,\n\nHELD: (I l The pov..., r to orJcr police invc, lig:•tion un, kr .~. 156(3) ;, diiTcrcnt from the power to direct invc, tigt \\un conferred by s. ~(12 (I). 1 he two opcrnte in distinct spheres at different s lug.:.~.\n\nThe fir, t i~ cx~:rci!.llblc at the precopnizance stage, the second nt the post-co;:niz.am:e tage when the Magi:; trutc is in sei5in of the case. An investigation under s. 202 is ''for the pue of deciding wethcr or not there i~ ufficicnt ground for proceeding\". 11.:1 obje.:t in.ot to inlti:1te a fresh c:.'C on rolicc report, but to ns, ist the M~S.i5:ru:e in completing procceJin~, already in,; titutd upon ; t cotnpl:<int before him. The stafo'e nt which \\. 202 couiJ hl:utn.; opcn.tivc wu~ !lever rcacheJ in thi,\n\n~:~-.e. [DOB-H; 53 I Jjj\n\n(2} When on recivina a Nmpbint, tb~ Magitratc upplie~ his mind for th~ purpose' of proceedtng under s. 201) o.ud the sueeding cction5 in cbopter XV of lh<! Code or 1973, he is said to have taken cogni:wnce of the otfo:nce within the men in~ of s. 90(1)(~). _lf i!'s<ed or proceedin~ under Chap:er xv. he ha• 10 the utrctse or h11 <lt•creuon, taken uctlon of ome other k.ind, he cnnnot be •:.id to h:ve taken co~:n.it.ance or any olfc:nce. i'26D-G)\n\nG Nlrmaliit Sinlt /loon\\'. 1/1t Stutt: vi H'rll /Jo•IIJ; al am( llnr. [197JJ 3 S.C'.C. 753, referred to.\n\nCRIMI.'\\AL Al'l'flLATr. JL'J<rSDlCTI0:-1: Criminnl Ap(Xnl No. 219 or 197.5.\n\n_ ( Appc<tl by bpl!cial leave from the judgment nnd orJtr dalt:d. th.: 20th October, 1975. of the Andhra Pradesh High Court <tt Hydcrahad\n\nin Criminal Misc. Petition No. 1890 of 197.5).\n\n1'. Ba.1i Reddy, and A. V. V. Na1r, for the appellants .\n\n. OJ. R. K. Clwudlwry and B. Kania R11o, for rcpondnt No. l.\n\nP. Ram Reddy, and P. Parameslzwara Rao, for respondent Nos. 2 and 3.\n\nA ,. 'The Judgment of the Court was delivered by\n\nJ.-Whether in view of Clause (a) of the first Proviso to s. 202( U of the Code of Criminal Procedure, 1973, a Magistrate ' who receives a complaint, disclosing an offence exclusively triable by =<\n\nthe Court of Session, is debarred from sending the same to the police for investigation under s. 156(3) of the Code, is the short question B:\n\n~ that falls to be determined in this appeal by special leave.\n\nThe queitioo arises in these circumstances : !- Reipondent 1 herein made a complaint on July 26 .. 1975 before -( •\n\n... the Judicial Magistrate, First Class, Dharamavaram against the appel-\n\nIan~ herein alleging that on account of factions existing in village Thippapalli the appellants formed themselves into an unlawful assembly, c armed with deadly weapons, such as axes, spears and sticks, on the night of June 20, 1975 and entered the houses of several persons ....._ belonging to the opposite party, attacked the inmates and forcibly took\n\naway jewels, paddy, ground-nuts and other valuables of the total value of two lakhs of rupees. It was furthyr alleged that the miscreants thereafter went to the fields and removed parts of machinery worth\n\n- ov.:r Rs. 40,000/-, installed at the wells of their enemies. On these D -~ facls it was alleged that the accused had committed offences under Si. 147, 148, 149, 307, 395, 448, 378 and 342 of the Penal Code.\n\nThe otl'ences under ss. 307 and 395 are exclusively triable by the Court of Session.\n\nThe Magistrate on receiving the complaint for- \" warded j.~ to the Police for investigation with tbis endorsement :\n\n~ \"Forwarded under s. 156(3), Cr. Procedure Code to the Inspector of Police, Dharmavaram for investigation and E .. report on or before 5-8-197 5.\" '\n\nThe appellants moved the High Court of Andhra Pradesh by a petition unckr s. 482 of the Code of Criminal Procedure, 1973 (which correip<>nds to s. 561-A of the old Code) praying that the order passed by the Magistrate be quashed inasmuch as \"it was illegal, unjust and gravely prejudicial to the petitioners\". The learned Judge F\n\nr of the High Court, who heard the petition,. dismissed it by an order dated October 20, 1975.\n\nHence this appeal. ; Mr. Basi Reddy, appearing for the appellants contends that the\n\njoo High Court has failed to appreciate the true effect of the changes brought by the Code of 1973. According to the Counsel, under the G\n\n1 new Code. if a complaint discloses an offence triable exclusively by a court of Session, the Magistrate is bound to proceed with that complaint himself before issuing process to the accused. The point pressed into argument is that clause (a) of the first Proviso to s. 202(1), of the new Code peremptorily prohibits the Magistrate o direct investigation of such a complaint by the Police or any other person. The - cases. Gopal Das v. State of AssamC); Jamuna Singh v. Bhadai u Shah(2), referred to by the High Court are sought to be distinguished\n\n(1) {1961) A.T.R. 1961 S.C. 986.\n\n(2) {19641 s s.c.R. 37.\n\nSUPREME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\non the ground that they were decided under the old Code, s. 202 of which did not provide for any such ban as has been expressly enacted in the 1st Proviso to s. 202 of the new Code.\n\nAs against this, Mr. Ram Reddy, whose arguments have been adopted by Mr. Chaudahry, submits that the powers conferred on the Magistrate under s. 156(3) of the Cod~ are independent of his power to send the case for investigation under s. 202 of the Code; that the power under s. 156 (3) can be invoked at a stage when the Magistrate has no: taken cognizance of the case while s. 202 comes into operation after the Magistrate starts dealing with •the complaint in accordance with the Provisions of Chapter XV. It is urged that since in the instant case, the Magisrate had sent the complaint for police investigation withou.~ taking such cognizance s. 202 including the bar enacted therein, was not attracted. In the alternative, it is submitted that the ban in the 1st Proviso to s. 202, becomes operative only when the Magistrate after applying his mind to th~ allegations in the complaint and the other material,, including the statement of the complainant and his witnesses, if any, recorded under s. 200, is prima facie satisfied that the offence complained of ls triable exclusively by the Court of Session.\n\nThe point sough! to be made out is that a mere allegation in the complaint that the offence committed is one exclusively triable by the Court of Session, does not oust the jurisdiction of he Magistrate to get the case investigated by the police or other person.\n\nThe word \"appears\" according to Counsel, imports a prereauisite or condition precedent, the existence of which must be objectively and judicially established before the prohibition in the 1st Proviso to s. 202 becomes operative. It is added that in the instant case,, the existance of this condition precedent was not, and indeed could not be established.\n\nIt appears to us that this appeal can be disposed of on the firs-t ground canvassed by Mr. Ram Reddy.\n\nBefore dealing with the contention raised before us, it will be F appropriate to notice the relevant provisions of the old and the new Code.\n\nSection 156 of the Code of 1973 reads thus :\n\n\"156(1). Any officer in charge of a police station may, without the order of a Magistrate, investigae any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the revisions of Chapter XIII.\n\n(2) No proceeding of a police officer in any such case shall at any stage be caUed in question on the ground that the case was one which such o!lker was not empowered under this section to investigate.\n\n(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.\"\n\n- ...\n\nThis provision is substantially the same as s. 156 of the Code of A 1898, excepting that in sub-s. (1) for the words \"Chapter XV relating to the place of inquiry or trial,\" the words \"Chapter xur have been substituted.\n\nSections 200 and 202 of the 1898 Code and the 1973 Code,. placed in juxtaposition, read as follows :\n\n1898 Code s. 200 : A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint and the witnesses present, if any, upon\n\noath and the substance of the examination shill! be reduced to writing and shall be signed by the complainant and the witnesses, and also\n\nby the Magistrate ;\n\nProvided as follows :-\n\n(a} when the complaint is made in writing, nothing herein contained shall\n\nb~ deemed to require a Magistrate to examine the complainant before transferring the case under section 192;\n\n(aa) when the cpmphint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made\n\nby a Court or by a public servant acting or purporting to act in the discharge of his official duties;\n\n(b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing; but the Magistrate may, if he thinks fit,\n\nbefore the matter of the complaint is brought before him, require it to be reduced to. writing ;\n\n1973 Code s. 200 : A Magistrate taking cognizance of an offence on complaint shall exmine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to \\\\>riting and shall be signed by the cmplai nant and the witness~, and also by the Magistrate.\n\nProvided that, when the complaint is\n\nmade in writing, the Magistrate need not examine the complainant and the witnesses -\n\n(a) if a public servant acting or purporting to act in the discharge of his official dutie~ or a Court has made the complaint; or\n\n(b) if the Magistrate makes over the\n\ncase for enquiry or trial to another\n\nMagistrate under section 192 ;\n\nProvidej further that if the Magistrate\n\nmake~ over the case to another Magistrate under section 192 after examining the complainant and the\n\nwitnesses, the latter Magistrate need not re-:!xamine them.\n\n(c) when the case has been transferred\n\nunder section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.\n\nStc. 202\n\nPostponement of issue of Process :~\n\n(l) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or\n\nSec. 202\n\nPostponement of Issue of process :-\n\n(1) Any Magistrate, on receipt of a complaint of a:n offence which he is authorised to take cognizance or\n\n528 SUPREi\\iE COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nwhich bas been made over to him under sec. 192, may if he thinks fit, which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance ofthe person complained against, and either inquire into the case himself or, if he is a Magistrate other than a\n\nMagistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit. for the purpose of ascertaining the truth or falsehood of the complaint;\n\npostpone the issue of process against • the accused, and either inquire into the case himself or direct an inleStigation to be made by a police office£ or by such other person as he thinks fit, for the purpose of decidinl\n\nwhether or not there is 11ufficient ground for proceeding :\n\nProvided that, save where the complaint Provided that no such.direction for investigation shall be made :- has been made by a Court, no such direction shall be made unless the (a) complainant has been examined on oath under the provisions of section\n\nwhere it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or 200.\n\n(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a Police officer. such person shall exercise all the powers conferred by this Code on an officer in-charge of a Police-station. except that be shall not have tbe power to arrest without warrant.\n\n(b) where the complaint has not beC1l\n\nmade by a Court, unless the complaint and the witnesses present (if any) have been examined on oatil under Section 200.\n\n(2) H any inquiry under sub-section (1), the Magistrate may, if he thinkii fit, take evidence ofwitnesse~. on oath :\n\n(2A) Any Magistrate inquiring into a Provided that if it appears 'to the Magis- Case under this section may, if he trate that the offence complained of thinks fit, take evidence of witnesses is triable exclusively by the Court of on oath.\n\nSession, he shall call upon the COIIlplainants to produce all his witnesses and examine them on oath.\n\n(3) This section applies also to the police (3) in the towns of Calcutta and Bombay.\n\nIf an investigation under sub-section\n\n(1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer incharge of a police station e~Ccept the power to arrest without warrant.\n\nBefore proceeding further, we may have a look at s. 190 of the new Code. This section is captioned \"Cognizance of offences by Magistrates\".\n\nThis section so far as it is material for our purpose, provides:\n\n\"Subject to the provisions of this Chapter, any Magistrate of the First Class and any Magistrate of the second class specially empowered in tp'i~ behalf may take cognizance of any offence-\n\n(a) upon receiving a complaint of facts which constitute such offence;\n\n(2)\n\n(b) upon a pollee report o~ such facts;\n\n(c) upon information received from any person other than a police officer, or upon his own knowledge, that suck offence has been committed. .. ·\n\nIt is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the/ commission of an offence. This is clear from the use of the words \"may take cognizance\" which in the context in which they\n\noccwr cannot be equated with must take cognizance\".\n\nThe word \"'may\" gives. a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under s. 156(3) will be conducive to j\"ustioe\n\nand save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to takin~ cognizance of the offence, himself.\n\nThjs raises the incidental question : What is meant by \"taking cognizan<:e of an offence'' by a Magistrate within the contemplation of s. 190 ?\n\nThis expression has not been defined in the Code.\n\nBut from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Gourt takes cognizance of the offence alleged therein.\n\nThe ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstance~. of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate.\n\nBroadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190 ( 1 )(a). If, instead of proceeding under Chapter XV. he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police\n\nunder s. 156(3), he cannot be said to have taken cognizance of any offence.\n\n\" This position of law has been explained in several cases by this Court..., the latest being Nirmaljit Singh Hoon v. The State of West Bengal: and anrC).\n\n- t\n\nThe position under the Code of 1898 with regard .to th.e pc_>wers of a Magistrate having jurisdiction, t? send a c?mplatnt d!sclosmg a H cognizable offence-whether or not tnable excluswely by the Court of\n\n(1) [1973} 3 s.c.c. 753.\n\n36-83~SCI/76\n\n53()\n\nSUPRE:\\1E COURT REPORTS\n\n[1976] SUPPLE:1IENTARY\n\nSession-to the Police for invesigation under s. 156(3}~ rer..ains unhangd nder the Code of 1973. The distinction between a police\n\nmvesngatron ordered under s. 156(3) and the one directed under s. 202, has also been maintained under the new Code; bU! a rider has been clamped by the 1st Proviso to s. 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of\n\nSession has been committed, he shall not make any directio:t for inve&tigation.\n\nSection 156(3) occurs in Chapter XII, under the caption : \"Information to the Police and their powers to investigate\"; \"rhile s. 202 is in Chapter XV which bears the heading \"Of complaints to Magistrates\".\n\nThe power , to order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The two operate in distinct spheres at different stages.\n\nThe first is exercisable at , the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case.\n\nThat is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by\n\nthe Magistrate before he ttakes cognizance of the offence under s. 190(1) (a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to\n\nswitch back to the pre-cognizance stage and avail of s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1 )_.\n\nSuch an investigation embraces the entire continuous pr~ cess which begins wi, th the collection of evidence under s. 156 and ends with a report or chargesheet under s. 173.\n\nOn the other hand s. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure.\n\nIn such a situation, the Magistrate is empowered under s. 202 to direct within the limits circumscribed by that section,\n\nan investigadon \"for the purpose of deciding whether or not here is sufficient ground for proceeding\".\n\nThus the obiect of an investia, ation under s. 202 is not to initiate a freah case on police report but to assist the Magistrate in completing proceedings already nstituted upon a complaint before him.\n\nIn the instant case the Magistrate did not apply his. mind to the complaint for deciding whether or not there is sufficient ground for proceeding; but only for ordering an investigation under s. 156(3).\n\nHe did not bring into motion the machinery of Chapter XV. He did not examine the complaint or his witnesses under s. 200, Cr.P.C., which is the first step in the procedure prescribed under that Chapter.\n\nH The question of taking the next step o~ that procedure em-isaged in s. 202 did not arise. Instead of takiJlg cognizance of the offence. he has,, in the exercise of his discretion, sent the complaint f<:\"r investigation by police under s. 156.\n\n+ -\n\nThis being the position, s. 202(1), 1st Proviso was not attracted.\n\nA Indeed, it is not necessary for the decision of this case to express any final opinion on the ambit and scope of the 1st Proviso to s. 202(1) cf the Codei of 1973, Suffice it to say, the stage at which s. 202 -could become~ operative was never reached in this case. We have therefore in keeping with the well-established practice cf the Court, <lecided only that much which was essential for the disposal of this appeal, and no more.\n\nB For the foregoing reasons, we answer the question posed,, in the negative, and dismiss this appeal.\n\nM.R.\n\nAp.peal dismissed.", "total_entities": 83, "entities": [{"text": "0\n\nDEVARAPALLI LAKSHMINARAYAN~ REDDY & ORS", "label": "PETITIONER", "start_char": 53, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "DEVARAPALLI LAKSHMINARAYANA REDDY & ORS", "offset_not_found": false}}, {"text": "V. NARAYANA REDDY & ORS", "label": "RESPONDENT", "start_char": 99, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "V. NARAYANA REDDY & ORS", "offset_not_found": false}}, {"text": "P. N. 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{"document_id": "1976_1_532_541_EN", "year": 1976, "text": "EXCISE COMMISSIONER, U.P., ALLAHABAD\n\nRAM KUMAR\n\nMay 5, 1976\n\n[A. N. RAY, C.J., R. S. SARKARIA, P. N. SHINGHAL\n\nAND JASWANT SINGH, JJ.J\n\nEvidence Act-Estoppe/ against Government in exercise of legislative, sovereign or executive powers-U.P. Excil\"e Act 1910-Sec. 24, 28, 31, 33, 40 fllld 41- Whet!zer excise duty can be levied on unlifted stock of liquor.\n\nC U.P. Sales Tax Act 1948, Sec. 3A and 4-Whether exemption fronl payme11t\n\nof sales tax can be withdrawn-Estoppel.\n\nThe State of Uttar Pradesh bas under the U.P. Excise Act, 1910, the exclusive right or privilegoe of manufacturing and selling liquor in that State.\n\nSection 24 of the Act provides that subject to the provisions of s. 31 the Excise Commissioner may grant to any persOn a licence for the exclU5ive privilege of manufacturing or of supplying any country liquor etc.\n\nSection 31 provides for the conditions for the grant of licence. Section 33 invests the authority granting a licene to require the grantee to execute a counterpart agreement in conformity with the tenor of the licence.\n\nSection 28 authorises imposition of an excise duty or a countervailing duty by the local Government on any excisable article. Sections 40 and 41of the Act empower the State Government and the Excise Commissioner subject to the previous sanction of the Government tomake rules.\n\nPara 38 of the Excisei Manual which contains the rules made under the Act shows that there are 4 licence fee systems in vogue. One of such sySterns is the auction fee system uRder which the amount of licence fee is determined by competition amongst bidders at an auction. The respondents were the highest bidders at various auctions. Before holding the auctions, the rates of excise duty and prices of different varieties of country liquor and also the conditions of licence were announced. No announcement was made as to whether the exemption from sales tax in respect of sale of country liquor granted by the notification dated 6-4-1959 was or was not likely to be withdrawn.\n\nOne of the conditions of the licences was that the licensee shall lift each month certain quota of liquor and on the failure to lift the monthly quota the licensee shall be liable, to pay compensation to the State Government calculatffi at the rate of duty per litre on the uhlifted quota. On the day following the day when the licences were granted, the Government of U.P. issued a notification under s. 3A and 4 of the U.P. Sales Tax Act, 1948, superseding the earlier notification exempting the: payment of sales tax and imposing sales tax on the turnover in respect of country spirit at the rate~ of 10 P. per rupee. The respondents having failed to lift and sell the minimum quotas of liquor the appellant called upon them to pay by way of compensation the amounts of excise duty on the shortfalls.\n\nAggrieved by the. demand, the -respondents mo\\'ed the High Court under Art. 226 of the Constitution for issue of appropriate writ or direction restraiaing the appellants from recovering the aforesaid amounts. The respondents in\n\npecial appeals also challenged the notification issued under the Sates Tax Act on the Q'round that the State Government did not announce at the time of the auction that the earlier notification was likely to be withdrawn and that the appellant informed the respondents at the time of the auction that there was no sales tax on the sale of country liquor. The appe11allts were, therefore, estopped from making the demand in respect of the sales tax and recoverihg the same from them.\n\nThe High Court allowed all the petitions in toto.\n\nOn appeal by scial leave,\n\n' • -\n\n< I •\n\nEXCISE COMMR. V. RAM KUMAR 533\n\nHELD : (I) Neither s. 28 nor s. 29 nor any other provisions of the Act A authorise the levy_ of the, amounts SQUght to be recovered from the tespoIL\".lents.\n\nThe demand made by the appellant though disguised .,. compensatton is in reality a demand for excise du, ty on unlift<d quantity of liqu<ir which is not authorised by the provisions of the /'Ct. [538A-E]\n\nBimal Chandra Banerjee v. State of Madhya Pradesh, [1971] I S.C.R. 844, followed.\n\nPanna Lal and Ors. etc. v. State of Rajasthan and others, [1976] 1 S.C.R. 219, distinguished.\n\nAppeals dismissed.\n\n(2) Sections 3A and 4 of the U.P. Sales Tax Act clearly authorise the State Government to impOSe sales tax. The fact that sales of country liquors had been exempted from sales tax by the earlier notification could not operate as estoppel against the State Government and preclude it from subjecting the sales\n\nto ta.~ if it felt impeiled to do so iu. the il).terest of' the revenues of dre State.\n\nThere can be no question of estOppel against the Government in exercise of its legislative, sovereign or executive powers (case Jaw reviewed). The Government cannot divest itself of the right incidental to its office by conduct which in the case of a private pefS'On would amount to estoppel. The six appeals therefore, are partly allowed.\n\nCIVIL APPELLATE JURISDiCTION : CIVIL APPEALS Nos : 276-395\n\nAND 397-404 OF 1975 Appeals by Special Leave from the Judgments and Orders dated 21.2.72., 8.3.72., 21.2.72., 10.3.72., 21.3.72, 16.12.71., 24.3.72.,\n\n21.3.72., 21.3.72., 22.3.72., 25.2.72., 8.3.72., 21.2.72., J0.3.72., 8.3.72.,\n\nJ0.3.72., J0.3.72., 18.2.72., 16.12.71., 9.3.73., 8.3.72.,25.2.72., 16.12.71., 25.3.72., 15.3.72., 25.3.72., 25.2.72., 25.3.72., 25.2.72., 14.3.72., 14.3.72., 21.3.72., 14.3.72., 14.3.72. 21.3.72., 21·3.72.,14.3.72., 25.3. 72., 25.3.72., 21.3.72., 21.3.72., 21.3.72, 21.3.72.,24.3.72, 24.3.72, 24 3.72., 24.3.72., 25.3.72., 213.72, 3.4.72., 21.3 72., 3.4.70. 24.3.72., 24.3.72 24.3.72, 24.3.72., 24.3.72., 24.3.72, 25.3.72., 25.3.72., 25.3.72 25.3.72 25.3.72., 25.3.72., 3.4.72., 3.4.72., 3.4.72., 3.4.72., 3.472' 14-3.72. 3.9.71., 3.9.71., 16.7.71., 14.3.71., 29.3.72., 14.3.72., 14.3.72, 14.3.72., 5.4.72., 5.4.72., 5.1.72., 5.4. 72., 18-2-72., 23.2. 72., 10.3.72., 20.1.72., 9.1.72., 31.1.72., 31.1.72., 31.1.72., 31.1.72., 8.3.72., 2.2.72 3.2.72., 25.2.72., 2.2.72., 10.3.72., 4.2.72., 25.9.72., 25.9.72., 6.10.72., 1.2 73., 13.2.73., 30.1.73., 9.4.73., 13.2.73, 14.2.72., 13.3.72., 13.3.72., 243 72., 18.7.72., 4 9.73 ' 25.2.72, 17.5.71., 21.3.72., 3.4172., 21.3.72., 16.7.71., 5.4.72, In Special Appeal Nos. 616, 643, 617, 644/74 and Civil Misc Writ Nos 2268, 448, 2280, 2254, 2255/69 and Special Appeal Nos. 730, 752, 647, 615, 611, 648, 645605. 610/71 and Civil Misc. Writ No. 449/68 and Special Appeal No. 86, 796, 775/71 an~ W.P. No. 450,169 and C Misc. Writ No. 451, 2183, 5706, 2915/69, S. A. No. 690/71 C. Misc Writ No.3037/69 and S. A. No. 613171 and-C. Misc. Writ No. 2090/ 69 and Civil Misc. Writ Noo. 2094, 2119, 2122, 2172, 2188, 2189 -92, 2180-2182, 2187, 2256, 2273, 2274,2276-2279, 2282-2284, 2334 2347, 2576, 2608-2611, 2649 2690, 2742-2743, 2759, 2760, 2811, 2850,\n\n2916, 2918, 2919, 3075, 3400/69 and 543-546, 786, 1039, 1246, 1248, 2169, 3881, 4035, 4428, 4563, 4821, 211, 250, 256, 7253, 607, 614, 618, 628, 7655, 691-694, 729, 732, 751, 776, 787, 799, 805/71 and Civil Misc . .Writ No. 1525, 1529,3387, 7051, 7253, 7588, 7575, 7980\n\nand Special Appeal Nos. 6, 102, 115, 166, 309/72 and 1902/73 and Special Appeal No. 774/71 and Civil Misc. Writ No. 2121}69, 2194/69 547 /70, 3375/69 and writ Petition No. 3627 /70, 260/71 respectively.\n\nB •\n\nB. Sen and 0. P. Rana for the Appellant.\n\nYogeswar Prasad, S. K. Bagga and (Mrs.) S. Bagga, for the Respondent in CA 399/75 and 400-405/15.\n\n(Miss) Kamlesh Bansal, for Respondent in CAs. 310 312 238 403, 357 and 313/75. ' '\n\nL. C. Goyal, for Respondent in CA No. 396/75.\n\nThe Judgment of the Court was delivered by\n\n_JASWAN1: SINGH, J.-This batch of 127 appeals by special leave which are directed against various judgments rendered by the High Court of Judicature at Allahabad in writ petitions and special appeals and rela:e to enforcement of certain obligations of licensees for retail vend of country liquor shall be disposed of by this judgment.\n\nThe facts leading to these appeals are : The State of Uttar Pradesh has,. under the U.P. Excise Act 1910 (Act No. IV 0£ 1910) (hereinafter referred to as 'the Act') which contains provisions relating to all aspects and manifestations of intoxicating liquors and intoxicating drugs, that is to say, their import, export, .transport, manufactw:e, sale and possession, the exclusive right or privilege of manufacturing and selling liquor in that State.\n\nSection 24 of the Act Jays down that subject to the provisions of section 31, the Excise Commissioner may grant to any person a licence for the exclusive privilege-\n\n( I) of manufacturing or of supplying by wholesale, or of both, or\n\n(2) of selling by wholesale or by retail, or\n\n(3) of manufacturing or of supplying by wholesale, or of both and or selling by retail any country liquor or intoxicating drug within any local area.\n\nSection 31 provides that every licence, permit or pass granted under the Act shall be granted- ( a) on payment of such fees (if any);\n\n(b) subject to such _restrictions and on such conditions; (cl shall be in such form and contain such particulars,, as te\n\nExcise Commissioner may direct either generally or m any particular instance in this behalf; and ( d) shall be granted for such period as the State Government may, in like_ manner, direct.\n\nSection 33 of .the Act invests the authority granting a licence undr the Act to require the grantee to execute a counterpart agreeent 1n conformity with the tenor of his licence and to give such se:ur.1ty or the performance of such. agreemen.t or to make such deposit m lteu of security as such authonty may thmk fit.\n\nSection 28 of the Act which deals with imposition of excise duty or countervailing duty reads :-\n\n\"28. ( 1) Duty on excisable article.-An excise duty or a countervailing duty, as the case may be at such rate or rates as\n\nl • '\n\nEXCISE COMMR v. RAM KUMAR (Jaswant Singh, !.) 535\n\nthe Local Government shall direct, may be imposed, either generally or for specified local area, on any excisable article-\n\n(a) imported in accordance with the provisions of section 12(1); or\n\n(b) exported in accordance with the provisions of section 13; or ·\n\n( c) transported; or\n\n(d) manufactured, cultivated or collected under any licence granted under section 1 7; or\n\n(e) manufactured in any distillery established, or any distillery or brewery licensed, under section 18 .... \"\n\nSection 29', of the Act lays down the manner in which the duty \"· may be levied.\n\nOne of the ways provided in the section for levy of the duty is by payment upon issue for sale from a warehouse established or licensed nnder section 18 ( d) of the Act.\n\nI Sectiol1S 40 and 41 of the Act empower. the State Government and the Excise Commissioner (subject to the previous sanction of the Government) to make rules for the purposes set out therein.\n\nThese rules are con, tained in the Excise Macual, Uttar Pradesh (Volume I).\n\n• Paragraph 3 8 of the Excise Manual shows that there are four t licence-fee systems in vogue in the State of Uttar Pradesh. One of such symems is 'The auction fee system' under which the amount of licence fees inter alia for the retail sale of country spirit under the • distillery system and for the manufacture and retail sale of country spirit under the outstill system is determined by competition among bidders. According to paragraph 332 licences for the wholesale and retail \".en\"d of intoxicants are usually granted for the excise year which commences from April 1 and lasts upto March 31.\n\nIn accordance with the requirements of the auction system, auctions were held throughout Uttar Pradesh during the months of February and March, 1969 on various dates and at various places for the grant of licences to sell country spirit by retail at the specified shops during the excise year 1969-70.\n\nBfore holding the auctions, rates of excise duty and prices of different varieties of country liquor as also the conditions of licences for sale of country spirit for 1969-70 were announced.\n\nNo announcement was, however, made as to whether the exemption from sales tax in respect of sale of country liquor granted vi de Notification No. ST 1149/X-802(33)-51 dated April 6,, 1959, issued under section 4. of the U.P. Sales Tax Act, 1948 was or was not likely to be withdrawn.\n\nThe respondents herein 1participated in the aforesaid auctions and being the highest bidders were granted licences 'for retail sale of country spirit for the period beginning from April I, 1969 to the end of March,, 1970.\n\nEach one of these licence!; contained inter alia the following coudition :- ·\n\n\"3. (a) The licensee shall lift each month the proportionate quota for the n; ionth, if any, fixed for his vend and deposit still,.. head dty rea!JSable th.ereon. On his failure to lift the monthly\n\nproportionte quota m any month, he shall be liable to pay compensation. to the State Government at the rate equal to the rate of s!11lhead duty per litre of spiced spirit and stillhead dutx per litre of plain spirit as may be in the area in which the shop is situated on the quantity falling short of such monthly proportionate quota and such compenstion shall be paid by the 7th of the month following\n\nthe month to which such shortfall relates.\n\n(b) He shall be bound to sell the whole quantity of country spirit obtained for the shop from the warehouse.\n\nOn his failure to do so, he shall be liable to pay to the State Government compensation at the rate equal to the rate of stillhead duty per litre of spiced spirit and stillhead duty per litre of plain spirit as may be in force in the area in which the shop is situ<>'.ed on the unsold quantity of country spirit during. the period of the contract to which. the licence relates.\n\n( c) In the evmc of the licensee being required to pay compensation to State Government under the aforesaid coodition due to the short lifting of the quota or non-deposit of < such compensation, the amount of said compensation may be realised from the amount of security deposited by him. The resultant deficiency in the amount of security shall be made gocd by the licensee within seven days of such adjustment.\n\nIn case the short Ji£ting oC proportionate monthly quota or short deposit of compensation continues for two conseeutive months or the licensee fails to make up the deficiency in the amount of security within the prescribed period of seven days his Jicenc\"_ may be cancelled in addition to the recovery of the deficiency in payment of compensation as arrears of I and revenue.\"\n\nOn the day following the commencement of the aforesaid licences i.e. on April 2, 1969, the Government of Uttar P'.adesh issued Noti- \\c fication No. ST-1603/X-900 (12)/67 under section 3-A and 4 of - the U.P. Sales Tax Act, l 948, superseding the earlier Notification No. ST 1149/X•802(33)-51 dated April 6, 1959, issued under section 4 of the U.P. Sales Tax Act, 1948, and imposing sales tax on the turnover in respect of country spirit at the rate of ten paise per rupee a'. the point of retail sale with immediate effect.\n\nThe respondents herein having failed to lift and se'.l the minimum quotas of liquor prescribed in their licences were reqmrcd by the excise authorities of the State to -pay, by way of compe_nsation, te amounts of excise duty leviable on .the short-falls. Aggneve<; l by this demand, the respondents moved the High Court under Articles 226\n\n< f •\n\nEXCISE COMMR. v. RAM KUMAR (Jaswanl Singh, J.) 537\n\nof the Constitution for issue of apporpriate writ or directions rei$- A training the• appellants herein from recovering the aforesaid amounts contending inter alia that the condition of their licences on the basis of which the demand was made was invalid, unconstitutional and u.nenforceable.\n\nThe respondents in six appeals Nos. 399 to 404 of 1975 also challenged Notification No. ST-1608/X-900( 12)/67 (dated April 2, 1969) (supra) which superseded the earlier Notification No. ST 1149/X-802(33)51 dated April 6, 1959 and imposed B sales tax on the turnover in respect of the country liquor at the rate of ten paise per rupee at the point of retail sale by the vendor with effect from April 2, 1969 on the ground that since the state Government did not announce at the time of the aforesaid auction that Notification No. ST l 149/X-802t33)51 dated April 6, 1959, was likely to be withdrawn and the sales of country liquor were likely to he subjected to the levy of sales tax during the excise year and in reply C to the query made by them at the time of the auction they were told by the authorities that there was no sales tax on the sale of country liquor, the appellants herein were estopped from making the demand in respect of sales tax and recovering the same from them.\n\nTI1e High Court allowed all these petitions in toto. Having failed to secure certificates of fitness from the High Court, the appellants applied for and obtained special leave to appeal from this Court.\n\nThe common question of law that arises for determination in all these appeals is whether the condition incorporated in the licences of the respondents that they would lift the fixed minimum quantity of liquor and sell the same at their allotted shops and in cse of their default or failure to do so, they would be liable to pay compensation E eq:ic! to t!cc mccou!lt of the excise duty leviable on the lll1lifted quantity is valid and enforceable. This point is no longer res integra. In Bimal Chandra Banerjee v. State of Madhya Pradesh(') this Court held that :\n\n\"No tax can be imposed by any bye-law or rule or regulation unlegs the statute under which the subordinate legislation is made specially authorises the imposition. In the pre\":nt case, the legislature has levied excise duty or countenailing duty on the excisable articles which have been either imported. exported, transported, manufactured, cultivated or collected under any licence granted under section 13, or manufactured in any distillery or brewery established or licensed under the Act; and the State Government has not been empowered to le\\'Y any duty on liquor which the contractors failed to lift Therefore. the State Government was exercising a power which it did not possess and hence the rule imposing the condition in the licences and the demand notices are invalid.\"\n\nThus the aforesaid question arising for determinatio.n by us stands already settled by the ratio of the decision of this Court in Bimal H Chandra Banerjee's case (supra.)\n\n0) [1971] I S.C.R. 844.\n\nA It will also be noticed that neither section 28 nor section 29 nor aay other provision of the Act authorises the levy of the amounts sought to be recovered from the respondents.\n\nThe decision of this Court in Panna Lal and Ors. etc. etc. v. State of Rajasthan and Ors.(') which is sought to be relied upon on behalf of the appellants is clearly distinguishable.\n\nIn that case, the contractual obligation of the appellants to pay the guaranteed sum or the stipulated sum mentioned in the licences was not dependent on the quantum of liquor sold by them and no excise duty was charged or chargeable on undrawn liquor under the licences. The excise duty there was collected only in relation to the quantity and quality of the country liquor whiah was drawn. -\n\nC We have, therefore, not the lightest hesitation in holding that the\n\ndeaiand made by the appellants though disguised as compensation, is in reality a demand for excise duty on the unlifted quantity of liquor which is not authorised by the pcovisions of tho Act.\n\nThis being the sole point involved in appeals other than Appeals Nos. 399 to 404 of 1975, the former Appeals cannot succeed.\n\nIn the result they are dismissed with costs.\n\nAppeals Nos. 399 to 404 of 1975 which raise another point as well viz. the validity of the appellants' demand from the respondents in respect of sales tax at the rate of ten paise per rupee on the retail sales of country spirit made by the latter with effect from April 2, 1969 stand on a slightly different footing.\n\nSection 3-A and 4 of the U.P. Sales Tax Act, 1948 clearly authorise the State Government to impose sales tax.\n\nThe fact that sales of country liquor had been exempted from sales tax vide Notification No. ST 1149/X-802(33)- 51 dated April 6, 1959 could not operate as an estoppel against the State Government and preclude it from subjecting the sales to tax if it felt impelled to do so in the interest of the Revenues of the State which are required for execution of the plans designed to meet !he ever ir.creasing pressing needs of the developing society.\n\nIt is now well settled by a catena of decision that there can be on question of estoppel against the Government in the exercise of its legislative, sovereign or executive po\\vers.\n\nWhile speaking for the Court in M. Ramanathan Pillai v. State of Kera/a(') the learned Chief justice quoted with approval the following statement contained in American Jurisprudence 2d. at page 783 paragraph 123 :-\n\n\"In American Jurisprudence 2d at page 783 paragraph 123 it is stated \"Generally, a state is not subject to an estoppel to the same extent as an individual or a private corporation.\" Otherwise, it might be rendered helpless to assert its powers in government.\n\nTherefore as a general rule the doctrine of estoppel will not be applied against the State in its governmentat public or sovereign cattacity.\"\n\n(I) [1976] l S.C.R. 219.\n\n(2) [1973! 2 s.c.c. 650.\n\n' • < •\n\n.. '\n\nEXCISE COMMR. v. RAM KUMAR (laswan! Singh, l.) 539\n\nIn State of Kerala and Anr. v. The Gawalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. Ltd.(') where the respondent company established itself in the State of Kerala for production of rayon cloth pulp on an understanding that the Government would bind itself to supply raw J1Jaterial and later the Government on finding that it was not able to supply the material undertook not to legislate for the acquisition of the pi:ivate forests for a period of 60 years if the company purchas<; d forest lands for the purpose of its supply of raw material and accordingly, the company did purchase 30,00 acres of private forests from an estate for Rs. 75 lakhs for the afores11id purpose but the Government enacted Act 26 of 1971 expropriating vast forest areas without paying compensation as a measure of agrarian reform whereupon the respondent company sought to invoke the doctrine of equitable estoppel against the Government, Palekar, J. delivering the majority judgment observed :-\n\n\"We do not see how an agreement of the Government can preclude legislation on the subject.\n\nThe High Court !has rightly pointed out that the surrender by the Government of its legislative powers to be used for public good cannot avail the company or operate against the Government as equitable estoppel.\" Approving the decision of the House of Lords in Howell v.\n\nFalmouth Boat Construction Co. Ltd.(') where the observations of Lord Denning in Robertson v. Minister of Pensions (') that the action of the War Office which was an agent of the Crown in assuming authority over the matter and assuring the appellant who had been • <- serving in the army that his disability had been accepted as attributable to military service bound the Crown and through the Crown the Minister of Pensions, who while administering he Royal warrant issued by the Crown has to honou~ all assurances given by or on behalf of the Crown were unequivocally disapproved by observing that the character of an act done by an officer of a Government, however high or low in the hierarchy in face of a statutory prohibition, is not affected by the fact that it had been induced by a misleading assumption of authority and neither a Minister nor any subordinate officer of the Crown can, by conduct or representation, bar the Crown from enforcing a statutory prohibition.\n\nIt was held by Bench of this Court in Assistant Ciistodian Exacuee Property and Ors. v. Brij Kishore A garwala and Ors.(') that the Evacuee Department was not bound ' • by the reply given by the Assistant Custodian to the first respondent's enqniry that the property in question was not an evacuee property .\n\nFollowing the above decision, the High Court of Jammu & Kashmir has in Malhotra and Sons and Ors. v. Union of India and Ors('). rightly held that :-\n\n\"The courts will only bind the Government by its promises to prevent manifest injnstice or frand and will not make the Government a slave of its policy for all times to come when\n\n(1) [1971]2 s.c.c. 713.\n\n(2) (1951] A.C. 817.\n\n(3) [1949]1K.B.227.\n\n(4) [1975] I S.C.C. 21.\n\n(5) A.LR. 1976 J. & K. 41.\n\n540 SUpREME COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nthe Government acts in its Governmental, public or sovereign capacity.\" We may as well refer here to the celebrated decision of tbe Supreme Court of th, e. United States in Federal Crop Insurance Corporation v. Morrill('). In that case where the agents 6f the petitioner a wholly Government owned Corporation, created by the Federal Crop Insurance Act to insure producers of wheat against Joss in yields due to unavoidable causes including drought, advised the respo.:idents in ignorance of and contrary to the duly promulgated controlling reula tion which expressly precluded insurance cmerage of sprir.g wheat re-seeded on winter Wheat acreage that their entire 460 acres of spring wheat crop including the spring wheat which had been reseeded on winter wheat acreage in ihe 1945 crop year was insurable by the Corporation and recommended to the Corporation'-; branch office acceptance of the respondent's formal applicatio1 which, however, did not disclose that any part of the insured CrD? was reseeded and the Corporation accepted the application and a few months later, most of the responden.l'S' crop was destroyed by drought, and the Corporation on the loss being notified to them rdu'; ed to pay the loss on the ground that the wheat crop insurance regulations\n\nexpressly prohibited the insurance of spring wheat which was re-seeded on winter wheat acreage, fhe Court by majority held thac though a private insurance Corporation would be bound on similar '.oc'.s, the same was not true of a Government Corporation engaged in the insurance field and the latter was not estopped from repudiating the liability.\n\nThe following observations made by the court in Federal Crop Insurance Corporation v. Marrill (supra) are worth quotin.g :-\n\n\"It is too late in the day to urge that the Govemmnt is just another private litigant, for purposes of charging it with liability, whenever it takes over a business theutofore conducted by private enterprise or engages in competition\n\nwith private ventures. . . . . . Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.\n\nAnet this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority .... \"Men mnst turn sqnare corners when they deal with the Government\", does not reflect a callous outlook. It merely expresses the duty of all courts to observe the conditions defined by Congress for charging the public treasury.\" In his Treatise on the Law of Estoppel, Melville M. Bigelow has stated that in State v. Williams,( 2 ) State v. Bevars,(') and Wallace v.\n\nMaxwell( 4 ) it has been held that estoppel does not operate against the Government or its assignee. ·-------- (!) 332 U.S. 380-92 Led. 10.\n\n12) 94 N. Car. 891. (J) 86 N. Car. 588.\n\n(4) 10 !rd. 110.\n\n....!.... -{\n\nEXCISE COMMR. v. RAM KUMAR (lasivant Singh, J.) 541\n\nThe High Court was, therefore, clearly in error in ignoring that the A Go.vernment cannot divest itself of the right incidental to its office by conduct which, in the case of a private person, would amount to estoppel and in characterizing the demand for sales tax made by the\n\naJ'pel!ants as illegal. Accordingly Appeals Nos. 399 to 404 of 1975 are partly allowed, and it is held that the demand made by the appellants from the respondents in these appeals in respect of sales tax on the turnover of sales of country spirit made by them between April B 2, 1969 and March 31, 1970 was valid and could not be struck down.\n\nThe parties in these six appeals shall pay and bear their own costs.\n\nP.H.P.\n\nAppeals partly aJlowed .", "total_entities": 49, "entities": [{"text": "EXCISE COMMISSIONER, U.P., ALLAHABAD", "label": "PETITIONER", "start_char": 0, "end_char": 36, "source": "metadata", "metadata": {"canonical_name": "EXCISE COMMISSIONER, U.P., ALLAHABAD", "offset_not_found": false}}, {"text": "RAM KUMAR", "label": "RESPONDENT", "start_char": 38, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "RAM KUMAR", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 63, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "R. S. SARKARIA", "label": "JUDGE", "start_char": 80, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "R.S. SARKARIA", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 116, "end_char": 133, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Sec. 24, 28, 31, 33, 40", "label": "PROVISION", "start_char": 258, "end_char": 281, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act 1948", "label": "STATUTE", "start_char": 364, "end_char": 382, "source": "regex", "metadata": {}}, {"text": "Sec. 3A and 4", "label": "PROVISION", "start_char": 384, "end_char": 397, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act 1948", "statute": "Sales Tax Act 1948"}}, {"text": "Excise Act, 1910", "label": "STATUTE", "start_char": 519, "end_char": 535, "source": "regex", "metadata": {}}, {"text": "Section 24", "label": "PROVISION", "start_char": 623, "end_char": 633, "source": "regex", "metadata": {"linked_statute_text": "Excise Act, 1910", "statute": "Excise Act, 1910"}}, {"text": "s. 31", "label": "PROVISION", "start_char": 688, "end_char": 693, "source": "regex", "metadata": {"linked_statute_text": "Excise Act, 1910", "statute": "Excise Act, 1910"}}, {"text": "Section 31", "label": "PROVISION", "start_char": 838, "end_char": 848, "source": "regex", "metadata": {"linked_statute_text": "Excise Act, 1910", "statute": "Excise Act, 1910"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 903, "end_char": 913, "source": "regex", "metadata": {"linked_statute_text": "Excise Act, 1910", "statute": "Excise Act, 1910"}}, {"text": "Section 28", "label": "PROVISION", "start_char": 1058, "end_char": 1068, "source": "regex", "metadata": {"linked_statute_text": "Excise Act, 1910", "statute": "Excise Act, 1910"}}, {"text": "Sections 40 and 41", "label": "PROVISION", "start_char": 1184, "end_char": 1202, "source": "regex", "metadata": {"linked_statute_text": "Excise Act, 1910", "statute": "Excise Act, 1910"}}, {"text": "s. 3A and 4", "label": "PROVISION", "start_char": 2417, "end_char": 2428, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 2441, "end_char": 2460, "source": "regex", "metadata": {}}, {"text": "Art. 226", "label": "PROVISION", "start_char": 2891, "end_char": 2899, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1948", "statute": "Sales Tax Act, 1948"}}, {"text": "s. 28", "label": "PROVISION", "start_char": 3676, "end_char": 3681, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 29", "label": "PROVISION", "start_char": 3686, "end_char": 3691, "source": "regex", "metadata": {"statute": null}}, {"text": "[1976] 1 S.C.R. 219", "label": "CASE_CITATION", "start_char": 4161, "end_char": 4180, "source": "regex", "metadata": {}}, {"text": "Sections 3A and 4", "label": "PROVISION", "start_char": 4222, "end_char": 4239, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 4252, "end_char": 4265, "source": "regex", "metadata": {}}, {"text": "Excise Act 1910", "label": "STATUTE", "start_char": 8057, "end_char": 8072, "source": "regex", "metadata": {}}, {"text": "Section 24", "label": "PROVISION", "start_char": 8419, "end_char": 8429, "source": "regex", "metadata": {"linked_statute_text": "Excise Act 1910", "statute": "Excise Act 1910"}}, {"text": "section 31", "label": "PROVISION", "start_char": 8485, "end_char": 8495, "source": "regex", "metadata": {"linked_statute_text": "Excise Act 1910", "statute": "Excise Act 1910"}}, {"text": "Section 31", "label": "PROVISION", "start_char": 8850, "end_char": 8860, "source": "regex", "metadata": {"linked_statute_text": "Excise Act 1910", "statute": "Excise Act 1910"}}, {"text": "Section 33", "label": "PROVISION", "start_char": 9297, "end_char": 9307, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 28", "label": "PROVISION", "start_char": 9616, "end_char": 9626, "source": "regex", "metadata": {"statute": null}}, {"text": "section 12(1)", "label": "PROVISION", "start_char": 10069, "end_char": 10082, "source": "regex", "metadata": {"statute": null}}, {"text": "section 13", "label": "PROVISION", "start_char": 10138, "end_char": 10148, "source": "regex", "metadata": {"statute": null}}, {"text": "section 1", "label": "PROVISION", "start_char": 10252, "end_char": 10261, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 10362, "end_char": 10372, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 29", "label": "PROVISION", "start_char": 10381, "end_char": 10391, "source": "regex", "metadata": {"statute": null}}, {"text": "section 18", "label": "PROVISION", "start_char": 10605, "end_char": 10615, "source": "regex", "metadata": {"statute": null}}, {"text": "section 4", "label": "PROVISION", "start_char": 12201, "end_char": 12210, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 12224, "end_char": 12243, "source": "regex", "metadata": {}}, {"text": "section 3", "label": "PROVISION", "start_char": 14691, "end_char": 14700, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act", "label": "STATUTE", "start_char": 14723, "end_char": 14736, "source": "regex", "metadata": {}}, {"text": "section 4", "label": "PROVISION", "start_char": 14841, "end_char": 14850, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act", "statute": "Sales Tax Act"}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 14863, "end_char": 14882, "source": "regex", "metadata": {}}, {"text": "Articles 226", "label": "PROVISION", "start_char": 15366, "end_char": 15378, "source": "regex", "metadata": {"linked_statute_text": "Sales Tax Act, 1948", "statute": "Sales Tax Act, 1948"}}, {"text": "section 13", "label": "PROVISION", "start_char": 17886, "end_char": 17896, "source": "regex", "metadata": {"statute": null}}, {"text": "section 28", "label": "PROVISION", "start_char": 18507, "end_char": 18517, "source": "regex", "metadata": {"statute": null}}, {"text": "section 29", "label": "PROVISION", "start_char": 18522, "end_char": 18532, "source": "regex", "metadata": {"statute": null}}, {"text": "Section 3", "label": "PROVISION", "start_char": 19983, "end_char": 19992, "source": "regex", "metadata": {"statute": null}}, {"text": "Sales Tax Act, 1948", "label": "STATUTE", "start_char": 20013, "end_char": 20032, "source": "regex", "metadata": {}}, {"text": "Insurance Act", "label": "STATUTE", "start_char": 24930, "end_char": 24943, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "S. 380", "label": "PROVISION", "start_char": 27459, "end_char": 27465, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_1_53_58_EN", "year": 1976, "text": "DHARAM CHAND JAIN A\n\nTHE STATE OF BIHAR\n\nApril 14, 1976\n\nIP. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.] B\n\nMiner.al Concession Rules 1960--r .. 54-Scope of.\n\nOn September 12, 1958, the appellant made an application to the State Government under the Mineral Concession Rules, 1960 for the grant of a\n\nmining lease.\n\nHavinQJ had no reply from the State Government be filed a revision application on June 21, 1961 before the Central Government which directed the State Government to dispose of the application.\n\nSince, there was no reply from the1 State Government, the appellant! filed a second rev1s1on .appfication before the Central Government, which by its order dated November, 21, 1964, allowed it.\n\nEven so, 'the State Government refused to implement that order. A third revision application was filed on January 27, 1961 before the Central Government which, after obtaining the views of the State Government, rejected it.\n\nAllo\\ving the appeal against the order of the Central Governn1ent,\n\nHELD :\n\n(1) The State Government being a subordinate authority in the matter of grant of a mining lease, was obliged under the lav..' to carry out the orders of the Central Governmerit. It was not open to the Stat-e to decline\n\nto carry out the orders of the Central Governn1ent particularly because the Central Government was a Tribunal superior to the State Government. In vie\\v of Government's order dated November 21, 1964, it \\vas not open to the State Government to reject the application on any ground whatsoever.\n\nIf the State Government found itself unable to implement the order, a reference could have been made to the Central Goyernment for obtaining necessary directions.\n\nIf any ground came into existence subsequent to the making of the order of the Central Government, the State Government could have brought it to the notice of the Central Governn1ent.\n\nIn any case, the State Gov- -ernment could not have refused to implement the order of the Central Government unless that Government itself chose to revise it either on a reference 'Or suo n1oto. f57 C-E1\n\n(2) l!nder r. 54 of the Miheral Concessions Rule, 1960 the C'entral Government acts as a revisional tribunal against MY order passed by the State Gov.:::i.11ment.\n\nWhen the State Governme11t refused to can-y out the order, the Central Governn1ent should have proceeded to set aside the State Clovernment's order and directed it to grant the application. The Central Government has not disposed of the revision application in accordance with taw.\n\n[55 B, 56 F]\n\n(3) Assuming that the Central Government could revise its earlier order, 1hat could be done only if some fresh ground came into existence. There was absolutely no legal justification for the Central Government to go \"back upon its earlier aider which stood unvaried and unvacated.\n\n[58 A]\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1414 of 1968.\n\nAppeal by Special Leave from the Judgment and Order dated the 17th February 1968 of the Govt. of India, Ministry of Steel, Mines and Minerals.\n\nA A. K. Sen, B. D. Khanna, Bishambar Lal and H. K. Puri, for the\n\nAppellant.\n\nD. Goburdhan for Respondent.\n\nThe Judgment of the Court was delivered by\n\nFAZAL ALI, J.\n\nThis is an appeal by special leave against the order of the Central Government dated February 17, 1968, reiecting the revision application filed by the appellant before the Central Government under r. 54 of the Mineral Concession Rules, 1960. This appeal reveals a wavering and vacillating attitude of the State Government of Bihar taking inconsistent stands in refusing to implement a quasi-judicial order passed by the Central Government in favour of the appellant on one pretext or another spreading over several years.\n\nThis has naturally resulted in a substantial miscarriage of justice to the appellant who, was compelled to toss like a shuttle-cock from State Government to Central Government by filing revisions after revisions against the orders of the State Government which shows a somewhat extraordinary and curious conduct of the State Government.\n\nThe facts of the case lie within a very narrow compass.\n\nThe appellant applied on September 12, 1958, for grant of a mining licence in an area of 66. 77 acres in tehsil Ramgarh and deposited the prescribed fees of Rs. 700/-. The State Government was unable to make up its mind and passed no order at all on the application filed by the appellant. The appellant thereupon filed a revision application before the Central Government on the basis that his application was deemed to have been rejected by the State Government as it was not disposed of during the statutory period. This revision was filed on June 22, 1961 and gives a detailed history of the case of the appellant. The Central Government in its revisional capacity passed an order dated March 24, 1962 directing the State Government to dispose of the application of the appellant on or before September\n\n30, 1962.\n\nIn spite of this direction, the State Government failed to pass any order on the application of the appellant. Failing to get any redress from the State Government in spite of the direction of the Central Government, the appellant was compelled to prefer a second revision application before the Central Government on October 15, 1963. Thereafter the Central Government invited the comments of the State Government on the second revision application.\n\nThe State Government, however, appears to have taken the stand that as the area in question was the subject-matter of a litigation the State Government was legally advised to defer grant of a mining licence particularly in view of certain injunction orders passed by the Alipore Civil Court and the Calcutta High Court.\n\nThese comments were forwarded to the appellant for his explanation.\n\nThe appellant informed the Central Government that the injunction orders relating to Ramgarh litigation had since been vacated and the State Government may be directed to dispose of the application filed by the appellant for grant of the mining lease. It appears that by a subsequent correspondence the State Government informed the Central Government thatfinal orders on the application of the appellant could only be made if he decided to. select. one' compact block for: the mining lease.\n\nOn receiving, this co=ent; the Central.Government: allowed the revision application again. and: directed the, Staie Government to grant.the mining lease to the.appellant inrespect.of.a compact block to be selected by him.:·, Thisiorder was.passed.on:November. 21; 1964, We might mention.here that under. r. 54 of the-MineralConcession Rules, 1960, the; Central Government acts:as 'a\" reVisional tribunal against any order'. passed hr the State Government and has obviously, therefore;. the sai:ne powers as.the State Government. r.This matter is no longer res integra and is settled by an authority of this Court in State of Assam and others v. Om:Prakash Mehta & others('). where this Cout observed a~ follows;;.'; i ·, C ·:: . ' ' :· ., ; : •· __ \" . . \"Under .Rule '55 the Central' Government can ca!Lfor ·: -~' the records from the State' Government and-after considering ·. : any co=ents made on . the petition by the State Govern-· . . . ment or. other. authority,. may confirm, mooify or. 'set aside . the order:or .. pass such other order in.relation.thereto as the Central Government may deem. just and proper;;· .It also \"' . . . provides for an opportunity to the applicant to make his . . representation against the comments', if,' any, received. from the. State Government or. other authority. .Thus the fact . . that the. application for renewal is deemed to have. been ·\n\nrefused as a result of Rule 24(2) does not prohibit the Central Government from passing. any order it may deem; just and proper inchiding an order granting renewal.\" · ; ; . ' , In' these circumstances,· therefore, when the Central Government allowed the revision application and directed the State Government to grant the licence to the appellant; the. order must be deemed to be an order passed by the Central Government granting the prayer of the appellant for issue of the 'mining lease; As, however, the application had been made to the State Government by the appellant, the form of the order of the Central Government was to give a clear direction. to the State Government to grant the .formal lease. The order of the Central Govermnent dated November21, 1964, there~ fore, left no discretion to the State Government to refuse to grant the mining lease to the appellant.\n\nIt. seems to Us that the State Government does not appear to have appreciated . the rear content of the order of the Central Government and was labouring under a misconception.that in spite of a clear direction'given by the superior Tribunal, namely, the' Central Government, it was still open: to the State Government to. r.eject the application'.' : . · · :,, ,_.\n\nIt appears that the State Governet, after rceiving. the, odr of the Central Government, refused to implement it on . the ground · that the State Government had. formulated a policy that the area in dispute should be conserved for building cement factories and licences should be given only to those applicants who are prepared to !et up a cement factory: The, State' Government rejected the appjication of\n\n(lj (1973] l.S. C.R. 584. . .\n\n. , -, .. . ·- ~· /•\" : )\n\nthe appellant on December 17, 1966, as the appellant had not indicated anywhere in the application that he was prepared to set up a cement plant. In fact the appellant on coming to know of the stand taken by the Government did file an application before the Centrar Government on January 27, 1967 that he could put up a cement plant if it was economical to do so. The appellant consequently filed a third revision application before the Central Government against the order of the State Government dated December I 7, 1966 rejecting the application of the appellant for grant of mining lease. This application was filed on January 27, 1967 and in his comments the appellant pointed out that by the time the Central Government was seized of the matter the policy of the State Government of Bihar, due to the change in the Minitry, had changed and that it may be asked to re-examine the matter.\n\nThe Central Government accordingly invited further comments of the State Government in the matter and this time the State Gernment again took the stand that as the area in dispute which wail\" comprised in Tauzi No. 28 was the subject matter of title suit in the Court of Hazaribagh, the State Government was not willing to grant the licence to the appellant and involve itself into an endless litigation.\n\nThis comment appears to have found favour with the Central Government which rejected the revision application of the appellant by the impugned order dated February 17, 1968 against which the present appeal by special leave has been preferred before us.\n\nThe facts mentioned above arc proved from the various annexures filed by the appellant along with the special leave and printed in the Paper Book and consist of various orders passed by the Central and State Governments, the correspondence between the State Government and the Central Government, the note-sheets and summary of facts made by the concerned Ministry etc.\n\nThe learned counsel for the respondent has not at all disputed the correctness of the contents of these documents.\n\nIt seems to us 'hat the Central Government has not disposed of the revision application in accordance with law.\n\nTo begin with, the Central Government had expressly directed the State Govermnent to dispose of the application of the appellant by its order dated March 24, 1962, on the first revision application filed by the appellant. Due to the continued inaction of the State Government, the second revision application was filed before the Central Government which was also allowed on November 21, 1964 and the State Government was given clear directiOils to grant the lease to the appellant.\n\nIn view of this order it was not open to the State Government to reject the application of the appellant on , any ground whatsoever. If the State Government found itself unable to implement the order of the Central Government a reference could have been made to the Central Government for obtaining necessary directions. Ultimately the order of the Central Government culminated into the grant of a licence in favour of the appellant after he had selected a compact block.\n\nThereafter the State Government instead of implementing this order took the stand that they had devised a policy to grant leases only to those\n\npersons who were prepared to set up a cement plant. Subsequently this policy was also given a go by and the State Government rejected the application of the appellant on the ground that the land was the subject-matter of a litigation.\n\nThis led to the last revision filed by the appellant before the Central Government.\n\nThe Central Government, after calling for the comments of the State Government, appears to have upheld the order of the State Government rejecting the appli- <:ation.\n\nIn doing so, the Central Government overlooked the fact that it had already directed by its order dated November 21, 1964 that the State Government should grant the. mining lease to the appellant in respect of a compact block selected by the appellant.\n\nThe State Government, being a subordinate authority in the matter of grant of mining lease, was obligated under the law to carry out the orders of the Central Government as indicated above. But the State Government declined to do so on the ground that .it had laid down a policy that the mining leases in respect. of the area :ihould be given only to those who were prepared to set up a cement factory. It was clearly not open to the State Government to decline to carry out the orders of the Central Government on this ground, particularly because the Central Govermnent was a tribunal superior to the State Government. If a ground came into existence subsequent to the making of the order of the Central Government which warranted a reconsidera- . tion of the order of the Central Qovernment as indicated above, the\n\nState Government could have brought this ground to the notice of the Central Government. However, one t\\ling is manifestly clear that the State Government could not have refused to implement the order of the Central Govermnent unless the Central Government itself chose to revise it either on a reference by the State Government or suo motu.\n\nIn fact to take the view that the State Government could decline to carry out the order of the Central Government on some ground, which it thinks proper would be subversive of judicial discipline.\n\nTherefore, when the appellant preferred a revision application to the Central Government against the refusaf the State Government to carry out the order of the Central Government by rejecting his application, the Central Government should have proceeded to set aside the order of the State Government and directed the State Government to grant the application of the appellant. Instead of doing\n\nthis, the Central Government again appears to have entered into the merits of the question as if its earlier order was not in existence at all and sustained the rejection of the application of the appellant on the ground that the area in question was the subject-matter of the title suit in the Court of Hazaribagh, even though the appellant had pointed out to the Central Government that the injm:ction issued by the Court regarding the premises in dispute had been vacated. Even assuming for the sake of argument that the Central Government could revise its earlier order,-and putting the case of the Central Government at its highest,-this could be done only if some fresh ground came into existence which warranted reconsideration of the earlier order. The fact that there was a litigation pending in the Hazaribagh Court in respect of the area in question was neither a new or a fresh fact which came into existence for the first time after the order was made by the Central Government directing the State Government to\n\ngrant the licence to the appellant. The litigation was pending since 1954 and the Central Government was aware of this fact even when it passed its order dated November 21, 1964. In these circumstances, therefore, there was absolutely no legal justification at all for the Central Government to go back upon its earlier order.\n\nThe earlier order of the Central Government stood unvaried and unvacated and the State Government was bound to implement it and, therefore, the Central Government was in error in upholding the action of the State Government rejecting the revision application filed by the appellant and thus silently condoned the lapse committed by the State Government.\n\nFor the reasons \"given above, we are satisfied that the order impugned passed by the Central Government cannot be allowed to stand and must be set aside.\n\nWe accordingly allow the appeal, set aside the order of the Central Government dated February 17, 1968 rejecting the revision application of the appellant and direct the State Government to implement the order of the Central Government dated November 21, 1964 for granting the mining lease to the appellant.\n\nThe appellant will be entitled to his costs throughout.\n\n[1976] SUPPLEMENTARY\n\nf-·", "total_entities": 10, "entities": [{"text": "DHARAM CHAND JAIN", "label": "PETITIONER", "start_char": 0, "end_char": 17, "source": "metadata", "metadata": {"canonical_name": "DHARAM CHAND JAIN", "offset_not_found": false}}, {"text": "A\n\nTHE STATE OF BIHAR", "label": "RESPONDENT", "start_char": 18, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "THE STATE OF BIHAR", "offset_not_found": false}}, {"text": "IP. N. BHAGWATI", "label": "JUDGE", "start_char": 57, "end_char": 72, "source": "metadata", "metadata": {"canonical_name": "P.N. BHAGWATI*", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 74, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 115, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Concession Rules 1960", "label": "STATUTE", "start_char": 129, "end_char": 150, "source": "regex", "metadata": {}}, {"text": "State Government under the Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 235, "end_char": 292, "source": "regex", "metadata": {}}, {"text": "Miheral Concessions Rule, 1960", "label": "STATUTE", "start_char": 2110, "end_char": 2140, "source": "regex", "metadata": {}}, {"text": "Mineral Concession Rules, 1960", "label": "STATUTE", "start_char": 3421, "end_char": 3451, "source": "regex", "metadata": {}}, {"text": "MineralConcession Rules, 1960", "label": "STATUTE", "start_char": 6600, "end_char": 6629, "source": "regex", "metadata": {}}]}
{"document_id": "1976_1_542_551_EN", "year": 1976, "text": "SUPREME COURT REPORTS\n\n[1976) SUPPLEMENTARY\n\nK. RAMACHANDRA REDDY & ANR.\n\nTHE PUBLIC PROSECUTOR\n\nMay 5, 1976\n\n[A. C. GUPTA AND S. MURTAZA FAZAL Au, JJ.J\n\nlndin Evidence Act. S. 32, Dying declaration-Otnission of recordinr: Afagistrate to question injured regarding his 111ental capacity to tnake statctr1e11t, whether material-Two views of evidence when possible; whether interference with order of acquittal proper.\n\nThe two appellants and three others were tried by the Additional Sessions Judge, Nellore, under Ss. 147, 148, 302/149 and 302/34 I.P.C .. f'or having committed the murder of Venugopal Reddy. The Session Judge recorded the prosecution evidence, heard the arguments, and acquitted the accused, holding that the prosecution had failed to prove the case against them. On appeal by\n\nthe State under Sec. 417 Cr.P.C., the High Court reversed the ac-quitta] order in respect of the appellants and convicted them under Sec. 302/3.t I.P.C., solely on the basis of a dying declaration a1legedly made by the deceasc--d before a Magistrate.\n\nIn the present appeal filed under Sec. 2A of the Supr..; n1'.-· Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970, it \\Vas co11tended before this Court firstly that the High Court had wrongly interfered with an order of acquittal in a case where two views are possible, and secondlv, that the dying declaration was not a voluntary or true disclosure but \\Vas thC result of tutoring and prompting.\n\nAllowing the appeal the Court,\n\nHELD : ( 1) The Magistrate appears tu have committed a serious irregularity in not putting a direct question to the injured whether he \\Vas mentally capable 1 of making any statement. The doctor's certificate that the deceased was in fit state ..:i of mind to make statement, by itself would not be sufficient to dispel the doubts created particularly by the omission1 by the Magistrate, when he was satisfied that the injured was suffering severe pain and was not able to speak normaHy. [550AB, E-Fl\n\nKlwshal Rao v. State of Bombay [1958] SCR 552, followed.\n\nHarbans SinRh & Anr. v.\n\nState af Punjab, [1962] Supp. 1 S.C.R. 104; Lallubhai Dev Chand Shah v. State of Gujarat [1971] 3 SCR 767 and Tapinder Singh v. State of Punjab [1971] 1 SCR 599, referred to.\n\n(2) Even if the. High Court was in a position to take a. view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal. Thus as t\\VO views were possible, the High Court was in enor in disturbing the order of acquittal passed by the Sessions Judge. [551 B & El\n\nRam Jag & Ors. v. The State of U.P. [1974] 3 SCR 9 followed.\n\nG CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 143 of 1975.\n\nFrom the Judgment and Order dated 18th February 1975 of the Andhra Pradesh High Court in Criminal Appeal No. 583 and CMP\n\nNos. 10-103 of 1975.\n\nD. Mookherjee and A. V. V. Nair, for the Appellants.\n\nP. Ram Reddy and P. Parameshwara Rao, for the Respondent.\n\nThe Judgment of the Court was delivered by\n\n' •\n\nFAZAL ALI, J. Five accused persons, nam~Iy, accused No. 1 K.\n\nRamachandra Reddy, No. 2, Manne . Sreehar1, No. 3 Prabhakar Reddy, No. 4 Sudhakara Reddy and No. 5 Bhaskar Reddy were put on trial in the Court of First Additional Sessions Judge, Nellore under\n\nS6. 147, 148 302/149 and 302/34 I.P.C. for having caused the murder of th~ decessed Venugopala Reddy resident of Rachakandrika village of Nellore Iristiict. The Iearued Sessions Judge after recording the evidence of the prosecution and hearing the arguments rejected the entire prosecution case and held that the prosecution had miserably failed to prove the case against any of the accused and he accordingly acquitted all the five accused by his judgment dated July 25, 1973.\n\nThe Sate of Andhra Pradesh thereafter filed an appeal under s. 417\n\nof the Code of Criminal Procedure agalust the order of acquittal passed by the Iearued Additional Sessions Judge, N ellore. The appeal was heard by a Division Bench of the Andhra Pradesh High Court which reversed the order of acquittal passed by the learned Sessions Judge only in respect of accused Nos. 1 & 2 and convicted them under s. 302/34 I.P.C. and sente.nced them to imprisonme,1t for life. The acquittal of the other accused Nos. 3 to 5 was confirmed by the High Court. The two appellants namely K. Ramachandra Reddy and Manne Sreehari to be referred to hereafter as Accused Nos. 1 & 2 rcspootively have filed the present appeal in this Court under s. 2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970.\n\nA perusal of the judg1n<Mt of the- High Court clearly reveals that\n\n~ the learned Judges have not accepted the major part of the evidence adduced by the prosecution in support of the case against the accused and have founded the convicton of the accused Nos. 1 & 2 solely on the basis of Ext. P-2 a dying declaration alleged to have been made by the deceased Venugopala Reddy at Dr. Ramamurthi Nursing Home before a Magistrate the next day after he is said to !rave been assaulted. The High Court on a careful reading of the dying declaration held that it was a truthful version of the manner in which the deceased was assaulted by the accused and as the deceased had made a full disclosare to a Magistrate in the presence of a Doctor who had testified to the fact that the deceased was in a fit state of mind to ll)ake a statement there was no reason to disbelieve the dying declaration which the High Court believed to be genuine and true.\n\nJ'he arguments of the learned counsel for the appellants naturally centered round the reliability of Ext. P-2 the dying declaration recorded by the Magistrate at the Nursing Home. Appearing for the appellants Mr. Debabrata Mookerjee submitted two propositions before us:\n\n( 1) that the High Court in reversing the acquittal of the appellants completely overlooked the principles laid down by this Court that the 'High Court ought not to interlere with an order of acquittal in appeal without displacmg the H re3;8ons given and the. circums'.ances relied upon hy the Tnal Court and cemunly not m a case where two views are possible; and\n\n(2)\n\nthat the High Court failed to consider the suspicious cir cumstances under which the dying declaration was made which went to show that it was 'nOt a voluntary or true disclosure by the deceased but was the result of tutoring) and prompting by his relations.\n\nOn the other hand Mr. Ram Reddy the Senior standing counsel B for the State of Andhra Pradesh submitted that the High Court wa.~ fully justified in relying upon the dying declaration which was both true and voluntary and whose correctness had been testified by the Magistrate and the Doctor. The learned connsel also relied on some other evidence in order to .corroborate the genuineness of the dying declaration. c\n\nBefore examining the contentions raised by counsel for the parties, it may be rncessary to give a resume of the prosecution case shorn of its essential details. It appears that there was serious political rivalry between Bhaskar Reddy A-5 and the deceased Venugopala Reddy over the election of the local Panchayat Committee known as Samithi.\n\nIt appears that some allegations of misappropriation of public funds having been made against accused No. 5 Bhaskar Reddy the deceased displaced him from the Presidentship of the Panchayat Samithi in a meeting called a few days before the death of the decea'ed where Bhaskar Reddy was 'Mt invited.\n\nThis is supposed to have provided an immediate provocation for the accused to have attacked the deceased. According to the prosecution the deceased had gone to his Petrol Pump in Tada Bazar and af.ter sunset was leaving for his village through the main highway and after having traversed about half a mile when he reached the place of occurrence situate near the mango grove he was surrounded by the five accused who pounced upon bim and assaulted him with stones, knives and sticks. Venugopal'a fell down and the accused ran away after assaulting him. P.Ws. 5 and 6 who were keeping watch over the mango grove were attracted to the scene of occurrence by the cries of the deceased and P.W. 5 was sent by P.W. 6 to the village Rachakandrika to call the relations of the dKeased. The errand entrusted to P.W. 5 having been executed P.W.\n\n1 the son of the deceasect and P .W. 2 his cousin arrived at the ipot and found the deceased in a sitting posture being attended to by P.W.\n\n6 with a large number of injuries on bis person. In fact it would arpear from the post mortem report that the deceased had sustained as many as 48 injuries on his person. It is further alleged by the prosecution that P.W. 1 asked his father regarding the occurrence and the. deceased disclosed the names of accused Nos. l to 5 as his assaila'ats.\n\nThereafter the deceased was taken in a lorry to the Nursing Home of Dr. Ramamurthi at Nellore and P.W. 7 Sarpanch of the village and a very close and intimate friend of the deceased a.Jso accompanied the deceased in the lorry upto Nellore.\n\nDr. Ramamur01i had gone to a cinema but on being sent for he arrived at the Nursing Home and attended to the deceased. He directed P.W. 1 to rush to the police station at Sullurpet to report be occurrence. P.W. 1 went to Sullurpet and reported the matter to the Sub-Inspector who made a station diary entry Ext. D-4. The Sub-Inspector, however, did not choose to register\n\n,. -\n\n• (·\n\nthe case on the basis of the diary entry but proceeded to Nellore. We would like to mentiO'n here that Ext. D-4 was the real F.I.R. in the case within the meaning of s. 154 Cr. P.C. and the Sub-Inspector committed a dereliction of duty in not registering the case on receiving the First Information Report about the death of the deceased from P.W. 1 the son of Venugopala Reddy. We might also mention that the Sub-\n\nInpector P. W. 15 was also a friend of the deceased being his class fellow. It may be pertinent to note here that although a report was made by P.W. 1 to the Sub-Inspector yet the n\\lmes of the appellants were not al all mentioned in the station diary entry which was based on the verbal report given by P .W. 1. No reason or explanation seems to have been given by the prosecution for the non-disclosure of the 11ames of the appellants by P.W. 1 if in fact he had been told these names by the deceased himself at the spot. When the Sub-Inspector P.W. 15 reached the Nursing Home he was asked by the Doctor P.W. 17 to get a Magistrate so that the dying declaration of the deceased may be recorded. Acting upon the instructions of P.W. 17 the Sub- Inspector went to the Magistrate P.W. 11 who arrived at the Nursing Home and recorded the dying declaration of the deceased which is Ext.\n\nP-2 in the case and which forms the basis of the cO'nviction of the two appellants. Thereafter in view of the critical condition of the deceased Dr. Ramamurthi advised that the deceased should be taken to the Madras General Hospit>al and accordingly the relations of the deceased took the <ieceased to the Madras General Hospital where also he is said to have made another dying declaration before the police. This dying declaration, however, was rejected both by the Sessions Judge and the High Court Md it is not necessary for ns to refer to this part of the evidence. Even the oral dying declaration said to have been mrule by the deceased to P.Ws. 1 and 2 and others also has not been accepted either by the Sessions Judge or by the High Court.\n\nThe accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under s. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statemenl before acting upon it. While great solemnity 1tnd sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being 'a result of either tutoring, prompting or a product of h1s imagination. The Court must be satisfied that the deceased was i1n a lit state of mind to make the statement after the deceased had a clear opportunity to observe anct identify his assaifants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated 37-833 Sup Cl/76\n\nby this Court in Khushal Rao v. State of Bombay(') where the Court observed as follows :\n\n'On a review of the relevant provisions ofl the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, :ill agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (I) that it cannot be laid down as an absolute rule of law th•at a dying declaration ca\\1not form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;\n\n(3) that it cannot be laid down as a general propositim1 that a dying declaration is a weaker kind of evidence than other pieces of evidence; ( 4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged i,1 the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; ( 5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, ih the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dyi•ag man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; 11nd that the statement had bee!Jl made at the earliest opportunity and was not the result of tutoring by interested parties.\n\nHence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping m view the fact that the statement has been made in the absence of the accused who had '10 opportunity of testing tlte veracity of the statement by cross-examination.\"\n\nThe abo'e observations made by this Court were fully endorsed by a Bench of five Judges of this Court in Harbans Singh and Another v.\n\nState of Punjab( 2). In a recent decision of this Court in Tapinder Singh\n\nv. State of Punjab (3), relying upon the earlier decision referred to above, this Court observed as follows :\n\n(1) [1958]S.C.R. 552.\n\n(2) [1962] Supp. (l) S.C.R. 104.\n\n(3) [1971] 1 S.C.R. 599.\n\n• .\\\n\n• , ,\n\n\"It is true that a dying declaration is not a deposition in court and it is neither made on oath 'nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But •a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of •necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise •all the relevant attendant circumstances.\"\n\nIn Laliubhai Devchand Shah and Others v. State of Gujarat('), this Court laid special stress on the fact that one of the important tests <?f tho reliability of a dyio,1g declaration is that the person who recorded 1t must be satisfied that the deceased was 'in a fit state of mind and observed as follows :\n\n\"The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a \"fit state of mind\" to make the statement. The \"fit\n\nstate of mind\" referred to is in relation to the statement that the dying man was mah1g. In other words, what the case suggests is tlrat the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding.\"\n\nWe would now examine the dylag declaration Ext. P-2 in the light of the princ'iples enunciated above. To begin with, we would like to deal with the surrounding circumstances •and the attendant factors which culminated in the dying declaration Ext. P-2 made by the deoceased at Dr. Ramamurthi Nursing Home. According !o the prosecution there were three clear occasions when the deceased was conscious and could have made a statemnt disclosing the names of his assailants.\n\nThe first occasion was at the place of occurrence itself, alter the deceased is said to have been assaulted by the accused. The persons who wen> present on this occasion were P.Ws. 1, 2, 5 & 6. According to P.W. 1 (p. 5 of the printed Paper Book) the deceoased even though he was groaning was in a condition to speak out and on being questioned he narrated the entire occurrence and disclosed the names of the five accused persons to P.W. 1. The fact that the deceased had mentioned the names of all the accused to this witness has been disbelieved by both the Courts and in our opinion rightly, because P.W. i did not make any mention of this fact either in the F.I.R. Ext. D-4 or in his statement to the police.\n\nNevertheless from the statement of P.W. I who is the son of the deceased it is manifestly clear that the deceased was in a position to make a statement and yet he did not di.sclose the names of the assailants.\n\nSimilarly P.W. 2 (p. 15 of the Printed Paper Book ) categorically states that in his presence P.W. 1 asked the deceased as to how the incident took place and the deceased told him that all the five accused had assaulted him with sticks, stones and\n\n(!) [19711 3 s.c.c. 767.\n\nknives and then ran away.\n\nThis also shows that the deceased was conscious when he is said to have made this statement.\n\nLastly, there is foe evidence of P.W. 6 (p. 29 of the Paper Book) who also says that although the witness could not hear what the deceased said yet he was speaking very slowly with his son.\n\nThus at the first stage, namely, when the deceased was at the spot he was in a position to r; iake the statement and yet, according to the findings of the Courts b=low, he did not disclose the names of the assailants to any body.\n\nThe second occasion when the deceased could have disclosed the names or his assailants was at the time when he was carried in a lorry frota tte pJoace of occurrence to Dr. Ramamurthi Nurs.ing Home. P.W.\n\n1 (p. 8 of the printed Paper Book) categorically states that at the time when his father was put on the lorry he was groaning but he was in a position to talk. The witness further goes on to state that inone of the 20 to 30 persons who had gathered at the scene tried to ask the deceased as to how the incident took place. Similarly P .W. 6 (p. 29 of the printed Paper Book) clearly stated that the injured was in a position to talk while he was being put on the lorry and about 50 to 60 persons were present there at that time.\n\nThe third occasion when the deceased could have disclosed the names of the assailants was when he reached the Nursing Home. In this connection P.W. 1 (p. 9 of the printed Paper Book) has stated that on reachinl' the hospital the Doctor was sent for and at that time his father was conscious and was in a position to talk though he was groaning with pain. He further admitted that he did not tell the Doctor '• ' what his father had told him. Similarly P.W. 2 states (at p. 16 of the printed Paper Book) that when the Sub-Inspector of Sullurpet came and saw the injured in the room of the Nursing Home the injured was in a position to talk but the Sub-Inspector did not talk to him or question him on anything.\n\nP.W. 15 thy Sub-Inspector of Sullurpet states (at p. 41 of the printed Paper Book) tilat he found about 20 persons at the Nursing Home gathered outside the Nursing Home and saw Dr. Ramamnrthy attending on the injured inside when the injured was in a conscious state.\n\nFrom the evidence discussed above, it is clearly established that alth0ugh the deceased was conscious at the place of occurrence, at the time when he was put on the Jory and also at the time when he was brought to the Nursing Home and was in a position to speak he did npt disclose the names of the assailants to any body. This conduct of the deceased can be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to any body or that even though he was conscious he did not disclose the occurrence to any body because under the stress and strain of the assau!.t, which tock place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assailants. No third inference can be spelt ou! from the conduct of the deceased in not disclosing the names of the assailants on these three occasions. Further more, the fact that the deceased was not in a position to identify the assailants receives intrinsic support from the statement of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly\n\n• '\n\n' ,\n\nstales that he had seen A-3, A-4 and A-1 at A-5's house about fiv~ years before the occurrence. He further states that he did not know if his father knew A-1, A-3 and A-4 well and by their names. He further states that A-3 had visited his house five years ago and he could not say whether his father was present at that time. Lastly the witness states that he had no other acquaintance with A-3 and A-4. He also states that he came to know A-2 only after the occurrence of this case.\n\nThe learned Sessions Judge has rightly relied on these circumstances to come to the conclusion that the deceased did not know the names of the accused nor was he able to identify them in the darkness and tllis introduces a serious infirmity in the dying declaration itself. It would be seen that in the dying declaration Ext. P-2 the name of the accused No. 1 Ramachandra Reddy is clearly mentioned and so is the nam<: of accused No. 2. If according to P.W. 1 there was a clear possibility \"f the deceased not having known the names of A-1, A-2 or A-3 then it i; not understndable how these names could be mentioned by the deceased in his dying declaration unless the names were suggested to him by some body. Against this background the presence of P.W. 2 the coi:sin of the deceased by his side even at the time when the dying declaration was recorded or a little before that clearly suggests that tl1e possibility of prompting cannot be excluded. Even the High Court has clearly found that the possibility of prompting was there.\n\nDr. Ramamurthi P.W. 17 has stated tha~ while the Magistrate was recording the statement of the injured, the injured was sitting for a while and was thereafter lying in the lap of P.W. 2 who was nursing him then. Another important circumstance that has been considered by • the learned Sessions Judge but overlooked by the High Court is that < even though according to the evidence led by the prosecution the\n\n• .\n\ndeceased was fully couscious in the hospital and had met persons from his village, his friends and acquaintances including Dr. Ramamurtlli P.W. 17 and the Sub-Inspector P.W. 15 yet he did not make any sttc ment to any of these persons nor did any of these persons try to question . the deceased about the occurrence. In fact the categorica1 evidence of\n\nP.W. 17 Dr. Ramamurthi is that from the time the patient was br01; ght in the Nursiilg Home till the Magistrate arrived, the patient did not talk to any one including him. The learned Sessions Judge has observed that this is a very extra-ordinary and unnatural circumstances which throws a good deal of doubt on the circumstances in which the dying declaration was recorded. The Doctor was known to the deceased and yet neither the deceased talked to him nor did the Doctor make any inquiry from him. On the other hand P. W. 15 the Sub-Inspector has stated (at p. 42 of the printed Paper Book) that when the deceased had reached tlie Hospital he was not in a position to talk and was groaning.\n\nP.W. 17 Dr. Ramamurthi has also stated that the state of mind of the\n\ndeceased was restlessness.\n\nHe further deposed that till tlie Magistrate arrived, the witness had no opportunity to assess the mental capacity of the injured Venugopala Reddy. It would appear from the evidence of !'!\"·. 20 who made the postmortem that there were as many as 48 m1unes on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries. In view of these serious injuries we find it difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. The Magistrate P. W. 11 who recorded the dying\n\ndeclaration has admitted that the injured was suffering from paid and h,, was not in a position to sign and so his thumb impression was taken.\n\nThe Magistrate further admitted that the injured was taking time to answer the questions. The Magistrate further admitted that the injured was very much suffering with pain. In spite of these facts the Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement.\n\nIn the case of Lallubhai Devchand Shah referred to by us 511pra the omission of the person who recorded the dying declaration to yuection the deceased regarding his state of mind to make the\n\ntaten1ent \\Vas considered to be a very serious one and in our opinil..in in the insLrnt case the omission of the Judicial Magistrate who knew the Jaw well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement.\n\nThe Se,, io11; Judge has rightly pointed out that even though the deceased might have been conscious in the strict sense of the term, there must he\n\nre!iahl~ evidence. to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence. Having regard, therefore, to the surrounding circumswnces mentiQ11ed above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext.\n\nP-~ particular!} in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions wllcn he had a full and complete opportunity to name his assailants.\n\nLastly it is admitted that there was serious enmity between the\n\nparties. P.W. 2 states (at p. 16 of the printed Paper Book) that there , were ill-feelings between the deceased and A-1, A-2 to A-5. While , com1sei for the State has submitted that the deceased was assauted due E\n\nto enmity. the possibility cannot be ruled out that the accused may have been named 1.Jccause of the enmity. The learned standing counsel for the State relied upon the statement of Dr. Ramamurthi who had given\n\nth~ ce,-tificatc that the deceased was in fit state of mind to make a statem,.1t.\n\nThis certificate by itself would not be sufficient to dispel the doubts created by the circumstances mentioned by us and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was uot abk to speak normally. For these reasons, therefore, this case clearly laJls within principles (5) and (6) laid down by this Court in Khttshal Rao's case (supra). In these circumstances we feel that it would be wholly unsafe to found the conviction of the appellants on the basis of Ext. P-2.\n\nMr. P. Ram Reddy for the State submitted that Ext. P-2 was corroborated by the presence of at least accused No. 1 near the petrol oump slightly before the occurrence, took place.\n\nThe presence of accused No. 1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the H Bazar can be explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, howe\\'er, surrendered within 14 days and this is not a circumstance which can outweigh the effect of the suspicious circumstances under which\n\nthe dying declaration was made. It seems to ns that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W. 2 his cousin just before the dying declaration was made.\n\nPutting the prosecution case at the highest, there can be no doubt th:; t the view taken by the learned Sessions Judge that the dying declaration did not amount to a trnthful disclosure cannot be said to be against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal.\n\nIn Rani Jag and others v. The State of U.P. (') this Court observed as followed:\n\n'\"Such regard and slowness must find their reflection in the c appellate judgment, which can only be if the appellate court deals with the principal reasons that become influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evi- \"lence.\n\nJt is implicit in this judicial process that if two views of the evidence are reasonably_ possible, the finding of acquittal ought not to be distnrbed.\" D\n\nThus in <he instant case as two views were reasonably possible and therefore the High Court was in error in disturbing the order of acquittal passed by the Sessions Judge.\n\nr For the reasons given above, we are satisfied that the High Court wa3 not at all justified in reversing the order of acquittal passed by the E Sessions Judge. The appeal is accordingly allowed, the conviction and ' sentence passed against the appellants are set aside and they are acquit ted of tl1e charges framed against them. The appellants are directed to be set at liberty forthwith.\n\nM.R.\n\nAppeal allowed.\n\n---·-------r--\n\n(11 [197413 S.C.R. 9.", "total_entities": 26, "entities": [{"text": "K. RAMACHANDRA REDDY & ANR", "label": "PETITIONER", "start_char": 45, "end_char": 71, "source": "metadata", "metadata": {"canonical_name": "K. RAMACHANDRA REDDY & ANR", "offset_not_found": false}}, {"text": "THE PUBLIC PROSECUTOR", "label": "RESPONDENT", "start_char": 74, "end_char": 95, "source": "metadata", "metadata": {"canonical_name": "THE PUBLIC PROSECUTOR", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 111, "end_char": 122, "source": "metadata", "metadata": {"canonical_name": "A.C. 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{"document_id": "1976_1_552_560_EN", "year": 1976, "text": "STATE OF MADHYA PRADESH\n\nRATAN SINGH & ORS.\n\nMay 5, 1976\n\n(A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]\n\nCode of crin1inal Procedu.re-Ss. 401 and 40-2-Convicted for impriMnn1e11t for life by one State-Priso_ner transferred to his native State-Appropriate Gorenunent which could remit sentence.\n\nThe respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh. At his request be was transferred to a jail in the State of Punjab, to which State he belonged.\n\nHe applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The applicition was sent to the Government of Madhya Pradesh, which rejected it.\n\nIn a writ petition filed by him the High Court of Ponjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.\n\nIn appeal to this Court, the State of Madhya Pradesh contended : (i) that since 1he sentence was of imprisonment for life, it would not expire automatically at the expiry of' 20' years including remissions; and (ii) that as the priooner was convicted by a court in the State of Madhya Pradesh the appropriate Government to exercise discretion under ss. 401 and 402 Cr.P.C. was the State of Madhya Pradesh and not the State of Punjab,\n\nAllowing the appealJ\n\nHELD : The High Court was in error in holding that the respondent was entitled to be released as of right on completing the tern1 of 20 years including remissions.\n\n[556C]\n\nGopal Vinayak Godse v. 6tc<e of Maharashtra and Others, [1%1] 3 S.C.R. 440 and Pandit Kislzori Lal v. King E1nperor, L.R. 72 I.A. 1, followed.\n\n( 1) A sentence of imprisonment for life does not automatically expire at the end of 20 years including remissions because the administrative rules framed under the various Jail Manuals or under the Prisons Act canoot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under s. 401 of the Code of Criminal Procedure. [559G]\n\n(2) The appropriate Government has the discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner. [560A]\n\n(a) The appropriate Government which is empowered to grant remission under s. 401 of the Code of Criminal Procedure is the Government of the State where 'the prisoner had been convicted and sentenced, that is, the transferor Slate and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act.\n\n[560B]\n\n(b) Where the transferee State feels that the accused had completed a period of 20 years it haSJ merely to forward the request of the prisoner to the Government of the State where the prisoner was convicted and sentenced and if this request was rejected by the State Government the /order of the Government cannot be interfered with by a High Court in its writ jllrisdiction. [56'0D]\n\n[Since the respondent was released 1n pursuance of the order of th~ High Court, the release order was allowed to stand.]\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 246 of 1971.\n\nAppeal by Special Leave from the Judgment and Order dated the 13th May 1971 of the Punjab and Haryana High Comt in Crimi, nal Original No. 61-M of 1971.\n\nRam Panjwani, Deputy Advocate General, M.P., Ii. S. Parihar, • and l. N. Shroff, for the Appellants.\n\n0. P. Sharma, M. S. Dhillon and S. K. Mehta, for Responder.ts Nos. 2 to 4.\n\nNemu for Respondent No. I.\n\nThe Judgment of the Court was delivered by\n\nFAZAL Au, J.-This appeal by special leave is directed against\n\nthe judgment of the Punjab & Haryana High Court dated May 13, D 1971 by which the High Court allowed the writ petition filed by the respondent Ratan Singh a prisoner who was confined in Central Jail, Amritsar. The appeal arises in the following circumstances.\n\nThe respondent Ratan Singh was convicted by the Sessions Judge, \" r Bhind in the State of Madhya Pradesh by his order dated October 16, 1957 under s. 302 I.P.C. and sentenced to imprisonment for life.\n\nAn appeal filed by the respondent against the order of the Sessions\n\nJudge was dismissed by the High Court on May 19, 1959. Thereafter the accused made a prayer to the Government for transferring hin: from Gwalior Jail to Amritsar as the accused/respondent belonged to Punjab State.\n\nThe representation of the accused was accepted and accordingly he was transferred to the Punjab Jail where he was lodged at Central Jail, Amritsar.\n\nThe order of transfer was passed on October 15, 1959. The respondent contended that as he had completed the period of 20 years' imprisonment including the remissions granted under the Punjab Jail Manual he was entitlcJ to be released forthwith and he accordingly made an application for his release to the Punjab Government. In fact the admitted position is that OH May 7, 1971 the accused had undergone imprisonment for a period of 25 years 18 days and 19 hours taking into account the various remissions granted to him from time to time.\n\nThe Government of Punjab forwarded the representation of the respondent to the Government of Madhya Pradesh for passing an order of release.\n\nOn April 18, 1971 the State of Madhya Pradesh rejected the request of the respondent for his release.\n\nThereafter the accused/respondent filed a writ petition in the High Court of Punjab & Haryana on the ground that the accused having served the sentence for more than 20 years was entitled to be released as a matter of course under the provisions of the Punjab Jail Manual and the Rules framed under the Prisons Act. It was also contended by the respondent that as he was lodged\n\nin a jail under the jurisdiction of the Punjab Government, the appropriate Government to order his release was the Punjab Government and not the Government of Madhya Pradesh and, therefore, the request made by the Punjab Government to the Madhya Pradesh Government was not warranted by law.\n\nThe High Court without issuing notice to the State of Madhya Pradesh and after hearing the Advocate-General accepted the plea taken by the. respondent and held that Punjab State was the appropriate authority to release the respondent The High Court relied upon a decision of the Madhya Pradesh High Court in Sitaram Bare/al v. State of Madhya Pradesh(') and directed that as the respondent had already served more than 20 years 11e was entitled to be released forthwith.\n\nAccordingly the High Court allowed the petition and directed the State Go?crnmcnt to con>ider the case of the respondent for being released and dispose of t:; e case within 20 days from the date of the order of the High Court.\n\nIt appears that in pursuance of the order of the High Court the :espondent was released.\n\nThe State of Madhya Pradesh has filed this appeal by special leave against the order of the Punjab and Haryana High Court on the ground that in law it was the Madhya Pradesh Government alone which had the power to remit the sentence and release the prisoner a:id t11e High Court was in error in holding that the Punjab Government could pass the order of release.\n\nAppearing in support of the apµeal Mr. Ram Panjwani learned counsel submitted two points before us.\n\nIn the first place it was argued that the High Court ccmipletel y overlooked the legal position that a sentence of imprisonmcn; for life could not be said to be a sentence which would expire c, ul0matically after the expiry of 20 years including remissions.\n\nThe se::tence would enure till the life time of the prisoner but the State Government had the discretion under ss. 401 and 402 of the Code of Criminal Procedure to remit the remaining part of th.e sentence and' order release of the prisoner.\n\nSecondly, it was submitted that as the prisoner was convicte.d by a Court situate in the State of Madhya Pradesh the appropriate Government was the Madhya Pradesh Government and not the Punjab Government where the prisoner was transferred to exercise its discretion under s. 401 of the Code of Criminal Procedure.\n\nNo one appeared for the respondent, but at the time of granting special leave, this Court had ordered that the release of the prisoner would not be reopened even if. the appeal succeeded.\n\nIn other words the State of Madhya Pradesh in this case is not concerned with the individual case of the respondent but only wants an authoritative decision on the important principle involved in the case.\n\nAs regards the first point, namely, that the prisorer could be released automatically on the expiry of 20 years under the Punjab JaiT Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this;\n\n(I) AIR 1969 M.P. 252.\n\n! • I\n\nM.P. STATE v. RATAN SINGH (Fazed Ali, J.) 555\n\nCourt in Go pal Vinayak Godse v. State of Maharashtra and Others(!), A where the Court, following a decision of the Privy Council in Pandit Kishori Lni v. King-Emperor(') observed as follows :\n\n\"Under that section, a person transported for lil'e or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.\n\nIf so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate• Government, can be automatically treated as one for a definite period.\n\nNo such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining periocl of the convicted person's natural .Jife.\"\n\nThe Court further observed thus :\n\n\"But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein.\n\nSection 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct.\n\nTherefore, the rules made under the Act should be construed within the scope of the ambit of the Act. * * * Under the said rules the orders of an appropriate Government under s. 401, Criminal Procedure Code, are a pre-requisite for a release.\n\nNo other rule has been brought to our notice which confers an indefeaslble right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions.\n\nThe rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.\"\n\n\"The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, thongh the appropriate Government made certain remissions under s. 40 l of the Code of Criminal Procedure, it did not remit the entire sentence.\n\nWe, therefore, hold that the petitioner has not yet acquired any right to release.\"\n\nIt is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount\n\n(1) [1961/ J S.C.R. 440.\n\n(2) L.R. 72 IA. I.\n\n55 6 SUPREMjl COURT REPORTS\n\n[1976] SUPPLE~4ENTARY\n\nto administrative instructions regarding the various remis; ions to be given to the prisoner from time to time in accordance with the rules.\n\nThis Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under s. 401 of the Code of Crim; rral Procedure and neither s. 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the Court under the Indian Penal Code.\n\nIn other words, this Court has clearly held that a sentence for life would enure till the life-time of the accused as it is not possible to .fix a particular period of the prisoner's death so any remissions given under the Rules could not be regarded as a substitute for a sentence of tra:bp0rtation for life.\n\nIn these circumstances, therefore, it is clear tlrnt the High Court was in error in thinking that the respondent was entitled to be released as of right on completing the term of 20 years including the remissions.\n\nFor these reasons, therefore, the first contention raised by the learned counsel for the appellant is well founded and must prevail.\n\nThe next plank of the argument put forward by Mr. Ram Panjwani was that under s. 401 of the Code of Criminal Procedure it was the State of Madhya Pradesh where the accused was convicted which alone had the power to grant remission and order release of the prisoner.\n\nIt was submitted that the transfer of the accused from the State of Madhya Pradesh to the State of Punjab was made merely at the instance of the prisoner and for his convenience and eollkl 11,11 clothe the transferee State with the power to pass an order under s. 401 of the Code of Criminal Procedure. In order to understand the implications of the argument put forward by the appellant it may be necessary to extract the relevant provisions of s. 401 of the Code of Criminal Procedure which run thus :\n\n\"401. (1) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.\n\n(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state bis opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.\"\n\n; JI A perusal of s. 401 of the Code of Criminal Procedure would reveal that the section consists of two parts-the first part confers an absolute discretion on the appropriate Government to remit the whole or any part of the punishment to which the accused may have been sentenced.\n\n) . -\n\nThe words used in sub-s. (1) as also sub-s. (2) of s. 401 clearly A show that the power is exercised by the \"appropriate Government\".\n\nThe expression \"appropriate Govermnent\" appears to have been substituted for the expression \"Provincial Government\" by Amendment Act 1950. Previously the words used were \"Provincial Government\".\n\nSub-section (2) of s. 401 of the Code of Crimina:l Procedure, however, enjoins that before exercising its discretion on an application made to the appropriate Government for remission of the sentence, the B appropriate Government may require the presiding Judge of the Court which convicted the prisoner to state his opinion whether the application should be granted or refused. Thus the procedure laid down in sub-s. (2) of s. 401 gives a clear indication as to the real meaning and purport of the words \"appropriate Government\". It is obvious that only that Govermnent can call for the opinion of the presiding Judge of the Court which has control over the said presiding Judge C or the Court which is situated within the jurisdiction of the said Government.\n\nAs a logical corollary of the interpretation of sub-s. (2) of s. 401 it is the State where the accused was convicted which alone has the power to grant remissions of the sentence.\n\nIn the instant case the Punjab Government had absolutely no control or jurisdiction o\"er the Sessions Judge, Bhind in the State of Madhya Pradesh and could not have called for an opinion from. that Court.\n\nIn these D circumstances there can be no .shadow of doubt that the appropriate Govermnent mentioned in sub-s. (!) and sub-s. (2) of s. 401 of the Code of Criminal Procedure refers to the Govermnent of the State \\Vl1crc the accused was convicted, that is to say, the transferor Government and not the transferee Govermnent.\n\nAny such transfer of the accused from a jail situate in one State to a jail in some other State has absolutely no bearing on the question as to the application of E s. 401 of the Code of Criminal Procedure, because this is merely an executive matter and an executive decision taken to meet the convenience of the accused.\n\nFurthermore, the position is made absolutely clear by sub-s. (3) to s. 402 of the Code of Criminal Procedure which runs thus :\n\n''In this section and in section 401, the expression \"appropriate Government\" shall mean -\n\n(a) in cases where the sentence is for an offence against, or the order referred to in sub-section ( 4A) of section 401 is passed under, any law relating to a matter to which the executive power of the Union 0xtends, the Central Government; and G\n\n(b) in other cases, the State Government.\" A perusal of this provision olearly reveals that the test to determine ··. the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of s. 40 I of the Code of Criminal Procedure.\n\nThus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh. the State of Madhya Pradesh would be the appropriate Government\n\nto exercise the discretion for remission of the sentence under s. 401 ( 1) of the Code of Criminal Procedure.\n\nAlthough the present case is governed by the old Code, yet we may mention that the new Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and has reiterated the provisions of s. 402 ( 3) in sub-s. (7) of s. 432 which provides thus :\n\n\"(7) In this section and in section 433, the expression \"appropfiate Government\" means,-\n\n(a) in cases where the sentence is for an offi.:ncc a.-ainst,\n\nor the order referred to in sub-section ( 6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;\n\n(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.\" Actually this clause has been bodily lifted from the provisions of s. 402 ( 3) and has made the position absolutely clear.\n\nD In Surjit Singh v. State of Punjab & Ors.( 1) a Division Bench of\n\nthe Punjab & Haryana High Court has also taken the view that the appropriate Government would be the Government of the State where the prisoner has been convicted and sentenced.\n\nThe Division Bench of the Court after an exhaustive discussion of the various provisions of the Code of Criminal Procedure and the Rules C'bserved as follows :\n\n\"There is, however, nothing to indicate that for the purposes of remission and suspension of sentences under section 401, Criminal Procedure Code, the Legislature intended to adopt a different definition of 'appropriate Government'.\n\nIn short, under section 401, Criminal Procedure Code, the Government of the State of conviction and not the Punjab Government was competent to remit the balance of the sentence of these life convicts.\n\nAll that the Punjab Government could do was to forward the cases of these life-convicts to the appropriate Government for remitting the remaining term of their life imprisonment, in exercise of the power under section 401, Criminal Procedure Code.\n\nThe Punjab Government has already made such a re!erence in favour of the petitioners to the Governments of the States of conviction.\n\nNeither the Punjab Government nor the Superintendent of Jail concerned can release the priso1>ers under any of the statutory rules contained in Punjab Jail Manual without receiving the necessary orders of the appropriate Government under section 401. Pending the receipt of orders of the J!ppropriate Government, therefore, the detention of the petitioners could not by any reasoning, be called illegal.\"\n\n(1) Criminal Writ No. 11 of 1971 decided on 26-5-72.\n\n• -\n\n' '>·\n\nWe find ourselves in complete agreement with the view taken by the A Punjab & Haryana High Court.\n\nBefore closing the judgment, we may refer lo Sitaram Bare/a/'s case\n\n(supra) which forms the sheet-anchor of the decision of the High Court in the instant case.\n\nTo begin with that case does uot deal with the identical point involved in the present case.\n\nIn that case, the Stale Government had exercised a s.tatutory power umlcr a Speciai Act passed by the State of Madhya Pradesh, nmncly, the :Vfadhy<c Pradesh Prisoners Release on Probation Act 16 of 1954.\n\nUnder the provisions of that Act the State Government was gi>'en the power to release prisoners found to have been of good conduct by imposing certain conditions for their release.\n\nIt was not a case \\\\'here the Government was exercising its discretion under s. 40 l !)!\" the Code ol Criminal Procedure for remission of a part of the scatence att<r the accused had served the sentence for 20 years and claimed to be released.\n\nSecondly the power for a temporary release of the prisoner was conferred by the said Act on the State of Madhya Pradesh under certain conditions.\n\nThe Government was, therefore, exercising a statutory power.\n\nIn these circumstances the facts in Si:aram Bare/al's case (supra) were quite different from the facts of the present case. It is true that the prisoner in that case was lodged in a jail in the State of Maharashtra but in view of the provisions of lhe Special Act a particular State Government alone was empowered to exercise its discretion under the provisions of s. 2 of the said Act.\n\nIn the instant c:i.se there is no such Act at all in the State of Punjab & Haryana which could have provided any justification for the said State to I exercise its power to release the prisoner.\n\nThirdly, as already stated the power conferred by the Act was merely a power to release tho\n\nprisoner on a temporary basis subject to certain conditions which is not the case here at all.\n\nIn these circumstances the High Court was not at all justified in relying on the decision of the Madhya Pradesh High Court in Sitaram Barela/' s case (supra) for the proposition that the Punjab Government would be the appropriate Government to exercise power under s. 401 (1) of the Code of Criminal Procedure.\n\nFrom a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge :\n\n(1)\n\n(2)\n\nthat a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.\n\nA sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under s. 401 of the Code of Criminal Procedure;\n\nthat the appropriate Government has the undoubted discretion to remit or refuse to remit the >entence\n\nA and where it refuses to remit the sentence no writ \"\n\ncan be issued directing the State Government to 1 release the prisoner;\n\n(3) that the appropriate Government which is empowered to grant remission under s. 401 of the Code of Criminal Procedure is the Government of the State wl1ere B the prisoner has been convicted and sentenced, that \\ is to say, the transferor State and not the transferee State where the prisoner may have been transferred • at his instance under the Transfer of Prisoneq; Act; and •\n\n(4) that where the transferee State feels that the accused c has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of - the State where the prisoner was convicted and sentenced and even if this request is rej,, cted by the State Government the order of the Government cannot be interfered with by a High Court in its ,, D writ jurisdiction.\n\nFor these reasons, therefore, we are satisfied that the view taken by the High Court of Punjab & Haryana in the instant case is erroneous and cannot be supported in law.\n\nWe accordingly allow the appeal, set aside the order of the High Court.\n\nBut as tbe respondent has ah'eady been released, the order of release of the respondent shall stand. '\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 88, "entities": [{"text": "STATE OF MADHYA PRADESH", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "STATE OF MADHYA PRADESH", "offset_not_found": false}}, {"text": "RATAN SINGH & ORS", "label": "RESPONDENT", "start_char": 25, "end_char": 42, "source": "metadata", "metadata": {"canonical_name": "RATAN SINGH & ORS", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 59, "end_char": 70, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "S. MURTAZA FAZAL ALI, JJ.", "label": "JUDGE", "start_char": 75, "end_char": 100, "source": "metadata", "metadata": {"canonical_name": "S. MURTAZA FAZAL ALI", "offset_not_found": false}}, {"text": "Ss. 401 and 40", "label": "PROVISION", "start_char": 132, "end_char": 146, "source": "regex", "metadata": {"statute": null}}, {"text": "ss. 401 and 402", "label": "PROVISION", "start_char": 1296, "end_char": 1311, "source": "regex", "metadata": {"statute": null}}, {"text": "Cr.P.C", "label": "STATUTE", "start_char": 1312, "end_char": 1318, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "L.R. 72 I.A. 1", "label": "CASE_CITATION", "start_char": 1694, "end_char": 1708, "source": "regex", "metadata": {}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 1920, "end_char": 1931, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Indian Penal Code", "label": "STATUTE", "start_char": 1981, "end_char": 1998, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "s. 401", "label": "PROVISION", "start_char": 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11129, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 11139, "end_char": 11165, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Court that the Rules framed under the Prisons Act", "label": "STATUTE", "start_char": 11344, "end_char": 11393, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "s. 401", "label": "PROVISION", "start_char": 11912, "end_char": 11918, "source": "regex", "metadata": {"linked_statute_text": "Court that the Rules framed under the Prisons Act", "statute": "Court that the Rules framed under the Prisons Act"}}, {"text": "s. 57", "label": "PROVISION", "start_char": 11967, "end_char": 11972, "source": "regex", "metadata": {"linked_statute_text": "Court that the Rules framed under the Prisons Act", "statute": "Court that the Rules framed under the 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"end_char": 19408, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 19410, "end_char": 19433, "source": "regex", "metadata": {}}, {"text": "section 401", "label": "PROVISION", "start_char": 19793, "end_char": 19804, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Criminal Procedure Code", "label": "STATUTE", "start_char": 19806, "end_char": 19829, "source": "regex", "metadata": {}}, {"text": "section 401", "label": "PROVISION", "start_char": 20204, "end_char": 20215, "source": "regex", "metadata": {"linked_statute_text": "Criminal Procedure Code", "statute": "Criminal Procedure Code"}}, {"text": "Pradesh Prisoners Release on Probation Act", "label": "STATUTE", "start_char": 20942, "end_char": 20984, "source": "regex", "metadata": {}}, {"text": "s. 40", "label": "PROVISION", "start_char": 21257, "end_char": 21262, "source": "regex", "metadata": {"linked_statute_text": "Pradesh Prisoners Release on Probation Act", "statute": "Pradesh Prisoners Release on Probation Act"}}, {"text": "s. 2", "label": "PROVISION", "start_char": 21999, "end_char": 22003, "source": "regex", "metadata": {"statute": null}}, {"text": "s. 401", "label": "PROVISION", "start_char": 22672, "end_char": 22678, "source": "regex", "metadata": {"statute": null}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 22690, "end_char": 22716, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 22788, "end_char": 22814, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}, {"text": "Prisons Act", "label": "STATUTE", "start_char": 23066, "end_char": 23077, "source": "gazetteer", "metadata": {"confirmed_by_regex": 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Penal Code", "statute": "Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code"}}, {"text": "Code of Criminal Procedure", "label": "STATUTE", "start_char": 23732, "end_char": 23758, "source": "gazetteer", "metadata": {"confirmed_by_regex": false, "gazetteer_score": 1.0}}]}
{"document_id": "1976_1_561_579_EN", "year": 1976, "text": "• (\n\nBARADAKANTA MISHRA\n\nHIGH COURT OF ORISSA & ANOTHER\n\nMay 6. 1976\n\n(A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, jJ.]\n\n56 l\n\nConstitution of India, 1950, Article 235-Control of Iligh Court over District Judges-Appointnient by Governor-Dismissal by High Co'urt-Legality.\n\nThe appellant was appointed a Munsi:ff and promoted as a Subordinate Judge.\n\nHe was later appointed as Mditional District Magistrate (Judicial) and then as C a'n .A.dditional District Judge by the Governor of the State.\n\nAs a result .of an enquiry into certain charges he was reduced in rank as Additional District Magistrate (Judicial) by the High C'Ourt.\n\nAfter such reduction, he did not join duty. A fresh disciplinary proceeding was, therefore, started against him, and after enquiry, the Hij?h Court dismissed him.\n\nOn the same day, the High court passed another order of d:smissal oh the ground that he was convicted on a charge of criminal contempt by a judgment of the High Court which was COU firmed by this Court. The appeals against the orders of dismissal were dismiss .. ed by the Governor. A writ petition filed by the appellant in the High Court D for quashing the orders was dismissed.\n\nAllowing the appeal to lhis Court,\n\nHELD : (l) The control vested in the High Court under Art. 235 over district courts ahd courts subordinate thereto includes disciplinary control over district Judges and Judges inferior to the post of District Judges. If as a reSult of any disciplinary proceeding any punishment is to be imposed on any District E Judge that has to be in accordance with the conditions of service. The cond~ tions of service in the Civil Service (Classification, Control and Appeal) Rules, 1962, framed under Art. 309 provide in r. 14(4) that the appointing authority alone can impose the penalties specified in els. (vi) to (ix) of r. 13.\n\nClause\n\n(vi) refers to the penalty of reduction in rank and cl. (ix) to dismissal from service. Therefore, under the conditiohs of service, the High Court cannot reduce in rank or dismiss a District Judge, who has been appointed by the Governor. The High Court, within the power and control vested under Art. 235, would hold disciplinary proceedings against the District Judge and recommend F the impositioh of a punishment of reduction in rank on him. But the actual power of imposition of one oi' the major punlishment5i, namely reduction in rank, is exercisable only by the Governor who is the appointing authority.\n\nIn exercising such special pcwers, the Governor will always have regard to the opinioh of the High Court in the matter. Therefore, in the present case, the order passed by the Hi2h Court reducing the appellant in rank is unconstitutional.\n\n[576E- 578C, E-Hl G\n\n(2) (a) The two orders of dismissal based on the order 'of reduction in rahk cannot have legal effect because the substratum of the orders of dismissal is an unconstitutional order. If the reduction of the appellant is without jurisdic .. tion then the appellant is deemed to dontinue as a Distri.ct Judge ahd the High Court could not dismiss him.[578C-D]\n\n(b) There is no question of merger of the orders of the High! Court in the orders passed by the Governor. If the order of the initial authority is void an order of the appellate authority cannot make it valid.\n\nThe confirmation by .the Governor in appeal cannot have any legal effect because it is only that which is valid that can be confirmed and not that which is void.\n\n[578D-EJ 3f-f::CIJ Oj76\n\nA State of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771; High Courl of Calcutta v. An1al Kun1ar Roy [1963] 1 S.C.R. 437; High Court of Punjab & Haryana v. State of Haryana (In the 1natter of N. S. Rao) [1975] 3 S.C.R. 365: Parshottam Lal Dhi11gra v.\n\nUnion of India\n\n\nB CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1512 and 1513 of 1974.\n\nAppeals by Special Leave from the Judgments and Orders dated\n\n7th May 1974 and 30th November 1973 of Orissa High Court in • O.J.C. Nos. 1097 and 1033 of 1973 respectively.\n\nC Purshottam Chatterjee and C. S. S. Rao, for the appellants.\n\nSachin Chaudhary and Vinoo Bhagat, for the respondent No. l.\n\nGobind Das and B. Parthasarathi, for respondent No. 2.\n\nARGUMENTS\n\nFor the Appellants :\n\n(I) This appeal relates to the Writ Petition No. O.J.C. No. 1097 of 1973. The Appellant was appointed by the Governor as a Munsiff in 194 7.\n\nHe was in course of time promoted to the post of a Subordinate Judge.\n\n(2) In 1961, a separate cadre of Additional District Magistrate (Judicial) was created by the Government carrying a scale of pay higher than that of a Subordinate Judge, and lower than that of a District Judge.\n\nThis new cadre was called Superior Judicial Service junior Branch but such cadre for the purposes of the Constitution must be considered to be one of, other than that of District Judges. It will be governed by Art. 234 and not by Art. 233 which applies to the District J udgcs who are placed in the Superior Judicial Service.\n\n(3) After the cadre was created, the appellant was superseded, but later on was appointed by the Governor as Additional District Magistrate (Judicial). He was later on reverted to the position of a Sub-ordinate Judge and then again promoted to the position of an Additional District Magistrate (Judicial), by a notification issued by the Government.\n\nOn the 31st July, 1968, he was appointed by the Governor as an Additional District Judge.\n\n(4) On 8-12-72, by a notification No. 2.291 dated S-12-72 he was reduced in rank from the Senior branch of the Superior Judicial Service to the Junior branch of the same Judicial Service, i.e. he was reduced to position of an Additional District Magistrate (Judicial) from the position of an Additional District Judge.\n\n(5) Later by notification No. 307A dated 3-12-73 he was dismissed from service; . again on tbe same date by another Notification No.\n\n308, he was dismissed from service for the second time.\n\nIn both the notifications he was described as belonging to the Orissa Judicial Service Class I, officiating in the Junior Branch of the Superior Judicial Service. The questions in this appeal are :-Whether the three Notifications aforesaid issued by High Court were valid as issued by a competent authority.\n\n(6) Under the Constitution Subordinate Courts have been divided into two classes :-(a) District Judges, (b) other than the District , Judges. Art. 233 relates to the District Judges. Art. 234 relates to others in Judicial service than the District Judges. Art. 235 relates to\n\nthe control by the High Court of the memrs of both the branches of C Judicial Service\n\n(i) Art. 233 provides that:-\n\n(A) appointments of persons to be District Judges i.e. persons who are in Judicial service or persons who are not in Judicial service shall be appointed as D District Judges by the Governor in consultation of the High Court,\n\n(B) the posting of District Judges i.e. after a person is appointed a District Judge, the posting of a District Judge shall be made by the Governor in consultation E with the High Court,\n\n(C) the promotions of District Judges i.e. promotions or'\n\npersons already appointed as District Judges shall be made by the Governor in consultation with the High Court. Jn Orissa there are five selection posts. Under the Constitution if a Subordinate Judge is appointed as a District Judge, he is elevated from the category of, Judicial officers governed by Art. 234 to the category of those governed by Art. 233. So it is fresh appointment-promotion refers to promotions of District Judges; appointment refers to persons \"to be appointed\" as District Judges.\n\n(ii) Art. 234 provides that appointment of persons to the judicial service other than District Judges shall be made by the Governor in consultation with the Public Service Coinmission and the High Court.\n\n(iii) Art. 235 refers to control by the High Court. These three H Articles should be read in a manner that conflict between the High Court and the Governor may be eliminated.\n\n(7) This leads to the position that the High Court has control over the District Judges in all matters except those reserved to the Governor under Art. 233. So in matters of appointment, promotion and posting and matters included therein the Governor is the competent authority bul he has to act in consultation of tli, e High Court.\n\n(8) The High Court can conduct an enquiry but cannot dismiss.\n\nThe High Court will send the report and the recommendation to the Governor who will on consideration of the entire matter pass an order of dismissal if it pleases him, (Ram Gopal v. State of M.P. [1970] l S.C.R. 472, 478) or may reject the recommendation or may ask the High Court to reconsider the whok matter again.\n\n\n(9) The question is who will pass an order reducing a District _;;.\n\nJudge to the position of an Additional District Magistrate.\n\nIn rhe case of Nripendra Bagchi v. State of West Bengal, it was held as follows -\n\nD Articles 233 and 23.5 make a mention of two distinct powers. The first is appointment of persons, their posting and promotions and the other is control.\n\nIt has been decided in the case of Nripendra Bagchi that order of dismissal of a District Judge is to be passed by the Governor. (p. 788).\n\nSection 16 of the General Clauses Act provide that the appointing E authority is the dismissing authority unless it otherwise appears,\n\nFollowing this principle and considering all the subsequent dec; sions, the Supreme Court held in the case of High Court of Punjab and l:laryana v.\n\nState of llaryana (in the matter of N. S. Rao)\n\n\n\"The High Court under this (Art. 235) control cannot terminate the service or impose any punishment on the district Judge by removal or reduction''.\n\n(10) It has been pointed out already that the Constitution recognises two classes of subordinate courts.\n\nThe powers of the High Court with respect to them are different. The order for appointment of a District Judge and matters included therein must be passed by the Governor.\n\nWhe_n a person so appointed is removed from service or reduced to the lower rank governed by Art. 234, the order of the Governor appointing him as District Judge is impliedly cancelled; without catlcellation of the order of the Governor appointing him to the post of District Judge, he cannot be removed from the rank governed by Art. 233.\n\nThis cancellation cannot be made by any body other than the Governor because he was the competent and the only authority so to appoint; hence the Governor is the only person who can remove or reduce in rank a District Judge.\n\nAgain, snpposing a\n\nB. MISHRI\\ V. ORISSA HIGH COURT 565\n\nDistrict Judge is appointed as a Judicial Secretary or a Legal Remembrancer or his services are placed at the disposal of the Governor, the High Court is out of the scene, he can be reduced in rank by the Governor.\n\nSecondly, Section 16 of the General Clauses Act authorities the appointing authority unless otherwise provided, to suspend or to dismiss. It does not mean that appointing authority has merely the power to suspend and to impose merely the highest punishment, the substance is that the appointing authority has the power beginning from suspension and ending the power to dismissal unless otherwise provided elsewhere. Hence all intermediate punishments may also be imposed by the appointing authority provided that there is nothing to the contrary.\n\nHence Governor alone has the power of removal and reduction.\n\nThirdly, removal entails interference with the order of appointment which is clearly reserved to the Governor; hence removal has to be made by the Governor. But reduction also entails the order of appointment.\n\nThe order for appointment as District Judge and an order for reduction cannot stand at the same time; if they are allowed to do so they contradict mutually.\n\nFinally, it a small power like transfer is given to the Governor, it cannot be imagined that an order which means his removal fr0m the category of officers governed by Art. 233 to the category of < officers go\\erned by Art. 234 will be done by any authority other\n\nthan the Governor. E\n\n1 ( 11 ) The High Court was wrong in holding that the reduction in rank could be done by them. Some confusion might have arisen from the fact that District Judges were the members of the Superior Judicial Service and the Additional District Magistrate (Judicial) were also placed in that Service but in the Junior brancl1.\n\nSo the High Court might have considered thaflt was mere matter of promotion and F reduction within the same sphere.\n\nIn common parlance it may so appear, but the Constitution puts them in two different categories.\n\nHence, High Court had no power to pass the order or reduction ' by the Notification No. 2291 dated December 8, 1972.\n\nThe two subsequent notifications being based on it arc equally null G and void.\n\nIt was urged that the order of the Governor confirming the orders of dismissal will prevail. It cannot be so. The initial order being bad all orders based on it are bad [1953] S.C.R. 136, 143.\n\n(12) It has been said that the order of the High Court having merged in the order of the Governor, the latter order prevails being H the order in appeal.\n\nThat again i~ not so.\n\nIf the order of initial authority is null and void, and an order of :t competent authority in appeal ca1111ot make it competant (ledgord v. Hill 13 IA 134).\n\nA Finally, the officers of the Governor have used the word \"CON- FIRMED\" wrongly.\n\nThe appellant filed appeals which wern dismissed but they have wrongly used confirmed though the effect of the order may be confirmation, if the initial order of the High Court was valid but what was confirmed was, a null and void order.\n\nB Tf the first order of reduction was null and void, the appellant ' remained a District Judge and he was never dismissed as ; uch.\n\nFiually even if he was correctly reduced in rank by a proper\n\n.II authoritv. the order of dismissal must come from the Governor as he Ill was api)ointed as an Additional District Magistrate by the Governor\n\n, C\n\n([1%6] 1 S.C.R. 771, 788). •\n\n( 13) ( i) First question.-Whether the High Court in exercise of powers under Articles 235 of the O'nstitntion can impose any punishment on a District Judge by removal or reduction in rank.\n\n\n\"xx xx The High Court of coum\\ under this coRtrol, cannot terminate the services or impose any punishment on District Judge by removal or reduction xxx if as a result of any disciplinary proceedings, any District Judge is to be removed from service or any punishment is to be imposed, that will be in accordance with conditions of service\".\n\n(iii) 'Conditions of service' in this instance, means, as embodied in the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as \"the C.C.A. Rules\". So, the C.C.A.\n\nRules framed under Article 309 of the Constit11tion are accepted to he\n\nconstitutional.\n\nThese C.C.A. Rules are undoubtedly applicable to District Judges and Additional District Magistrates (Judi.) in view of r. 18 of the Orissa Superior Judicial Service Rules, 1963. Thus, as per r. 14(4) of the C.C.A. Rules, the appointing authority, tl1at is the Governor, alone, can impose penalties, as specified in els. (VI) to (IX) of r. 13 of the C.C.A. Rules, cl. (VI) is the penalty of reduction in rank, and cl. (IX) is dismissal from service.\n\nSo, the High Court cannot reduce or dismiss a District Judge.\n\nSecond question.-Whether the High Court can suspend a. District Judge. Rule 12 of C.C.A. Rules and s. 16 of the General Clauses Act, debar the High Court to effect such suspension. Provisions of the General Clauses Act are applicable for interpretation of the Constitution ( vide Art. 367 (11).\n\nThird question.-Whether the High Court can dismiss an Addi.\n\nDist. Magistrate (Judi.). If the reduction of the appellant, for the above reasons, is without jurisdiction, then the appellant is deemed to be continuing as a District Judge, and in view of the above submission, the High Court cannot dismiss him.\n\n\n\"Reading the above with Arts. 233 and 234, he (Mr. Sen) contends,\n\nand rightly that a District Judge or a Judge, subordinate to the District Judge cannot be dismissed or removed by any authority other than the C Govetnor.\n\nThe next question :-Whether the reduction of the appellant from the rank of Addi. Dist. Magistrate (Jud!.) in January 1962, is hit by Art. 311 (2) of the Constitution .. Annexure-3 will clearly disclose that the said reduction was as a measure of penalty and hence the provi- D sions of Art. 311 (2) are attracted. There having been no enquiry, it is liable to be quashed.\n\nThis reduction had been challenged in a previous writ proceeding, whether the State Government and the High Court as the O.Ps suppressed the truth, as had been in the Annexure 3 and thus, practised fraud E on the Court Hence, that decision is revisable under the broad principle of Sec. 151, C.P.C. or otherwise. The reasons given by the High Court to refuse this relief are not acceptable in law.\n\nHence all the orders may be quashed and the appeal be allowed with costs, as the appellant has done nothing to disentitle, him from getting costs.\n\nFor Respondent No. 1\n\n1. Facts and dates\n\nThe Appellant was appointed as a Munsiff, on probation, in 1947; and was confirmed in iliat cadre in 1948.\n\nThe Appellant was appointed Sub-Judge by promotion and was confirmed as such on 20.9.1958.\n\nIn 1961, a new cadre of Additional District Magistrates H (Judicial) was created by Government : ADM(J)'s ranked between Sub-Judge and District Judge.\n\nThe Appellant was supperscded by fo\\Jr judicial officers when appointments were made to the new cadre\n\nof ADM(J) on 28-9-1968.\n\nThe Appellant made a representation to Government against this supersession but the same was rejected, The Appellant was superseded again when more appointments were made to posts of ADM (J) ; the Appellant was considered but found unfit.\n\nThe Appellant was superseded innumerable times and at practically every stage of his career.\n\nc. On 28.3.1962, the Appellant was, for the first time, appointed to officiate as ADM(J).\n\nThe appointment was made by Government as the Orissa Superior Judicial Service Rules, 1963, had not then come into force; and Article 235 had not been interpreted in Bagchi's case - [1966] 1 SCR 771 - by the Supreme Court.\n\nBy notification No. 1068, dated 15-1-1963, issued by Government, the Appellant was reverted from the post of temporary ADM(J) to his substantive rank of Sub-Judge; and he was posted as Sub-Judge, Sundergarh.\n\nThe above order of reversion was challenged by the Appellant in a writ petition before the High Court of Orissa (0.J.C. No. 168 of D\n\n1964) but the writ petition was dismissed by judgment reported at >\n\nILR [1966] Cuttack 503.\n\nThe Appellant preferred a petition for special leave to appeal to the Supreme Court - SLP (Civil) No. 53 of 1967 - but the same was rejected.\n\nAnd he matter stood concluded.\n\nThe Appellant committed acts of misconduct while working as Sub-Judge, Sundergarh, after his reversion aforesaid.\n\nAn enquiry was held; the Appellant was found guilty and the punishment awarded was stoppage of two increments.\n\nThe Appellant was under suspension ftom 15-5-64 to 9-4-1967.\n\nThe High Court appointed the Appellant to the post of ADM(J), by promotion, on 5.2.1968.\n\nUnder Rule 10 of the Orissa Superior Judicial Service Rules, 1963, the High Court is the appointing authority empowered to appoint ADM(J) s by promotion from the rank of Sub-Judge.\n\nThe Governor has no power to appoint ADM(J)s (or to appoint Sub-Judges under the Orissa Judicial Service Rules, 1964, which relate to Munsiffs and Sub-Judge; the High Court alone can appoint Sub-Judges by promoting Munsiffs).\n\nh. The Appellant was promoted officiating Additional District Judge by the Governor.\n\nThereafter, he worked under Government as Joint . Secretary, Law Department and later on as Endowment Commissioner.\n\nSubsequently, he was appointed officiating Additional District & Sessions Judge, Cuttack.\n\ni. Three departmental proceedings had been started against the Appellant in respect of his work as Endowment Commissioner; and he had also been convicted for contempt of court.\n\nWhile working as Additional District & Sessions Judge, Cuttack, the Appellant committed\n\nacts of indiscipline, and was found to have tampered with judicial A records.\n\nThe Appellant was thereupon reverted to the rank of ADM(J) -0n 1-9-1971.\n\nBut subsequently, on 21-3-1972, the order of reversion was cancelled by the Governor, who suggested that departmental proceedings could be drawn up against the Appellant.\n\nThis act of cancellation of the reversion order has been commented on by this B Hon'ble Court in [1974] 2 SCR 282 at 288-Baradakanta Mishra vs.\n\nRegistrar of Orissa High Court & anr.\n\nDisciplinary proceedings were started against the Appellant by the High Court, and the Appellant was placed under suspension.\n\nThe Appellant was found guilty of the charges framed against him.\n\nBy order dated 8 .12 .1972, the High Court imposed the punishment C of reduction in rank from Additional District & Sessions Judge to ADM(J); tl1e Public Service Commission was consulted regarding the imposition of this punishment and it concurred.\n\nThe Appellant was posted as ADM(J), Sambalpur, by notification dated 8-12-1972, which was served on him on 9-12-1972.\n\nThe Appellant did not proceed to Sambalpur, and never joined his post D as ADM(J).\n\nThe Appellant remained absent from duty for one year until he was eventually dismissed in December 1973 (by notification dated 3 . 12 1973).\n\nm. A disciplinary proceeding was started against the Appellant on 1.2.1973 for deserting service.\n\nBy order dated 25.G.1973, the Inquiring Judge found the Appellant guilty of the charge of wilful E absence from duty.\n\nThe Appellant was offered an opportunity of being heard personally by the Full Court on 27-11-73, but the Appellant wrote to the High Court on 24 .. 11 . 73 that he was seriously ill and had been advised complete rest for a fortnight.\n\nThe High Court rejected his request for adjournment and fixed the hearing for 30-11-73.\n\nThe F Appellant-notwithstanding that he claimed to be seriously ill-came to the High Court on 27-11-1973 and filed O.J.C. No. 1033 of 1973, which gave rise to CA No. 1513 of 1974.\n\nThe Appellant did not however appear before the High Court to show cause against the > punishment propooed to be awarded.\n\nThe Appellant was dismissed on two counts, \\Vhich were G recorded in two separate orders as the orders were passed on two separate proceedings.\n\n(i) By order dated 30-11-1973, the Appellant was dismissed for having been found guilty of the charge of having deserted service.\n\n(ii) By another order also dated 30.11.1973-the High Court H also awarded the punishment of dismissal on acconnt of the Appellant's conduct leading to his conviction for contempt of court, which was uphdd by the Supreme Court in [1974] 2 SCR 282.\n\nSUPRE]\\IE COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\n(iii) Based on the aforesaid orders, two notifications both dated 3-12-1973: were issued by the High Court dismissing the Appellant from service.\n\n(vi) The High Court consulted the Public Service Commission regarding the proposed punishment of dismissal to be awarded to the Appellant, and the PSC had concurred therein.\n\np. The Appellant field O.J.C. No. 1087 of 1973 in the High Court challenging, inter alia, the orders of dismissal, the order of reduction in rank, and seeking a declaration that he should be considered senior to one B. R. Rao, who superseded him in 1961, and as holding the post of District Judge before B. R. Rao.\n\nThe High Court dismissed the said O.J.C. No. 1087 of 1973 by judge ment dated 7.5.1974: this judgment is impugned in CA No. 1512 of 1974.\n\nSubmissions\n\nThe High Court was competent to dismiss the Appellant from his post of ADM(J).\n\nThe words \"posting and promotion\" in Article 233 of the Constitution mean appointment of a District Judge by promotion from the preceding, lower rank in the judicial service-State of Assam & anr, vs. Kuseswar Saikia & ors. (1970) 2 SCR 928.\n\nThe same words-posting and promotion-in Article 235 must also bear the same meaning and must mean appointment by promotion of judges , subordinate to District Judges.\n\nTherefore, Article 235 confers the ., power of appointment by promotion (as distinguished from appointment by direct recruitment) on the High Court, just as the similar power in respect of District J udge5 is conferred on the Governor by Art. 233.\n\n2(a) (i). The Supreme Court has held in The High Court of Calcutta vs. Amal Kumar Roy-(1963) I SCR 437 at 447-that, 'It is therefore, clear that after the coming into force of the Constitution, the High Court is the authority which has the power of promotion in respect of persons belonging to the State Judicial .Service, holding any post inferior to that of a District Judge.' It is not contended by the plaintiff-respondent that there is anv other authority which could have dealt with him in the matter of promotion from the post of a Munsiff to that of a Subordinate Judge.\n\nArticle 234 governs the appointment by direct recruitment of persons to posts subordinate to that of District Judge.\n\nArticle 235 governs the subsequent appointment by promotion to such subordinate JJOSts (e.g., from Munsiff to Sub-Judge, and from Sub-Judge to ADM-(J)-Sat!iya Kumar & ors. vs. State of Andhra Pradesh & ors.\n\nAIR 1971 A. P. 320.\n\nc. Under the provisions of the Orissa Judicial Service Rules, H 1964, recruitment to the post of Munsiff is made by the Governor by ' means of a competitive examination : r. 5 Recruitment to the post of Sub-Judge is made only by the High Court by promotion from amongst Munshiffs r. 4.\n\nSimilarly, under the Orissa Superior Judicial Service Rules, 1963, recruitment to post of ADM(J) is made only by the High Court by promotion of Sub-Judges r. 10.\n\nThe Govenor mahs appointment to the post of District Judge, Wilcther by direct recruitment or by promotion: rr. 8 & 9.\n\ne. These two sets of Rules are in accord with the provisions of Arts. 233, 234 and 235 of the Constitution.\n\nAnJ they are also B in accord with the two decisions referred to above: [1970] 2 SCR 928, and AIR 1971 A. P. 320.\n\nIt may be mentioned that in Shamsher Singh's case [1975] l SCR 814-the power of dismissal was rightly he!J to be in the Governor because the dismissal was of a Sub-judge who had been directly recruited by the Governor, the post of Sub-judge who had been lowest post in the judicial service of Punjab.\n\n3. High Court's power to impose penalties on District Judgesother than, those of dismissal or removaL The High Court has power to impose the penalty of reduction in rank. a.\n\nThe nature and extent of the High Court's \"control\" over the subordinate judiciary (including District Judges) under Article 235 of the Constitution was authoritatively determined in Bagchi's case-[1966] I SCR 771.\n\nAnd the Jaw so laid down by the Supreme Court has been followed by the High Court.\n\nb. It was held in Bagchi that the High Court's disciplinary control over District Judges is complete-subject only to the power cf the Governor in the matter of appointment and dismissal or removaL In exercise of power under Art. 235, the High Court can hold inquiries against District Judges under Art. 311 (2), and can impose all puni<hmcnts other than dismissal or removal, which are governed by Art. 311 ( 1) and are vested in the appointing authoriy, the Governor in the case of District Judges.\n\nThe ratio of Bagchi in this behalf is rested on Art. 311 of the Constitution.\n\nThe only logical basis for determining the extent of power to F hold inquiries and to impose punishments lies in Art 311.\n\nAny other demarcation of the limits of the High Court's disciplinary power--e.g., on the basis of severity of the punishment involved-will necessarily have to be on an arbitrary basis, and will give rise to endless disputation as !Iii whether a particular punishment falls within, or outside of the High Court's control under Art 235. Dismissal and removal are excluded from the High Court's control not because of G the reverity of the punishment, but on account of their being relatable to the power of appointment.\n\nCurtailment of the High Court's control under Art. 235, as expounded in Bagchi will erode the independence of the subordinate judiciary.\n\nReduction in rank is a punishment which does not, and cannot fall under the head of \"dismissal or removal\".\n\nReduction in rank is expressly excluded from Art. 311 ( l), and is mentioned as distinct from dismissal and removal in Art. 311(2). Reduction in\n\n5 72\n\nSUPREME COURT REPORTS\n\n[1976] SUPPLE~!ENTARY\n\nrank does not result in ouster from service, while dismissal removal does. or\n\nN. S. Rao's case-[1975] 3 SCR 365-was concerned with the power of confirmation of a District Judge in the cadre.\n\nThe extent of the High Court's control in terms of disciplinary measures was not\n\nia issue.\n\nAnd, the Supreme Court reiterated the decision in Bagchi at p. 374.\n\nHowever, at p. 379, the following passage occurs:\n\n'The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court.\n\nThe High Court of course under this control cannot terminate the services or impose C any punishment on District Judges by removal. or reduction.\" emphasis added.\n\nThe first sentence describes the power to terminate, remove and dismiss as being vested in the Governor.\n\nThe next sentence excludes the power of termination, removal and reduction from the High Court control.\n\nIt is submitted that the word \"reduction\" which occurs in the aforesaid sentence is a non sequitur to what is being discussed/re-- capitulated in that passage, and appears to have crept in in place of of the word \"dismissal\" in view of the rreceding sentence in that passage.\n\nThe Court in Rao was not at all concerned with the H\\gh Court's power to impose penalties and certainly not with the penalty of reduction in rank.\n\nIn any event, the existence of the word \"reduction\" in the aforesaid sentence cannot have the effect of overrnling, or curtailing, or even re-interpreting the High Court's disciplinary control under Article 235 as laid down in Bagchi.\n\nAlso, Rao does not purport to differ from Bagchi in any manner. Rao cannot be pressed into service by the Appellant in support of the contention that the High Court could not reduce him in rank from the post of District Judge to that of ADM ( J).\n\nWhether a division Bench can decide the question relating to power to reduce in rank-\n\nIt is submitted that in the event this Hon'ble Court is inclined to take the view that power to reduce in rank does not fall within the High Court disciplinary control under Art. 235 as held in Bagchi then the matter ought to be placed before a Constitution Bench in view of the provisions of Art. 145(3) of the Constitution and the important and substantial question as to interpretation of Art. 235 and 311 being involved, and also re-consideration of Bagchi.\n\nThe Appellant's contention regarding his reversion in 1963 was not, as far as counsel for the High Court can recall, pressed at the hearing and cannot therefore be raised in the synopsis of arguments as is purported to be done in para 4(i) thereof.\n\nIn any\n\n'.\n\nB. MISHRA v. OR!SSA HIGH COURT (Ray, C.J.) 5 7 3\n\nevent, the question of the validity of the reversion was finally decided A by the High Court's decision reported at ILR 1966 Cuttack 503 and the refusal of special leave against that decision).\n\nThe other grounds for rejection of this contention that are recorded m the impugned judgment may also be seen.\n\n6. Effect of the Appellant's appeals to the Governor against the High Court's orders of dismissal, reduction in rank, etc.\n\nThe Appellant's appeals were prefered under Rules 22(2) and 29(1) of the Civil Services (Classification, Control & Appeal) Rules, 1962, and were entertained by the Governor under the said\n\nHule~.\n\nThese Rules enable the Governor to consider the appeals on merits, and were so considered-and rejected. l!l other words, the Governor considered the entire matter on merits and had before him the entire record relating thereto which was forwarded by the\n\nHigh Court. '\n\nIn these circumstances, it is submitted in the alternative to the preceding submissions, that even if it be assumed that the power of dismissal and of reduction in rank be vested in the Governor, the Governor may, in effect and in substance, be taken to have dismissed the Appellant. And the High Court's orders in this behalf may be taken as recommendations. In other words, both the High Court and the Governor being of the view that the Appellant ought to be dismissed from service (and, earlier, reduced in rank), it will be academic to consider where the power to dismiss and reduce in rank lies in the present case.\n\nThe Judgment of the Court was delivered by\n\nRAY. C.J.-This appeal arises ou' of the judgment dated 3 December, 1973 of the High Court of Orisso.\n\nThe appellant filed a writ petition for quashing the order of the High Court dated 8 December, 1972 reducing the appellant in rank and fur quashing orders dated 3 December, 1973 passed by the High F Court dismissing the appellant from service.\n\nThe High Court dismisse_d the petition of the appellant.\n\nThe q,1estions for consideration are two.\n\nFirst, whether the High Court was competent to reduce the appellant in rank. Second, whether the High Court could pass orders dlsmissing the appellant from service.\n\nThe appellant was appointed by the Governor as a Munsiff in the State of Orissa in 194 7.\n\nHe was in course of time promoted to the post of a Subordinate Judge.\n\nThe appellant was appointed by the Governor 011 28 March, 1962 as Additional District Magistrate (Judicial).\n\n1n 1961 a separate cadre of Additional District Magistrates (Judicial) was created by the Government.\n\nThis new cadre was called \"Superior Judicial Service_ Junior Branch''. This radre is not the same as that of District Judges and Additional District Judges who belonged to Superior Judicial Service Senior Branch.\n\nTh~ appellant was on 15 January, 1963 reverted from the post of Additional District Magistrate (Judicial) to the rank of Subordinate Judge.\n\nThe appellant challenged the order of reversion in a writ petition in the High Court of Orissa. The writ petition was dismissed as will appear from the judgment reported in I.L.R. 1966 Cuttack 503.\n\nThe appellant made an application for special leave to appeal to this Court being Special Leave Petition (Civil) No. 53 of\n\n1967. The application was rejected.\n\nOn 5 February, 1968 the High Court appointed the appellant to the post of Additional District Magistrate (Judicial) by promotion. It is said that under Rule 10 of the Orissa Superior Judicial Service Rules, 19G3 the High Court is the appointi>lg authority empowered to appoint Additional District Magistrates (Judi,, ial) by promotion frum the rank of Subordinate Judge.\n\nOn 31 July, 1968 the appellant was appointed by the Governor\n\nas an Additional District Judge. ~\n\nOn 8 December, 1972 the High Court imposed on the appellant the punishment of reduction in rank from the post of Additional District and Sessions Judge to an Additional District Magistrate (Judicial).\n\nThe order passed by the High Court dated 8 December, 1972 records that in pursuance of the control vested in the High Court under Article 235 of the Constitution in a disciplil1ary proceeding initiated on charges dated 29 April, 1972 against the appellant an officiating member of the Orissa Superior Judicial Service Senior Branch the appellant is reduced in rank with immediate effect and 1s released from suspension.\n\nOn 30 March, 1972 the High Court passed an order in exercise of powers unl1er Article 235 fo the effect that the appellant wos placed ' under suspension forthwith because a disciplinary proceeding against the appellant was contemplated.\n\nOn 29 April, 1972 charges were servd on the appellant. He was asked to submit an explanation.\n\nHe did not <lo so.\n\nHe thereafter asked . for inpection of certain documents.\n\nA Jate was appointed but he did not inspect any document.\n\nWith regard to the enquiry pursuant to the charges delivered to the appellant on 29 April, 1972 the learned Judge of the High Court who was the Enquiring Judge came to the conclusion that one of the harges was established that the appellant after pronouncing judgment on 22 June, 1971 penned through bis signatures on the judgment and entered into the or<lersheet that it was not delivered.\n\nThe Enquiring Judge also found the appellant guilty of tampering with the records of the Court.\n\nThe Enquiring Judge also found the appellant guilty of the charge that though the appellant was ordered by the Court pending enquiry and during his suspension to fix the Headquarters at Cllttack he did not comply with the order.\n\nIn the background of this Enquiry the High Courl ordered that th~ appellant be reduced to the rank of Additional District Magistrate.\n\nThe appellant challenged this order.\n\nAlter the order of reduction on S December, 1972 the High Court A issued orders posting the appellant as Additional District Magistrate .Sambalpur and directed him to join at his new tat\\on. The appellant did not join the new station nor did he apply for leave. A fresh disciplinary proceeding was started against the appellant for wilful absence from duty.\n\nThe matter was enquired into by a Judge ot th~ High Court.\n\nThe appellant submitted that the order reducing him was beyond the powers of the High Court. The Enquiring Judge found B him guilty The appellant was given an opportumty to show cause against the order.\n\nThe appellant did not do so.\n\nThe High Court thereupon imposed the punishment of dismissal on the appellant and dismissed him. One of the orders of dismissal recited that in pursuance of the order passed by the Court in exercise of its powers under Article 235 <'f the CQnstitution in a disciplinary proceeding initiated on charges dated l February, 1973 the appellant an officer of the Orisrn Judicial C Service Class I officiating in the Junior Branch ot the Orissa Superior Judicial Service is dismissed from service with immediate effect.\n\nAnother order of 3 _December 1973 reccted that in pursuance of the order passed by the Court in exercise of its powers under Article 235 the appellaut an officer of the Orissa Judicial Service Class I, officiating in the Junior Branch of:'the Orissa Superior Judicial Service, who has been convicted on the charge of criminal contempt by judgment ot D the Orissa High Court reported in I.L.R. 1973 Cuttack 134 (Registrar of the Orissa High Court v. Baradqkarta and Am-.) which was confirmed by the Supreme Court by judgment dated 19 November, 1973 (Baradakanto Mishra v. Registrar, Orissa High Court & Anr.) in Criminal Appeal No. 41 of 1973 is un the ground of conduct leading to such conviction, dismissed from service with immediate effect.\n\nThe judgment of this Court is reported in [1974]2 S.C.R. 282.\n\nThe respondents contended that the High Court has disciplinary control over Dis\\rict Judges and in exercise of that power the High Court can hold an enquiry and can impos<; all punishments other than dismissal or removal.\n\nThe punishment of reduction in rank is said by the respondents not to be dismissal or removal because reduction in rank does not result in ouster from service.\n\nThe respondents,, F therefore, submit that the order of 8 December, 1972 reducing the appellant in rank _was within the contro~ vested under Article 235 of\n\nthe Constitution in the High Court.\n\nWith regard to the orders of dismissal the respondents submitted that the appellant preferred appeals from the orders.\n\nThe appeals were heard and dismissed by the Governor. The respondents, therefore, submit that the dismissal in effect and substance is G by the Governor. The orders of dismissal are said by the High Court to be recommendation to the Governor of dismissal of the appellant.\n\nThe respondents submit that the appellant did not challenge the order of the Governor, and, therefore, the order~ have become final.\n\nA_r.tii; le 233 provides that the appointment, posting and promotion H of D1stnct Judge is by the Governor. The posting of a District Judge is the initial or the first posting as District Judge.\n\nThe promotion of District Judge is appointment of persons by promotion to\n\nD_istrict fodges.\n\nWhen a Subordinate Judge is appointed as a Distnct Judge the appomtment is by promotion but it is a fresh appointment by promotion to be a District Judge.\n\n. Article 234 provides that appointment of persons other than Distnct Judg~ to the Judicial _Service of a State shall be made by the Governor m consultal!on with , the State Public Commission and with the High Court.\n\n_Article 235 is relevant for the purpose of present appeal.\n\nThe Article states that control over district cour,:s and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial Service of a State and holding any post inferior to the post of district iudge shall be vested in the High Court, but nothing in this Article shaff be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.\n\nThe scope of Article 235 has been examined by this Court in several decisions.\n\nThe important decisions arc The State of West Bengal v. Nripendra Nath Bagchi('); The High Court of Calcutta v.\n\nAmal Kumar Roy( 2 ); High Court of Punjab and Haryana v. State Raryana (In the matter of N. S. Rao)( 3 ) The effec.t of the decisions is this.\n\nThe word \"control\" as used in Article 235 includes disciplinary control over District Judges and Judges inferior to the post of District Judge.\n\nThis control is vested in the High Court to effectuate the purpose of securing independence of the subordinate iudiciary and unless it included disciplinary cont(O] as well the very object would be frustrated.\n\nThe word \"control\" is accompanied by the word \"ves'.\" which shows that the High Court is made the sole custodian of the con'.rol over the judiciary .. Control is not merely the power\n\nto arrange the day-to-day working' of the court but contemplates disciplinary jurisdiction on the presiding Judge.\n\nThe word \"control\" includes something in addition to the mere snperintendence of these courts.\n\nThe control is over the conduct and discipline of Judges.\n\nThe inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. Th~ 'Yod \"deal\" in Article '23~ _also _indi_ca'.es that the control is over d1sc1plmary and not mere admm1strahve 1unsdiction.\n\nThe control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting a!'d remotion of D_istr!ct Judges and dismissal, removal, reduc!Ion m rank of D1stnct Judges. Within the exercise of the control vested in the High Court, the High Court can ho!~ enquiries,, impose punisments othe~ than dismissal or removal sub1ect however to the cond1l!ons of service to a right of appeal if granted by te conditions of ervice, and to the giving of an opportun1ty of showing cause as reqmred by clause (2)\n\n(j) [19661 ls.C.R. 771\n\n(2) [19631lS.C.R.437.\n\n\nof Aricle 311 unless such an opportunity is' dispensed with by the 6ovemor acting under the provisos (b) and ( c) to that clause. The High Court alone could make enquiries into disciplinary conduct.\n\nIn N. S. Rao's case (supra) this Court said \"The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of B the power of control vested in the High Court.\n\nThe High Court of course cannot terminate the services or impose any punishment on District Judge by removal or reduction.\n\nThe cOntrol over District Judge is that disciplinary proceedings are commenced by the High\n\nCourt. If as a result of any disciplinary proceeding any District Judge is to be removed from service or any punishment is to be imposed, that will be in accordance with the conditions of service.\n\nIt is indisputable that the appellant was promoted to the post of Additional and Sessions Judge.\n\nThat is the cadre of District and Sessions Judge.\n\nHe was reduced in rank.\n\nReduction in rank is one of the major punishment mentioned in Article 311.\n\nThe major punishments are dismissal, removal, or reduction in rank.\n\nThe words \"dismiss,, remove or reduce in rank\" have stigma, namely, the meaning which they bear as three major punishments in Service Rules. The difference between: dismissal and removal is that dismissal ordinarily disqualifies any future employment and removal ordinarily does not\n\n(See Parshotam Lal Dhingra v. Union of India('). If one is reverted by way of punishment for misconduct Article 311 ( 2) is attracted.\n\nThe expression \"reduction in rank\" means that the person who holds the position of a Subordinate Judge has .been reduced to the post of a Munsif!.\n\nThe rank of a Subordinate Judge is higher than that of the Munsiff.\n\nBut Subordinate Judges in the same cadre hold the same rank though , they have to be listed according to their seniority in the Civil List.\n\nTherefore, losing some places in the seniority list in the same cadre does not amount to reduction in rank under Article 311(2l. (See The High Court of Calcutta v. Amal Kumar Roy) (2 ).\n\nReduction in rank may be brought about in the garb of a reversion. (See Debesh Chandra Das v: Union of India & Ors. (3)\n\nIt was argued in N. N. Bagchi's case (supra) that the extent of control exercisable by the High Courts under Article 235 must be so cut down as to keep disciplinary jurisdiction out.\n\nThis argument was not accepted by this Court.\n\nThis Court said that the provisions that certain powers are to be exercised by the Governor and no: by the High Conrt do not take away other powers from the High Courts.\n\nThis Court however incidenta!ly;; added that in exercising these special powers in relWion to inquiries against District Judges,, the Governor would always h~!I regard :to•1hc opinion of the High Court in the . .\n\n(1) 119ss1 s.aR. s2s ·\n\n(2) [1963] l S.C.R. 437.\n\n(3) [1970] 1S.C.R.220.\n\n3'-g33SCl/76. . f\n\nmaUer.\n\nThis <:ourt concluded by holding that there is nothing in Article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry.\n\nThe High Court within the power and control vested under Article 235 could hold disciplinary proceedings against the appellant and could recommend the imposition of punishment of reduction in rank on the appellant.\n\nThe actual power of imposition of one of the major punishments, viz., reduction in rank is exercisable by the Governor who is the appointing authority. The order passed by the High Court on 8 December,, 1972 reducing the appellant in rank is unconstitutional and is quashed.\n\nThe two orders of dismissal dated 3 December, 1973 arc based on the order of 8 December, 1972. The substratum of the orders of dismissal being unconstitutional the orders of dismissa1 cannot have any legal force.\n\nFurther, the contention of the High Court that the orders of dismissal passed by the High Court merged in the orders passed by the Governor cannot be accepted. If the order of the initial authority is void an order of the appellate authority cannot make it valid.\n\nThe order of the Governor used the word \"confirm\".\n\nThe appellant filed appeals to .the Government.\n\nThe appeals were dismissed.\n\nThe confirmation by the Governor cannot have any legal effect because that which is valid can be confirmed and not that which is void.\n\nFor the foregoing reasons as is pointed out in N. S. Ron's case the High Court cannot •terminate the services or impose any punishment on the District Judge. If as a result of a disciplinary proceeding any District Judge is to be removed from service or anv punishment is to he imposed that should be in accordance with the CQ!lditions of service.\n\nIn the present case the conditions of the Civil Services ( Classification Control and Appeal) Rules,. 1962, framed under Article 309\n\nproides in Rule 14(~) at the appoi_nting nthority alone can impose penalties as specified m .cla~ (v1) to (IX) of ules.13 .. Cluse\n\n(vi) is the penalty of reduction m rank 8!1~ clause (ix) is d1s1111S;5al from service.\n\nTherefore, under the cond1hons of service the High Omrt cannot reduce in rank or dismiss a District Judge.\n\nIf the reduction of the appellant is without jurisdiction then the appellant is deemed to continue as a J?is1!ict Judge.\n\nThe High Court could not dismiss the appellant.\n\nDis1lllssal could only be by the Governor. This is clear fronj the decisions of this Court in H N. S. Rao's case (supra) and Shamsher Singh & Anr. v. State of Punjab('). ---------\n\n(1) [1975] 1 S. C. R. 814.\n\n...\n\nThe appeal is, therefore, accepted.\n\nThe judgment of the High A Court is set aside.\n\nThe orders passed by the High Court on 8 December,, 1972 and 3 December, 1973 are quashed.\n\nIn view of the orders being quashed the appellant will be deemed to be an Additional District Judge up to the date he retired. Parties will pay and bear , their own costs.\n\nV.P.S.\n\nAppeal allowed.", "total_entities": 94, "entities": [{"text": "BARADAKANTA MISHRA", "label": "PETITIONER", "start_char": 5, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "BARADAKANTA MISHRA", "offset_not_found": false}}, {"text": "HIGH COURT OF ORISSA & ANOTHER", "label": "RESPONDENT", "start_char": 25, "end_char": 55, "source": "metadata", "metadata": {"canonical_name": "HIGH COURT OF ORISSA & ANOTHER", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 71, "end_char": 86, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 88, "end_char": 97, "source": "metadata", "metadata": {"canonical_name": "M. 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{"document_id": "1976_1_580_586_EN", "year": 1976, "text": "R. C. SHARMA . - v.\n\nUNION OF INDIA & ORS.\n\nMay 6. 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.l\n\nService niatter-Departmental proceedings-When could be declared null and void.\n\nProcedure-Time Iiniit in delivering judgnient after hcarinz argu1nent.s<- If prescribed by C.P.C.\n\nAfter holding a departmental enquiry on certain charges of contravention of Government Servants' Conduct Rules, the appellant was reduced in rank.\n\nHis suit for a declaration that the impugned action was void and inoperative was dismissed. The High Court dismissed his appeal. '\n\nOn appeal, it was contended that the departmental enquiry was vitiated on account of material irregularities, and that, as a result of excessive delay,. between the date of hearing ahd delivery of judgn1ent by the High Cuurt, it did not deal with a number of submissions made by him and thereby caused pre\"\" judice.\n\nDismissing the appeal to this Court,\n\nHELD: (l){a) The question whether the appellant was given a reasonable opportunity to lead evidence and was sufficiently heard or hot is largely a question of fact. It is only when an opportunity denied is of such a naturei that the denial contravenes mandatory provision \\of law or a rule Of batural justice that it could vitiate the whole departmental trial.\n\nPrejudice to the Government servant from an alleged violation of a rule must be proved.\n\n[583C]\n\n{b) The plea that the appellant had been subjected to trial on allegations. which had been the subject-matter of previous ehquiries overlooks that no charge was framedl as a result of any previous enquiry. If an enquiry was\n\nheld at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it did not debar a departmental trial. [5830]\n\nState of Assam & Anr. v. J. N. Roy Biswas. AIR 1975 SC 2277 and R. T.\n\nRangacliari v. Secretary of State. AIR 1937 PC 27, held inapplicable.\n\n(c) It was not shown whether ahy evidence which the appellant tried to produce was really wrongly excluded and at what stage and for what reasons~ All these are questions of fact which should be raised in the departmental trial.\n\nAfter that if there was any patent error a writ petition lay.\n\n[584A1\n\n(d) A suit challenging a departn1ental proceeding cahnot be treated as aa appeal from the findings in those proceedings or against a punishment inflicted upon the Government servant even if these were erroneous. A question which could affect the result in a civil suit has to be of such' a nature that it goes to the root of the jurisdiction that the conduct of the departmental trial illegally and vitiates the result. It is only if the departmental proceeding is null and void that a plaintiff could obtain the reliefs he had asked for.\n\n[584EF]\n\nSmt. Ui/am Bai v. State of U.P. & Anr. [1963] I S.C.R. 778 (iiJ_ 835, 836, referred to.\n\n(e) Unless a paint could be raised on beha1f of an appellant which is capa .. ble of vitiating the departmental proceedings there could be 'no declaration that the departmental proceedings were null and void.\n\n[585H]\n\n' -\n\n{2) The Civil Procedure Code di0e$ not provide a time limit for the period between the hearing of arguments and the delivery of a judgment. Nevertheless, an unreasonable delay between the hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable. even when written arguments were submitted. It is not unlikely that some points which the litiga11t considered important might have escaped notice.\n\nBut, what is more important is that litigants ntust have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1155 of 1971.\n\n(Appeal by Special Leave from the Judgment and Order dated 17-11-1969 of the Allahabad High Court in First Appeal No. 178/61).\n\nS. C. Manchanda, Sadhu Singh, R. N. Kapoor, Mrs.\n\nNirmala Gupta, Uu.al Singh and J. M. Khanna for the appellant.\n\nGobind Das, P. P. Rao, Girish Chandra and S. P. Nayar for the D xespondents.\n\nThe Judgment of the Court was delivered by\n\nBEG, J. This is an appeal by special leave against the judgment and , orde,· of a Division Bench of the Allahabad High Court given by it on E 17th November, 1 \\169, dismissing a plaintiff's first appeal arising out of an original11uit for a declaration that the order passed by the Commissioner of Income-tax, Lucknow, on 2nd April, 1956, reducing the appellant in rank from the post of an Income-tax Officer to that of an Income-tax Inspector, was void and inoperative. It appears that the appellant was in service upto 30th April 1958, when he was prematurely F retired.\n\nThe appellant also claimed Rs. 20,904/- as arrears of salary, but he reduced this claim to Rs. 16,561.29.\n\nThe appellant was originally appointed on 22nd November 1922, as Lower Division Clerk, and, thereafter, promoted as Income-tax Inspector in 1942. He was promoted to the post of Income-tax Officer in 1945. H; s case was that he had worked to the entire satisfaction of his immediate superior officers and higher authorities and had earned a number of certificates highly appreciative of his work. He was confirmed early in 1952 as an Income-tax Officer. He was, however, placed under >Uspension on 30th September, 1953, by the Commissioner of Income-Tax, U.P., Lucknow, on the basis of 8i preliminary enquiry on allegations involving rorruption and violation of service rules.\n\nA Charges were framed on 30th December, 1953, by Shri A. K. Bose, Deputy Director of Investigations, who was appointed by the Commissioner of Income-tax as the Inquiring Officer. The preliminary enquiry had been conducted by Shri G. S. Srivastava, Inspecting Assistant Commissioner of Income-tax, Meerut.\n\nB That first charge was that the appellant had entered into partnership with others, under the name of Gautam Cycle Mart, Meerut, in 1939, in contravention of the Government Servants' Conduct Rules.\n\nThe secoud charge was that he bad made various investments in the name of various members of his family far in excess of and disproportionate to the known sources of his income. His high standard of Jiving and C expenditure were also mentioned there. The third and the last charge gave particulars of thirteen assessment cases in, which the appellaint was alleged to be either \"grossly negligent, careless, fuefficient, and/ or corrupt in the performance of his duties as Incometax Officer\".\n\nThe appellant's defences included alleged confused nature of charges characterized by him as \"vague, over-lapping, intermingled\" and wrong\" ly joined together. He also pleaded that there had been an enquiry in 1949, by Shri A. R. Sachdeva, Asstt. Inspecting Commissioner, into some of the matters mentioned in the charges, and about others in 1952 by Shri R. N. Srivastava, another Inspecting Commissioner, and that the appellant had been exonerated of the allegations and imputations made against him on each occasion. One of his defences was that a fresh enquiry into the sam.e charges was not permissible under the Departmental rules and was also barred by rules of natural justice. He also complained of failure to give him opportunity to produce nine witnesses in his defence with some documents.\n\nIt is evident that the questions raised by the appellant depended on findings of fact.\n\nAll relevant facts had been examined by the officer who held the enquiry and by the punishing authority. No malafides against either the Inquiring Officer, Shri A. K. Bose, Deputy Director Investigation, or against the punishing authority was alleged. Taere are, however, suggestions that Shri G. S. Srivastava and Shri R. N. Srivastava, Inspecting Assistant Commissioners, were pursuing the appellant for some unknown reason which we do not find stated anywhere. We fail to see how these two officers, who neither conducted the actual departmental trial nor could have any influence over the punishing authority, could cause any miscarriage of justice or do anything to vitiate the departmental trial merely because they hefd preliminary inquiries before framing charges. The defence of the appellant seemed something similar to the much too common a defence of the accused in criminal trials attributing all their misfortunes to the hostility of the police.\n\n' -\n\nThe question whether the appellant was given a reasonable opportunity to lead evidence and to be heard or not is largely a question of fact. It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial. Prejudice to the government servant resulting from an alleged violation of a rule must be proved.\n\nThe plea that the appellant has been subjected to trial ou allegations which had been the subject matter of previous enquiries overlooks that no charge was framed as a result of any previous enquiry. Therefore, the two authorities cited : The State of Assam & Anr. v. 1. N. Roy Biswas('), and R. T. Rangachari v. Secretary of State('), do not help the appellant. If an inquiry is held, at a particular stage, possibly to determine whether regular proceedings should be drawn up or started. it does not debar a departmental trial. That was the naturq of the previous enquiries. It appears that it is only after the appellant's activities had become more notorious that further enquiry was undertaken and regular charges framed. It is possible that the appellant may have been emboldened by the failure of officers to report earlier that charges should be framed and tried. In any case, this could not stand in the way of the first regular enquiry in the course of which charges were actually framed and fully enquired into by Officers whose integrity and sense of justice is not challenged.\n\nAs for the denial of the opportunity to produce nine witnesses in defence, all that is suggested is that these witnesses could only state what opinions they had formed about the work, efficiency, and integrity of the appellant. They could not say anything about the particular instances which formed the subject matter of the charges against the appellant.\n\nIt is not uncommon for astute Govt. servants, facing such enquiries, to give long lists of witnesses and documents so as to either prolong an enquiry or to prepare grounds for future litigation. Unless the exclusion 0f evidence is of a kind which amounts to a denial of natural justice or would have affected the final decision it could not be material.\n\nIn the case before us, it has not even been shown how the witnesses whose production was said to have been disallowed could help the appellant's case on specific charges.\n\nIndeed, we do not know whether any evidence which the appellant tr\"ted to produce was really wrongly excluded and at what stage and for what reasons. All these are questions of fact which should be, initially, raised in the departmental trial.\n\nAfter that, if there was any patent error a writ petition lay. Finally, the\n\n(I l A. I. R. [1975] SC 2277.\n\n(2) A. l. R. 1937 PC 27.\n\ntrial Court and the High Court had coc<idered at some length all relevant questions raised.\n\nLearned Counsel for the appellant has handed over a very carefully and laboriously prepared statement of facts of the case to show us that the evidence did not support the charges levelled against the appellant.\n\nIt was also submitted that, apart from the charges relating t0 partnership in the Gautam Cycle Mart, no other charge was found substantiated.\n\nFurthermore, it was submitted that, after the inquiring officer had found that the Gautam Cycle Mart was started in 1942 and not in 1939, the appellant should have been given a further opportunity to meet a new case. No rule was cited in support of such a technical objection to the nature of the charge which would cover the starting cf the Gautam Cycle Mart at any lime subsequent to 1939 also. In any case, it was for the appellant to satisfy the Departmental authorities, which had looked into the case upto its final stages, that he had suffered some injustice which had to be set right. He had been given a second opportunity by the punishing authority before it inflicted the punishment of demotion.\n\nNothing further was required by law.\n\nAnd, it was probably because the appellant was absolved of charges involving corruption in the discharge of his duties that he was given the lesser punishment of demotion and neither d!srnissed nor removed fro1n service.\n\nA suit chaJlenging the validity of departmental proceedings cannet be treated as an appeal from the findings in the dcpannental proceedings or the punishment inflicted upon the Govt. servant even if these are c:·- roneous. A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of th~ jurisdiction and the conduct of the departmenal trial and vitiates the result. It is only ii\n\nthe departmental proceeding in null and void tl1at a plaintiff in such a suit could obtain the reliefs he had asked for.\n\nWe are unable to see what point had been raised by the appellant which could have had that effect upon the departmental proceedings.\n\nIn Smt. Ujiam Bai vs. State of U.P. & Anr.('), this Court said \"' (at p. 835) :\n\n\"A tribunal may lac.k jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry.\n\nBut it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e.) has jurisdiction to determine\".\n\nAfter citing a passage from Halsbury's Laws of England, 3rd Edn.\n\nVol. 11, page 59, this Court held (at p. 836)\n\n(I) (1963] I S.C.R. 778@ 835, 836.\n\n\"The characteristic attribute of a judicial act or decision A is that it binds, whether it be right or wrong.\n\nAn error ol law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.\n\nThese principles govern not only the findings . of inferior courts stricto sensu but also the findings of administrative bodies which B .are held to be acting in a judicial capacity.\n\nSuch bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal\".\n\nLearned Counsel for the appellant said all that could possibly be C said on behalf of his client. He pointed out that the High Court had , given its judgment eight months after it had heard arguments.\n\nHe .urged that the result was that the High Court did not deal with a number of submissions made because they had, apparently, been for- :gotten. The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the tlelivcry of a judgment.\n\nNevertheless, we think that an unreasonable delay between D hearing of arguments and delivery of a jucjgment, unless explained by .exceptional or extraordinary circumstances, is )lighly undesirable even when written arguments are submitted.\n\nIt is not unlikely that some points which the litigant considers importani may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and E delivery of judgments. Justice, as we have often observecl, must not only be done but must manifestly appear to be done.\n\nOn 4th March, 1971, however, the High Court refusing the certificate of fitness of the case for appeal to this Court observed that questions had been attempted to be raised before it in asking for certification which had not been argued at the time when the first appeal was heard by the High Court. We find that one of the learned Judges who dismissed the application for a certificate of fitness ot the case had also heard the arguments in the first appeal.\n\nThere is no affidavit before us that any particular points argued before the Division Bench had not been referred to or dealt with by the Bench.\n\nMoreover, the Division Bench had probably not dealt with all arguments on questions of fact because it did not consider it necessary to do so. After all, it was not hearing an appeal against the findings of the departmental authorities. It pointed this out. Furthermore. after hcarin g the argum.ents of the learned Counsel for the appellant, we are ourselves unable to see any point which could be raised on behalf of the appellant capable of vitiating the departmental proceedings.\n\nUnless such a point could be raised, there could be no declaration that the departmental proceedings were null and void.\n\nThere is also an application before us for revocation of grant of special leave to appeal by this Court on the ground that some material\n\nfacts were suppressed or misrepresented for the purpose of obtaining special leave. Although the _special leave petition does not state that all the points sought to be raised by it were not argued before the Division Bench, this is not enough to n:erit cancc11aCon of the special leave to appeal which was granted by this Court. At the time of grant of special leave, the order refusing grant of certificate of fitness of the case for appeal to this Court must have been before this Court. We are unable now to see the point on whic_h special leave was granted.\n\nBut, that too would not, by itself, merit a revocation of special leave at this stage after hearing arguments.\n\nWe, therefore, dismiss both the appeal and the application for re- • vocation of special leave. Parties will bear their own costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n...", "total_entities": 7, "entities": [{"text": "R. C. SHARMA", "label": "PETITIONER", "start_char": 0, "end_char": 12, "source": "metadata", "metadata": {"canonical_name": "R. C. SHARMA", "offset_not_found": false}}, {"text": "UNION OF INDIA & ORS", "label": "RESPONDENT", "start_char": 21, "end_char": 41, "source": "metadata", "metadata": {"canonical_name": "UNION OF INDIA & ORS", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 58, "end_char": 73, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 75, "end_char": 84, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 89, "end_char": 106, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "C.P.C", "label": "STATUTE", "start_char": 281, "end_char": 286, "source": "regex", "metadata": {"confirmed_by_gazetteer": true}}, {"text": "AIR 1975 SC 2277", "label": "CASE_CITATION", "start_char": 1807, "end_char": 1823, "source": "regex", "metadata": {}}]}
{"document_id": "1976_1_587_594_EN", "year": 1976, "text": "• •\n\nSUBHASH & ANOTHER v.\n\nSTATE OF U.P.\n\nMay .6. 1976\n\n[Y. V. CHANDRACHL'D, R. S. SARKARIA AND P. N. Sil!NGHAL, JJ.]\n\nCoJe of Crin1itl[;./ Procedure, S. 314-Referen€e far c£>nfirmatlon of deatli sentence, whethr High Court obliged to examine entire evidence independently.\n\nRam Sanehi received tv.ro gun-shot v; ounds on his chest, and died' within ten minutes. Two of hi> children claimed to have witnessed the occurrence .. The dead body v.as subfected to post-mortem only after about 24 hours had elapsed.\n\nThe same evenine. appellant Subhash surrendered, and appellant Sbyam Narain\n\n\\\\.as arrested, though for another offence altogether. The Sessions Court con- C victed ttem under s. 302 I.P.C. and sentenced Subhash to death and Shyam Narain to imprisonment for life. The accused moved the High Court in appeal,\n\n\\vhile the Se:.si.ons Court referred the matter to it under s. 374, for confirmation of the de;;.tlrsentence. ;.\n\nThe question before this Court was, \\\\'hetbr i~· iiie case of such references. the High Court was obliged to examine the entire evidence. independe.ntly.\n\n AIJowing the appeal, the Court, U>\n\nHELD : On a reference for confirmation of the senrence of death, the High Court is under an obligation to proreed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code. The High Court must not only see \\\\ hethr the other order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evi<lence. f589A-BJ\n\nJ1llnmGn and Ors. v. The State of Punjab AIR 1957 S.C. 460;. Ram Shanker Singh and Ors. v. State of JVest Bengal [1962] Supp. 1 SCR 49 &t 59 and B!tupendra Shu:f1 v. Tf1e State of Punjab [1968] 3 SCR 404. folIO\\vcd.\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 420 of 1974.\n\nAppeal by Special Leave from the Judgment and Order dated 27-11-74 of the Allahabad High Court in Criminal Appeal No. 2646( 73 and Referred No. 95 /73.\n\nFrank Anthony, E. C. Agarwala and A. T. M. Sampatft; for the Appdlams.\n\n0. P. Rana; for the Respondent.\n\nThe J udgmcnt of the Court was delivered by\n\nCHAKDRACHUD, J. The appellants, Subhash and Shyam Narairr,\n\nwere convicted by the learned Civil and Sessions Judge, Farrukhabad under section 302 of the Penal Code on the charge that at abouh\n\n9 a.m. on June 9, 1972 they committed the murder of one Ram Sanehi~\n\nt Subhash was sentenced to death and Shyam arain to imprisonment~ HI for life.\n\nThe judgment of the trial court having been confirmed .i.n. appeal by the High Court of. Allahabad, the two accused have filed this appeal by special leave of this Court. ·\n\nThe case of the prosecution is briefly as follows : Oa the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishorc and his daughter Kusuma Devi for eatin!J Kharbuzas.\n\nWhile they were returning from the field al about 9 a.m. the appellants, who were lying in wait near a culvert, suddenly accosted\n\nRam Sanehi.\n\nThe appellant Subhash pointed the barrel of his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran Lal and since he was also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive.\n\nThe appellant Shyam Narain was armed with a lathi.\n\nBal Kishore and Kusuma Devi pleaded .vith the appellants to spare their father but Sh yam Narain asked Sub hash not to delay the matter and finish Ram Sanehi quickly.\n\nSubhash thereupon fired three shots from his double-barrelled gun, the last of which misfired.\n\nRam Sanehi fell down, whereupon the appellants dragged him by his legs over a distance of 6 or 7 paces.\n\nBal Kishore and Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal, Mangali Prasad and Jhabbo Singh Thakur reached the place of occurrence and challenged the appellants.\n\nBefore running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender before a court and that Shyam Narain should make his own arrangements.\n\nRam Sanehi died within about 10 minutes after receiving the injuries.\n\nBal Kishore first went to his house which is at about a distailce of 120 yards from the scene of offence.\n\nAt about 12 O'clock at noon he went to the Kamalganj police station and lodged his First Information Report (Ex. Ka-3). S.T. Vishwanath Sharma who was posted asa 2nd Officer at the police station recorded Bal Kishore's complaint, went to the scene of occurrence, prepared the inquest report and handed over the dead body for being sent for post-mortem examination to the District Hospital at Farrukhabad which is about 10 miles away from the village of Kandharpur where the incident took place.\n\nS.T.\n\nSharma took samples of earth from the place of occurrence and seized a misfired cartridge which was lying concealed in the folds of the deceased's Dhoti.\n\nThe Fard in that behalf is Ex. Ka-10 and the site-phn is Ex. Ka-11.\n\nThe appellant Subhash surrendered before the Additional District Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the \\'ery day.\n\nThe appellant Shyam Narain was arrested at about 2-40 p.m. on the same day under section 122 of the Railway Act for crossing the railway lines at Fatehgarh.\n\nThe appellants denied the charge that they had committed the murder of Ram Sanehi and stated that they were involved in the caee due to enmity.\n\nThis defence has been rejected both by the Sessions Court and the High Crt.\n\n. H Before referring to the evidence in the case it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirma-. tion of the capital sentence under section 374 of the Code of Criminal\n\n.. •\n\nProcedure.\n\nTime and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.\n\nUnder these sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine !he entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evidence.\n\nFrom the long line of decisions which have taken this view it wpnld be enough to refer to the decisions in Jumman and Ors. v. The State of Punjab('), Ram Shunker Singh & Ors. v. State of West Bengal(') and Bhupendra Singh v. The State of Punjab( 3).\n\nThe High Court has failed to show due regard to lb.is well-established pooition in law. It did not n.ndertake a full and independent examination of the evidence led in the case and it mainly contented itself with finding out whether the Sessions Court had ill' any manner erred in reaching the conclusion that the charge of murder levelled against tlte appellants was established beyond a reasonable doubt.\n\nThe High Court is right in saying that the main question in the case was whether Bal Kishore and Kusuma Devi who were examined as eye-witnesses were truthful witnesses.\n\nBut then it did not subject their evidence to any minute scrutiny.\n\nImpressed overbearingly by the circumstance that the Sessions Court \"had the opportunity of observing the demeanour\" of the witnesses, the High Court apparenty thought that such an opportunity gave to the Sessions Court's judgment a mystical weight and authority, even though the learned Sessions Judge had not, in his judgment or while recording theevidence, made any special reference to the demeanour of the witnesses.\n\nThe High Court accepted the evidence of Ram Sanehi's children by observing that there was no material contradiction in their evidence and that certain statements in the F .I.R. afforded a guarantee that the two witnesses were present when their father was done to death.\n\nWe will now proceed to show how several significant circumstances either escaped the attention of the High Court or were not given their due and rightful importance.\n\nFirst as to the manner in which S.I. Sharma conducted investigation into the case. The offence took place at about 9 a.m. on June '' and though the District Hospital at Farrul<:hab'd was iu't 10 miles away, the dead body was not received at the hospital for nearly 24 hours after the incident had taken place.\n\nThe excuse offered by the prosecution that cartman was not willing to tal<:e . the body at night is utterly flimsy .because tbe Investigating Officer could have easily made\n\nsome alternat~ adiigemen~}or despatfhlng the dead bo\\fy'_f9r postmortem exam1nat10n .e:xped1t10usly. With the dead. body ly;1ng t the scene of offence for ne&rly 12 hours and. thereafter at the police station for another 8 or 9 hours, it was.easy yn011gh Jor the witnesses to moul.d\n\nI , I , '\n\n(I) A. I. R. 1957 $. 0. '46(). '\n\n(2) [1962] Supp. I S. C;'il.''49 at 59.\n\n(3) [19681 j S. 'C. R. 404.\n\n.· . .l''\n\ntheir statements so as to accord with the nature oi injuries.\n\nThe Investigating O!licer did not make any note at all in the General Diary as to which witnesses were examined by him on the date of the occurrence which was obligatory upon hiiµ to do under paragraph 44 of the\n\nU.P. Police Act.\n\nThe time when the investigation was connnenced and the time when it was concluded are not mentioned in the case diary.\n\nThe time when the Investigating Officer reached the village and the time when he returned to the police station are also not noted in the case diary.\n\nSJ. Sharma stated in his evidence that several important facts concerning the investigation were being stated by him in his evidence from memory.\n\nHe reached the scene of offence at about 2-30 p.m. but it was not until abouf 6 p.m. that he inspected the site.\n\nThe dead body was not removed from the scene of offence till about 9 p.m. and even that is open to grave doubt because the Investigating Officer has admitted in his evidence that he was unable to say as to when the dead body was taken way from the spot and whether it was taken directly to the hospital or was detained somewhere on the way.\n\nHe was unable to say whether it was right or wrong that the dead body remained in the village till about 4 O'clock on the morning of the 10th.\n\nForty or fifty persons had gathered at the scene of offence when the Investigating Officer arrived but the record of the case does not show that the statement of any of those persons was ever recorded.\n\nIn fact even the statement of Kusuma Devi was recorded late at night for which the reason is stated to be that her elder sister Pushpa Devi died of shock on the evening of the 9th after hearing of her father's murder. It may be that Pushpa Devi died on the 9th, but apart from the cause of her death, the statement of Kusuma Devi need not have been held up so long.\n\nWe are doubtful ii the Investigating Officer at all knew on the 9th that Pushpa Devi had died.\n\nHe has admitted that his knowledge in that behalf was derived from hearsay reports.\n\nThe appellant Subhash had surrendered before the Additional District Magistrate, Farrukhabad on the afternoon of the 9th itself while the other appellant Shyam Narain was arrested at Fatehgarh at about 2-40 p.m. The Investigating Officer did not even know of these significant developments, though they had taken place just a few miles away from the scene of invtigation. He says that he learnt of the surrender and the arrest of the appellants on the evening of the 12th. Mangali Prasad has been examined by the prosecut; on as an eye-witness and his name is mentioned in the F.I.R. as one of the four persons who arrived at the scene of offence even befoce the appellants had run away. His statement was recorded 11 days later on June 20.\n\nThe F.I.R. mentions expressly that the appellants caught hold of the legs of the deceased and started dragging him. The Investigating Officer has not stated in the Panchnama of the scene of offence whether the ground was soft or hard or sandy which had great relevance on the allegation that the deceased was dragged over a certain distance.\n\nFinally, it is surprising that the Investigating Officer did not think it worthwhile to pay a visit to the field where the deceased is alleged to have gone with his children for eating Kharbuzas.\n\nIndeed, he stated that he was not in a position to say if there were Kharbuzas at all in the field, wlten the occurrence took place.\n\nThe High Court has condone<! these lapses on the patt of the Inves- A\n\ntigating Officer with the observatin tht he \"appears to .have been inexperienced and somewhat negligent . . The Invest1gatmg Officr has stated in bis evidence that he had put m 7 years of service. It 1s difficult to understand on what basis the High Court attribU(ed the Japses on his part to mee iuexperience.\n\nWe will. pesenty idicate the significance of the vanous lapses and loopholes m mvesligat1on but B to say, as the High Court has done, that the Investigating Officer was\n\n\"somewhat negligent\" seems to us in the circumstances a grave euphemism.\n\nWe will now proceed to deal with the various circumstances which, in our opinion, render it nnsafe to accept the prosecution case. c Dr. S. C. Pandiya who performed the post-mortem examination has described in his evidence the injuries received by Ripn Sanehi. In all he found 7 injuries on the dead body, out of which injuries l, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected.\n\nInjury No. 1 is described as a \"shot wound\" with its entry abo_ve the left nipple.\n\nInjury No. 3 is described as multiple rounded abrasions on the Mt side of the chest.\n\nInjury No. 7 is the wound of exit on the right scapular region, corresponding to injury No. 1.\n\nInjury No. 2 consists of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple. Injury No. 5 is a gun-shot wound of entry on the back of the left forearm while injury No. 6 is the corresponding wound of exit near the ulnar aspect of the left forearm.\n\nThe evidence of Dr. Pandiya and the description of the injuries given by him in the post-mortem report tend to show that two different kinds of firearms were used by the assailants of Ram Sanehi.\n\nInjury No. 1 was caused by a bullet and that is clear not only from the des- <:ription of the injury but from what Dr. Pandiya has stated in his evidence.\n\nHe says : \"The bullet, which had entered through injury No. 1 went out straight after emerging from injury No. 7\". Injuries' N'os. 2 and 5 were caused by pellets.\n\nThis shows that whereas injury No. 1 was caused by a firearm in the nature of a rifle, injuries 2 and S were caused by an ordinary gun.\n\nThe medical evidence thus falsifies the eye-witnesses' account according to which, the appellant Subhash-alone was armed with a double-barrelled gun, the other appellant Shyam Narain being armed with a lathi.\n\nThe objective inference arising from the nature of injuries received by the deceased has a significant impact on the case of the prosecution, which has been overlooked by beth the Sessions Court and the High Court.\n\nWhile we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, accordillg to the doctor, shows that the firing was done H ' from a distance of more th an 4 feet.\n\nIn the First Information Report Bal Kishore has stated that as soon as he, his father and sister, reached the culvert, Subhash \"touching the chest\" of Ram Sanehi \"with the\n\nbarrel of his gun'' said that he shall not leave him alive; Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then tired three shots in quick succession, one of which misfired.\n\nThe trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event indisputably, there would have been tatoomg and charring around the injuries.\n\nBal Kishore has attempted to offer an explanation that what he meant to say in bis compaint was that Subhash trained his gun \"towards\" Ram Sanehi's chest and not '\"on\" his chest.\n\nThis explanation is an afterthought and in the circumstances difficult to accept.\n\nThus in another imI_Jortant respect, the medical evidence falsifies the case the prosecution. .\n\n9 c There is anpther aspct of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to.\n\nThe case of the prosecution is that RaqSanebi had gone to his Kharbuza field with his son and daughter for eating Kharouzas. There is evidence that they did eat Kharbuzas and almost immediately thereafter they started back for home.\n\nWithin less than 5 minutes, Ram Sanehi met with his death near the culvert.\n\nThe post-mortem report D shows that Ram Sanchi's stomach was empty which means that the evidence that he had eaten Kha.rbuzas just a little time before his death is untrue.\n\nBal Kishore tried to wriggle out of this situati9.fi by saying that Ram Sanehi had eaten just a small slice cf Kharbuza.\n\nBut even there, Dr. Pandiya has stated that if the entire lice of Kharbuza was eaten by Ram Sanchi, its remains would be found in the stomach provided there was no vomiting after the gun-shot injuries. Since Ram E Sanehi had not vomited, his large intestines could not have been f9und to be empty if the story of his children was true.\n\nThis last circumstance may at first sight seem trivial but its importance consists in the fact that the visit of Ram Sanehi, along with his children, to the Kharbuza field for the purpoe of eating Kharbuzas is the very genesis of the incident which happened on June 9, 1972.\n\nCoupled with the circum, tance that the Investigating Officer did not even pay a visit to the Kharbuza field, leave alone making a Panchnama thereof, the conclusion is irresistible that the story that the children had accompanied their father to the Kharbuza field lacks a factual basis.\n\nThe other circumstances which render the proscmtion case suspect are these : (1) Ram Sane hi is aljeged to have bee!) dragged over 6 or . 7 ]'.laces by the appellants.but not even an abrasion was found on his back or stomach which could be attributed to, dragging. (2) Thirty or forty persons are alleged to have collected at the scene of occurrence but Bal Kishore :was not able to mention the name of even one of them and it is common groimd t)1at the Investigating. Officer did not\n\nr~?rd tl)e tateep.t .of anri of them. .( 3) Jh.:il; lboo Sittl,'h, Shya~· , Lal, Bn_i,!Bl111shan anil M;<µigali Prasad reached the scyne of ofience even before .(h¢ , appelfants , had. fled away but none front amongst the first thre.e was examined b:,< the prosecution.\n\nMangall Pr? fad was examin--\n\n' '\n\ned as an eye-witness but he has been concurrently disbelieved by the Sessions Court and the High Court. ( 4) Though the motive of the offence is alleged to be that in a complaint filed by Pooran Lal against the appellant Subhash, the deceased Ram Sanehi was cited as a witness, Mangali Prasad's evidence shows that immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered because of the disputes concerning the election to the Pradhanki. What Bal Kishore told Mangali Prasad immediately aftr the incident seems m01e probable because, one Virendrapal haJ contested that election and the appellant Subhash had defeated him.\n\nWhen Bal Kishore went to lodge his F.I.R. at the police station he was ac_companied by Virendrapal, though an attempt was made to show that Virendrapat was only standing outside the police station and had met -Bal Kishore accidently. (5) The story of Bal Kishore that after the appellant Snbhash fired 2 shots he re-loaded his gun but the re-loaded cartridge misured makes hardly any sense. Subhash was armed with a double barrelled gun and having fired 2 fatal shots from a close range at his target, it is unlikely that he would re-load the gun and that too with only one cartridge.\n\nAnd if that cartridge misfired, it is impossible to understand how it could be found concealed in the folds of Ram Sanehi's dhoti.\n\nThere is only one other aspect of the matter which remains to be considered and since the High Court has placed great reliance thereon, it is necessary to deal with it.\n\nThe F.I.R. which lodged at about 12 O' clock at noon on the 9th itself mentions that after Ram Sanehi was murdered, the appellant Subhash told his companion Shyam Narain that he himself was going to surrender before a court and that Shyam Narain should make his own arrangement. In fact, Subhash did surrender in the court of the Additional District Magistrate, Farrukhabad, at about 4 p.m. on the 9th..\n\nWhat the High Court has overh1oked is that Subhash did not surrender in connection with the murder of Ram Sanehi but. he surrendered along with the 13 or 14 other accused against whom Pooran Lal had filed a complaint. In so far as Shyam Narain is concerned, the lligh Court is wrong in saying that he managed somehow to get himself arrested.\n\nThe evidence of Constable Virendra Singh shows that Shyam Narain was arrested because he was crossing the railway lines and if he was not caught, he would have been run over by the two trains coming from Kanpur and Farrukhabad.\n\nThis was hardly any sensible way of making an \"arrangement\" for himself, as directed by Subhash. It is therefore not as if the statement attributed to Subhash in the F.I.R. is corroborated by subsequent events so as to afford a guarantee to Bal Kishore's presence at the culvert.\n\nWe are conscious that the Sessions Court and tbe High Court have\n\nboth held that the appellants committed the murder of Ram Sanehi H but the weight of the circumstances which we have discusse4 above is so preponderating that even .the concurrent finding cannot be allowed\n\n49-833 Sup C I/76\n\nA to stand.\n\nIn any event, it. seems to us impossible to hold that the prosecution has established its case beyond a reasonable doubt.\n\nWe therefore allow this appeal, set aside the order of conviction and sentence recorded by the High Court and the Sessions Court and direct that the appellants shall be set at liberty.\n\nM.R.\n\nAppe-al allowed.\n\n! 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{"document_id": "1976_1_595_600_EN", "year": 1976, "text": "SAFALI ROY CHOUDHURY & ORS.\n\nAMARENDRA KUMAR DUTTA\n\nMay 6, 1976\n\n[P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]\n\nInterpretation of sratuteSr---Repea/ and saving prov'4ion-lntention of LeRis-- lature-Whether saving provisi'on can override new rights created by repealing statute.\n\n\"\" Transfer of Property Act, 1882-Sec. 5-52-Transfer of Property-List\n\nPendens-lf applies to rights created by a stature.\n\nWest Bengal Premises Rent Control (Temporary Provisions) Act 1950- C West Bengal Premises 'Tenancy Acr 195&-Sec. 2(h), 16 and 40.\n\nThe respondent was the tenant of the suit premises and Dilip Narayan Roy Choudhury was his sub-tenant. The tenant instituted a suit against the subtehant when the West Bengal Premises Rent Control (TemI'Orary Provisions) Act, 1950 was in force seeking to evict the sub-tenant on the ground that he was a defaulter in payment of rent. After the suit was instituted, West Bengal Premises Tenancy Act, 19'56, was brought into operation. Section 40 of the subsequeht Act repealed the 1950 Act and further provided that notwithstanding the repeal of the said Act any proceedin2s pending on the date of the repeal may be continued as if the said Act had been in force and had not been repealed or had not expired. Section 16 of the 1956 Act cohfers on the sub-tenant, on his complying with certain conditions the right to become a tenant directly under the landlord ahd authorise the Rent Controller to pass necessary orders directing that the sub-tenant shall become tenant directly under the landlord from the date of the order. The sub-_tenant adopted proceedings under sectioh 16 of the Act against the superior landlord and in February, 1957, the Rent Controller held that the. sub-tenant was entitled to the declaration asked for over-ruling the: objections raised by the tenant. An appeal filed by the tenant against the said order was dismissed. Thereafter, the sub-tehant amended his written statement in the suit f.or eviction filed by the tenant against him and pleaded that the relationship Of the lahdlord and tenant between the tenant and the sulJ..tenant no lohger subsisted. The Munsiff dismissed the application for eviction filed by the tenant on the ground that in view of he order pa.ssed uhder the 1956 Act declaring the sub-tenanL to be a direct tenant under the landlord the relationship of landlord altd tenant between the parties ceased. In a revision, the High Court piaintained the order rejecting the application for evictioh but set aside the finding) that the relationship of the landlord a'f!d tenant between the tenant and the sub-tenant ceased. The High Court held that in spite of section 40 of the repealing Act, section 16(3) of the Repealing Act must be' given effect to. Tub High Court, however, took the view that the proceedings under section 16(3) having been initiated during the pendency of the suit the principle of lis pendens would apply and, accordingly, the <>Tiier under s. 16(3) would hot govern the suit.\n\nIn an appeal by special leave by the heirs ot the sub-tenant, the counsel for the respondent did not rely on s. 52 of the Transfer of Property Act but sought to support the decree Qn the ground that in view Of s. 40 of the Repeal'\" ing Act the entire proceedihgs under s. 16 was without jurisdiction.\n\nAllowin!? the appeal,\n\nHELD : ( 1) The doctrine of Tis pe1idens can have no application to this H case. The doctrine of tis pendens means that no party to the litigation can aliehate the property in dispute so as to all'ect the other party and reatli upon the foundation that it would plainly be impoS\"SibJ~ that any action or suit could be brought to a successful termination after alienation pendente lite. Section\n\n5 of the .'J!ansfer of Property Act defines transfer of property as an act by which a hving person conveys property to another.\n\nWhen the Legislature in exercise of its sovereign powers regulates or alters the rights Of landlord and tenant, what it_ does is not transfer of property attracting the doctrine of /is pendens. [599B, C-F]\n\n(2) It is true that in view of s. 40 of the Repealing Act a pending proceeding may be cohtinued as if the Repealing Act was not passed. This, however, does not ll)ean that even if the 1'956 Act created a new right in favour Of the tepant, he would be denied this right because a suit for ejectment wag pendin~\n\nagainst him when the Act came into force. The intention of the Legislature, which is para.mount, is clear to upgrade the sub-tenant and make him tenant directly under the superior landlord. A sub-tenant is a tenant with.ID. the meaning of s. 2(h) of the Repealing Act. Thus, the suit must continue under the\n\n1950 Act but the right ac'l, uired by the sub-tenant under 1956 Act has to be given effect to and the smt decided accordihgly. Therefore, the relationship of landlord and tenant ceased between the parties on the date when the order under s. 16 was made. (599F-H, 600B-CJ\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1599 of 1968.\n\nAppe:;! by Special Leave from the Judgment and Order dated the 16th February 1968 of the Calcutta High Court in Civil Rule No. l 030 of 1967.\n\nD. N. Mukherjee and N. R. Chaudhury for the Appellants.\n\nSukumar Ghosh for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J.\n\nThis appeal by special leave is directed against a Judgment of the Calcutta High Court setting aside in revision the finding of the trial court on the issue whether the relationship of landlord and tenant subsisted between the parties in a suit for ejectment. Th.e issue which arises on the interaction of two statutes, t)le West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and the West Bengal Premises Tenancy Act, 1956, which repeals the earlier Act but keeps it alive for proceedings pending on the date of repeal, involves the question,-is the right conferred on the sub-tenant by the 1956 Act of being declared a tenant directly under lhe superior landlord available to a sub-tenant against whom a suit for ejectment was pending when that Act came into force ? The appeal turns on the answer to this question.\n\nThe mate.rial facts leading to the impugned order are these. The respondent was a tenant of premises No. 17 /lE Gopal Nagar Road, Alipore, Calcutta, and his lan'.tlord was one Jagabandhu Saha, the owner of the ouse, Dllip Narayan. Roy Chowdhury was a sub-tenant under. the respondent in. respect of the ground,. floor flat paying a monthly rent Qf Rs. 75/-. The. respondent instituted a suit in the Munsifs court at Alipore on March 21, 1956 when the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 was in force, seeking to evict Roy Chouhury 011 .the. grpuru\\; that he was a defaulter ip payment , of rent. This Act was a temporary statute due to expire on March 31, 1956, bilt on that date the West Bengal PremiEes Tenancy Act,_ 1~56 ws btpug~~ in.to. operatio11 repe, aling the\n\ntemp<>rary Act before it expired. The material part of section 40 of the f956 Act which repealed the 1950 Act is as follows :\n\n\"Repeal and savings.-(1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed;\n\n(2) Notwithstanding the repeal of the said Act :- B\n\n(a) any proceeding pending on the 31st day of March, 1956, may be continued, or,\n\n(b) x x x\n\nas if the said Act had been in force and had not been repealed or had not expired : \"\n\nSection 16 of the 1956 Act confers on the sub-tenant the right to become a tenant directly under the landlord.\n\nSub-section (2) of section 16 provides inter-alia that where before the commencement of this Act, the tenant, with or without the consent of .the landlord, has sublet any premises either in whole or in part, the tenant and every sub-tenant must give notice to the landlord of such subletting within the prescribed period. Sub-section (3) of section 16 provides that in any such case where the landlord had not consented in writing or denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub-tenant shall make an order declaring that the tenant's interest in so mnch of the premises as has been sublet shall cease and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Rent Controller is also required to fix the rent payable by the subtenant to the landlord from the date of the order.\n\nSub-tenant Roy Choudhury served a notice under section 16(2) of the 1956 Act upon the superior landlord and applied under section 16(3) for being declared a tenant directly under him. On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Choudhury was entitled to the declaration asked for overruling the objections raised by the respondent.\n\nOn February 23, 1957 the Rent Controller concluded the proceeding under section 16(3) by finally declaring that the sub-tenant was a tenant directly under the superior landlord with effect from that date, and fixing the rent payable by him. The appeal preferred by the respondent from this order was dismissed by the appellate authority.\n\nIn the meantime, on August 21, 1956 the respondent had made\n\n, an application under section 14(4) of the 1950 Act in the suit for eviction which was pending.\n\nSection 14(4) of the 1950 Act permitted the landlord to make an application in the suit for an order on the tenant to deposit month by month the rent at the rate at which it was last paid and also the arrears of rent, if any, and provided that . on failure to deposit the arrears of rent or the rent for any month within :a: the period prescribed for such deposits, the court would make an order striking out the tenant's defence against ejectment so that the tenant would be in he same position as if he had not defended the claim to\n\nejectment.\n\nOn this application the Munsif on September 26, 1956 directed the appellant to deposit a certain sum as arrears of rent and also rent month by month at the rate of Rs. 75/-. After the declaration of tenancy under section 16(3), Roy Choudhury was permitted to amend his written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent and himself. It is unnecessary to refer to the various proceedings in the snit that followed, in the course of which the High Court was moved more than once by either party.\n\nOn January 24, 1965 Roy Choudhury died and the present appellants were substituted in his place in the suit as his heirs and legal representatives.\n\nOn November 1, 1965 the Munsif framed an additional issue, being issue No. 9, which was as follows :\n\n\"Has the alleged relationship of landlord and tenant between the parties been determined by final orders dated 31-7-56 and 23-2-57 passed by the R. C. (Rent Controller) Calcutta in Case No. 243B of 1956 ?\"\n\nThe Munsif took up for consideration the application under section 14 ( 4) and the additional issue No. 9 together and by his order dated February 20, 1967 found that the Rent Controller had jurisd[ction to pass the order under section 16 ( 3) declaring the defendant to be a direct tenant under the superior landlord, and that the relationship of landlord and tenant between the parties ceased by virtue of the order made under section 16(3). The additional issue No. 9 was accordingly decided in favour of the defendant and the application under section 14(4) of the 1950 Act was dismissed.\n\nThe plaintiff moved the High Court in revision against this order.\n\nThe revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting !he application under section 14(4) but set aside the finding on issue No. 9 and held that \"for the purposes of the'present suit for ejectment there is a relationship of landlord and tenant\". The propriety of this order is cha1lenged by the tenant defendants.\n\nIn the course of his Judgment the learned Judge recorded the following findings :\n\n(i) \"The validity or the binding nature of the order under\n\nsei; tion 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative\".\n\n(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non-obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.\n\n(iii) As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and \"the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit''.\n\n' -(\n\nIt thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 19 50 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to.\n\nThe High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of !is pendens should apply and accordingly the order under section 16(3) would not govern the suit.\n\nBefore us, counsel for the respondent did not rely on section 52 of\n\nth~ Transfer of Property Act, but sought to support the decree on the ground that in view of section 40, the entire proceeding under section 16(3) was without jurisdiction. The doctrine of !is pendens can of course have no application to this case.\n\nSection 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia t.'iat the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests \"upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail\". [Observation of Turner L. J. in Bellamy v. Sabine, (1857) 1 D. & J. 566 (584) quoted with approval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain & Others, 34 I.A. 102\n\n(105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenant's interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated property pendente lite.\n\nSection 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another.\n\nWhen the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of !is pendens.\n\nAs stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act.\n\nAccording to him the snit must continue to be governed by the 1950 Act even after its repeal\n\nin view of section 40, unaffected by the provisions of the 1956 Act.\n\nSection 40 of the 1956 Act keeps alive a proceeding pending on the G l date when the 1950 Act was repealed as if it is still in force and has not been repealed.\n\nThis however does not mean that even if the 1956 Act created a new right in favonr of the sub-tenant, he would be denied this right because a suit for eject.men! was pending against him when the Act came into force. 'Tenant' as defined in section 2(h) of the 19 5 6 Act includes a person continuing in possession after the termination of his tenancy until a decree or order for eviction has H been made against him.\n\nA sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him.\n\nThat being so, we do not see why he\n\n600 SUl'IU!)(IB COURT RBl'OllTS [1976] SUl'l'LBMBNTARY\n\nshould not be entitled to the benef\\t conferred by section 16 ( 3) . The intention of the legisl11ture, which is paramount, is clear-to upgrade the sub-tenant and make him a tenant directly under the superior landlord.\n\nThis is a new right given to the sub-tenant, and though the pem; jipg proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub-tenant against whom a suit was pending will be denied this .additional right.\n\nThe High Court has held t_!he e.ffect of !h~ order under section 16(3) must be considered in the suit.\n\nThus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.\n\nThe appeal is allowed, the order of the High Court appealed from is set aside and that of the tria1 court restored.\n\nThe appellants will be entitled to their costs in this Court and in the High Court.\n\nP.H.P.\n\nAppeal allowed.", "total_entities": 68, "entities": [{"text": "SAFALI ROY CHOUDHURY & ORS", "label": "PETITIONER", "start_char": 0, "end_char": 26, "source": "metadata", "metadata": {"canonical_name": "SAFALI ROY CHOUDHURY & ORS", "offset_not_found": false}}, {"text": "AMARENDRA KUMAR DUTTA", "label": "RESPONDENT", "start_char": 29, "end_char": 50, "source": "metadata", "metadata": {"canonical_name": "AMARENDRA KUMAR DUTTA", "offset_not_found": false}}, {"text": "P. N. BHAGWATI", "label": "JUDGE", "start_char": 66, "end_char": 80, "source": "metadata", "metadata": {"canonical_name": "P.N. 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{"document_id": "1976_1_59_66_EN", "year": 1976, "text": ") -\n\nSTATE OF ORISSA ETC.\n\nARUN KUMAR PATNAIK & ANR. ETC.\n\nApril 15. 197.6\n\n[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.] &·\n\nOrissa Srvice of Engineers Ruls, 1_941, r. 19(a) and (b)-Scope of-Tc111porary appointment on contract basts, if could be treated as temporary appoint- 1nent for absorption in rf(!gular cadre.\n\n. a.nsfitution of India, 1950, Article 226-Service 1~1atters-Exercise of 7urisdrct1on by High Court after long delays of 12 years in abject disregard of consequences to service personnel-Propriety. c In Dece1nber, 1958, the appeUant was appointed by direct recruitment as 'temporary Assistant Engiileer on contract basis' for a periOd of three yicars' and he took charge on January 19, 1959. On March 14, :962, the Governntent, after consulting the Publi~ . Service. Commission and obtaining its concurrence passed an order regulans1ng the appellant's ser\\· ice by absorbing him into the regular cadre .of an Assistant Engineer retrospectively from Jan 19, 1959, though ten1porarily.\n\nOn Nov. 15, 1968, he was confirmed as Assistant Engineer with effect from Feb. 27, 1961; in 1969, he was confirmed as an D Executive Engineer with effect from Dec. 2, 1967; and in 1973, he was promoted as Superintending Engineer. The respondent was appointed, also by direct rec, ruitment, on provisional basis on April 14, 1960 to act as temporary Assistant Engineer.\n\nOn Nov. 15, 1968,, he was also confirmed as Assistant Engineer but with effect from May 2, 1962; and in 1970, he was confirmed as Executive Engineer with effect from December 2, 1967. The respondent chaIIenged the appointment of the appellant as Assistant Engineer and his subsequent promotions and claimed seniority over hin1.\n\nThe High Court quasht:d the order absorbing the appellant into the regular cadre and the subsequent E promotions. holding the absorption to be contrary to the Orissa Service of Engineers Rules, 1941, and hence invalid.\n\nAllowing the appeal to this Court,\n\nHELD: (1) By r. 6 of the Rules, recruitment to the rank of Assistant Engineers can be made directly in compliance with rr. 8 to 15. The appellant satisfied everyone of the qualifications prescribed by these rules and \\Vas selected by the Public Service Commission in accordance,,, with the rules. He F v1as recomn1iended by the Public Service Commission, unde1 r. 13 and. 1he recommendation was accepted by the Governor under r. 15': He was thereafter appointed as temporary Assistant Engineer on contract basis. But his: appointment was, in terms, on a te1nporary basis and the fact that he held his post on contract did not make his tenure other thah temporary.\n\nThe subsequent course of hiscareer, within the contractual period itself, shows that he was granted all the facilities and privileges which are available to employees in the\n\nregular cadre, temporary or permanent, which are generally not available to con- G tractual c1np!oyees. He drew the same' pay as any o1her employee in the regular cadre of Assistaht Engineers and he was fitted into the same pay scale.\n\nHe drew no special benefitsr by reason of being on a contractual basis.\n\n[64 DG; 65 BCl\n\n(2) Under r. 19(a), persons appointed by direct recruitment\" are required to be on probation for two years, and under r. 19(b), notwithstanding anything in cl. (a), when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole or part of the period of his tempo- H: rary service shall, if approved by the Governor, count towards the prescribed period of probation. In the present case, what the Govern1nent did was to count the appellant's temporary service from January 19 1 , 1959 to March 14, 1962, as it was enitied to do towa1rds his probationary period.\n\nThe\n\n. o\n\nState .Government selected him for pern1anent appoint.1nent as an Assistant Engineer and before doing so also obtained the concurrence of the Public Service Con1n1ission.\n\n[65 F-G; 64 F]\n\n.... .(3) The appellant's appointment as an Assistant Engineer on a temporary basis was thus inade on Januar);' 19, 1959, v,.hereas the respondent's appoint- 1nent to act was ntade on April 14, 1960.\n\nAll along their respective service careers extending over 13 years, the appellant \\Vas recognised as senior. [66 CJ\n\nNarayan Chandra Parida v. State of Orissa and I.L.R. [19]1] Cuttack 857, distinguished. ·\n\n(4) The respondent is guilty of lachcs.\n\nThe appellant's appointment was gazetted on March 14, 1962.\n\nOn November 15, 1968, the appellant and the respohdent \\\\'ere confitmed as Assistant Engineers by a comrnon Gazette Notifi. cation which showed the appel1ant's confirmation as on February 27, 1961, and that of the respondent as on May 2, 1962.\n\nAnd yet, till May 29 1973, \\Vhen the v.•rit petitions were filed in the High Court, the respoi:dnt did nothing except to file a representation to the Government in June, 1970 and a memorial to the Governor in April, 1973. The High Court should not have exercised its extraordinary jurisdictiop in favour of the respondent who was un1nindful of his right& for 12 years and in utter disregard of coc.sequence:<S to other service personnel.\n\nIn June, 1974, the High Court set aside an appointn1ent of March, 1962, of a P'Crson who had, in meantime, risen to the' rank of Superintending Ehgineer.\n\n[66 D-G] .\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1739 to 1742 of 1974. )\n\n(Appeals by special leave from the judgment and order dated the 10-6-1974 of the Orissa High Court at Cuttack in O.J.C. '.'los. 462 and 463 of 1973).\n\nG. Rath, Advocate General, Orissa, Gobind Das and B. Parthasarathi, for the appellants and respondent-2 in CAs 1739-41 /74.\n\nV. S. Desai and Vinoo Bhagat, for respondent No. 1.\n\nF The Judgment of the Court was delivered by\n\nCHANDRACHUDr J.\n\nThis is a group of 4 appeals ansrng out of a judgment dated June 10, 1974 of the High Court of Orissa.\n\nCivil Appeals Nos. 1739 and 1740 are filed by the State of Orissa while Civil Appeals Nos. 1741 and 1742 are filed by one T. C. Krishna Moorthy. Two writ petitions were filed in the Orissa High Court, one by Arun Kumar Patnaik and the other by Niranjan Mishra for quashing certain orders and notifications issued by the Government of Orissa in regard to Krishna Moorthy's appointment as an Assistant Engineer and his subsequent promotions to higher posts. Patnaik and Mishra challenged Krishna Moorthy's appointment and prayed that in any event they ought to be accorded seniority over him.\n\nBy an order dated December 11, 1958 Krishna Moorthy and two others were appointed as \"temporary Assistant -Engineers on contract basis for a period of 3 years\".\n\nThe appointments were made by direct recruitment on the recommendation of the Public Service Corn-\n\nORISSA r. A. K. PATNAIK (Chandrachud, J.) 61\n\nmission which held a test and a viva voce examination in accordance with the Orissa Service of Engineers Rules, 1941. Krishna Moorthy took charge of the post on January 19, 1959.\n\nOn September 13, 1960 which was during the currency of the contractual period of 3 years, the Government of Orissa informed him that the question of absorbing him in the regular establishment of the State's Engineering.\n\nService will be taken up for consideration on his completion of 2 years of service and in case he was absorbed, his absorption would be given retrospective effect from the date of his first appointment as an Assistant Engineer. The Government of Orissa thereafter consulted the Public Service Commission and after obtaining its concurrence, it passed an order dated March 14, 1962 regularising Krishna Moorthy\"s service by absorbing him in the regular cadre of an Assistant Engineer retrospectively from January 19, 1959. That order is Annexure Il to the Writ Petitions. On September 21, 1962 Krishna Moorthy was promoted as an Executive Engineer ( Annexure III) ; on November 15, 1968 he was confirmed as an Assistant Engineer with effect from February 27, 1961 (Annexure N); on May 12, 1969 he was confirmed a,<; an Executive Engineer with effect from December 2, 1967;·lmd on November 23, 1973 he was promoted as a Superin- tending Engineer (Annexure YII), Patnaik and Mishra challenged the validity of the orders at Annexures II, III, IV ... and VII to the writ petitions.\n\nThese are the relevant dates in regard to Krishna Moorthy's appointment.\n\nIn regard to the appointments of Patnaik and Mishra, it would be enough to recapitulate facts relating to Patnaik's appointment, because for the purpose of deciding these appeals there is no distinction between those facts and the facts of Mishra's case.\n\nOn April 14, J 960 Patnaik was appointed \"on provisional basis to act as temporary Assistant Engineer\" by direct recruitment, which was about a year and 4 months after Krishna Moorthy's initial appointment as a temporary Assistant Ep.gineer on contract basis. On November 15, 1968 Patnaik was confirmed as an Assistant Engineer with effect from May 2, 1962. (It may be recalled that by an order of even date Krishna Moorthy was confirmed as an Assistant Engineer with effect from February 27, 1961 .. ) On October 31, 1970 Patnaik was confirmed as an Executive Engineer with effect from December 2, 1967. (It may be recalled that Krishna Moorthy was confirmed as an Executive Engineer with effect from the same date viz., December 2, 1967 though by an earlier order dated May 12, 1969).\n\nOn June 19, 1970 Patnaik filed a representation to the State Government claiming seniority over Krishna Moorhy. On April 16, l 973 Patnaik filed a memorial to the Governor of Orissa for restoration of his seniority.\n\nOn May 29, 1973 Patnaik and Mishra filed writ petitions in the High Court questioning the validity of Krishna Moorthy\"s absorption in the regular cadre by the order of March 14, 1962 as also his subsequent promotions and seniority. By a Judgment dated June JO, 1974 the High Court declared Krishna Moorthy's absorption by the notification of March 14, 1962 as invalid and quashed the notifications at Annexures II, III, IV and VII, thereby\n\nA -also.· renderi_ng his promotions as Executive Engineer and Superintendmg Engmeer and his confirmation as an Assistant Engineer illegal.\n\nKrishna Moorthy's seniority fell with his appointment.\n\nThe correctness. of the High Court's judgment is challenged in these appeals by special leave.\n\nIn exercise of the powers conferred by clause (b) of sub-sections\n\n(1) and (2) of section 241 of the Government of India Act, 1935, the Governor of Orissa made rules for the regulation of recruitment to and the conditions of service, pay, allowances and pension of the Orissa Service of Engineers. These rules are called the Orissa Service of Engineers' Rules, 1941.\n\nRule 3 (b) defines a \"Member of Service\" to mean a servant of the Crown (now the State Government), appointed in a substantive capacity under the provisions of the Rules to a post in the cadre of the service.\n\nThe sanctioned strength of this Service consists under Rule 4 of one Chid Engineer, 2 Superintending Engineers, 7 Executive Enginees, 20 Assistant Engineers and 4 Assistant Engineers in leave and training reserve.\n\nBy rule 5 all first appointments to the service are ordinarily to be made to the rank of an Assistant Engineer.\n\nAppointments to the rank of Chief Engineer, Superintending Engineer and Executive Engineer are to be made ordinarily by the Governor after consultation with the Public Service Commission by promotion from the next lower post.\n\nPromotion is made by selection on the basis of merit and seniority but seniority of itself can confer no clairn to promotion.\n\nRule 6 provides that recruitment to the rank of Assistant Engineers shall be made partly by direct recruitment in accordance with rules 8 to 15 and partly by promotion in accordance with rules 16 to 18.\n\nRule 8 prescribes basic qualifications for appointment to any post in the Orissa Service of Engineers while Rule 9 prescribes further qualifications for appointment by direct recruitment. Rnk 10 requires the Public Service Commission to announce the number of vacancies to be filled by direct appointment and to invite applications from candidates eligible for appointment to the service.\n\nUnder the proviso to rule 10, temporary Assistant Engineers appointed on the recommn dation of the Public Service Commission are not required to compete with other candidates for permanent appointments when such vacancies arise.\n\nBy the same proviso temporary Assistant Engineers can, without further reference to the Public Service Commission, be appointed to permanent posts according to their seniority and record of service unless the Commission expressly specifies in any particular case that a candidate's case may be referred to them before the question of his permanent appointment is taken up.\n\nRule 12 requires the Public Service Commission to interview suifable candidates while rule 13 requires the Commission to prepare a list of selected candidates arranged in order of preference, the number of such candidates being ordinarily 1-1 /3 times the number of vacancies to be filled by direct recruitment.\n\nThe final selection of the candidates is to be made by the Governor under Rule 15 (a) from amongst those who have been included in the list submitted by the Commission or in respect of whom a report has been submitted in accordance with rule 14. The candi-\n\n--\n\n...\n\ndates selected by the Governor are required by rule 15 (b) to submit A themselves for examination by a Medical Board.\n\nRule 19(a) provides that persons appointed by direct recruitment shall be on probation for 2 years while those appointed by promotion shall undergo a probation for one year, provided that the Governor may extend the period of probation in any particular case.\n\nAt any time during the probationary period, the Governor can dispense with B the service of any officer appointed by direct recruitment after a month's notice and he can likewise revert the promoted officer to his substantive appointment.\n\nRule 19(b) reads thus:\n\n\"Notwithstanding anything in sub-rule (a) when a temporary Assistant Engineer is selected for a permanent appointment to the service the whole of the period of his temporary service or a portion thereof, as the case may be shall II approved by the uovernor for this purpose, connt towards the presc•ibed period of probation.\n\nProvided that such approval shall be given only ; n respect of a continuous period of temporary service under the Government of Orissa followed without a break by appointment in permanent service.\"\n\nRule 20 prescribes conditions for confirmation by providing that a probationer shall be confirmed in his appointment if he completes the. prescribed period of probation, if he has passed the prescribed departmental examination and if the Governor is satisfied that he\n\nis fit for confirmation.\n\nRule 22 prescribes the pay scale for direct recruits to the cadre of Assistant Engineers.\n\nUnder this rule, the E period of probation counts for the purpose of increment unless the probation is extended on account of the probationer's failure to give a satisfactory performance. Under rule 26 (i), if officers are recruited by promotion and by direct recruitment in the same calendar year, the promotees are considered as senior to direct recruits irrespective of the dates on which they were appointed.\n\nRule 26(ii) provides that subject to provisions , of sub-rule (i), seniority of officers shall be F determined in accordance with the order in whfch their names appear in the list prepared by the Commission.\n\nWe are unable to accept the High Court's view which was also pressed upon us by the learned counsel appearing on behalf of Patnaik\n\nand Mishra that Krishna Moorthy's appointment under the notification of March 14, 1962 was contrary to the rules and therefore he cannot be said to be a member of any of the cadres of the Orissa Service of Engineers.\n\nBy rule 3 (b), \"Member of Service\" means a servant of the Government appointed in a substantive capacity under !he provisions of the rules to a post in the cadre of the service. The first question to be considered is whether on March 14, 1962 Krishna Moorthy was appointed in a substantive capacity to a post in the cadre of the Orissa Service of Engineers and secondly, whether the State Government had the power under the rules to appoint him retrospectively with effect from the date of his initial appointment i.e. from Jannary 19, 1959.\n\nA The impugned notification dated March 14, 1962 reads thus :\n\n\"Shri T. c .. K. Murty, Assistant Engineer, l'. H. who was appointed as such on contract basis with effect from 19-1- 1959 is appointed as a temporary A.E. in the regular Establishment of the P.H. Wing until further orders with effect from the same date.\"\n\nThe terms of this notification are too direct and simple to admit of more than one construction and accordingly we must proceed on the footing that on March 14, 1962 Krishna Moorthy was in fact appointed as an Assistant Engineer in the regular cadre of Assistant Engineers, , though with effect from January 19, 1959 being the date on which ' he had taken charge of his initial appointment as a temporary Assistant C Engineer on contract basis. The meaning and effect of the notification was never in doubt nor indeed the in.tention of the Government to regularise Krishna Moorthy's appointment so as to place him in one of the regular cadres of the Orissa Service of Engineers.\n\nBut then, did the State Government have the power under the rules to regularise Krishna Moorthy's appointment retrospectively ?\n\nThat is the real focus of controversy. While resolving this controversy one must disabuse one's mind of the apparently weighty consideration that Krishna Moorthy was appointed initially on a 'contract basis'.\n\nBy rule 6, recruitment to the rank of Assistant Engineers can be made directly but such recruitment must comply with rules 8 to 15. Krishna Moorthy satisfied everyone of the qualifications prescribed by this fasciculous of rules and that is undisputed. He was qualified under rule 6 and was eligible under rule 9 to he appointed as an Assistant Engineer in the regular cadre of the Orissa Service of Engineers.\n\nApplications were duly invited by the Public Service Commission under rule 10 and Krishna Moorthy's application fulfilled the requirements of rule 11.\n\nThe Commission considered alt the applications and interviewed candidates who were suitable for the posts, as required by rule 12. Krishna Moorthy appeared for the test and the viva voce examination and was selected by the Public Service Commission.\n\nHis name appeared in the list of selected candidates prepared by the Commission under rule 13.\n\nRule 14 has no relevance.\n\nThe final selection of the candidates was made by the Governor, as required by rule 15, from amongst those who were included in the list submitted by the Commission under' rule 13. On his selection by the Governor, Krishna Moorthy was examined by the Medical Board as required by rule 15 and was found medically fit.\n\nIt was after due and full compliance with everyone of the conditions and formalities that his appointment as a temporary Assistant Engineer on contract basis was notified on Dec. 11, 1958.\n\nThe initial appointment of Krishna Moorthy being within the scope of and in conformity with the rules governing direct recruitments to the cadre of Assistant Engineers, the only question that requires consideration is whether the rules permit retrospective regularization of an 2ppointmcnt.\n\nThe terms of the initial appointment are relevant in\n\nthis behalf because though the appointment was on a 'contract basis', it was also expressly described as 'temporary'. In common parlance it may be incongruous to describe a contractual appointment as temporary, because the appointment is intended in the normal circumstances to last during the currency of the contract. But Service regulatioJLS have their own semantics and not unoften, not only are service rules technical but they have their own technical vocabulary. Krishna Moorthy's initial appointment must be construed on its own terms and therefore the adjective 'temporary' cannot be dismissed as :i. mere adjunct.\n\nHe was unquestionably and in terms appointed as an Assistant Engineer on a \"temporary\" basis and the fact that he held his post on a contract did not make his tenure other than temporary.\n\nThe subsequent course of his career, within the contractual period itself, shows that he was granted all the facilities and privileges which are available to employees in the regular cadre, temporary or permanent, and which are gener<!!lly not available to contractnal employees. He drew the same pay as any other employee in the regular cadre of Assistant Engineers and he was fitted into the same scale of pay. He drew no special benefits by reason of being on a contractual basis.\n\nAnd when during the currency of the contract he wanted to apply for a post under the Union of India_, his application was not forwarded by the State Government for the reason that there was a \"shortage of technical personnel in the State\".\n\nHis appointment was thus made truly on a temporary basis ahd the question for consideration resolves itself into this : Can an appointment made on a temporary basis after compliance with the relevant rules be regularized retrospectively?\n\nIf Krishna Moorthy had not been recommended by the Public Service Commission, different consideri!(ions might have arisen. But he was recommended by the Commission, the recommendation was accepted by the Governor and the State Government appointed him as an Assistant Engineer on a temporary basis in pursuance of the Commission's recommendation and the Governor's selection.\n\nThis is where Rule 19 plays an important part.\n\nUnder clause (a) of that rule, persons appointed by direct recruitment are required to be on probation for 2 years.\n\nUnder clause (b) of Rule 19, notwithstanding anything in clause (a), \"when a temporary Assistant Engineer is selected for a permanent appointment to the service, the whole of the period of !Jis temporary service or a portion threof, as the case may be shall if approved by the Government for this purpose, count towards the prescribed period of probation\".\n\nKrishna Moorthy was selected by the State Government for a permanent appointment as an Assistant Engineer and before implementing that decision, the State Government had obtained the concurrence of the Public Service Commission.\n\nOn such concurrence being obtained, the State Government issued the impugned notification dated March 14, 1962 appointing him as an Assistant Engineer, though temporarily and until further orders, with effect from January 19, 1959.\n\nThe Government had the power under rule 19 (b) to count any part of Krishna Moorthy's temporary service towards the prescribed period of probation and what it did was to count his temporary service from January 19, 1959\n\n7-833SCin6\n\nA till March 14, 1962 towards the probationary period.\n\nHe had by then put in more than three years' service whereas rule 19 stipulates a normal probationary period of 2 years only.\n\nIn view of these facts and considerations, it is impossible to accept the submission made on behalf of Patnaik and Mishra that Krishna Moorthy's appointment under the notification of March 14, 1962 is in any sense invalid.\n\nConsequently, his subsequent promotions and the seniority accorded to hhn must also be upheld.\n\nThe decision in Narayan Chandra Parida v. State of Orissa and Ors.,(') on which reliance is placed to deprive Krishna Moorthy of his seniority has no application, as in that case the petitioner was ranked as a junior to a person who was not at all in Government service when the petitioner was appointed. In the instant case, Krishna Moorthy was appointed as an Assistant Engineer on a temporary basis on January 19, 1959 whereas Patnaik and Mishra were appointed on April 14, 1960 to act as Assistant Engineers on a provisional basis. All along their respective service careers, extending over 13 years, Krishna Moorthy was recognized as senior to the other two.\n\nIt is unnecessary to deal at length with the State's coutention that the writ petitions were filed in the High Court after a long delay and that the v.Tit petitioners are gnilty of !aches.\n\nWe have no doubt that Patnaik and Mishra brought to the Court a grievance too stale to merit redress.\n\nKrishna Moorthy's appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors.\n\nOn November 15, 1968 they were all confirmed as Assistant Engineers by a common Gazette notification and that notification showed Krishna Moorthy's confirmation as of February 27, 1961 and that of the other two as of May 2, 1962.\n\nAnd yet till May 29, 1973 when the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973.\n\nThe High Court made light of this long and inexplicable delay with a casual remark that the contention was \"without any force\".\n\nIt overlooked that in June, 1974 it was setting aside an appoinbnent dated March 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer.\n\nThose 12 long years were as if writ in water.\n\nWe cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.\n\nFor these reason we allow the appeals, set aside the judgment of the High Court and direct that the writ petitions shall stand dismissed.\n\nPatnaik and Mishra will pay to Krishna Moorthy the costs of the pUitions and of these appeals which we quantify at Rs. 2000.\n\nThey will each pay a sum of Rs. 1,000. There will be no order as to the costs of the Government.\n\nV.P.S.\n\nAppeals allowed.\n\n(1) l.L.R. 1971 Cuttack 857.", "total_entities": 10, "entities": [{"text": "STATE OF ORISSA ETC", "label": "PETITIONER", "start_char": 5, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "STATE OF ORISSA ETC", "offset_not_found": false}}, {"text": "ARUN KUMAR PATNAIK & ANR. ETC", "label": "RESPONDENT", "start_char": 27, "end_char": 56, "source": "metadata", "metadata": {"canonical_name": "ARUN KUMAR PATNAIK & ANR. ETC", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 77, "end_char": 94, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 96, "end_char": 114, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 119, "end_char": 138, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "Article 226", "label": "PROVISION", "start_char": 368, "end_char": 379, "source": "regex", "metadata": {"statute": null}}, {"text": "Orissa Service of Engineers Rules, 1941", "label": "STATUTE", "start_char": 1880, "end_char": 1919, "source": "regex", "metadata": {}}, {"text": "Orissa Service of Engineers Rules, 1941", "label": "STATUTE", "start_char": 6851, "end_char": 6890, "source": "regex", "metadata": {}}, {"text": "section 241", "label": "PROVISION", "start_char": 10403, "end_char": 10414, "source": "regex", "metadata": {"statute": null}}, {"text": "Government of India Act, 1935", "label": "STATUTE", "start_char": 10422, "end_char": 10451, "source": "regex", "metadata": {}}]}
{"document_id": "1976_1_601_602_EN", "year": 1976, "text": "R. R, DALAVAI v.\n\nSTATE OF TAMIL NADU\n\nMay 7, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nPension scheme to anti-Hindi agitators-Constitutidnal validity of-Conatitution of India, Article 351.\n\nBudget sanction through Appropriation Act 38 ilf 1974 for payment of pen sion to anti-Hindi al!itators by an executive order is unconslitutional-Mad1as Budget Manual.\n\nThe appellant challenged the constitutional validity of the pebsion scheme of the dent.State by \"1!ich the anti.Hindi agitators were to be paid pension from the Consolidated FUnd of the State. The High Court dismissed the writ holding that (!) the spirit and letter of Art. 351 was not violated and\n\n(2) in view of the Appropriation Act 38 of 1974, the paym, m was not illegal.\n\nAllowing the appeal by special leave, the Court\n\n.WELD: (!) The pension scheme formulated by the Tamil Nadu Govern meot contains the -vice of disintegration and , fomenting fissiparous tendencies.\n\nIf any State will be eni'\\ged in exicting emotion against Hindl or any other languag_e, such provocation has to be nipped in the bUd becanse these are anti. national and anti-democratic tendencies. [602C-DJ\n\n(2) There is no legislative sanction ih the instant case for such pension scheme. 1be Government by an executive order could not authorise payment of pension scheme. The pension scheme is unconstitutiona) and the Budget sanction is equally unconstitutional. [6020-EJ\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1116 of 1975.\n\nAppeal by Special Leave from the Judgment and Order dated 21st January, 1975 of the High Court of Madras at Madras in Writ Petition No. 3962 of 1972.\n\nPetitioner in person; for the Appella'at.\n\nA. V. Rangam and (Miss) A. Subhashini; for the Respondent.\n\nThe Judgment of the Court was delivered by\n\nRAY, CJ. This 'dppeal is by special leave from the judgment dated G 21 January, 1975 of the Madras High Court.\n\nThe appellant made an application under Article 226 challenging the, power of the GovernmetM of Tamil Nadu to grant of pension to Anti-Hindi agitators.\n\nThe appellant further challenged the power of the State to make payment from the Consolidatect Fund of the State Exchequer.\n\nArticle 351 of the Constitution says that it shall be the duty of the Union Government to promote the spread of the Hindi language to\n\nSUPREME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nA drvclop so that it may serve as a medium of expression for all the elements of the cmposite culture of our country.\n\nThe appellant contended that the sprrit and letter of Article 351 is violated by the Pension Scheme of the Tamil Nadu State.\n\nThe appellant said that the agitators who brought about violence broke the law and were honoured by the pension scheme of the State.\n\nB The High Court said that the State Legislature has control over\n\npurse and that in the view of the State Legislature the agitators against Hindi fought for a cause and, therefore, those who are eligible should be granted pension.\n\nThe High Court found tLat if a scheme is provided which is not destructive of the Directive Principles but aimed at ameliorating those who the legislature thought deserve that treatment Article 351 was not violated.\n\nThe High Court found that because of Appropriation Act No. 38 of 1974 it could not be said that payment was illegal.\n\nIn our opinion the pension scheme formulated by the Tumil Nadu Government c<Yntains the vice of disintegration and fomenting fissiparous tendencies. If any State will be engaged in exciting emotion against D Hindi or any other language such provocation has to be nipped in the bud because these are anti-national and anti-democratic tendencies.\n\nThe Madras Budget Manual 4th Edition was referred to by the appellant.\n\nThe appropriation in the present case shows that a fund was kept apart to meet the pension scheme.\n\nThere is no legislative sanction for such pension scheme. The Government by a1n executive E order could not authorise payment of pensiou scheme. The appellant is right in his contention that the pension scheme is unconstitutional and the budget sanction is equally unconstitutional.\n\nFor these reasons the judgment of the High Court is set aside.\n\nA mandamus will go directing the responde',1t to forbear from implementing the pension scheme. The State will be competent to claim refund of moneys illegally and unconstitutionally paid.\n\nThe appellant is entitled to costs to be paid by the State.\n\nS.R.\n\nAppeal allowed", "total_entities": 12, "entities": [{"text": "R. R, DALAVAI", "label": "PETITIONER", "start_char": 0, "end_char": 13, "source": "metadata", "metadata": {"canonical_name": "R. R. DALAVAI", "offset_not_found": false}}, {"text": "STATE OF TAMIL NADU", "label": "RESPONDENT", "start_char": 18, "end_char": 37, "source": "metadata", "metadata": {"canonical_name": "STATE OF TAMIL NADU", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 53, "end_char": 68, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. BEG", "label": "JUDGE", "start_char": 70, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "M. HAMEEDULLAH BEG", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ.", "label": "JUDGE", "start_char": 84, "end_char": 102, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Article 351", "label": "PROVISION", "start_char": 194, "end_char": 205, "source": "regex", "metadata": {"statute": null}}, {"text": "Budget sanction through Appropriation Act", "label": "STATUTE", "start_char": 208, "end_char": 249, "source": "regex", "metadata": {}}, {"text": "Art. 351", "label": "PROVISION", "start_char": 645, "end_char": 653, "source": "regex", "metadata": {"linked_statute_text": "Budget sanction through Appropriation Act", "statute": "Budget sanction through Appropriation Act"}}, {"text": "Article 226", "label": "PROVISION", "start_char": 1941, "end_char": 1952, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 351", "label": "PROVISION", "start_char": 2179, "end_char": 2190, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 351", "label": "PROVISION", "start_char": 2532, "end_char": 2543, "source": "regex", "metadata": {"statute": null}}, {"text": "Article 351", "label": "PROVISION", "start_char": 3157, "end_char": 3168, "source": "regex", "metadata": {"statute": null}}]}
{"document_id": "1976_1_603_607_EN", "year": 1976, "text": "STATE OF HARYANA\n\nI'.\n\nINDER PRAKASH ANAND H.C.S. & OTHERS\n\nMay 7, 1976\n\nfA. N. RAY, C.J., R. S. SARKARIA, P. N. SH!NGHAL AND\n\nJASWANT SINGH, JJ.]\n\nConstitution of India, 1950, Art. 235-Power to compulsorily retire-Whether vests in the lligh Court or Governor-Control, nature and scope of.\n\nThe respondent was officiating as Additio.nal Distric! & ssions. Jude. On a reference to the High Court whether he should be retained m service till the age of 58 or should be retired at the age of 55, the High Court recommended that he should be reverted to his substantive post of Senior Subordinatr Judge but that he should be allowed to continue in that post till the age of 58. The State Government reverted him but retired him fro.m service at 55 under r. 5.32(c) Punjab Civil Service Rules. The rule stats that a retiring pension is granted to a Governn1ent servant who is retired by the appointing authority on or after he attains the age of 55 by giving him 3 months notice. The High Court quashed the order of retirement.\n\nDismissing the appeal to this Court,\n\nHELD: ( 1) Article 235 vests in the High Court control over district courts\n\nand courts 'subordinate thereto. The control includes both disciplinary and administrative iurisdiction.\n\nDisciplinary control means not merely jurisdiction to award punishment for misconduct, but also the power to determine wh_ether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation.\n\nAdministrative, judicial and disciplinary control over members of the judicial E sevice is vested solely in the High Coll.rt.\n\nPremature retirement' is fil<!.de in the exercise of administrative and discipJinary jurisdiction. It is administrative be~ cause it is decided in public interest to retire him prematurely and it is discipli~ nary, because, the decision is taken in public interest that he does not deserve to continue up to the normal age of superannuation. The fixation of the age of superannuation is the right of the State Government. The curtailment of that period under rules governing the conditions of service is a matter pertaining to disciplinary control as well as administrative control. [605G-H; 606H-607C]\n\nState of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771 and High Court of Punjab and Haryana etc. v. State of Haryana (Sub nom Narendra Singh Rao) [1975] 3 S.C.R. 365, followed. ·\n\n(2) The control which is vested in the High Court is complete control subject only to the power of the Governor in the m_atter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to District Judges. The vesting of complete control over the subordinate judiciary in the High Court, leads to this that if the High Court is of opinion that a particular officer is not fi~ to retained in service, the High Court will communicate that opinion to the Governor, because, the Governor is the authority to dismiss, remove or reduce in rank or terminate the appointment. In such cases, the Governor, as the head of the State, will act in harmony with the recommendation of the High Court as otherwise the consequences will be unfortunate. [605H,\n\n606AG, H: 607E-F]\n\n(3) But, compulsory retirement simpliciter does not amount to dismissal or ren1ova1 or rcdu, tion in rank under Article 311 or under service rules. When a H case is not of removal or dismissal or reduction in rank, any order in respect of exercise of control over the judicial officers is by the High Court and by no other authority; otherwise, it will affect the independence of the judiciary. [605F-G; 60iC]\n\nShy?m Lal v. State of Uttar Pradesh [1955] I S.C.R. 26; Da/ip Singh v. State of Pun1ab [1961] I S.C.R. 88; Tara Si11gh v. State of Rajasthan [1975] 4 S.C.C. 86; B. Venkateswararao Naidu v. Union of India [1973] l S.C.C. 361 and Shamsher Singh cl Anr. v. State of Punjab [1975] I S.C.R. 814, followed :\n\n( 4) It is not corect o ~ntend that the Governor and not the High Court has the power to retire a 1ud1c1al officer compulsorily under s. 14 Punjab- General Clauses Act.. The suggestion that the High Court reCommends and the State Gover!1fllent implements the recommendation in the matteiof cOinpulsorY-i-ffire- !Ilent 1s to dstroy the control of the High Court. It is Only the order terminattpg the appointment of a member of the service otherwise than upon his reaching the age of superanouation that will be passed by the State Government on the recommendation of the High Court. [606C-D, G-H]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 2454 of 1972.\n\nC Fro~ the Judgment and Order dated the 1 Sth December, 1971 of the Pun)llb and Haryana High Court at Chandigarh in Civil Writ Petition No. 2604 of 1971.\n\n'.D\n\nL. N. Sinha, Solicitor General, Naunit Lal, R. N. Sachthey for the .appellant.\n\nAnand Swarup, Harbans Singh Marwah for Respondent No. 2.\n\nAshok Grover; for Respondent No. 1.\n\nThe Judgment of the Court was delivered by\n\nRAY, C.J.\n\nThis appeal is by certificate from the judgment dated 18 November, 1971 of the Punjab and Haryana High Court.\n\nThe respondent joined the Punjab Civil Service, (Executive Branch) in November, 1954.\n\nHe was selected for the Judicial Branch of the Punjab Civil Service on or about 1 May, 1965. On 15 November, 1968 he was promoted as officiating Additional District and Sessions Judge.\n\nThe respondent was due to attain the age of 55 years on 24 February, 1971.\n\nHis case was referred to the High Court for their recommendation whether the respondent should retire at the age of 55 years or he should be retained in service till the age of 58 years which is the prescribed age of superannuation under the Punjab Civil Service Rules.\n\nThe High Court was of opinion that the work of the respondent. as Additional District and Sessions Judge was not satisfactory.\n\nThe High Court was not inclined to recommend the respi5ndent's continuance in Superior Judicial Service up to the age of 58 years.\n\nThe High Court recommended that the respondent should be reverted to his substantive post of Senior Subordinate Judge/Chief Judicial Magistrate and that he might be allowed to cotinue in service till the age of 58 years.\n\nThe State Government agreed with the recommendation for reverting the respondent from the post of Additional District and Sessions Judge to the Senior Subordinate Judge/Chief Judicial Magistrate. With regard to the retention of the respondent in service up to the age of 58\n\nyears the Stiite iigain asked the High Court to c_onsider whether in view A of th, e respondent's work ai; Additional District and Sessions Judge; Hissar, having been found to be unsatisfactory, the respondent should be retained at all in service beyond the age of 55 years.\n\nThe State Govrmment suggested that it was in public interest to retire the respondent at the age of 55 years.\n\nThe High Court did not agree with the suggestion. By letter dated 16 August, 1971 the High Court reiterated that the respondent might continue in service up to the age of 58 B: years. The State Government did not agree with the recommendation of the High Court and decided to retire the respondent under Rule 5 .32 ( c) of the Punjab Civil Service Rules.\n\nA notice was issued to the respondent on 20 August, 1971 giving him notice of three months on the expiry of which he would retire from service.\n\nThe respondent filed a writ petition in the High Court impeachin~ the notice dated 20 August 1971. The matter was heard by a Bench of three learned Judges. The order retiring the respondent from service WM quashed by the majority opinion.\n\nThe question is whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under rule 5.32 (c) of the Punjab Civil Service Rules against the recommendation of the High Court.\n\nThis Court in Shyam Lal v. State of Uttar Pradesh(') held that compulsory reitrement does not involve stigma or any implication of mis-behaviour or incapacity.\n\nIn Dalip Singh v. State of Punjab(') this Court held that in order to find out whether an order of compulsory retirement is or is not by way of punishment, is to find out whether a charge of imputation against the officer is made the basis of the exercise of power iind second whether the officer is deprived of any benefit already earned.\n\nIn the recent decision in Tara Singh v. State of Rajasthan(') this Court, held that compulsory retirement is not a punishment because the officer does not lose the terminal benefits already earned by him.\n\nB. Venk{lfesivararao Naidu v. Union of lndia(') this Court held that F ;:_ compulsory r.etire!llllnt does, not involve civil consequences.\n\nIt, therefore, follows that compulsory retirement simp/iciter does not amount to dismissal or removal or reduction in rank under Article .. 311 or under the Service Rules. It is in fact com.Pulsory retirement in accordance with the terms and conditions of service.\n\nThe decision~ of this.Court'irt State of West Bengal v. Nripendra G, Nath Bagchi(}') and High Court of Punjab ant! Haryana etc. v. State o/Haryana (S1'b.nom Narendra Singh Rao).(6 ) are that Article 23 5 ve$ int~ High Court.• control over District Courts\" arid courts suborpi@te, th!lreto. TheGovernor appoints ai!d dismisses' and removes Judicial Officers.\n\nControl which ]s• vested in tfil)• Hli' Court\n\n~ is complete control subjt only to the po\\\\'.ef.p~, the.0<1vernpr. in the UJ __ ._.:. _____ ._' . i\" ' ' .·\\ ,; (l)[l955Jf S.C'.R.2•.\n\n(4) [1973} 1S.c.c.361\n\n(2) [19611IS.C.R.88.\n\n\n(3) [197514 S.C.C. 86.\n\n(6) [1975]3 S.C.R. 365.\n\nmatter of appointment including dismissal, removal, reduction in rank and the initial posting and of the initial promotion to District Judges.\n\nThere is nothing in Article 235 to restrict the control of the High Court in respect of Judges other than District Judges in any manner.Article 311 has taken away the power of dismissal or removal or reduction in rank from the High Court and the Governor has been given that special power referred to in Article 311 ( 3) .\n\nThis Court in Shamsher Singh & Anr. v. State of Pun1ab(') held that when a case is not of removal or dismissal or reduction in rank any order in respect of exercise of control over the Judicial Officers is by the High Court and no other authority.\n\nThere cannot be dual control.\n\nIf State Government is. to have the power of deciding whether a Judicial Officer should be retained in service after attaining the age of 55 years up to the age of 58 years that will seriously affect the independence of the judiciary and take away the control vested in the High Court.\n\nCompulsory retirement is neither suspension nor dismissal nor removal nor reduction in rank.\n\nIt is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily under section 14 of the Punjab General Clauses Act.\n\nThe suggestion that the High Court recommends and the State Government is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court.\n\nThe Punjab Civil Service Rules in Rule 3.26(a) deals with compulsory retirement at the age of 58. Rule S.32(c) deals with retirement at the age of 55.\n\nTwo relevant rules in the Punjab Civil Service Rules in the present case are these.\n\nRule 3.26(a) states that the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which be attains the age of 58.\n\nRule 5.32(c) states that a retiring pension is granted to a Government servant who is retired by the appointing authority on or after he attains the age of 55 years by giving him not less than three months' notice.\n\nThis Court in Bagchi's case (supra) said that control vested in the High Court is over the conduct and discipline of the members of the Judicial Service.\n\nOrders passed in disciplinary jurisdiction by the High Court are subject to an appeal as provided in the conditions of service.\n\nThe High Court further deals with members of the judicial service in accordance with the rules and conditions of service. This Court in Bagchi's case (supra) said that the word \"deal\" points to disciplinary and not merely administrative jurisdiction. The order terminating the appointment of a member of the service otherwise than upon his reaching the age fixed for superannuation will be passed by the State Government on the recommendation of the High Court.\n\nThis is becanse the High Court is not the authority for appointing, removing, reducing the rank or terminating the service.\n\nIt is true that the fixation of the age of superannuation is the right of the State Government.\n\nThe curtailment of that period under rule\n\n(I) !19751IS.C.R.814.\n\ngoverning the conditions of service is a matter pertaining to disciplinary A control as well as administrative control. Disciplinary control means not merely jurisdiction to award punishment for misconduct.\n\nIt also embraces the power to determine whether the record of a member of the service is satisfactory or not so as to entitle him to continue in service for the full term till he attains the age of superannuation. Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court: Premature retirement B is made in the exercise of administrative and disciplinary jurisdiction.\n\nIt is administrative because it is decided in public interest to retire him pre-maturely. It is disciplinary because the decision was taken that he does deserve to continue in service up to the normal age of superannuation and that it is in the public interest to do so.\n\nThis Court held in State of Assam v. Ranga Mahammad and Ors.(') C that the Governor under Article 233 is concerned wiili the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre.\n\nThis Court has held in the Punjab and Haryana case\n\n(supra) that the confirmation of District Judges is to be done by the High Court because it falls within the control vested in the High Court.\n\nThe High Court is acquainted with the capacity of work of the mem- D bers of the Service.\n\nIn the Punjab & Haryana case (supra) this Court pointed out that if after the appointment of District Judge till he is confirmed the State is allowed to control the District Judge there will be dual control.\n\nThis is not the meaning of \"control\" in our Constitution.\n\nThe control vested in the High Court is that if the High Court is E of opinion that a particular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor .because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State F consequences will be unfortunate.\n\nIt is in public interest that the State will accept the recommendation of the High Court.\n\nThe vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. \"The Government will act on the recommendation of the High Court.\n\nThat is the broad basis of Article 235\".\n\nSee Shamsher Singh's case (supra) at page 841.\n\n. In the present case, the order of the State retiring the respondent from service after the expiry of three months from the date of the order 20 August, 1971 has been rightly quashed by the High Court.\n\nThe High Court did not make any recommendation to that effect .\n\n. The appeal is, therefore, dismissed' with costs.\n\nV.P.S.\n\nAppeal dismissed. -----------\n\n(1) (1967) I S.C.R. 454:", "total_entities": 24, "entities": [{"text": "STATE OF HARYANA", "label": "PETITIONER", "start_char": 0, "end_char": 16, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA", "offset_not_found": false}}, {"text": "INDER PRAKASH ANAND H.C.S. & OTHERS", "label": "RESPONDENT", "start_char": 23, "end_char": 58, "source": "metadata", "metadata": {"canonical_name": "INDER PRAKASH ANAND H.C.S. & OTHERS", "offset_not_found": false}}, {"text": "fA. N. RAY, C.J.", "label": "JUDGE", "start_char": 73, "end_char": 89, "source": "metadata", "metadata": {"canonical_name": "A.N. 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{"document_id": "1976_1_608_620_EN", "year": 1976, "text": "60&\n\nSTATE OF ANDHRA PRADESH\n\nBATHU PRAKASA RAO\n\nMay 7, 1976\n\n[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]\n\nPractice and procedure-Findings of fact by High Court-Supreme Court's interference, when called for.\n\nEssential Commodities Act, 1955, s. 6A. Validity of confiscation proceedings .1 by Distri<:t Revenue Officer. r\n\nThe respondent-rice-millers obtained permits under clause (3) of the Southern States (Regulation of Export of Rice) Order, 1964, for exporting \"broken rice\" from Andhra Pradesh to Kerala. but were intercepted for allegedly transporting \"whole rice\" for \"broken rice\". The rice was seized, and samples analysed in\n\nthe presence of the District Revenue Officer who ordered confiscation of the estimated quantity of the \"whole rice\". On appeal, the District Judge remanded the matter for giving fuller opportunity to the respondents for objecting t.o the sample analysis which was to be carried out afresh in their presence. The State's\n\nrevisioh application against the remand order dismissed by the High Court, The Revenue Officer then ordered a release of 12%, and the confiscation of the ,-emaining quantity seized, as no sample from the bags contained a minimum percentage of 60% of \"broken\" grains satisfying the test laid down in the Handbook on Grading Foodgrains and Oilseed. The District & Sessions Judge partially allowed the respondents' appeals.\n\nBoth sides. filed revision applications.\n\nThe High Court decided in favour of the respondent, holding that \"broken rice\"\n\nincluded \"whole rico\".\n\nAllowing the appeals, the Court,\n\nHELD: (I) Ordinarily, this Court does not interfere with findings of fact.\n\nBut, where the errors of logic as well as law appear to be gross and to have occasioned a miscarriage of justice, the court is constrained to interfere. [609-]\n\n(2) The Revenue Officer's order releasing the seized rice to the ex!ent of 'about 12% having become final, it should not be interfered with except to the\n\nF extent that the learned Sessions Judge added 2% more for foreis:n matter thereby releasing slightly more in favour of the respondent.\n\n[610-DJ\n\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 100- 146 of 1976.\n\nAppeals by Special Leave from the Judgment and Order dated 29-8-75 of the Andhra Pradesh High Court in Cr!. Rev. Cases Nos. 256-302/75 and 437-483/75 respectively.\n\nNiren De. Attorney General for lndiq (In CrL A.100, 101 and 112 of 1976) P.. Ram Reddy (Crf. A.102-111, and 113-145/76); P. P. Rao and k, J(_~ , Deshpande for the appellants In .aU the appeals;\n\nSachin Chaudhary (In Crl. A.100/76); S. V. Gupte (In CrL A.101/\n\n76) T. Ramam, B. Parthasarthi 'for Respondents' in Cris. A. Nos. 101 105, 10'7-118 120-139 and 141-146/76.\n\nThe Judgment of the Coun was delivered by\n\n\\ •\n\nBEG, J.\n\nThese appeals, by Special Leave, raise an apparently simple question which appears to be essentially one of fact. But, as\n\nthe real question to be answered was not correctly posed before itself by the High Court of Andhra Pradesh, it misdirected itself as to what was to be really decided by it and also how it should be decided according to rules of ordinary logic as well as law.\n\nOrdinarily, this Court does not interfere with findings of fact.\n\nBut, where the errors of logic as well as law, discussed below, appear to us to be gross and to have occasioned a miscarriage of justice, we are constrained to interfere.\n\nThe crucial question to be decided may be put as follows : What did the respondents understand when they obtained permits for the despatch of \"broken rice (raw, boiled)\" shown in their export permits?\n\nIf the respondents understood what their permits meant, they could not, nnder the guise of these permits, transport any other kind of rice.\n\nIt was their duty to abide by the terms of their permits, and to show, when proceeded against, that they did so.\n\nEach permit shows : quantity permitted to be sent; the duration of the validity of the permit; the name of the consignor; the name of the station from which rice was to be despatched; the means of despatch (shown as \"by rail only\"); the name and address of the consignee (shown as \"self'); the State to which the consignment was to be booked (shown as Kerala State), purpose of the consignment (shown as trade account) . The permit was described as an \"export permit\".\n\nThe details mentioned above were given in a schedule, the permit was addressed \"to the Miller\", and its operative part said :\n\n\"In exercise of the powers conferred under clause 3 of the Southern States (Regulation of Export of Rice). Order, 1964 read with G.0.Ms. No. 2495 F & A Dt. 17-10-1964 the Collector hereby permits the transport of rice products mentioned in the Schedule subject to the conditions specified below\".\n\nThe specified conditions, in addition to those mentioned in the details given above were :\n\n\"1. This permit is not transferable.\n\n2. It is liable for cance1Iation at any time by the issuing authority for the reasons to be recorded in writing.\n\n3. It is valid only for the period mentioned in the permit and the consignment must be booked from the despatching station before the expiry of such period.\n\n4. Any permit that is taken out but not utilised should be returned immediately to issuing authority.\n\n5. The stuff shonld be got checked by the Assistant Grain H Purchasing Officer assisted by the Food Inspector concerned while loading into the wagon and a certificate should be 41-833Suti. CI/76\n\ngot recorded on the permit itself that the stuff loaded is broken rice and not whole rice and the quantity loaded.\n\n6. In respect of self permits the permit holder, should furnish to the Collector, West Godavari, Eluru (A.P.) am;! the District Supply Officer, Tedepalligudam and the Collector of the importing District within one month from the date of issue of the permit the particulars of the Station to which the consignment is booked names and addresses of the buyers\".\n\nThe allegation against the respondents was that they had broken the conditions of their permits inasmuch as their consignments. which had been seized, whilst being transported in railway wagons from Andhra Pradesh to Kerala, consisted of rice instead of \"broken rice\".\n\nAfter the issue of show cause notices and the replies filed by the respondents, a number of writ petitions was filed on a number of grounds in the High Court of Andhra Pradesh questioning the validity of confiscation proceedings under Section 6A of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act'). These writ petitions were dismissed on 25th October, 1971.\n\nAfter the dismissal of the Writ Petitions mentioned above, the Revenue Officer passed orders, on 18th November, 1911, confiscating only what was estimated as the quantity of \"whole rice\", according to the standards applied in drawing up an analysis report from samples which the Revenue Officer accepted as correct.\n\nThe respondents then appealed to the District and Sessions Judge who, on 16th February, 1972, set aside the orders of the Revenue Officer and directed him to decide again the question involved in the cases in accordance with law, after giving full opportunity to the respondents to object to the analysis which was to be carried out afresh in their presence.\n\nThe District Judge did not consider the report of the Assistant Marketing Officer of Chitur, after an analysis carried out in the presence of the District Revenue Officer, to be a sufficient compliance with the requirement to give due opportunity to the respondents to show what the consignments contained.\n\nIt may be mentioned here that the reports upon which proceedings were commenced in respect of a very large quantity of rice had been filed by the Inspector of Police of the Vigilance Section of the Civil Supplies' Department. It was clearly mentioned in these reports that the rice which was seized by the police in the course of its transit in a number of wagons of a goods train proceeding from Andhra Pradesh to Calicut in Kerala State was not \"broken rice\".\n\nThe respondents are regular Millers whose business it is to know the varieties and the nomenclature of various types and qualities of rice.\n\nThey could not, therefore, be ignorant of what was the case against them. Moreover, when the cases were actually remanded to the Revenue Officer with specific directions to give the respondents fuller opportunity to show cause and meet the cases against them, there could be no possible excuse for the respondents not to put in evidence of their side of the case if they bad a case to put up in defence.\n\nThe Revision Applications by the State against the orders of District and Sessions' Judge were dismissed by the Higq Court on 29th March, 1973. During the pendency of the revision applications in the High Court, notices of auction of boiled rice were issued under the orders of the High Court.\n\nThe rice was sold as ord_inary \"boiled rice\".\n\nIt is alleged on behalf of the State, that the price for which the boiled rice. seized from the Railway wagons, was sold on 5th October,\n\n1972. was about Rs. 30 lakhs.\n\nThis price, it was submitted, could -0nly be fetched by \"whole rice\" .\n\nWe are, however, more concerned with what took place after the High Court had upheld the order of the District & Sessions' Judge remanding the case for full hearing and adduction of evidence by both sides.\n\nIn his final order of 4th December, 1973, after the remand, the District Revenue Officer gave the whole history of the case and pointed out the opportunities th~ respondents had been given for substantiating their case if they had one worth consideration.\n\nThe District Judge had remanded the case principally because the first report of the analyst, issued by the Assistant Director of Marketing, Chitur. had been made without an analysis carried out in the presence of the respondents although it was made in the presence of the District Revenue Officer.\n\nThe District Judge had held that the Asstt. Director of Marketing should have himself given evidence before J1is report could be treated as evidence.\n\nAfter the case had been remanded. there was a fresh analysis with fresh samples taken under the orders of the High Court.\n\nAnd, this second analysis took place in the presence of the respondents. The Assistant Director of Marketing, who made the analysis, was produced in evidence.\n\nThe respondent had full opportunity of cross-examining him and also of giving their own versions. But, they contented themselves with some cross-examination of the Assistant Director of Marketing in the course of which it was not suggested to the Assistant Director that the test of \"broken rice\" was itself incorrect.\n\nOn the other hand, in answer to one of the questions in cross-examination, the Assistant Director of Marketing replied :\n\n\"I agree that any grain which is less than 3 /4th of the whole grain is a broken.\n\nAccording to Serial Grading Rules. 1966. rice includes brokens, but it is classified separately\".\n\nThis meant that the respondents knew, and, therefore, suggested that the test applied by the Asstt. Director, Marketing that any grain less than 3/4th of the whole length was to be deemed as \"broken'', was H correct. The cross-examination was directed towards showing that, accepting this test, known to both sides, the consignment was of \"broken rice\".\n\nSUPREME COURT REPORTS [1976] SUPPLEMENTA]i_Y\n\nIt is true that the Assistant Director, in his evidence, admitted that he had not actually measured a whole grain.\n\nHe said that he had adopted the method of differentiation by looking at the grains with the naked eye and by picking them up with his hand using his own fingers.\n\nHe also admitted that, in ten out of the 50 samples he had analysed, the percentage of brokens in the analysis conducted in 1973 was Jess than that of 1971 from 2 to 10% but in others it was greater. The Revenue Officer, after a careful consideration of :ill the facts of the case and the whole background, including the test faid down in the Hand-book on Grading Foodgrains and Oilseeds, had reached the conclusion that the whole of the quantity seized was liable to be confiscated because no sample taken from the bags contained a minimum percentage of 60% of \"broken\" grains satisfying the test adopted, that is to say, grain less than 75% of its normal length would be deemed to be broken. The Revenue Officer treated the opinion of the Assistant Director as that of an expert which ought to be accepted.\n\nThe District and Sessions' Judge, in appeals from the orders of the Revenue Officer, reconsidered the whole case at considerable length and allowed the appeals partiailly by holdirig that percentage which could be fairly classified as broken had to be deducted after an addition to it of 2 % as allowable \"foreign matter\". The Sessions' Judge's interpretation of the remand order, as affirmed in revision by the High Court, was that the Revenue Officer could only determine the quantities of \"broken\" rice and whole rice to decide what proportion was and not whether the whole of the seized rice was liable to confiscation as not covered by the permits. It appears that there had been an order by the Revenue Officer releasing 12 % of the total rice as equivalent of \"broken rice\" which had not been set aside and had become final.\n\nOn the question whether the respondents could be said to hav~ a mens rea the learned Sessions' Judge observed :\n\n\"I am not prepared to accept the contention that they are under a mistaken impression that whole rice, when boiled could become boiled brokens. I do not also admit that they are not having any mens rea. I am of the opinion that they had certainly managed with the officers, and attempted to transport whole rice (boiled) under the guise of brokens (boiled).\n\nTherefore, it cannot be said that they have no mens rea in this case when they attempted to transport whole rice as brokens. It is a fact that huge quantities of rice are involved and the money involved is also huge.\n\nBut the crime that these appellants attempted to perpetrate can also be considered as huge (Grave) in consonance with the quantity of rice they attempted to transport. Therefore, I am of the opinion, that these appellants do not deserve sympathy and it does not require any more alteration of the lower Court's orders, than the one I have already indicated above\".\n\nHence, with the abovementioned notification of the orders of the Revenue Officer by adding 2 % for \"foreign matter\" to the amount\n\n' '!'\n\nreleased as equivalent of \"broken rice\", the respondents' appeals were A dismissed by the Sessions' Judge on 20th November, 1974.\n\nBoth sides filed revision applications. The High Court had before it two sets of Revision applications.\n\nOne of these was by the State of Andhra Pradesh against that part of the order of the learned Sessions' Judge by which he held that the Revenue Officer had no jurisdiction, after the remand order, to order confiscation of the whole quantity of B rice.\n\nThe State claimed the price of the whole of the seized consignment.\n\nThe other set of revision applications before the High Court was of _the respondent millers against the affirmations of the orders of the Revenue Officer. The respondents submitted that no part of the consignment was liable to be confiscated as it was not proved that it was not broken rice.\n\nThey, therefore, urged that they should get the price of the whole quantity sold.\n\nThe High Court also went into the history of the case.\n\nIt held that the object of the remand order \"was to take samples of the stocks for the purpose of analysis in the presence of the rice millers and after the analysis and report of the Assistant Director, Marketing, Chitur, to give an opportunity to the rice millers to cross-examine him with regard to it\". It held : D\n\n\"There is uot111ng in the remand order from which it can be said that the learned Sessions' Judge intended the entire matter to be reopened including that of the released stocks with regard to which, according to the learned Sessions' Judge, the matter had become fimcl because of the view taken by him in the appeals preferred by the State that the State E has no right of appeal as provided under Section 6-A of the Essential Commodities Act\".\n\nThe High Court upheld the contention that the State Government had no right of appeal to the Sessions' .Judge. It held that only a person aggrieved by an order of confiscation and not just anybody aggrieved by an order under Section 6-A had a right of appeal. It is, F however, not necessary for us to go into this question as it has not been argued by either side. '\n\nThe High Court held that there could be a contraventfon of the • Southern States (Regulation of Export of Rice) Order, 1964, by the rice millers if they attempted to transport essential goods requiring permit under the Regulation Order of 1964 from the State of Andhra . G Pradesh to Kerala.\n\nIt, however, proceeded to hold that, as it was not proved that what was being transported was \"broken rice\", there was no contravention.\n\nIt reached this conclusion by a somewhat strange reasoning that, since the percentages of whole rice in the samples analysed were not known, it could not be held that the consignment was of a kind of rice for which any permit was required.\n\nWe are constrained to observe that we are not able to follow the reasoning of H the High Court that, as the definition of rice in clause 2(B), in the Regulation Order of 1964, says that rice \"includes broken rice and paddy\", it necessarily follows that the converse must be tme so\n\nthat \"broken rice must include rice\". It would have been quite correct if the High Court had said that \"broken rice\" is also \"rice\".\n\nAs the definition of rice is a comprehensive one, it includes \"broken rice as part of rice\".\n\nBut, to hold that this meant tbat \"broken rice\" must include whole rice is to accept that a part includes the whole, if the wil.ole includes a part, it necessarily means that the part cannot possibly be equated with the whole.\n\nThe natural, and, indeed, the only reasonably open logic would be : if the whole includes a part, nothing which is merely a pilft of the whole could be equated with the whole, we think that the High Court misdirected itself seriously by accepting an obviou&ly fallacious reasoning on this question.\n\nThe High Court said :\n\nC \"By merely establishing that the goods are not broken rice, no offence or contravention is committed.\n\nIt must further be established that the goods are rice in which case only there w; ll be contravention of tbe control orders as the rice millers were uot exporting the goods under permits issued for export of rice.\n\nHaving regard to the uncertainty to what the balance material other than the brokens contained D in the samples, it is not possible to say with any assurance that the rice millers have contravened the .control orders by attempting to export rice\".\n\nIt went on to add :\n\n\"It may be said that having regard to the circums\\'ances of the case 'it is reasdnable to assume that the rice millers have deliberately put some rice-in the goods they were transporting. Otherwise, normally, the price of whole rice being more, they would not have allowed it to go into the brokens, and, unless there were some substantive quantities of whole rice in the goods which the rice millers were transporting, the Inspector of Police, Vigilance Cell Civil Supplies Nellore, would not have thought of seizing the goods. It is common knowledge and judicial notice can be taken that rice or broken rice is very much costlier in Ker:Ha State than in the Andhra Pradesh State. It is quite possible that broken rice in Kerala State was then even costlier than whole rice in Andhra Pradesh State and it may be rn such circumstances the rice millers while exporting the goods allowed more whole rice to go into the brokens so that the entire thing could be sold as broken rice and even by that to get a better price than in Andhra Pradesh for the quantity of whole rice allowed into the brokens.\n\nBut at the same time, in the absence of any guidelines by fixing standards for rice and broken rice it is difficult to say that the rice millers have done so with the necessary animus that in so doing they would be going outside the permits issued to them and they would be contravening the control orders. When there were no standards fixed with regard to whole rice and broken rice and when there is an admixture of both whole rice and broken rice, it is difficult\n\n' f\n\nI .,\n\nto say when a particular admixture can be said to be broken A rice or whole rice. On an uncertain ground or on vagueness, I do not think any person can be made liable for an action which will be penal in nature\".\n\nA ground given by the High Court to justify the millers' case, that the rice was broken rice, was :\n\n\"In the present case, there is also the fact that both the Assistant Grain purchasing Officer and the food inspector inspected the goods when they were loaded into the wagons and certified that the goods loaded to be broken rice. Across the Bar, Shri Babu Reddy has stated that no actia.1 was taken by the Government against thooe officers on the ground that colluding with the rice millers they falsely certified that goods loaded to be broken rice.\n\nHe has also submitted that not only that no action was taken against them, but they were olso promoted to higher posts subsequently perhaps, in usual course. Of course, there is no material before the Court with regard to it. But suffice it to say that the fact remains that those two officers certified the materials to be broke1,1 rice\".\n\nA smprising conclusion of the High Court, which conflicts with the earlier conclusion that there was an attempted transport of rice which would contravene the Regulation order, was stated as follows by the High Court:\n\n\"The rice millers were having the permits for exporting BROKEN RICE and they were not having any permits for exporting RICE. Even assuming that the goods which the rice millers were transporting were not broken rice, it is not enough, to prove the contravention, to show that the goods they were transporting were not broken rice. It must be proved that the goods which the rice millers were exporting were rice for which they have no permits.\n\nIf the goods which the rice millers were transporting could neither be said to be broken rice nor rice, there would be no contravention in either of which case no permits will be necessary under the control orders.\n\nThe consequences of the contravention of the cdntrol orders being penal in nature, the rice millers cannot be penalised by confiscating the goods on uncertain ground or vagueness. I have no doubt that the Government have failed to establish that the rice millers 'in attempting to export the goods in question outside the State have contravened the two control orders\".\n\nWe can only make the passage from the High Court's judgment, set out above in the hlst paragraph, intelligible to ourselves by believing that what the High Court meant was that the control order does not make it necessary to have a permit for the transport of goods containing a mixture of broken rice and rice by requiring a permit for such a mixture. If this be the meaning, as it probably is, we think that it\n\n616 SUPRE:.l:E COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nA constitntes a complete oversight or misreading of the Regulation Order\n\n1964, clause 3 of which says :\n\n\"3. Regulation of export of rice from specified areas.- No person shall export or abet the export of rice from any place within a specified area to a place outside that area except under and in accordance with permit issued by the State Government or an officer authorised by that Goverament in this behalf\".\n\nIt follows that the person who transports has to prove that he has a permit for the rice he is transporting.\n\nLearned Attorney General has, very rightly, pointed out that the whole case of the respondent Millers from the outset, when they sent a reply to the show cause notice, was tha~ they were tra'asporting what was wholly \"broken rice\". In other words, their case was that they knew that they were holding the permit. They never said that they did not know what their permit meant or had misunderstood it. They did not plead that they had been cheated by somebody. Who sent something on their behalf which was not authorised by them.\n\nWe think that Section 106 of the Evidelace Act was clearly appli- C'able to such a case. It says : \"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him\".\n\nThe illustrations to this section are also helpful :\n\n\"(a) When a person does an act with some intention E other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.\n\n(b) A is charged with travelling on a railway without a ticket.\n\nThe burden of proving that he had a ticket is da hhn\".\n\nSo far as the actual intentions of the respondent Millers are concerned, the High Court recorded a finding, set out above, that it appeared that they had deliberately mixed whole rice with broken rice, bec1use, unlike the situation in Andhra Prdesh, broken rice sells at a higher price in Kerala than it does in Andhra Pradesh. If this had been the correct state of affairs, it would have been reasonable for the Millers to transport broken rice to Kerala, where it fetches a higher price, and keep whole rice which sells at a higher price in Andhra Pradesh .. for sale in their own State.\n\nApart from this obvious flaw in the reasoning of the High Court, it is difficult to understand how the High Court could act on such an assumption about relative prices. It thought it could take judicial notice of such a srate of prevailil1g prices of rice in the two States. It H was certainly not a fact commonly or generally known to people that broken rice fetches a much higher price in Kerala than even whole rice.\n\nSuch as assertion has to be proved to be correct. It was nnreasonabfo to assume that, even if that was so, the millers of Andhra Pradesh would\n\n( r\n\nbe so anxious to cheat the purchasers in Ke!'llla as to deliberately mix A ' some whole rice with brokeJn rice instead of selling the whole rice in Andhra Pradesh and broken rice in Kerala.\n\nThe more natural inference from patent facts, was obviously that there was some advantage in 'mixing some \"broken rice\" with \"whole rice\" for which the millers had no permit.\n\nThus, the learned Judges of the High Court have themselves expnossed a view indicating that the Millers were quite conscious of .the distinctio; i which existed, in accordance with the accepted practice, between what could be deemed to be \"whole rice\" and what could be described as \"broken rice\". If they were labouring under some mistake of fact and had no intention to cpmmit an offence, which the character and circumstances of their acts suggested, the burden of proving this was certainly upoil them.\n\nAgain, what was covered by the permit would be deemed to be known to the Millers who were carrying on the business of exporting rice of various kinds, grades, and descriptions. It is their business to see that they carry on their trade in accorr.)oance with the terrus of the permits they actually obtained. It is true that it appears, aS the High Court observes, that the Millets had, apprently, beeJn given the green signal by the officers who were expected to inspect the consignments and certify that it was \"broken rice\". It is difficult to know wh'at evidence the High Court was relying upon, apart from the conditions attac bed to the permits and the presumption that the'ir duties were carried out by their officers concerned, to hold what they had jlnspected and certified correctly. The respondents, who had objected to the first analysis report, dn the ground, inter alia, that the analyst did not enter the witness box could be met with a similar objection to the alleged inspection reports of some officers. _\n\nThe only evidence produced Fil the case was that of the Assistant Director of Marketing who performed the analysis in the presence of the Millers after the remand order.\n\nIf the respondents were relying upon some inspection carried out by the officers in compliance with the conditions of the permit, they ought to have produced th-at evidence SQ that the officers coiilcerned could have been subjected to cross-examination. An opportunity had\n\nbeen given to the Millers to produce evidence in rebuttal. They produced none. On the other hand, the cross-examination of the Assistant G Director show~ that the Millers were accepting the tests laid down in the Hand-Book on Grading of Foodgrains and oilseeds as applicable to the descriptions of rice and ll'oken rice. These terms, as used in the Hand-book, must have been well understood by the Millers. The Foreword to the Hand-Book says that it contains instructions based on practice followed jn this country for many years b'y the Directorate of Marketing and Inspection. The Hand-Book is an official publication.\n\nH It could be looked into to find out the accepted practice and tests employed by the Assista'nt Director. As already observed, the Assistant Director was cross-examined on matters cont\"ained in the Hand-Book.\n\nA It was hot suggested to him that the Hand-Book did not contain correct\n\ninformation.\n\nAt page 8 of this Hand-book, we find : \"Broken Rice\" -In addition k> the classes me>ationed above broken rice forms a class by itself as it is a bye-product of rice milling. It has been classified into two groups, viz., fine brokens and common brokens. Fine brokens cover the brokens of long slender and scented varieties of rice and common brokens over the rest''. At page 6, we find : \"Brokens.-Brokens shall\n\ninclude pieces of rice kernels which are less than 3 I 4th of the whole kernel. Pieces smaller than 1/4th of the kernel are to be treated as fragments\".\n\nThe cross-examination of the Assistant Director showed that the Counsel for the Millers were fully acqll'ainted With the contents of the Hand-book and were accepting it as the basis for :fi!uding out whether the tests laid down in the Hand-book had been observed.\n\nThe Hand-book contains several schedules.\n\nSchedule 7 gives maximnm limits of tolerance for various grades of \"mill rice\", a term apparently used for whole rice. The maximum tolerance of brokens in whole rice of first grade i~ given as 3 % , whereas the maximum tolerance of the brokens in the whole rice grade is 20 % . Scltedule VIII is for \"Parboiled Milled Super fine Rice\".\n\nIn Schedule X, for \"Parboiled, milled common rice\", is shown io vary from 10% 'in Gr. I to 40% in Gr. IV. Schedule 14 gives the grade design11tions and definitions of different qualities. of \"common broken rice\". It shows that, in order to constitute \"brokeln rice\", the percentage of brokens, the maximum limit of tolerance is from not less than 80 lo not less than 60% in grade 1 to 3.\n\nThe District Judge had reached the conclusion that, quite apart from these technically prescribed tests for the purpose of grading, by the Directorate of Marketing and Inspection, the common sense test was that at least 50% must be brokens in order to constitute what could pass as a marketable consignment of \"broken rice\". He had a1ro made the necessary allowances for foreign matter. We do not think that the test adopted by the District & Sessions' Judge was either incorrect or unreasonable. Indeed, we think that the High Court was quite unjustified in interferitng with this test on what seems to us like metaphysical reasoning to justify its view that, where the quantities of the whole grains and broken grains in a consignment cannot be accurately determined, the consignment should be deemed to be no longer one of rice which requires a permit.\n\nThe learned Attorney General has rightly pointed out to us that at no earlier stage was it the case of the Millers that more mixture of some broken rice with some whole rice is enough to constitute the whole consignment into one of broken rice or of substance which was not \"rice\" at all. In otlr opinion, the High Court has quite erronously held that such mixtures do not fall within the mischief provided for by the Regulation Order of 1964.\n\nAn argument advanced by Mr. Sachin Chaudhari. on behalf of the Mille.rs, is that no rice in the course of Milling can really remain whole or unbroken in the sense that the whole length of it will be preserved.\n\n' '\n\n\\ ..\n\nHe contended that, in that sense, every grain must be broken to some A extent. lf that be the correct position, we think that the test laid down in the Hand-book on Grading of Foodgrains and Oilseeds, issued by the Directorate of Marketing and Inspection, compiled by the Ministry of Agriculture of the Govt. of India, is based on sound k!nowledge of what actually happens to grains of rice in the course of milling.\n\nStill another argument was that it is impossible to determine with the ll'aked eye whether a grain of rice was above or below 3 /4th its normal length. We think that this would not be a difficult task at all for an expert in the line as an Asstt. Director of Marketing could be deemed to be. Indeed, even with his naked eye, any person can make out, by looking at the two ends of a grain, how much of a grain of rice appears to be broken. As we know, a grain of rice is thicker 'in the middle and tappers at each end. It is >not like a cylinder with a uniform diameter throughout. From its shape and size, it is possible, even for an ordinary C\\lreful observer, to assess the length of a broken grain as compared with its expected length had it been whole.\n\nMr. S. V. Gopte appearjng for some respondents, has invited our attention to the differences, iia the analysis conducted in 1971 and in 1973, between percentages of broken rice\" in samples from the same D stocks. The explanation of these dilferences according to the learned Attorney General, is indicated in the order of the High Court, dated 29th March, 1973, by which Revision petitions against remand orders were dismissed. The High Court observed :\n\n\"During the pendency of these proceedings in this Court admittedly fresh samp!Cs had been taken in the presence of ihe parties and the rest of the grain was directed to be disposed of. These fresh samples are now available for analysis, it is contended by the le>arned public prosecutor that dn\n\naccount of lapse of time there is the possibility of ev.en whole rice getting broken and a larger percentage of broken rice ocing forged in analysing now to be done. It should be possible for the Ap.alyst to know how long rice stay preserved as whole rice and what is the lapse of time that results in breaking up of even the whole rice and what percentage should be allowed in that connection and come to the conclusion in making an wnalysis of the new samples taken\". ·\n\nThe High Court had said that \"there should be no difficulty in getting the fresh samples taken analysed also and the analyst giving his opinion with regard to both the sampl~\".\n\nThere is not only a difference between the results of the analysis of 1971, as compared with the analysis of 1973, for which samples were taken afresh from the same bags of rice, but we find that the report of 1973 itslf shows, that, out of 50 samples taken from different bags of rice, there is a variation ranging from 12.5%, in the case of two H samples from wagon No. SE 53657 to 40% in the case of the sample from wagon No. SE 57670. The analysis of another sample from the same wagon SE 57670 gives a percentage of 36.2 of \"broken rice\".\n\nTwo samples from the same wagon WR 70715 show 22.5% and 37.5% of broken rice, thus making a differelnce of 15% between two samples from the same wagon. In seven samples, the percentages of broken rice were above 3 5 % . In 16 samples, the broken rice found ranged between 30% and_ 35 % . Of course, these different percentages may lead to the inference that some broken rice had been deliberately introduced unevenly between rice found in <]ifferent bags. But, once the principle is accepted that it is only the rice not covered by the permits which, under the orders of the Court, was to be confiscated, these variations do introduce a'Jl element of difficulty in determining precisely what that amount was. Sec. 6A of the Act, however, says that the Revenue officer (who exercised the powers of the Collector),\n\n\"if satisfied that there has been a contravention of the order\", that is to say, the Control Order, \"may order the confiscation of the essential commodities seized''. It is arguable that the power is there to confiscate whatever essential commodity may have been seized for the purposes of proceeding against the person who has cdntravened the Control Order, yet, it cannot be denied that this power is discretionary.\n\nTherefore, we do not propose to intocfere with the order of the learned Sessions' Judge, to the effect that, as the Revenue Officer's order releasing the seized rice to the extent of about 12% had become final, it should not be interfered with except to the extent that the learned Sessions' Judge added 2% more for foreign matter. Thereby releasing slightly more in fuvour of the respondents.\n\nFor the reasons given above, we allow these appeals and set aside the judgment and orders of the High Court and restore those of the learned Sessions' Judge in the cases before us.\n\nAppeal$ allowed.\n\nM.R.\n\nf •", "total_entities": 22, "entities": [{"text": "STATE OF ANDHRA PRADESH", "label": "PETITIONER", "start_char": 5, "end_char": 28, "source": "metadata", "metadata": {"canonical_name": "STATE OF ANDHRA PRADESH", "offset_not_found": false}}, {"text": "BATHU PRAKASA RAO", "label": "RESPONDENT", "start_char": 30, "end_char": 47, "source": "metadata", "metadata": {"canonical_name": "BATHU PRAKASA RAO", "offset_not_found": false}}, {"text": "A. N. RAY, C.J.", "label": "JUDGE", "start_char": 63, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "A.N. RAY*", "offset_not_found": false}}, {"text": "M. H. 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{"document_id": "1976_1_621_629_EN", "year": 1976, "text": "MONOGRAM MILLS LTD. ETC.\n\nTHE STATE OF GUJARAT\n\nMay 7, 1976\n\n[H. R. KHANNA, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.]\n\nBombay Industrial Relations Act (Bom. I of 1947) as amended by Gujarat Act 21 of 1972, ss. 53A and 53B and rules thereunder-Whether State Legislature competent to enact ss. 53A and 53B-Pith and substance-Rules-Field of\n\n) \"\" operation of. '\n\nSections 53A and 53B of the Bombay Industrial Relations Act, 1946, were inserted in that Act by the Bombay Industrial Relations and Industrial Disputes C (Gujarat Amendment) Act, 1972. They relate to the constitution of joint management councils, which include representatives of the employees also, for the purpose of forestalling and preventing industrial disputes.\n\nConsequent amendments were made in the Bombay Industrial Relations (Gujarat) Rules.\n\nThe appellants challenged the two sections on the ground that the State Legisla ture was incompetent to enact them. According to the appellants, the impugned legislation falls under Entries 43, 44 and 52 of List I, VII Schedule to the Con\n\nstitution, which relate to matters of incorporation etc.\n\nTho High Court held that they fall under Entries 22 and 24 of List III, which relate to labour welfare D and industrial disputes, and that the State Legislature was competent to enact them.\n\nDismissing the appeal to this Court,\n\nHELD : It has been recognised during the last hundred years that the wage ear ners &h0uld have an effective voice in the management of the industry in which they E are working. The concept of joint management of industry by the employer and the employee may have a wide connotation, because, the joint management conn .. cils may not only perform such functions as .pertain to welfare of labour, that is, those relating to the various objectives mentioned in els. (a) to (f) of s. 53B(l), but may also claim to exercise such functiqns as can be discharged by the board of directors, This wider aspect of the joint management would however be impermissible under the impugned provisions, because the provisions should be so construed and implemented as would sustain their constitutional validity. They have been enacted by the State Legislature and so the functions which can be F performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes. If the im pugned legislation, in pith and substance, relates to subjects which are within the competence of the State Legislature, the fact that there is an incidental encroach ment on matters which are the subject-matter of Entries in List I, would not affect the legislative competence of the State Legislature to pass the impugned legislation. [628A, 629EJ\n\nRules in the very nature of things can operate only m that field in which the parent Act can operate, and _hence, the impugned rules, likewise, relate to subjects which are within the competence of the State Legislature.\n\n[628D]\n\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 60()..601 and 1699-1714 and 877-878 of 1975.\n\nAppeals by ial Leave from the Judgment and Order dated H 30th January 1975 of the Gujarat High Court in Sp!. Civil Applns.\n\nNos. 15, 1194, 88, 89, 90,, 107, 113, 121, 122, 124, 125, 166, 182,\n\n202, 112, 123, 177,, 1757, 149, 150 of 1974 respectively.\n\nA F. S. Nariman, K. S. Nanavati, P. C. Bhartari and J. B. Dadachanji, for Appellant (In CA 600/75).\n\nK. S. Nanavati, P. C. Bhartari and J. B. Dadachanji, for the Appel- !ants (In CA 601/75 and CA 1700-1714/75).\n\nV. M. Tarkunde, K. S. Nanavati, P. C. Bharatari and J. B. Dada• B chanji for the Appellant (in CA 1699/75).\n\nV. N. Ganpule, for Appellants (In CA 877-878/75).\n\nM. C. Bhandare and M. N. Shroff, for the Respondents (In CA 600-601 of 1975) and CA Nos. 1699-1714/75 and 877 to 878/75. ( ., The Jndgment of the Court was delivered by c KHANNA, J.- This judgment would dispose of civil appeals Nos. 600, 601, 877, 878 and 1699 to 1714 of 1975 which have been filed by special leave against the judgment of Gujarat High Court dismissing petitions under article 226 of the Constitution of India filed by the appellants.\n\nThe appellal}ts in these petitions assailed the validity of sections 53A and 53B of the Bombay Industrial Relations Act, 1946 (Bombay Act No. 1 of 1947) (hereinafter referred D to as the principal Act). These sections along with some other provisions were inserted in the principal Act by the Bombay Industrial Relations and Indus_trial Disputes (Gujarat Amendment) Act, 1972 (Gujarat Act No. 21 of 1972). The appellants also challenged the validity of the rnles which were added to the Bombay Industrial Relations (Gujarat) Rules, 1961 as per notification dated June 4, 1973.\n\nJn addition to that,. the appellants challenged the validitv of notifica- E !ion dated December 17, 1973.\n\nThe principal Act was enacted to regulate the relatioos of eml players and employees, to make provisions for settlement of indus-\n\n'rial disputles .rand certain other purproses.\n\nIn 1956 the industrial policy resolution of the Government of India stated inter alla that in a socialist democracy labour is a partner in the common task of deve- F lopment and must participate in it with enthnsiasm. Emphasis was laid upon joint consnltation of workers and technicians and for associating progressively labour in the management of the industry.\n\nStress was again laid on joint management councils at the tripartite conference held in July 1957. Representatives of labour, management and Government were present at that conference. There was,, however, no statutory provision for joint management councils and G whatever was done, was on a voluntary basis.\n\nSections 53A and 53B were inserted in the principal Act by Gujarat Act 21 of 1972.\n\nThe two sections read as under : \\\n\n\"53.A(l) If in respect of any industry, the State Government is of opinion that it is desirable in public interest to talce action under this section, it may, in the case of all under- H takings or any class of undertalcings in such industry, in which five hundred or more employees are employed or have been employed on any day in the preceding twelve months, by general or special order,, require the employer to constitute\n\nin the prescribed manner and within the prescribed time limit a Joint Management Council, consisting of such number of members as may be prescribed, comprised of representatives of employers and employees engaged in the undertaking, so however that the number of representatives of employees on the Council shall not be less than the number of representatives of the employers. Notwithstanding anything contained in this Act, the representatives of the employees on the Council shal! be elected in the prescribed manner by the employees engaged in the undertaking from amongst thernselveg :\n\nProvided that a list of industries in respect of which no order is issued under this sub-section shall be laid by the State Government before the State Legislature within thirty days from the commencement of its first Session of each year.\n\n(2) One of the members of the Council shall be appointed as Oiairman in accordance with rules made in this behalf.\n\n53B ( 1) The Council shall be charged with the general duty to promote and assist in the management of the undertaking in a more efficient, orderly and economical manner, and for that purpose and without prejudice to the generality of the foregoing provision, it shall be the duty of the council-\n\n( a) to promote cordial relations between the employer and employees;\n\n(b) to build up understanding and trust betwen them;\n\n( c) to promote measures which lead to substantial increase in productivity;\n\n( d) to secure better administration of welfare\n\nmeasures and adequate safety measures; F\n\n( e) to train the employees iu understanding the responsibilities of management of the under.taking and in _sharing such resJ'bnsibilities to the extent considered feasible; and\n\n( ~) to do such other things as may be prescribed.\n\n(2) The Council shall be consulted by the employer on all matters relating to the management of the undertaking specified in sub-section (1) and it shall be the duty of the Council to advise the employer on any matter so referred to it.\n\n(3) The Council shall be entrus1ed by the employer with such administrative functions, appearing to be connecd with, or relevant to, the discharge by the Council of its duties under this section, as may be prescribed.\n\nA ( 4 ! It shall be the duty of the employer to furnish to the Council ecessary information relating to such matters as may be prescribed for the purpose of enabling it to discharge its\n\nduties under this Act. ·\n\n( 5) The oundl shall follow SJ.1Ch :procedure in the discharge of its duties as may be prescribed.\"\n\nConsequent upon the insertion of sections 53A and 53B in the principal Act, the Bombay Industrial Relations (Gujarat) Rules were also amended and certain new rules were added.\n\nRule 4 7 A relates to the manner of election of two persons. from amongst employees in disputes.\n\nRule 61 A reads as under :\n\n\"61-A. Constitution of Joint Management Council.-Any employer who is required by an order made under sub-section ( 1) of section 53-A to constitute a Joint Management Council shall constitute within a period of ninety days from the date of the said order a Joint Management Council consisting of ten members, out of which the number of representatives of the employer to be nominated by the employer and the number of representatives of employees engaged in the undertaking to be elected from amongst themselves shall be such as may be determined by the employer so however that the number of representatives of the employees on the Council shall not be less than the number of representatives of the employer.\"\n\nRule 61B to rule 61 T relate to election of employees representatives on the Management Council. Rule 61U prescribes for appointment of Chairman of the Council. Rule 61 V deals with , the constitution of the Council from time to time and the manner of filling in the vacancies.\n\nRule 61W relates to the number of meetings of the Council and provides that the Chairman shall also have a second or casting vote in the event of equality of votes.\n\nRule 61X makes other provisions for the meeting, while Rule 61 Y deals with annual returns.\n\nRules 61Z, 61ZA and 61ZB to which reference has been made during the course of arguments read as under :\n\n\"61-Z. Duties of the Council.-It shall be the endeavour of the Council :- •\n\n(i) to improve the working conditions of the employees;\n\n(ii) to encourage suggestions from the employees;\n\n(iii)\n\n(iv)\n\nto assist in the administration of laws and agreements;\n\nto serve generally as an authentic channel of communication between the management and the employees;\n\n(v) to create in the employees a sense of participation;\n\n(vi) to render advice, in the general administration of Standing Orders and their amendment when needed;\n\n(vii) to render advice on matters pertaining to retrenchment or rntionalisa\\ion, closure, reduction in or cessation of operations\n\n61-Z-A. Administrative functions with which the Council shall be entrusted by Employer.-The Council shall be entrusted by the employer with administrative functions in respect of :\n\n(i) operation of vocational training and apprenticeship schemes;\n\n(ii) preparation of schedules of working hours and breaks and of holidays; and\n\n(iii) payment of rewards for valuable suggestions received C from the employees.\n\n61-Z-B. Matters in respect of which the Council shall be entitled to receive information.-Thc Council shalI be furnished by the employer with information in respect of :\n\n(i) general economic situation of the concern;\n\n(ii) the state of the market, production and sales programmes;\n\n(iii) organisation and general running of the undertaking;\n\n(iv) circumstances affecting the economic position of the undertaking;\n\n( v) methods of manufacture and work;\n\n(vi) the annual balance sheet and profit and loss of statement and connected documents and explanation; and\n\n(vii) long term plan for expansion, re-employment etc.\" Imugned notification dated December 17, 1973 reads as under :\n\n\"No. KH-SH-1988/BIR-1073-JH- Whereas in respect of the industry specified in the Schedule annexed hereto the State Government is of opinion that it is desirable in public interet .to take action nnder section 53A pf the Bombay Industrial Relations Act, 1964 (Born. of 1947), in the case of all undertakings in the said industry in which five hundred or more employees are employed or have been employed any day in the preceding twelve months.\n\nNow, therefore, in exercise of the powers conferred by sub-section ( 1) of the said section 53-A, the Government of Gujarat hereby requires , the employer of each such undertaking in the said indnstry to constitute a Joint Management Council in the manner and within the time limit specified in rule 61-A-G of the Bombay Industrial Relations (Gujarat) Rules,, 1961. 42-BJJSup. Cl/76\n\nSCHEDULE\n\nCotton Textile Industry as specified_ in the Government of Bombay Political and Services Department, Notification No. 2847 /34-A, dated 30th May 1939 and the Government of Gujarat, Education and Labour Department, Notification No.\n\nBIR-1361, dated the 17th July 1961.\"\n\nAlthough a number of contentions were advanced before the High Court to assail the validity of sections 53A and 53B as well as the rules mentioned above, before us learned counsel for the appellaats have restricted their challenge to the impugned provisions only on tbc _ ground of lack of legislative competence of the State legislature.\n\nSo far as notification dated December 17, 1973 is concerned, we may state that the said notification is no longer in force and, inilead of that notification,, a fresh notification dated March 1, 1976 has been issued.\n\nIn the circumstances, no opinion need be expressed on tile validity of notification dated December 17, 1973. We also expreM& no opinion on the reasons given by the High Court in upholding the aforesaid notification. It is also, in our opinion not necesaary to express any opinion about the validity of notification dated March 1, 1976 as this notification was issued subsequent to the decision of the High Court and was not the subject matter of writ petitions before the High Court.\n\nWe may now advert to the question of the legislative competence of Gujarat legislature to enact sections 53A and 53B reproduced above.\n\nIn upholding the contention of the respondent-State that the impugned provisions were within the sphere of the legislative competence of the State legislature under entries 22 and 24 of List III in Seventh Schedule to the Constitution, the High Court has held that the subject matter of the above legislation was labour welfare even though it might have some incidental effect on corporate undertakings or controlled industries.\n\nDealing with rule 61ZB the High Court held that the information to be furnished should be of such a nature that its disclosure would not be harmful to the undertaking. The information, it was held, should not be confidential or relating to trade secrets.\n\nSections 53A and 53B, as already mentioned, were inserted in the principal Act by Gujarat Act No. 21 of 1972.\n\nThis Act was P'llh ed on October 19, 1972 after it had received the asent of the President.\n\nAccording to the respondents, the above provisions have been enacted under entries 22 and 24 of List III of the Seventh Schedule to the Constitution.\n\nEntrv 22 relates to trade unions; industrial and labour disputes, while entry 24 deals with \"welfare of labour including conditions of work, provident funds, employers' liability. workmea's compensation, invalidity and old age pensions and maternity benefits':.\n\nAs against that, the contentions advanced on behalf of the appellants ts tbt the impugned legislation falls under entries 43, 44 and 52 of List I in the Seventh Schedule which relate respectively to \"incorpcration, regulation and winding UJ? of , trading \"?rporations including _bankig, insurance and financial corporatwns but not rncluding\n\n.co-operative societies;\" \"incorporation, regulation and winding up of A corporations, whether trading or not, with objects not confined to one State, but not including universities;\" and \"industries, the control of\n\nwhich by the Union is declared by Parliament by law to be expedient in the public interest\".\n\nWe have given the matter our earnest consideration, and we find B no sufficient ground to interfere with the finding of the High Court that the impugned statutory provisions tall under entries 22 and 24 of List III in Seventh Schedule of the Constitution and that the State legislature was competent to enact .the same.\n\nThe impugned provisions. in our opinion, are intended in pith and substance to forestall and prevent industrial and labour disputes.\n\nThey constitute also in essence a measure for the welfare of the labour. c\n\nFrom a conceptual viewpoint, workers' management of undertakings .._ or self-management represents the most far-reaching degree of association of workers in decisions concerning t!iem.\n\nProbably the best known example of this type of workers' participation is the Yugoslav system of self-management.\n\nUnder that system, the workforce of the undertaking exercises the principal functions of management through the D -self-management organs, the organisation and powers of which have\n\nbeeu established sil)ce the sties by the statute or internal regulations of the undertaking, namely, t, he workers' assembly and the workers' council.\n\nFor varying lengths of time, in a large number of countries, c and by virtue of a legal obligation, workers' representatives have been included in management organs in the public sector as a whole or in certain nationalised undertakings. In the private sector, the system E which has pushed workers' representation to the furtherest degree is that of co-determination applied in the Federal Republic of Germany 1'ince the beginning of the fifties.\n\nBy an Act of 1951, equal representation of workers was established on the supervisory boards of large iron and steel and mining undertakings. These boards generally include five workers' representatives, five representatives of the shareholders, and an eleventh member nominated by mutual agreement. In addition, F one of the members of the directorate or management board, namely, the \"labour director\" who is generally responsible for personnel questions and social affairs, may only be nominated or dismissed in agreement with the majority of the workers' members of that board.\n\nUnder an Act of 1952, the workers' representation on the supervisory boards of the companies which do not belong to the above industries is onethird of the , total membership.\n\nPressure is, however, being brought by G the trade unions for equal representation of workers on the supervisory boards in sectors other than iron and steel and mining (see International Labour Organization Background Paper on Symposium on 'Yorkers' Participation in Decisions within Undertaking in Oslo in August 1974). The '?oject of wo:kers' par.ticipatio.n in jo}nt manaement councils is to enlist co-operation of workers wrth a vrew to bnng about improvement in the performance of indhstrial organisations. It H is assumed that the above scheme would give a robust feeling of partl, cipation o the workers in the manaement and thns result in improved functionin, g of the industrial undertaking.\n\nAnother ohjcct appears to\n\nbe to democratise the industrial milieu and ensure egalitarianism in the process.\n\nIt has not been disputed on behalf of the appellants that the\n\nvariou~ objectives mntioned in clauses (al to (f) of sub-section (!) of sectwn 53B pcrtam to welfare of labour.\n\nWhat is however contended is that joint management councils may claim to cxercis~ such functions under the opening words of sub-section (I) of section 53B as can be discharged only by the Board of Directors.\n\nThis contention., in our opinion, is not well-founded.\n\nThe impugned statutory provisions, in our opinion, should be so construed and implemented as would sustain their constitutional validity.\n\nThe functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes.\n\nSuch functions would be analogous to those specified in clauses (a) to (f). If the impugned legislation in pith and substance relates to subjects which are within the competence of the State legislature, as it in fact does, the fact that there is an incidental encroachment on matters which are the subject matter of entries in List I would not affect the legislative competence of the State legislature to pass the impugned legislation.\n\nThe impugned rules, in our opinion, likewise relate to subjects which arc within the competence of the State legislature.\n\nThe rules in the very nature of things can operate only in that field in which the parent Act cn operate.\n\nFor about a hundred years the term industrial democracy has been often mentioned in the writings of socialists, trade unionists and social reformers.\n\nOf late th<; industrialists have taken it over.\n\nThe reason for that is that industrialists have become conscious that any approach which has the effect of treating workers, as if they were commodities is unsound and wasteful economically.\n\nThe industrialists, it has been said, tried paternalism or benevolent autocracy, and they have found th\"t this did not work, just as Frederick the Great and his followers found that benevolent political despotism did not work.\n\nDemocracy in political terms means the conseut of the governed in the governance of the country. In industry it means that wage earners shall have an effective voice. It has been observed by Edward Filence.\n\n\"labour .... , having experienced the advantages of democracy in government,, now seeks democracy in industry.\n\ni~ any stranger that a man should bave a voice as to tbe conditions under which he works than that he should participate in the management of the city and the state and the nation ? If a voter on governmental problems, why not a voter on industrial problems?\" (See page 339, Personnel and Labour Relations by Nash/Miner).\n\nThe above approach , postulates trade unions as a potential positive force.\n\nFor management and union to share the pluralist ideolo,'!V requires more than agreement about joint decision-making as such. It requires also that neither side enforces claims or imposes policies which are found excessively burdensome by its counterpart.\n\nAs observer!\n\nby Alan Fox on page 303 of Beyond Contract Work and Trnst A Relations :\n\n\"It follows from this analysis that management will be readier to accept pluralistic forms of decision-making the greater its confidence that it will always be able, in the last resort, to bend employee claims towards acceptable compromises.\n\nIt may even be convinced of its ability to charm them away altogether or at l;:asr tnuch rcL\\uc.: d1en1 t:y 'rational' argument and persuasion designed to bring out the 'tue' common interests.\n\nIn this sense a formal acceptance of pluralistic patterns may mask unitary convictions on managements past about the nature of the enterprise. It may regard joint decision-making and a fu]]y institutionalised handling of claims and grievances not as mechanisms for compromising genuine conflicts of interest but as devices which facilitate the 'working-through' of mistaken conceptions, psychological blockages, and organizational confusions by a process of 'rational' clarification.\"\n\nIt would appear from the above that the concept of joint management has a much wider connotation.\n\nThat wider aspect of joint management would plainly be [mpermis5i1'le under the impullfled legislation as it has been enacted by the State legislature.\n\nSuch legislation can operate only within a limited field because that is the only way in which its constitutional validity can be sustained against the • challenge on the ground of want of legislative competence by the State legislature.\n\nWith the above observations,, we dismiss the appeals, but in the circumstances leave the parties to bear their own costs throughout .\n\nV.P.S.\n\nAppeal dismissed.", "total_entities": 32, "entities": [{"text": "MONOGRAM MILLS LTD. 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{"document_id": "1976_1_630_634_EN", "year": 1976, "text": "DEWAN SINGH\n\nSTATE OF HARYANA & ANOTHER\n\nMay 7, 1976\n\n(H. R. KHANNA, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.J\n\nNatural ju:i; tice-Metuling of-If n1andatory-Punjab Pancliayat Sa1:1itis and Zilhi Parishad Act 1961-Sec. 124(2)-Reasonable opportunity before disr1iss~ ing lln en1ployee..\n\nThe appellant was a Veterinary Compounder serving under the Panchayat Samiti, Hansi. The Zilla Parishad Tribunal transferred him from Hansi to Sing-- Jif111i.\n\nThe Chairman of the Panchayat Samiti. Hansi. requested the Chairman of the Zilla Parishad to reconsider the decision of transfer. The Chairn1an of\n\nZilla Parishad Tribunal served a notice on the appellant to show cause why he should not be dismissed for not having handed over the charge of ihe dispensary to the person who \\Vas appointed in his place and also on the ground that when the Secretary of the Zilla Parishad Tribunal with the help of the compounder, \\Vho \\Vas directed to take charge from the appellant, was preparing a list of stock, the appellant and others entered the office and one of the persons out of the appellant's group snatched the papers from the Secretary and manhandled him.\n\nThe appeJlant submitted an interim explanation and reserved his right to submit a final reply after inspection of certain records was given to hi1n.\n\nThe Zilla Parishatl 'fribunal did not give any opportunity to the appellant for inspectionof record nor sent any communication to him rejecting the request givmg any justifiable reasons.\n\nHowever, the appellant was served with a letter dismising him from service.\n\nSection 124(2) of the Punjab Panchayat Sam1tis & Zilla Parishad Act, 1961, authorises the Tribunal to impose any punishment including • the punishment of dismissal on any servant of the Panchayat Samiti or ZBla Parishad. The proviso, however, requires the Tribunal before passing any order of dismissal or removal tO\"'-give a notice to the servant to show can11e against tho: action proposed to be taken against him.\n\nThe appellant filed a \\Vrit petition in the High Court challenging the dismiss;1l order. The High Court dismissed the writ petition.\n\nAllowing the appeal by special leave,\n\nHELD: (!) A perusal of s. 124(2) goes to show that before any act10n is taken for dismissal or re.moval of an employee the Tribunal has (o enquire into his conduct justifying such action.\n\nThis enquiry must necessarily be made in the presence of the employee giving him an opportunity to rebut the ailegations made against him.\n\nIt is only after affording him a reasonable opportunity to rebut the allegations in the charge and after the Tribunal is satisfied that the misconduct is established, the question of final punitive action either of dismissal or removal has to be considered. The employee mu<; t be given a full and fair reasonable opportunity to meet the charges.\n\n[633D-E1\n\n(2) Tn the instant case apart from giving the show cause notice no other communication was made to the appellant except the order of. dismissal. This is a clear case where the reasonable opportunity envisaged under s. 124(2) has not been afforded to the appellant for making an effective representation to establish his innocence. Even in respect of the incident of 15-8-1967, the appellant \"'as acquitted in a criminal case lodged against him. Jn the instant case the previsions of s. 124(2) which embody the principles of natural justice and v•hich are of a mandatory character have been violated, vitiating the order of dismissal.\n\n[633G, 634A-CJ\n\n( 3) In the ordinary ourse it would have been open to the authority to institute a fresh enquiry after the reinstatemept. But in this case, that procedure \\Vas not permitted because the appellant was dismissed in December, 1967, and\n\n' ;\n\nDBW AN SINGH v. HARYANA (Goswami, !.) 6 31\n\nhas been out of employment for over 8 years. Secondly, he does not have mauy years to •erve. Thirdly, tho •eriom allegations regarding the incident of IS-8-1%7 have not been fomid to be e<tabli>hoo in a judicial trial. The Court, therefore, quashed tbe order of di>misoal and directed that tbe appa!lant should be treated on leave without pay and further directed that no furtlwr enquiry into the allealions forming tbe subject matter of charge should be made.\n\n[634C-E]\n\nClvIL APPELLATE JURISDICTION: Qvil Appeal No. 27 of 1971.\n\n(Appeal by special leave from the judgment and order dated 21st May 1970 _of the Punjab & Haryana High Court at Chandigarh in civil writ No. 197 of 1968)\n\nJ. Ramamurt/U, for the appellant ..\n\nNaunit Lal and R. N. Sachthey, for respondents Nos. I and 2. c\n\n. Bishamber Lal, for respondent No. 3.\n\nThe Judgment of the Court was delivered by\n\n• GosWAMI, J,-This appeal by special leave is directed agaill!t the judgment of the Division Bench of the Punjab and Haryana High Court by which the appellant's application under article 226 of the D Cons'.itution was rejected.\n\nThe appellant was a veterinary compounder serving at the material time under the Chairman, Panchayat Samiti, Hansi-1.\n\nThe Zila Parishad Tribunal transferred him from Hansi-I Block to Singbani\n\n(Loharu Block) by its resolution of June 30,\n\n1967. The order appears to be transmitted by Memo No. 3201-A of July 6, 1967. On July 27, 1967,. the Chairman of the Panchayat Samiti, Han!ii-I, requested the Chairman of the Zila Parishad, Hissar, to reconsider the decision of transfer and to allow him to continue a-t his village Umra in public int. A copy of this letter written to the Zila Parishad was forwarded to the appellant.\n\nSince the appellant did not comply with the order of transfer, the Chairman, Zila Parishad Tribunal, served a notice npon him on August 13, 1967,. to ehow cause as to why he should not be dismissed from service on the\n\ngrounds mentioned in the notice. lt is mentioned in the notice that this action has been taken under section 124 of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (briefly the Act).\n\nThe particulars of charge described in the show cause notice are briefly as under :-\n\n( 1) You did not hand over charge of veterinary dispe113arY\n\nto Balwan Singh, Veterinary Compounder, on 25-7-1967, in compliance with the transfer order dated 6-7-1967.\n\n( 2) You also did not hand over charge to the District ADimal\n\nHusbandry Officer who was ordered to personally take over charge from you on 26-7-1967.\n\n(3) You were again asked by letter dated 2-8-67 lo hand\n\nover charge to Balwan Singh Veterinary Compounder,\n\nbut you did not hand over the charge.\n\n( 4) When Ch. Bir Singh Lamba,, Secretary, Zila Parisbad Tribunal, along with Balwan Singh reached Umra on. 10-8-67 between 4.30 and 5.00 P.M. in order to take charge from you they found you absent and the d_ispensary locked. '\n\n(5) That on 15-8-67 at about 4.00 P.M. when Balwan Singh\n\nwent to take charge from him along with Ch. Bir Singh Lamba, Secretary, Zila Parishad Tribunal, along with Ch.\n\nBalbir Singh, Chairman, Zila Parishad, Hissar and Kali Ram,, Member, Panchayat Samiti, Hissar, you refused to hand over charge to Balwan Singh Veterinary Compounder.\n\n(6) When on 15-8-67 Ch. Bir Singh Lamba, Secretary Zila Parishad Tribunal, with the help of Balwan Singh. was preparing a list of stock in .the presence of the Chairman and others, you with Rattan Singh, Sarpanch, Gram Panchayat, Umra, Giani Ram of village Majahadpur and three or four other unknown villagers entered the office. , Giani Ram oun of your group snatched the paper from Ch. Bir Singh,, Secretary, Zila Parishad Tribunal and threatened , them to leave the dispensary before they manhandled him.\n\nYou are thus at the root of atl this incident. '\n\nThe appellant submitted a reply on September 13, 1967, describing it as an interim explanation and reserving his right to submit a final reply after inspection of certain records and he requested for a date for inspection of the records. In this reply he admitted to have received the .transfer order and pleaded that he did not hand over charge to Balwan Singh on 25-7-1967 under instructions from the Chairman, Panchayat Samiti, who, according to him, \\yas the appointing authority and he was carrying out his orders. He particularly denied the incident of August 15, 1967, for which he was held principally responsible in the show cause notice.\n\nIt does not appear that the Zila Parishad Tribunal gave any opportunity to the appellant for inspection of records,, nor sent any communication to him rejecting the request giving any justifiable reason. The appellant seemed to have been waiting for some communication to his interim reply in order to submit final explanation when on December 5, 1967 he received the order of the Zila Parishad Tri.bunal dismissing him from service with immediate effect in pursuance of its resolution of December 1, 1967.\n\nThe resolution states :\n\n\"The Tribunal has come to a conclusion that your reply is not a satisfactory one.\n\nAnd the allegations made against him (sic) seemed to be correct\".\n\nThat led to the appellant's writ application in the High Court resulting in the impugned order.\n\nThe short question that arises for decision is whether the order of dismissal is in conformity with section 124 of the Act, or, in\n\n( '\n\nDEWAN SINGH v. HARYANA (Goswami, !.) 633\n\n-0thr words, whether the same is in violation of tpe principles of A natural justice.\n\nWe may, therefore., read the material provision under sectio:i 124(21 of the Act:\n\n124(2) : \"The tribunal may suo motu or 011 the move of the Panchayat Samiti or the Zila Parishad or on the application of any servant of a Panchayat Samiti or Zila Parishad other than a government servant placed at' their disposal enquire into the conduct of any servant of the Panchayat Samiti or the Zila Parishad and after making such enquiry as it may deem fit pass such orders imposing any punishment including dismissal or removal as it may deem proper;\n\nProvided that the tribunal shall not pass any such order in respect of a servant having a righ\\ of appeal under section 116;\n\nProvided further that the tribunal shall before passing any order of dismissal or removal give a notice to tl>e servant to show cause against the action proposed to he taken against him\".\n\nA persual of section 124(2) goes to show that before any acHon is taken for dismissal or removal of an employee the Tribunal has to\n\n, enquire into his conduct justifying such action.\n\nThis enquiry must necessarily have to be made in the presence of the employee giving him an opportunity to rebu~ the allegations mentioned against him.\n\nE It is only after affording him a reasonable opportunity tqrebut the allegations in the charge and the Tribunal is satisfied that the misconduct is established the question of final punitive action either of <lismissal or removal has to be considered.\n\nUnlike as in article 311 of the Constitution, section 124(2) docs not in terms mention two stages of a departmental enquiry for mis- F conduct against an employee. Even so, the nature of an enquiry with an object to dismiss an employee is such that a full and fair reasonable opportunity must be given to him to meet the charges.\n\nThe second proviso to section 124(2) provides in unmistakable terms that \\)efore passing any order of dismissal or removal a notice has 1to be given to the employee to show cause against the prnposed action.\n\nThe action of dismissal or removal cannot be pro- G posed, in all fairness, unless the Tribunal had reached a conclusion about the guilt after making a proper enquiry giving the employee a reasonable opportunity to defend.\n\nIn the instant case, apart from giving the show cause notice, no other communication was made to the appellant except the order of dismissal.\n\nThis is a clear case where the reasonable opportunity envisaged under section 124(2) has not been afforded to the appel- H !ant for making an effective representation to establish his innocence.\n\nIt is easv to see that the summary order of dismissal must have been\n\ninffuenced by the allegations appertaining to the incident of August\n\n15, 1967 for wliich, we understand, even a criminal case was instituted against the awellant.\n\nThat criminal case we are told, ended in acquittal. o~ \\he appel!ant. and others on Jun~ 10, 1970. Al. any rate the said mc1dent being mcluded in the articles of charge against\n\nte pel.ant he did not have any opportunity whatsoever to establlish hrn innocence when he had clearly denied the allegations even. in his interim reply.\n\nThe principles of natural justice are clearly ingrained in the pro-· visions of section 124(2). It is a clear case where the provisions of section 124(2), which are of a mandatory character in a departmental enquiries have been violated v>tiating the order of dismissal.\n\nThe . High Court, therefore, should have accepted the petition of the appellant under article 226 of the Constitution and quashed the order of dismissal.\n\nAlthough in the ordinary course it would have been open to the authority to institute a. fresh enquiry his reinstatement,, after the order of dismissal has been set aside, we are clearly of opinion that this is not a case where that procedure should be permitted.\n\nFor one reason the appellant was dismissed in December 1967 and he had been out of employment for over eight years.\n\nHe has also not many • years to serve.\n\nBesides, the serious allegations regarding the incident of August 15, 1967, which, according to us, must have inllu enced the authority to pass the order of dismissal, have not been fonndi to be established in a judicial trial.\n\nWhile,, therefore, quashing the impugned order of dismissal, which we hereby do, we direot that the\n\nappellant shall be reinstated in service with immediate effect and there shall be no further enquiry to the allegations forming the subject matter of charge against him.\n\nThe period of aboonce !hall be treated as leave without pay so that the appellant will not lose centinuity of his service.\n\nI In the result the judgment of the High Court is set aside and the appeal is allowed with costs.\n\n P.H.P Appeal atlowea_", "total_entities": 25, "entities": [{"text": "DEWAN SINGH", "label": "PETITIONER", "start_char": 0, "end_char": 11, "source": "metadata", "metadata": {"canonical_name": "DEWAN SINGH", "offset_not_found": false}}, {"text": "STATE OF HARYANA & ANOTHER", "label": "RESPONDENT", "start_char": 13, "end_char": 39, "source": "metadata", "metadata": {"canonical_name": "STATE OF HARYANA & ANOTHER", "offset_not_found": false}}, {"text": "H. 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{"document_id": "1976_1_635_644_EN", "year": 1976, "text": "MAHENDRA SINGH DHANTW AL A\n\n\" ..\n\nHINDUSTAN MOTORS LTD. & ORS.\n\nMay 7, 1976\n\n[H. R. KHANNA, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ.] B\n\nIndustrial Disputes Act, 1947-Ss. 33(2)(b) and 33A-Scope of .\n\n. Misconduct not n1entioned in Standing Orders-Standing Ordr!rs, if rxfiaustive of ,; II kinds of 111isconduct.\n\nCo11stit11tio11 of India, Art. 226-Scope of jurisdiction in industrial disputes.\n\nThe respondent terminated the appellant's services on the ground -of habitual C absence which is a misconduct under the company's standing orders. Although tbe1e was a dispute pending before the Tribunal, the respondent did not make\n\nan application under s. 33 (2) (b) of the Industrial Disputes Act for its approval.\n\nOn -an application by the appellant under s. 33A of the Act, the Tribunal ordered his reinstatement. A few months after the appellant rejoined duty the respondent terminated hi~ services purporting to act under the agreemept of service with him.\n\nOn a complaint by the appellant under s. 33A, the Tribunal ordered his reinstatement.\n\nA single Judge of the High Court dismissed the writ petition of the respondent holding that the di•charge was nothing but dismissal for mi•- D' conduct. On appeal, the Division Bench held that since the employer invoked thtr terms of the agreement, it was not a case of discharge for misconduct and :as such the Tribunal had no jurisdiction to entertain the complaint under\n\n' 3JA.\n\n1;,,.\n\nAllo\\ving the appeal,\n\nHELD : The Tribunal has not committed any error of law or of jurisdictio• E in entertaining the application under s. 33A and the Single Judge was right it\\ not interferini; i; with the award under Article 226 of the Constitution and the Divi'.'lion Bench V.', ilS wronf! in d.oing so.\n\n[641H; 641E]\n\n\\a) The Tribunal bas found as a fact that the termination was on account of misconduct of the employee. It is, therefore, difficult to hold that there wa~ any manifest error of law committed by the Tribunal in reaching that conclusion only because the misconduct, as found, was nOt within the four corners of the various misconducts mentioned in the standing orders. [64 lH] F\n\n(b) Standing orders only describe certain cases of misconduct and they canttot he exhaustive of all the species of misconduct. Even though a given conduct may not come within the SJ'etific terms of misconduct described in the standing orders. it may still be a mise-0nduct in the special facts of a case, which it may not be possible to condone and for which the employer may tale appropriate action. [641FJ\n\n(c) Termination sin1pliciter under the conditions of service or under the standin$; orders is outc; ide the scope of s. 33 of the Act. This does not mean that the employer has the last word about the termination of service of an employee. It is also not a correct proposition of law that in case of a complaint under s. 33A, the Tribunal would be debarred from going into the question \\vhether notwithstandin~ the form of the order. in substance, it is an action of dismissal for misconduct and not termination si111pUciter. [642-A-Il]\n\nManar:t>n1ent of MurRan Mills Ltcl. v.\n\nIndustrial Tribunal, Madrcu and Another [1965] 2 SCR 148, held inapplicable.\n\nAir India Corporation, Bombay v. V. A. Rebtllow & Anr. [1972] 3 S.C.R. 6tll, referred to.\n\nA Shyanzala Studios v. Kannu Devar (S.S.) and Others, [1966] 2 LLJ 428 and\n\nSri Raina Machinery Corporation (P) Lilnited, Madras v. Murtlii (1V.J?.) and\n\nOthers, [1966] 2 LLJ 899, partly approved.\n\n(d) Section 33(2) (b) makes it obligatory upon the employer to make an npplication to the Tribunal under the proviso when he discharges or di)n1isses 1he workman for misconduct. From the provisions of s. 33, it is manife-st that punitive action of the employer in whatever form it n1ay be pas:;.ed. is permissible against an ordinary workman as distinguished from a protected \\vorkman\n\neven during the pendency of proceedings before the Tribunal provided that the employer pays one month's \\vages and also applies to the concerned Tribunal for approval of his action.\n\nSince the action is pullitivc, namely, dismjssal or discharge for misconduct, the l'ribunal has to oversee the action to guarantee that no unfair labour practice or \\-ictimisation h<ls been practised.\n\nIf the proce~ dure of fair hearing has been observed, the Tribun:il has to find in <lll <ipplication under s. 33 that a pri111a facie case is made out for 'dismissl. If, on the other hand, there is violation of the principles of natural justice in the enquiry. the Tribunal can go into the \\vhole question rel<lting to the misconduct and\n\ncon1e to its own conclusion whether the same is established.\n\n[641E; 640HJ\n\n(e) In the instant case even though the ernployer invoked the agreement for terminating the service of the employee it was open to the Tribur.1! 'to pierce the veil of the order and have a close look nt the circumstances and come to a decision whether the order \\\\'as passed on account of certain misconduct.\n\nThis is a finding of fact which could not be interfered with under Art. 226 of the Constitution unless the conclusion is perverse. [643Fj\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2574 of 19'.l:l.\n\nAppeal from the Judgment and Order dated the 2nd June, 1965 of the Calcutta High Court in Appeal from Original Order No. 287 of 1964.\n\nNaunit Lal and (Miss) Lalita Kohli for the Appellant.\n\nB. Sen, M. Mookherjee, Sardar Bahadur Saharya and Vifhnu I Bahadur Saharya for Respondent No. !.\n\nThe Judgment of the Court was delivered by\n\nF GoswAMJ, J.\n\nThis is an appeal at the instance of the workman on certificate of the Calcutta High Court from the decision of the Division Bench reversing the earlier judgment and order of the learned single Judge in an application under article 226 of the Constitution directed against the award of the First Industrial 'J; ribunal, West Bengal, made\n\nunder section 33A of the Industrial Dispntes Act. ·\n\nThe appellant (hereinafter to be described as the workman) was employed by M/s Hindustan Motors Ltd. (hereinafter to be described as the company) since August 3, 1949. On Angust 3, 1956, the workman entered into an agreement of service with the company wherein the first clause reads as follows :-\n\n\"The Employer agrees to and does hereby engage the . services of the employee for a period of 5 years beginning with 1-6-56 and thereafter until this agreement shall be determined by either party hereto giving to the other 3 months' noticP. in writing of such intended termination .\n\n--4\n\nProvided that in case Employer finds the employee's A work satisfactory, Employer shall have the option to extend the period of service by a further term of 3 years';.\n\nThe workman went on two months' leave to Banaras for a change some time in 1960.\n\nHe requested for extension of leave for one month on medical grounds.\n\nHe actually sent _an application on August 8, 1960, along with a medical certificate praying for extension of his B leave.\n\nThe company asked the workman to get himself examined by the company's medical officer within ten days.\n\nAs the workman was lying flI at Banaras, he could not comply with the directions of the )._. company.\n\nOn September 5, 1960, he sent another telegram followed\n\nby a formal application enclosing a medical certificate for extension of his leave.\n\nOn September 15, 1960, the company sent a letter to him terminating his services on the ground of habitual absence which is a C misconduct under the company's standing orders\n\nAt the time of this termination there was an industrial dispute pending between the company and its workmen.\n\nSince the company did not ask for approval of its order from the Industrial Tribunal the workman made a complaint to the Tribunal under section 33A of the\n\nlndu, trial Disputes Act (briefly the Act). The company contested the D application.\n\nThe Tribunal made its award on September 27, 1962, ordering reinstatement of the workman with 50% of his back wages for the period of his forced unemployment as compensation.\n\nThe Tribunal directed that the award should be given effect to not later than one month of the publication of the award which was on October\n\n26, 1962.\n\nAfter a little over two months of the publication of the award, to be precise. on February 4, 1963, the company intimated to the workman to rc_join his service.\n\nThe workman reported for duty the following day on February 5, 1963.\n\nOn February 16, 1963, the company invoked clause (1) of the agreement which we have set out earlier and terminated the services of the workman by paying three months' salary in lieu of notice.\n\nThis is the second round of litigation with which we are concerned in this appeal.\n\nSince an industrial dispute was pending even on this date of termination of his service and the company did not apply to the Tribunal for approval of the order, the workman made a complaint to the Tribunal, as on the previous occasion, under section 33A of the\n\nAct.\n\nThe Tribunal accepted the complaint and held as follows :- G\n\n\"In my opinion, the company has really dismissed the petitioner for a piece of conduct which must have appeared as misconduct in the eye of the company\".\n\nThe Tribunal observed that the company in substance dismissed the w01; kman for misconduct since the workman became \"odious to the company\" on account of his earlier success before the Tribunal in his H application under section 33A of the Act.\n\nThe Tribunal, therefore, ordered his reinstatement with full back wages for the period bf his forced unemployment as compensation.\n\nThis time the company did\n\nnot accept the award although on the earlier occasion the company did\n\nnot choose to litigate and reinstated him as ordered by the Tribunal.\n\nThe company moved the Calcutta High Court under article 226 of the Constitution to quash the award.\n\nThe learned single Judge ref~ ed to interfere with the award holding that \"the reason might have been the old reason of dismissal .... \".\n\nThe learned Judge further observed that \"the circumstances relied on by the Tribunal are not wholly irrelevant and the inference drawn by the Tribunal cannot be characterised as unreasonable\".\n\nThe company appealed to the Division Bench of the High Co1Irt and the appeal was accepted.\n\nThe Division Bench helu as follows :-\n\n\"lt may be that having regard to the sequence of events that took place in this case the termination of service of the respondent No. 1 by the letter of 16th February 1963 may be regarded as a colourable exercise of the power under the contract of employment or may even be regarded as one of unfair labour practice or mala /We, but the discharge cannot be said to be for any misconduct.\n\nThere is no evidence for discharge on any specific misconduct.\n\nThe definite case of the respondent No. 1 has been that it was by way of retaliatory measure that his services were terminated.\n\nThis may be true .and may show that the action on the part of the appellant company was mala fide.\n\nBut until it is established that there has been a contravention of section 33 of the Act which would create jurisdiction in the Industrial Tribunal to entertain an application under section 33A, or in other words, unless it is established that there has been discharge for misconduct, the Tribunal had no jurisdiction to set aside the order of termination in an application under section\n\n33A\".\n\nOn the application of the workman the High Court granted a ce.rtificate to him under article 133(1)(c) of the Constitution.\n\nThat is how this matter has come before us for a decision.\n\nWe should at the outset observe that this is not an appeal against the award of the Industrial Tribunal but is only directed against the judgment of the High Court under article 226 of the Constitution. In an application under article 226 of the Constitution the High Court was concerned only with the question of jurisdiction of the Tribunal in entertaining the application under section 33A of the Act.\n\nThe <juestion o~ jurisdiction again was intimately connected wicli the question whether the termination of service was for misconduct of the workmen.\n\nThe learned single Judge accepted the finding of the Tribunal when it helu that the discharge was nothing but dismissal for misconduct and in that view of the matter did not find any justification' for interfering with the award.\n\nAccording to the learned Judge, therefore, no question of lack of .inrisdiction of the Tribunal arose to merit\n\ninterference with the award under article 226 of the Constitution.\n\nThe Division Bench, however, looked at the matter from a ,{fifferent viewpoint.\n\nIt assumed that the action of the management 't was even ma/a fide and so it could be wrongful and in an appropriate reference under section 10 of the Act the workman might be able to get proper relief.\n\nThe High Court, however, came to the conclusion that since clause ( 1) of the agreement was invoked by the employer it was not a case of discharge for miscondnct and that being the position the Tribunal had no jurisdiction to entertain the ' complaint under section 33A even though the action of the company , might be as a result of unfair labour practice.\n\nMr. Naunit Lal on behalf of the workman has assailed the cone, du>ion of the Division Bench while Mr. Sen submits that the decision is legally unquestionable.\n\nThe question that arises for consideration in this appeal relates to the applicability of the proviso to section. 33 (2) (b) of the Act as amended in 1956. Section 33 (2) (b) at the material timel reads as follows:-\n\n\"33(2): During the pendency of any such proceeding in respect of an industrial dispute, the employer • may, in accordance with the standing orders applicable to a workman concerned in such dispute,\n\n(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman : E\n\n• ,.\n\nProvided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer\".\n\nWe may also read section 33A of the Act as that is the section under which the complaint was originally made by the workman to the Industrial Tribunal.\n\n33A : \"Where an employer contravenes the provisions of section 33 during, the pendency of proceedings before a Labour Court, Tribunal or Naional Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court Tlibunal or National Tribunal and on receipt of such com'. plaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute\n\nrfrred to or pending before it, in ccordance with the prov1s10ns of this Act and shall submit its award •to the appropriate Government and the provisions of this Act shall apply accordingly\".\n\nA It is clear that the fouudation of jurisdiction of the Tribunal to entertain a complaint under section 33A is the contravention of section 33 of the Act\n\nSection 33 may be contravened in a variety of ways.\n\nWe are concerned in this appeal only with one type of contravention, namely, that the employer did not make any application to the Tribunal for approval of the order of termination of service of the workman.\n\nThere is no dispute between the parties in this appeal that there was an industrial dispute pending before the Tribunal in which the workman was concerned and that the particular termination had nothing to do with that dispute. The only point on which the parties differ is as to the nature of the order of termination of service. The employer claims it to be a termination simpliciter in exercise of its right under a written contract of service entered between the parties in August 1956.\n\nThe workman on the other hand contends that termination of his service was meted out as a punishment for avenging the defeat of the employer in an earlier litigation under section 33A at the instance of the workmen.\n\nIn other words the workman contends that the order although purported, ex facie, to be a termination under the terms of the agreemem, is ir.. truth and reality an c1ruer of dismissal for misconduct.\n\nOriginally when the Act was passed in 1947 (Acto 14 of 194>7) section 33 imposed a ban on the employer against discharge, dismissal . or punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities \"except for misconduct not connected with the dispute.\" The section underwent a vital change for the employer when the Industrial Disputes (Appellate Tribunal) Act 1950 (Act 48 of 1950) was passed and section 33 was substituted and a total ban imposed against discharge, dismissal or any punishment of a workman during the pendency of proceedings before the Tribunal and other specified authorities.\n\nThe reservation of the right to the employer to take action even in case of misconduct, which was there in the original Act, was withdrawn.\n\nAs time passed, in view of representations from employers, tne Parliament became alive to the question of discipline in the industry and reintroduced in an altered form the said right of the employer .to take action during the pendency of proceedings before the Tribunal when the Act was amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 (Act 36 of 1956).\n\nWe have already set out the material provision of section 33(7.) (bl at the outset which has since restored to the employer the right to take punitive action under specified conditions.\n\nTo complete the picture we may note in passing that the section was further amended by the Industrial Disputes (Amendment) Act (Act 36 of 1964) with effect from December 19, 1964, whereby some words were inserted in sub-section (2) of section 33 with which we\n\nare not concerned in this appeal.\n\nII From the.provisions of section 33 it is manifest that punitive action by the employer in whatever form it may be passed is permissible against an ordinary workman, as distinguished from a protected workman even during the pendency of proceedings before the Tribunal\n\n' .. '\n\nprovided that the employer pays one month's wages and also applies to the concerned Tribunal for approval of his action.\n\nSince the action is punitive, namely, dismissal or discharge for misconduct, the Trbunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised thereby.\n\nIf the procedure of fair hearing has been observed the Tribunal has to find in an application under section 33 that a prima facie case is made out for dismissal.\n\nIf, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribuna1 can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.\n\nThe submission of the employer is that since the termination of the workman is in exercise of the right under the written agreement it\n\nwas not a case, of discharge or .dismissal for misconduct and there C was. therefore, no obligation on the employer to make an application under section 33 of the Act and hence section 33 has not been contravened and , the application under section 33A is not maintainable.\n\nThe question that arises for decision in this appeal is whether if a particular order of termination of service is not on account of misconduct and is merely a termination simpliciter the employer is still D required to make an application under section 33 of the Act.\n\nWe have no doubt in our mind that section 33(2l(b) makes it obligatory upon the employer to make an application to the Tribunal under the• proviso only when he discharges or dismisses a workman for misconduct.\n\nIt is submitted by Mr. Sen that misconduct contemplated in section 33(2)(b) must be a misconduct enumerated in the standin~ orders of the company.\n\nWe are unable to accept this submission.\n\nStanding orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit.\n\nEven though a given conduct may not come within the specific terms of misconduct described in th'- standing orders,, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action.\n\nOrdinarily, the standing orders may limit the concept but not invariably so.\n\nWhen, therefore, the Tribunal has found as a fact after takinv note of the history and the entire circumstances of the case that the termination was on account of misconduct of the employee it is difficult to hold that there is any manifest error of law committed by lhe Tribunal in reaching that conclusion only because the misconduct, as\n\nfound, is not within the four corners of the description of the various misconducts mentioned in the company's standing orders. It is r; ot possible, therefore, to accept the submission that the Tribunal com-- milted an error of law or of jurisdiction in entertaining the application under section 33A.\n\n43-~33SCI/76\n\nTermination simpliciter or automatic termination of service under the conditions of , service or under the standing orders is outside the scope of section 33 of the Act.\n\nThis does not mean that the employer has the last word about the termination of service of an employee and can get away with it by describing it to be a simple termination in his letter of discharge addressed to the employee.\n\nIt is also not a correct proposition of law that in case of a complaint under section 33A the Tribunal would be debarred from going into the question whether, notwithstanding the form of the order,, in sub stance, it is an action of dismissal for misconduct and not termina'ion simp/iciter.\n\nThe possibility that in an appeal against the award of the Tribunal this Court may have taken a different view about the termination does not affect the present issue. ·\n\nMr. Naunit Lal relies upon a decision of this Court in the _Management of Murugan Mills Ltd. v. Industrial Tribunal Madras and Another(') in 'support of his contention that even termination simpliciter is within the sweep of section 33.\n\nThat was a case where the workman's services were terminated \"because he deliberately adopted go-slow and was negligent in the discharge of his duty\".\n\nThe Supreme Court in that case observed thus :\n\n\"His services were therefore , terminated for dereliction of duty [!nd go-slow in his work.\n\nThis clearly amounted to punishment for misconduct and therefore to pass an Older under cl. 17 (a) of the Standing Orders in such circumstances was clearly a colourable exercise of the power to terminate the services of a workman under the provision of the Standing Orders\".\n\nThe Supreme Court further observed :\n\n\"Jn these circumstances the case was clearly covered by cl. (b) of s. 33(3) of the Act as the services of the F respondent were dispensed with during the pendency of a\n\ndispute by meeting out the punishment of discharge to him for misconduct\".\n\nThe decision is, therefore, not au. authority for the extreme proposi tion advanced by Mr. Naunit Lal.\n\nMr. N aunit Lal also drew our attention to two decisions of the Madras High Court in Shyamala Studios v.\n\nKannu Devar (S.S.) and others(') and Sri Rama Machinery Corporatio11 (Private) Limited, Madras v. Murthi ( N.R.) and Others(\") in support of the above submission.\n\nAlthough the decision of the Supreme Court in Murugan Mills' case (supra) was noticed by the Madras High Court' it does not appear to have correctly appreciated the ratio decidend{ of that judgment.\n\nWe are unable to hold that the Supreme Court in\n\n11) [1%512 S.CR. !4R.\n\n(21 (1%6]2 L.L. J. 42R.\n\n(3) (1966] 2 L.L. J. 899.\n\n---·\n\n' '\n\nJ!Ri\n\nMurugan Mills' case (supra) went to the extent of re-writing section 33 by completely obliterating-the concept of misconduct of a workman for which alone in a limited way the right of action for the employer is preserved during the span of pendency of proceedings before the Tribunal in the interest of discipline.\n\nTo the extent the Madras decisions state that termination of servk:es need not be for misconduct of the workman in order to attract section 33(2)(b), we cannot agree.\n\nIf the Tribunal finds that a particular termination of service of a workman is in truth and substance innocuous or in exercise of a bona\n\nfide right under the contract, section 33 (2 )(b) will not be applicable and necessarily there will be no contravention of section 3 3A of the Act.\n\nIn Air India Corporation, Bombay v. V. A. Rebe/low & Anl'.(1) this Court had to deal witih the validity of an award made under section 33A although the Labour Court in that case had held that the workman was guilty of misconduct and that his services were terminated for that reason.\n\nThis Court did not agree with the aforesaid conclusion anc~ dismissed the workman's petition under section 33A\n\n<lf the Act.\n\nIn doing so this Court observed as follows :- D\n\n\"It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute.\n\nThe employer is, therefore,, free -. to take action against his workmen if it is not based on any misconduct on their part\".\n\nWe are, therefore, clearly of op1mon that the single Judge is right in not interfering with the award under article 226 of the Constitution and the Division Bench is wrong in doing so.\n\nIt is true that on the face of the order of termination the company invoked clause ( 1 ) of the agreemen.t and even so it was open to the Tribunal to pierce the veil of the order aud have a close Jock at all the circumstances and come to a decision whether the order was passed on account of certain misconduct.\n\nThis is a finding of fact which could not be interfered with under article 226 of the Constitution unless the conclusion is perverse,' that is to say, based on no evidence whatsoever.\n\nWe are, however, unable to say so having regard to the facts and circumstances described by the Tribunal in its order.\n\nIt is, however, unexceptionable that if an employer passes an order <if termination of service iu exercise of his right under a contract or in accordance with the provision of the standing orders and the Tribunal finds that the order is not on account of any misconduct, the quetion\n\nof violation of section 33 would not arise.\n\nThere remains, however,, another aspect to which the Tribunal did not properly address.\n\nThe workman in this case had a contract of employment only for 8 years at the most.\n\nThe reinstatement in his\n\n\ncase, therefore, cannot extend beyond a period of eight years from June 1, 1956 and the contract of employment would have automatically terminated on May 31, 1964. The Tribunal awarded reinstatement on March 24, 1964, when even the employer did not bring it to its notice that the contract of employment would terminate in May 1964.\n\nMr. Sen, however, during; the course of the argument,, hinted at another round of litigation under section 33C of the Act to, contest the claim to reinstatement ordered by the Tribunal.\n\nWe cannot be oblivious to the plight of this workman in his unequal fight with a big company.\n\nHe was serving the company since 1949 for about eleven years when he was first dismissed in 1960. He has been involved in litigation since 1960 uptill today except for a lull for eleven days on his reinstatement after the first award.\n\nEleven years in actual service and sixteen years in litigation is a doleful tale by itself.\n\nWe, therefore, feel that, in the interest of industrial peace and above all to draw a final curtain to this unhappy litigation, we would be justified in quantifying the compensation payable to the workman in this case to a sum of Rs. 20,000/- only in lieu of reinstatement with full back wages as ordered by the Tribunal, wjrich we accordingly order.\n\nWe may also observe that Mr. Sen, fairly enough, had made it clear before us in the course of hearing that even if the company succeeded in this Court it would be prepared to pay to the workman a sum of Rs. 10,000/- on compassionate grounds.\n\nIn the result the judgment of the Division Bench of the High Court is set aside.\n\nThe award of the Tribunal is varied as stated above.\n\nThe appeal is allowed accordingly with no order as to costs.\n\nCMP. No. 6664 of 1976 on behalf of the company for urging additional grounds is dismissed as not pressed.\n\nP.B.R.\n\nAppeal AIU.wed.", "total_entities": 73, "entities": [{"text": "MAHENDRA SINGH DHANTW AL", "label": "PETITIONER", "start_char": 0, "end_char": 24, "source": "metadata", "metadata": {"canonical_name": "MAHENDRA SINGH DHANTWAL", "offset_not_found": false}}, {"text": "HINDUSTAN MOTORS LTD. & ORS", "label": "RESPONDENT", "start_char": 34, "end_char": 61, "source": "metadata", "metadata": {"canonical_name": "HINDUSTAN MOTORS LTD. & ORS", "offset_not_found": false}}, {"text": "H. R. KHANNA", "label": "JUDGE", "start_char": 78, "end_char": 90, "source": "metadata", "metadata": {"canonical_name": "HANS RAJ KHANNA*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 92, "end_char": 110, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "P. K. 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{"document_id": "1976_1_645_656_EN", "year": 1976, "text": "DA.t\\1ADILAL AND OTHERS\n\nPARASHRAM AND OTHERS\n\nMay 7, 1976\n\n[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.] B\n\nMadhya Pradesh Accommodation Control Act, 1961-S. 12(1y(a) and (f) -Scope of-Death of tenant-Heritable interest in the premises-Legal repre~ sentatives-lf could clai1n statutory tenancy-If concept applicable in lndia- Statutory tenant-If could sub-let the premises.\n\nRent-Payrnent-1/ could be n1ade by cheque.\n\n.Procedure-Lower appellate court overlooked 1naterial evidence-Finding, if bad in law-High Court-If could reverse.\n\nSection 12(1) of the Madhya Pradesh Accommodation Contrnl Act, 1961, enacts that notwithstanding anything to the contrary contained in any other law or contract no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds giVen in the section. The ground given in cl. (a) is that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which the notice had been served on him by the landlord and the ground in cl. (f) is that the accommodation let for non.residential purpose is required bona fide by the landlord for the purpose of continuing or starting his business.\n\nThe appellants brought a suit under s. 12(1 )(a) and (f) of the Act for ejectment of their tenants. The suit was dismissed by the trial court on the ground (i) that since the dispute as to the amount of rent payable by the tenants had not been determined during the pendency of the suit Under s. 13(2) no order for eviction could be made; (ii) that there was no bona fide require ment of the premises by the appellants for their own business and (iii) that the refusal by the appellant to accept the arrears of rent by cheque was valid because tendering by cheque was not valid tender in the absence of an agree ment to that effect.\n\nThe first appellate court decreed the suit. During the pendency of the second appeal in the High Court the tenants died. The High Court allowed substitution of their legal representatives overruling the appellants' objection that the deceased tenants were mere statutory tenants and that the right to resist eiectment on the basis of the Rent Control Act was merely a personal right which was not heritable.\n\nOn merits, the High Court held that (i) offer of rent by cheque amounted to valid tender by the Jenant and (ii) the appel lants had failed to prove their case of bona fide requirement of the premises for their own use.\n\nDismissing the appeal,\n\nHELD : There is no force in the contention that the defendants who v.'ere statutory tenants had no heritable interest in the demised premisesand on their death the right to prosecute the appeal in the High Court had not survived to their heirs and legal representatives. The preQecessorsin-interest of the respondents had a heritable interest in the premises and consequently the resPondents had the right to prosecute the appeal in the High Court. [655AJ\n\n(I) (a) The concept of statutory tenancy under the Eglish Rent Acts and under the Indian statutes rests on different foundations.\n\nThe term statutory tenancy which is used for referring to a tenant whose tenancy has been tenninated and who would be liable to be evicted but for the protecting statute, is\n\nborro\\Ved from the English Rent Acts.\n\nCourts in England have held that a statutory tenant h~ no esta.te or property in the premises\" he occupies becalliie\n\nhe retains possession by virtue of the Rent Acts and not as being entitled to a tenancy.\n\nBut in this country it is not possible to proceed on the basis that a tenant whose contractual tenancy has determined but who is protected\n\naainst evictin ~Y the staute, as no right f. property b, ut only a person •. 'll right to remain m occupation \\VIthout ascerta1n1ng what his rights are under the statute.\n\n[654H: 653A-C]\n\nAnand /ilivas (Private) Litnited v. Anandji Kalyanji Ped/ii & Ors. [1964] 4 SCR 892; Jagdish Chander Chatter{ee and Ors. v. Sri Kishan & Anr., [1973] 1 S.C.R. 850; Roe v. Russel. f!928l 2 K.B. 117: Haskins v. Lewis [1931] 2 K.B_ 1(9); Keeves v. Dean [1923] (93) L.J.K.B. 203 (207) and Boyer v. Warbe~· [1953] 2 Q.B. 234, referred to.\n\n(b) Tenancy has its origin in contract. A contractual tenant had an estate or property in the subje_ct tnatter of the tenancy and heritability is an incident of tenancy.\n\nIt cannot be assumed that with the determination of the tenancy, the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his. occupation.\n\n[653D]\n\n{c) The definition of a tenant contained in s. 2(i) makes a person continu ing in possession of a premises after the determination of his tenancy a tenant, unless a decree or order for eviction had been made. against him, thus, putting D him on par with a person whose contractual tenancy still subsists.\n\n[653G]\n\n(d) Section 14 which deals v.ith restrictions on sub-letting read with the\n\nlefinition contained in s. 2(i) makes it clear that the so-called_ statutory tenant has the right to sub-let in commo!ll with contractual tenant and this is because he also has an interest in the prerrtises occupied by him.\n\n(654D]\n\n(2)(a) The High Court rightly held that the cheques sent to the appellants amounted to valid tender of rent. It is well-established that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured. operates as a valid discharge of the debt a, nd if the cheque was sent by post and \\Vas met on presentaiion, the date of payment is the date when the cheque was posted. [655B-Dl\n\n(b) Rent is payable in the sa1ne manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payrrtent can be altered by agreement. In the contemporary society it is reasonable to suppose payment by cheque as implied unless the circumstances of a case indicate otherwise.\n\n[655C]\n\n( 3) The High Court was within its jurisdiction in setting flSide the finding of the lower appellate court and restoring that of the trial court on the question of bona fide requirement of the premises by the appeilants.\n\nThe lower appellate cou_rt overlooked a very material part of the evide!).ce bearing on the question. It is well-established that if a finding of fact is arrived at ignoring important and relevant evidence the finding is bad in law.\n\n[6518-C]\n\nRadha Nath Seal v. Haripada Jana & Ors. AIR 1971 S.C. 1049, followed.\n\n.Madan Lal Puri v. Sain Das Berry AIR 1973 S.C. 585; Mattulal v. Rad!iey Lal AIR 1974 S.C. 1596; and Sarvate T. B. v. Nemi Chand 1966 M.P.L.J. 26, referred to .\n\nCIVIL APPELLATE JURISDICTION; Civil Appeal 88511968.\n\n(From the judgment and order dated 6-11-1967 of the Madhya Pradesh High Court in Second Appeal No. 913 of 1965).\n\n1 '\n\nS. V. Gupte, R. P. Pandey and S. S. Khanduja, for the appellants.\n\nF. S. Nariman, J. B. Dadachanji, P. C. Bhartari, K. L. John for tile respondents.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J. Damadi Lal, Sheo Prasad and Tirath Prasad who were members of a Hindu Joint Family brought a suit for ejectment on July 31, 1962 against their tenants Begamal and Budharmal on the grounds mentioned in clauses (a) and (f) of section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961. The relevant .provisions are in these terms :\n\n\"Sec. 12. Restriction on eviction of tenants.-( 1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be tiled in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely-\n\n( a) That the tenant has neither paid nor tendered the\n\nwhole of the arrears of the rent legally recoverable from him D within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;\n\nx x x x x\n\nx x x x x E\n\n(f) tl1at the accommodation Jet for non-residei1tial purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his F own in his occupation in the city or town concerned.\"\n\nPlaintiffs' case under section 12 ( 1) (a) was that the defendant tenants had defaulted in paying rent for the period October 1, 1961 to May 31, 1962 and did not also pay or tender the amount in arrears withi• two months of the service of the notice of demand.\n\nClause (f) of section 12(1) was invoked on the allegation that the accommodation G let was required bona fide by the plaintiffs for the purpose of starting their own business. Before the suit was instituted the plaintiffs had determined the tenancy from May 31, 1962 by a notice dated May 7,\n\n1962. The house in dispute which is in Bazar Chowk in District Satna was Jet out to the defendants at a monthly rent of Rs. 2751for the purpose of their business.\n\nThe plaintiffs reside in village Nadan, Tahsil Maihar, where they carry on their business.\n\nThe trial court by its judgment and decree dakd November 11. 1964 dismissed the snit for eviction. There was some disoute hetween\n\nSCPREME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nthe parties as to the rate of rent; ultimately the plaintiffs admitted that the rent was fixed at Rs. 1751per month with effect from August 1, 1961 by the Rent Control Authority and a sum of Rs. 1200/-, which was the amount in arrears, had been tendered to the plaintiffs by cheque on May 26, 1962 which the plaintiffs refused to accept. The trial court was of opinion that the refusal was valid because \"tendering by cheque is no valid tender\" unless there was an agreement that payment by cheque would be acceptable and that the defendants were therefore defaulters within the meaning of section 12(1)(a). However, in view of the dispute as to the amonnt of rent payable by the tenants, which was not determined during the pendency of the suit as required by section 13 ( 2), the trial court held that no order for eviction under section 12(1)(a) could be made in this case and passed'\"a decree for Rs. 1200 1-- in favour of the plaintiffs.\n\nOn the question of the plaintiffs' requirement of the premises for their own business, the trial court found itself unable to accept the evidence adduced on behalf of the plaintiffs. Of the _witnesses examined by the plaintiffs on the point, the evidence of P.Ws. 1, 3 and 4 was not relied on because none of them was considered to be an independent witness and, further, becansc it was apparent from their evidence that what they said was what they were tutored to say by the plaintiffs.\n\nThe other three witnesses were plaintiffs Damadi Lal and Tirath Prasad (P.W. 2 and P.W. 6 respectively) and Radhcy Sham (P.W. 5), a son of plaintiff She6 Prasad. They were also disbelieved because of the following reasons. Damadi Lal tried to give the impression that plaintiffs had no business except the cloth business and the grocery shop at Nadan. He tried to conceal that they had a moneylending business and also agricultural lands. Tirath Prasad stated that the main source of income of the family was from the moneylending business. Tirath Prasad also disclosed t!J.at the , plaintiffs had already a partnership business in cloth at Satna though Damadi Lal and P.W. 5 Radhcy Sham did not admit this. It also appears in evidence that the ; plaintiffs had yet another cloth business at a place called Ramnagar which was managed by Radhey Sham.\n\nThe plaintiffs claimed that they would start a business at Satna, but Damadi Lal's evidence is that they had no income or saving. Tirath Prasad also said that their income was not even sufficient for their maintenance.\n\nAdmittedly, plaintiffs had in their possession one room in the house which was let out to the defendants. The plaintiffs did not adduce any evidence to show how the said accommodation was unsuitable or insufficient for them to start their own business. It was also admitted that the plaintiffs had filed a suit for ejectment on an earlier occasion, but the defendants having agreed to pay increased rent the suit was not proceeded with.\n\nAccording to the defendants the present suit was instituted on the defendants' refusal to increase the rent further to Rs. 500/- a month.\n\nFor the above reasons the trial court did not accept the case of bona fide requirement holdnig that P.W. 2, P.W. 5 andP.W. 6 were in the habit of suppressing the truth to snit their own purpose.\n\n'- •\n\nOn appeal by the plaintiffs, the first appellate court reversed the decision of the trial court and decreed the suit. The appellate court agreed with the trial court that sending a cheque did not amount t? a valid tender of rent and, as the tenants did not apply under section 13(2), they were not entitled to protection against eviction on the ground of default As regards the plaintiffs' case of requirement, the court found, that the criticism of the plaintiffs' witnesses was net justified.\n\nThe appellate court thought that the fact that Tirath Prasad was carrying on a cloth business at Satna which Damadi Lal had kept back froin court was irrelevant in view of the plaintiffs' claim that some members of the family wanted to start a new business at Satna.\n\nAccording to the appellate court the further fact that P.W. 5 Radhcy\n\nSham was running a cloth business at Ramnagar was indicative of the growing need of the plaintiffs' family.\n\nThe room in the plaintiffs' possession in the disputed house was not found suitable or sufficient for a wholesale business that the plaintiffs intended to start.\n\nReferring to the trial court's finding that the plaintiffs had no money to start a new business at Satna, the court found that the evidene did not support this. The appellate court therefore held that the plaintiffs required the premises for their own business.\n\nDissatisfied with this decision, the defendants preferred a second !appeal to t11e High Court. During the pendency of the second appeal in High Court both the defendants died. Budharmal died on or about January 27, 1966 and his legal representatives were brought on record and substituted iu his place without objection.\n\nBegamal died on March 2, 1967 and his heirs applied for being brought on record in his place as appellants. The plaintiffs made an application praying for an order that the appeal had abated as a consequence of the death of both the defendants. In this application the plaintiffs contended that Budharmal and Begamal were \"merely statutory tenants and their right to resist ejeetment on the basis of Madhya Pradesh Accommodation Control Act was merely a personal right\" which was not heritable and had \"not devolved upon their heirs\". By its order dated July 26, 1967 the High Court allowed the application for substitution made by Begamal's heirs overruling the plaintiffs' objection.\n\nUltimately on November 6, 1967 the High Court allowed the appeal setting aside the decree of the lower appellate court and restoring that of the trial court dismissing the suit.- The High Court found that the defendants were not in arrears of rent. Differing from both the courts below the High Court held that the cheque which the defen- {lants had sent to the plaintiffs in payment of the amount in arrears within a month of the service of the writ of summons on him amounted to a valid tender of rent as required by section 13, and in view of section 12(3) no order for eviction could be made.\n\nSection 12(3) provides that no order for eviction of a tenant shall be made on the\n\nground of default if the tenant makes payment or deposits rent as required by section 13. This. is what the High Court held on the validity of tender of rent by cheque :\n\n\"The question is as to whether, instead of presenting the cash, if a cheque is sent to the landlord, that is sufficient tender of the arrears of rent or not ...... In the highly developed society, payment by cheque has bec_ome more convenient mode of discharging one's obligation. If a cheque is an instrument which represents and produces cash and is treated as such by businessmen, there is no reason .why .the archaic principle of the common law should be followed in deciding the question as to whether the handing . over of the cheque is not a sufficient tender of the arrears of rent if .the chequ~ is drawn for that amount. It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encashed, and it is\n\ntreted as a conditional payment, yet, in my view, this is a sufficient tender of the arrears if the cheque is not dishonoured.\n\nIn the present day society, I am of the view. an implied agreement should be inferred that if the payment is made by a cheque, that mode of payment would be accepted.\"\n\nOn the ground of bona fide requirement, the High Court found that there was no evidence to show that the plaintiffs had sufficient funds to start the wholesale business for which they sought to get possession of the disputed premises.\n\nThis is a point which has a bearing on •he genuineness of the plaintiffs' claim.\n\nThe High rourt took note of the fact that the plaintiffs made an attempt to keep back from the Court that they were carrying on business at two more places. one at Satna, and another at Ramnagar.\n\nIn this connection the High Court also referred to the defendants' case that the plaintiffs sought to increase the rent from Rs. 275/- to Rs. 500/- a month and that when the defendants had the rent reduced by the Rent Controller to Rs. I 75/- per month, the present suit was filed.\n\nThe High Court fouud that these circumstances which the trial court took into consideration were ignored by the lower appellate court.\n\nThe High Court accordingly held that the plairitiffs had failed to prove their case of bona fide requirement, set aside the decree of the appellate court, and restored that of the trial court dismissing the suit.\n\nBefore us, Mr. Gupte for the plaintiff-appellants raised three conttntio1JS : (I) Begamal and Budharmal both of whom were statutory tenants had no heritable interest in the demised premises and, on their death, the right to prosecute the appeal in the High Court did not survive to their heirs and legal representatives; (2) payment by cheque was not a valid tender of rent and accordingly the suit should have been decreed on the ground of default; and (3) the High Court had no jurisdiction in second appeal to reverse the finding of the first appellate court on the question of reasonable requirement which was a finding of fact.\n\nIn support of his first contention Mr. Gupte relied on two decisions of this Court, Anand Nivas (Private) Ltd. v. Anandji Kalyanii Pedhi & Ors.(') and Jagdish Chander Chatterjee and Ors: v. Sri Kishan & A nr. (') The statute considered in Anand Nivas' case was Bombay\n\n(l) [l964]4S.C.R.892.\n\n(2) [1973] IS. C.R. 850.\n\nRems, U .. <otel and Lodg. i11_g Rates Con. trol Ac.t,. 1947 as amended in 195\\i. The question there was, whether a tenant whose tena9cy had been terminated had any right to mblet the premises.\n\nOf the three learned Judges composing the Bench that heard the appeal, Hidayatullah .and Shah JJ .. held that a statutory tenant, meaning a tenant whose tenancy has determined but who continues in possession, has no power of subletting.\n\nSarkar J .. delivered a dissenting opinion. Shah J. who spoke for himself and Hidayatullah J. observed in the course of their Judgment :\n\n\"A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer.\n\nA statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs th.e conditions of the tenancy and pays the standard rent and permitted increases.\n\nHis personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate.\"\n\nIt appears from the Judgment of Shah J. that \"the Bombay Act merely grants conditional protection to a statutory tenant and dues not invest him with the right to enforce the benefit of any of the terms and conditions the original tenancy\".\n\nSarkar J. dissenting heid that word 'tenant' as defined in the Act included both a contractual tenant-, a tenant whose lease is subsisting as also a statutory tenant, and the latter has the same power to sublet as the former.\n\nAccording to Sarkar J. even if a statutory tenant had no estate or property in the demised premises, the Act had undoubtedly created a right in such a tenant in respect of the property which he could transfer.\n\nJagdish Chander Chatterjee's case dealt with the Rajasthan Premises (Control of Rent and Eyiction) Act, 1950, and the question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the Act.\n\nIn this case it was held by Grover and Palekar JJ., relying on Anand Nivas' cas~, that after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not 'inherit any estate or interest in the original tenancy.\n\nBoth these cases, Anand Nivas and Jagdish Chander Chatterjee, procee<! on the basis that a tenant whose tenancy has been terminated, described as statutory tenant, has no estate or interest in the premises but only a personal right to remain in occupation. It would seem as if there is a distinct category of tenants called statutory tenants having separate and fixed incidents of tenancy.\n\nThe term 'statutory tenancy' is borrowed from the English Rent Acts.\n\nThis may be a convenient expression for referring to a tenant whose tenancy has been terminated and who would be liable to be evicted but for the protecting statute, but courts in this country have sometimes borrowed along with the expression certain notions regarding such tenancy from the\n\ndecisions of the English courts. In our opinion it ha_s. to be ascertained how far these notions are reconcilable with the provisions of the statute under consideration in any particular case.\n\nThe expression 'statutory tenancy' was used in England in several judgments under the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, to refer to a tenant protected under that Act, but the term. got currency from the marginal note to section 15 of the Rent and Mortgage Interest (Restrictions) Act, 1920. That section which provided inter alia that a tenant who by virtue of that Act retained possession of any dwelling house to which the Act applied, so Jong as he retained possession, must observe and would be entitled to the enefit of all the terms and conditions of the original contract of tenancy which were consistent with the provisions of the Act, carried the .description in the margin \"conditions of statutory tenancy\".\n\nSince then the term has been used in England to describe a tenant protected under the subsequent statutes until section 49(1) of the Housing Repairs and Rent Act, 1954 for the first time define 'statutory tenant' and 'statutory tenancy'. 'Statutory tenant' was defined as a tenant \"who retains possession by virtue of the Rent Acts and not as being entitled to a tenancy, and it was added. \" 'statutory tenancy' shall be construed accordingly\".\n\nThis definition of 'statutory tenancy' has been incorporated in the Rent Acts of 1957 and 1965. In England \"statutory tenancy\" does not appear to have had any clear and fixed incidents; the concept was developed over the years from the provisions of the successive Rent Restrictions Acts which did not contain a clear indication as to the character of sm; h tenancy.\n\nThat a statutory tenant is entitled to the benefit of the terms and conditions of the original contract of tenancy so far as they were consistent with the provisions of the statute did not, as Scrutton L. J. observed in Roe v. Ru\"<ell, C) \"help very much when one came to the practical facts of life\". according to him \"citizens are entitled to complain that their legislators did not address their minds to the probable events that might happen in cases of statutory tenancy, and consider how the legal interest they were granting was affected by those probable events\".\n\nHe added, \" .... it is pretty evident that the Legislature never coµsidered as a whole the effect on the statutory tenancy of such ordinary incidents as death, bankruptcy, voluntary assignment, either inter vivos or by will, a total or partial subletting; but from time to time put into one of the series of Acts a.provision as to one of the incidents without considering how it fitted in with the general nature of the tenancy which those incidents might affect\". On the provisions which gave no clear and comprehensive idea of the nature of a statutory tenancy, the courts in England had been slowly \"trying to frame a consistent theory\"\".(') \"making bricks with very insufficient statutory straw\".(3 ) Evershed M. R. in Boyer v. Warbey(4) said : \"The character of the statutory tenancy, I\n\n(I) f]928]2K.B.117.\n\n(2) Scrutton L. J. in Has!cinsv. Lewis[I93I] 2 K.B. I (9)\n\n(3) Scrutton L.J. in Keeves v. Dean [1923] (93) L.J.K.B. 203 (207).\n\n(4) [1953]2 Q.B. 234.\n\nhave already said, is a very special one.\n\nIt has earn~ many epithets, including •monstrum horrendum\", and perhaps it has never been fully thought out by Parliament\". Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy; it has been said that he has only a personal right to remain in occupation, the statutory right of \"irremovability\",\n\nand nothing more.\n\nWe find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute.\n\nThe concept of a statutory tenanr having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute.\n\nTenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an incident of the tenancy.\n\nIt cannot be assnmed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.\n\nIt is not possible to claim that the \"sanctity\" of contract cannot be touched by legislation.\n\nIt is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents' predecessorsin-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.\n\nSection 2(i) of the Madhya Pradesh Accommodation Control Act, l961 defines 'tenant' to mean, unless the context otherwise requires :\n\n\"a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a subtenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; bnt shall not include any person against whom any order or decree for eviction has been made\".\n\nThe definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists.\n\nThe incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That nuder this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant's power of subletting.\n\nSection 14 is in these terms :\n\nA \"Sec. 14 Restrictions on sub-letting.-(!) No tenant shall;\n\nwithout the previous consent in writing of the landlord-\n\n( a) sublet the whole or any part of the accommodation held \\JY him as a tenant; or\n\n{b) transfer or assign his rights in the tenancy or in any part thereof.\n\n(2) No landlord shall claim or receive the payment ot any sum as premium or pugree or claim or receive any con·\n\nsideration whatsoever in cash or in kind for giving hjs con sent to the sub-letting of the whole or any part of the 2:com modation held by the tenant.'\"\n\nThere is nothing to suggest that this section does not apply to all tenants as defined in section 2(i). A contractual tenant has an estate 01 interest in premises from which he carves out what he gives to the sub-tenant.\n\nSection 14 read with section 2(i) makes it clear that the so-called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him.\n\nConsidering the position of the sub-tenant of a statutory tenant in England, Lord De_nning said in Solomon v.\n\nOrwell.(') \"When a statutory tenant sub-lets a part of the premises he does not thereby confer any estate or interest in the sub-tenant.\n\nA statutory tenant has no estate or interest in himself and he cannot carve something out of nothing.\n\nThe sub-tenant, like the statutory tenant, has only a personal right or privilege.\" In Englanc! the statutory tenant's right to sub-let is derived from specific provisions of the Acts conceding this right to him; in the Act we are concerned with in this appeal, the right flows from his status as a tenant. This is the basic difference between the English Rent Restrictions Acts and the Act under consideration and similar other Indian statutes.\n\nIn a Special Bench decision of the Calcutta High Court, Krishna Prasad Bose v. Sm. Saraiubala Dasi,( 2 ) Bachawat J. considering the question whether a statutory tenant continuing in occupation by virtue of the West Bengal Premises Rent Control (Temporary Provisions)' Act, 1950 could sub-let the premises let to him, said :\n\n\"The Rent Control and Tenancy Acts create a special world of their own.\n\nThey speak of life after death.\n\nThe statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy.\n\nThe contractl\\lll tenant may die hut the statutory tenant may live lone thereafter.\n\nThe statutorv tenant is an ex-tenant and yet h~ is a tenant.\" ·\n\nThe concept of statutory tenancy under the English Rent Acts and under the Indian statutes like the one we arc concerned with in this appeal rests on different foundations. It n; ust therefore be held that\n\n(1) [1954] l All l\".R. 874.\n\n(2) 65 Cal. W.N. 293 (297-298).\n\nl . , .\n\nthe predecessors-in-interest of the present respondents had a heritable A interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court.\n\nMr. Gupte's first submission thus fails.\n\nOn the grouod of default, it is not disputed that the defendants tendered the amount in arrears by cheque within the prescribed time.\n\nThe question is whether this was a lawful tender. It is well-established B that a cheque sent in payment of a debt on the request of th\" creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque was sent by post and was met on presentation, the date of payment is the date when the cheque was posted.\n\nThe question however still remains whether in the absence of an agreement between the parties, the tender of rent by cheque amounts to a valid discharge of the obligation.\n\nEarlier, we have extracted a passage from the High C Court's Judgment on this aspect of the case.\n\nWe agree with the view taken by tha High Court on the point.\n\nRent is payable iii the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender, but there can be no dispute that the mode of payment can be altered by agreement.\n\nIn the contemporary society it is reasonable to suppose such agreement as implied unless the circumstances of a case indicate otherwise.\n\nIn the circumstance of this D case, the High Court, in our opinion, rightly held that the cheque sent to the plaintiffs amounted to valid tender of rent.\n\nThe second contention urged on behalf of the appellants must also be rejected.\n\nMr. Gupte's last contention relates to the plaintiffs' bona tldc requirement of the premises.\n\nThe trial court found on the evidence that the plaintiffs' claim was unjustifi.ed.\n\nThe first court of appeal reversed that finding and held that the plaintiffs' requirement was bona fide.\n\nThe High Court in second appeal agreed wi\\IJ.. the trial court in holding that the landlord had no bona fide requirement.\n\nMr. Gupte contended that the High Court had no jurisdiction in second appeal to upset the finding of the lower appellate court on this issue which, according to him, was a finding of fact.\n\nMr. Nariman for the respondent relied on the decision of this Court in Madan Lal Puri v.\n\nSain Das Berry(') to argue that the question was a mixed question\n\nof law and fact and that it was within the jurisdiction of the High Court in second appeal to examine the correctness of the finding. In answer Mr. Gupte referred to another decision of this Court Mattu/al\n\nv. Radhey Lal(') which, relying on an earlier decision of this Court in Sarvate T. B. v. Nemi Chand, (3) held that such a finding was one of fact and not a finding on a mixed question of law and fact.\n\nWe do not think that for the purpose of this case we need express any opinion on the apparent conflict between these two decisions.\n\nPlaintiffs' case was that they had cloth and grocery business at village Nadan and that they desired to start a wholesale cloth and grocery business\n\nat Satna. The trial court's finding was based inter alia on the evidenoe\n\n(I) AIR !973S.C.R.585.\n\n(2) A.LR. 1974 S.C.1596.\n\n(3) 19661\\1.P.L.l. 26.\n\nF •\n\nthat the plaintiffs had not adequate funds to start a new wholesale business.\n\nThe lower appellate court reversed the finding of the trial court on the ground that there was no evidence that the plaintiff had no money to start a new business; the lower appellate court's finding rests maillly on this consideration.\n\nThe High Court pointed out that plaintiff Damadidas alias Damadi Lal (P. W. 2) stated in his evidence that their income from the business at Nadan was sufficient \"only for meeting the expenses of livelihood\"; plaintiff Tirath Prasad (P.W. 6) also admitted that \"our present income is not sufficient even for our maintenance because there are many members in the family\".\n\nIt thus appears that the lower appellate court overlooked a very material part of the evidence bearing on the question. It is well established that if a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. (see Radha Nath Seal v.\n\nHaripada Jana & Ors.(1).\n\nWe therefore think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this poinL\n\nIn the result the appeal fails and is dismissed but in the circumstances of the case we make no order as to costs.\n\nP.B.R.\n\nAppeal dismissed.\n\n(1) A.LR. 1971 S.C. 1049.", "total_entities": 41, "entities": [{"text": "PARASHRAM AND OTHERS", "label": "RESPONDENT", "start_char": 25, "end_char": 45, "source": "metadata", "metadata": {"canonical_name": "PARASHRAM AND OTHERS", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 61, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "R. S. 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{"document_id": "1976_1_657_663_EN", "year": 1976, "text": "coMMisstONER bF AGRICuLTURAL iNcoME TAX, A\n\nTRIVANDRUM\n\nSl\\H. LUCY KOCHUVAREED • May 7, 1976 B • \"\n\n[A. C. GUPTA AND JASWANT SINGH, JJ, J ,, \" Kera/a Agricultural Income Tax Act, 1950, ss. 34 and 35-Rt1'isio1111l power of Con1n1issioner and assessi11g 'escaped assessn1en1', scope of.\n\nThe asscssee made a full disclosure of his income and claimed expenses incurred for the maintenance of his immature rubber plantations as deductions.\n\nThe Agricultul)ll Income Tax Officer, after considering the maUer, allowed such deductions as he thought proper. The appellant-Commissiouer, in exercise of c\n\nhis revisional powers under s. 34, Kerala Agricultural Income Tax Act, 1950, issued notice to the respondent (widow of the asoessee) proposing to revise the assessment on the ground that the deductions allowed were excessive. The appellant, after considering the rcspondenfs objections, held that the deductions allowed were excessive and remanded the matter to the Agricultural Income Tax Officer for fresh disposal according to Jaw. At the in.ranee of the respon dent, tho question whether the appellant had jurisdiction to pass the order D under s. 34 was referred to the High Court, and the High Court, on the view that it was a case of re-opening escaped assessment held, relying on Ma/raraja. dhiraj Sir Kamesltwar Singh v. State of Bi/tar, (1959) 37 I.T.R. 388 (SC),\n\nthat the ower of revision vested in the Commissioner under s. 34 could not be invoked for the purpose of assessing income that had escaped ........, ent,\n\nand that such income could be assessed only by resorting to the procedure prescribed by s. 35, \\\\ithin the time limit presttibed therein.\n\nA!lowin11 the appeal to this Court, E\n\nHELD : ( !) Every case of under-assessment is not a case of escaped assess ment. The Agricultural Income Tax Officer may have commiUcd nn error in allowing the deduetiOtlS to the extent he did, but he did so after applying his miiid to th~ claims. This is not a case where tho officer omitted to ...... any item of income disclosed in the assessee's return as in the case relied on by the High Court and as in Kamal Slngf1 v. C./.T, (1959) 35 J.T.R. I (SC) • . Therefore, it is not a ease of reopenlng escaped assessment. [662FHl F Deputy Commisdoner Qf Agricultural /n<:ome-tax arrd Sales Tax, Quilo\" and another v.\n\nDharraloksltmi Vilas Casfrew Co.,\n\n(1969) 24 S.T.C. 491, followed.\n\n(2) Since it fa not a case of escaped assessment, tho appellant had jurisdic !ion to make the order under s. 34. [663BJ ·\n\nCIVIL APPELLATE JURISDICT!O).f : Civil Appeal Nos. 793 to 794 G • of 1971.\n\nAppeal by Special Leave from the Judgment and order dated the 7th August, 1970 of the Kerala High Court at Ernakulam in ~\n\nIncome Tax Reference No. 9 of 1968.\n\nT. S. Krishnamoorthy Iyer, N. Sudhakara11 and K. M. K. Nair; for the Appellant (ln CA 793/71) H\n\nK. M. K. Nair; for the appellant (In C.A. 794/71). 44-833 Sup. CT/76\n\n658 SUPREiE coiJRi: REPORTS [i976} SUPPLEMENTARY\n\nA D. V. Patel and A. S. Nambiar; for the Respondent.\n\nThe Judgment of the Court was delivered by\n\n. GUPTA, J.-One T. V. Kochuvarced who owned rubber planta lions m Tnchur was assessed by the Agricultural Income-tax olhccr,\n\nincrnu, on a net agr1cu1tura1 mcome ot Ks. 31\"00.t/- and B !<.s. Ju,~Jb/- respectively tor the assessment years l\\IJ9-60 and 1\\160-ol.\n\nJhe assessee nad in his possession immature rubber p1antat10n covering 193 acres during the assessment year 1959-60 and 2\\13 acres durmg tne assessment year 1960-61. In compu:ing the income for the saiu two years, the Agricultural Income-tax Otnccr had dis al.Jawed om of the expenses claimed for the upkeep and maintenance\n\nof the immature area Rs. 2500/- for the year 1959-60 and C Rs.3500/- for the year 1960-61. T. V. Kochuvareed died in 1961 leaving behind him as his heir and legal representative his wife who is , the respondent before us.\n\nOn March 13, 1963 the Commissioner of AgricuJtural Income-tax issued a notice under section 34 of the Kerala Agricultural Income-tax Act, 1960 to the respondent, which was served on her on March 15, 1963, proposing to revise s1.10 motu the assessment for the said two years on the ground that D the deductions allowed were excessive and without any prOper basis as a result of which Rs. 16,800/- for the year 1959-60, and Rs. 25,800/- for 1960..61 had \"escaped assessment\".\n\nThe responldent was asked to me objections, if any,. within fifteen days of the. receipt of the notice. The respondent in her objection contended that the proposed revision of her husband's income which was said to have \"escaped assessment\" was outside the scope of section 34.\n\nE On this objection another notice was served on her on September 26, 1966 stating that , the expression \"escaped assessment'' used in the earlier notice was inadvertent and asking the respondent to file further' objections, if she liked, after this eradication.\n\nThe respondent filed further objections on October 12, 1966 which the Commissioner re jected by his order dated August 23, 1967 and remanded the cases to the Agricultural Income-tax Officer for fresh disposal. The rele F vnnt part of this order is as follows : .·\n\n\"In these circumstances I find that the disallowance of Rs. 2500/- for 1959-60 and Rs. 3500/- for 1960-61\n\nowards upkeep and maintenance of immature area is irregular as it is not based on any rational method.\n\nThe orders of assessment for these years arc therefore set aside and the cases arc remanded' to the Agricultural Income-tax Officer, Trichur, for fresh disposal according to Jaw after examining each item of expenditure individually and the general charges by applying the principles laid down by the Kerala High Court in its judgment reported in (1964) 58 IT~ 629.\"\n\nAt the fosiance of the respondent tJ\\e Commissioner of Agricultural Income-tax referred t!1e following ques'.ion of Jaw to the High Court of Kerala under section 60(2) of the Kernla Agricultural Income-Ta\" Act, 1950:\n\n,. •\n\n\"Whether on the facts and in the circumstances of the A case the Commissioner has jurisdiction to pass an order in this case under section 34 of ,!he Agricultural Income-Tax Act, 1950.\"\n\nThe High Court by a majority held that the power of revision vested in the Commissioner under section 34 of the Act could not B be invoked for the purpose of assessing income that had \"escaped assessmen'.\" and that such income could be assessed only by resorting to the p.rocedure under section 35 of the Act. In these appeals by special leave the appellant questions the correctness of this decision.\n\nIt is necessary to refer to the relevant provisions of the Act before proceeding to consider the contentions of the partie~. Section 3 provides that agricultural income-tax shall be charged for each financial year on the total agricultural income of the previous year at the rate or rates specified in the Schedule to the Act. Total agricultural income is defined in section 2( s) as the aggregate of all agricultural income mentioned in section 4 computed in accordance with the provisions of section 5 including all income of the description specified in section 9 and all receipts of the description specified in section lO(a), ( c) and ( d). Section 5 enumerates the deductions from the .total income which have to be made in computing the agricultural income.\n\nSection 17 ( 1) of the Act requires every person whose total agricultural income during the previous year exceeded the limit which is not chargeable to agricultural income-tax, to furnish to the Agricultural Incometax Officer a return stating his total agricultural income in that year and the expenditure incurred by him out of that income. Section 18 deals with the powers of the Agricultural Income-tax Officer to assess the total agricultural income of the assessee and determine the sum payable by him. Section 19 authorises the Agricultural Income•tax Officer\n\nto cancel the assessment in certain cases at the instance of the assessee and to make a fresh assessment in accordance with the provisions of section 18. Section 31 provides an appeal to the Assistant Com1nissi0ner against any order of assessment with which the assessee is dissatisfied. Sub-section (7) of the section requires the Assistant Commissioner to communicate the orders passed bv him disoosing of the appeal to the assessee and the Commissioner. Under section 32 an assessee obiecting to an order passed by a11 Assistant Commissioner may appeal to the aopellate Tribunal.. Sub-section (2) of the section oermits the Cnmmissioner. if he obierts to any order passed bv the Assistant C', nmmissioner under section 11, to d.irect the Al!ricultnral lnC<'mec\n\ntax Officer to appeal to the appellate Tribunal against such order. Subsection (5) of section 32\" provides that the apoellate Tribunal after giving both parties an opportunitv of being heard may pass sud1 order thereon as he thinks fit. The tribunal' is reciufred to communicate the 1mler tn the 11.~ssee and to the CnmmiSsfoner. Section 34 and section\n\n~~ \"'e th<> tw-' niost.imoortant sectinnsfor the puronse of these anneals.\n\n_-H Sectk>n 34 which confers on Commfssk>ner rvi'sional power8 is in these terms ; .\n\n660 suPREMll COURl' .!UlPORTS (197.6] SUPPLEMENTARY\n\n\"34. Revision.-(1) The Commissioner may, of bis own motion or on application by an assessce, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders therecn as he thinks fit :\n\nProvided that he shall not pass any order prejudicial to an assesscc without hearing him or givmg him a reasonable opportunity of being heard :\n\nProvided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee.\n\n(2) Any .order passed under sulr&eetion (1) shall be\n\nfinal subject to any reference that may be made to the High Court under section 60.\"\n\nSection 35 which deals with incoJllt1 escaping assessment reads :\n\n\"35. Income escaping assessment.-( I) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income-tax Officer may, at any time within three years, of that end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof a notice containing ull or any of the requirements which may be included in a notice under sub-5ection (2) of section 17 and may proceed to assess or re-assess such income and the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub-section;\n\nProvided that the tax shall be charged at the rate at which it would have been charg~ if such lnccime had not escaped nsscssment or full Rs5essment, as tho case may be;\n\nProvided further that the Agricultural Incomo-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so.\n\n(2) No order of assessment under section 18 or of assessment or reassessment under sub-section ( 1) of this section shall be. made after the expiry of three years from the end of the year in which the a\\; ricultural income was lirst assessable;\n\nProvided that where a notice under sub-section ( 1) has been issued within the time therein limited, the assessment or H reassessment to be made in pursuanee of such notice may be made before the expiry of one yew; from the date of .t.he ser~ vice of the notice even If at tho titrul of the assessment or missessment the three rears aforesaid have already elapsed;\n\nc. A. I. T. v. LUC'/ (Gupta, J.) 661\n\nProvided further that nothing contained in this section A \" limiting the time within which any nction may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 19 or to an assessment or reassessment made in consequence 'of, or to give effect to any finding or direction contained in, an order under section 31, section 32, section 34 or section 60. •\n\n(3) In computing the period of limitation for the pur- B poses of this section, any period during which the assessment proceeding is stayed by an order or injunction of any\n\ncourt or other competent authority shall be excluded.\" Section 35 as it originnlly stood contained only the provision now contained in sub-section ( 1) including the first proviso. The second proviso to sub-section (1), and sub-sections (2) and (3) were introducc ed , and the ori~ provision was renumbered as sub-section ( 1) by an amending Act m 1964, but the newly avisions were given effect ,\n\n/ from April 1, 1958. Section 35 as extr above was, therefore, applicable in a proper case during the two assessment years we are concerned with. It would appear that sub-section (2) prescribes a time limit of three years for reassessment under sub-section ( 1) of this section from the end of the year in which the agricultural income was first D assessed though the first proviso to sub-section (2) extends the time for reassessment in a: case where notice under sub-section ( 1 ) had been issued within the time prescribed by the sub-section, till the expiry of one year from the date of service of the notice even if at the tune of ... 'reassessment the prescribed period of three years had elafted. The second proviso to sub-section (2) states that the limitation o time prescribed by section 35 will not apply to an assessment or reassessment E\n\n~ made in consequence of any direction c:cntained in an order under section 31, section 32, section 34 or section 60. Section 36 empowers the authority which passed an order on appeal or revision, within three years from the date of such order, and the Agricultural Inc:cme-tax Officer within three years from the date of any assessment made by him, to rectify any mistake apparent from the record of the appeal. revision, assessment or refund as the case may be. Sub-section (1) of F section 60 provides that the nsscssce or the Commissioner may require the appellate tribunal to refer to the Hiff, Court any question of law arising out of an order under section 32( ). Sub-section (2) of section 60 permits an ass= who is served with a noticq of an order under section 34 which is prejudicial to him to require the Commissioner to refer to the High Court any question of law arising out of such order.\n\nG • The majority decision of the Hif Court took the view that this was a case of escaped assessment and t the power of revision conferred on the Commissioner by section 34 of the Act could not be utilised for the purpose of reassessment . of income that e'Scaped assessment disregarding the provisions of section 35. Sub-s\"tion (1) of section 34\n\nl makes it clear that the power of revision Is exercisable \"rubject to the provisions of this Act\". It was pointed out in the majority judgment H that section 3 5 contains a specific provision for reassessment of income that had escaped nssetmlCnt and It was held that revlsiooal powers under\n\ns~![op 34 eould be vailed of to reopen C11Ses of escapM assessment\n\nSUPREME COURT REPORTS (1976] SUPPLEMENTARY\n\nonly within the time limit and in accordance with the procedure prescribed by section 35. Before us, Mr. Patel, learned counsel for the respondent, reiterated the same contention. Mr. Krishnamurthy Iyer appearing for the appellant challenged the decision of the High Court on two grounds : ( 1) the income sought to be reassessed was not income that bad \"escaped\" assessment and, as such, the provisions of section 35 are not relevant for the present purpose, and (2) assuming this was a case of income escaping assessment, even then the second proviso to sub-section (2) of section 35 r.emoves the bar of time for any assessment or reassessment made to give effect toa direction under section\n\n34. On the first question the High Court found, relying on the decision of this Court in Maharajadhiraj Sir Kameshwar Singh v.\n\nState of Bihar, (') that this was a case of escaped income. In Kameshwar Sihgh's case one of the provisions that came up for interpretation was section 26 of the Bibar Agricultural Income-Tax Act, 1938 which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal.\n\nIt was held in Kameshwar Singh's case that under section 26 of the Bihar Act, the Agricultural Income-tax Officer was competent to \"assess any item of income which he had omitted to tax earlier, even though in tbc return that income was included and the Agricultural Income-tax Officer then thought that it was exempt\". The same view was taken in an earlier decision of this Court, Kamal Singh v. Commissioner of Income-tax;(') that : \"even if tl1e assessee has submitted a return of bis income, cases may well occur where tl1c whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment\". But the question that arises in the case before us is not covered by either of these decisions. This is not a case where the Agricultural facome-tax Officer omitted to assess any item of income disclosed in the assessee's return. Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some deductions for the maintenance of the immature rubber plantation. The Agricultural Income-tax Officer allowed such deductions as he thought proper after considerin!! the matter. The Commissioner in remanding the 'cases to the A)U\"icultnral Income-tax Officer \"for fresh disposal accordinl! to Jaw\" thou11ht that the deductions allowed were excessive. The Agricultural Income-tax Officer mav have committed an error in allowing deductions to the extent he did. but he did so after applying his mind to the claim. Every case of under assessment is not a case of escaped assessment.\n\nThe view we tnke finds suooort from the decision 0f this Court in Deputv Con11nisslo11Pr nf Aer; rulturnl lnronze-tux anrl Sales Tax, Qullon and another v. Dhanalakshmi Vilas Cashew Co.(')\n\nOn the other question. the Hil'h Court held that the order r>f the Commissioner directing.the Agricultural' Income-tax Officer to reassess the income for the two vears was bad, having been made after the expiry of the period prescribed bv section 35 for the reassessment of income that bad escaped assessment. For the appellant it was contended\n\n(!) (IO<Q1'7 TLR. 388,\n\n(2) (1959) 35 l.T.R.1. m n969l 24 s.T; C.49t.\n\n• \"\n\nthat the second proviso to section 35 removed the limitation of time in A the case of a reassessment made in consequence of a direction or order under section 34. As we have held that this was not a case of escaped assessment, this other question does not arise for consideration.\n\n111 our opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should therefore be answered in B the atfirmative. The appeals ara allowed, but in the circumstances of the case we make no order as to costs.\n\nV.P.S.\n\nAppeals allowed.", "total_entities": 74, "entities": [{"text": "coMMisstONER bF AGRICuLTURAL iNcoME TAX, A\n\nTRIVANDRUM", "label": "PETITIONER", "start_char": 0, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "COMMISSIONER OF AGRICULTURAL INCOME TAX, TRIVANDRUM", "offset_not_found": false}}, {"text": "LUCY KOCHUVAREED", "label": "RESPONDENT", "start_char": 62, "end_char": 78, "source": "metadata", "metadata": {"canonical_name": "LUCY KOCHUVAREED", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 101, "end_char": 112, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA*", "offset_not_found": false}}, {"text": "JASWANT SINGH, JJ", "label": "JUDGE", "start_char": 117, "end_char": 134, "source": "metadata", "metadata": {"canonical_name": "JASWANT SINGH", "offset_not_found": false}}, {"text": "Agricultural Income Tax Act, 1950", "label": "STATUTE", "start_char": 150, "end_char": 183, "source": "regex", "metadata": {}}, {"text": "ss. 34 and 35", "label": "PROVISION", "start_char": 185, "end_char": 198, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income Tax Act, 1950", "statute": "Agricultural Income Tax Act, 1950"}}, {"text": "s. 34", "label": "PROVISION", "start_char": 624, "end_char": 629, "source": "regex", "metadata": {"linked_statute_text": "Agricultural Income Tax Act, 1950", "statute": "Agricultural Income Tax Act, 1950"}}, {"text": "Kerala Agricultural Income Tax Act, 1950", "label": "STATUTE", "start_char": 631, "end_char": 671, "source": "regex", "metadata": {}}, {"text": "s. 34", "label": "PROVISION", 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{"document_id": "1976_1_664_684_EN", "year": 1976, "text": "DIWAN BROS.\n\nCENTRAL BANK OF INDIA, BOMBAY AND OTHERS\n\nMay 7, 1976\n\nB (P. N. BRAGAWATI, A. C. GUPTA AND S. MURTAZA fAZAL ALI, JJ, J\n\n• Court Fees Act, Schedule 11, Art. 11.\n\nDisplaced Persons (Debts Adjustment) Act, 1951-Tribunal's decisionlf a decree witliin tlie meaning of s. 2(2) C.P.C.\n\nCorm Fees Act. Sclicd11lc ll, Art. II-Schedule l Art. 1-App/lcabi/lty of.\n\nC Schedule 11, Article 11 of the Court Fees Act prescribes a sum of Rs. 2(.\n\nas court fees in the case of a memorandum of appeal presented to a High Court when the appeal is not from a decree or order having the force of al decree.\n\nThe Tribunal appointed under the Displaced Persons (Debts Adjustment) Act 1951 dismissed the petition ftled by the appellant claiming certain SllllllS from the respondents. In appeal to the High Court from the decision of the Tnbunal, the appellants paid a nominal court fee of Rs. 5/· on the ground that the decision of the Tribunal did not amount to a decree within the meaning of s. 2(2) of the Code of Civil Procedure. TI1e taxing Judge, to whom the question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article I of the Court Fees Act.\n\nOn the question whether the decision of the Tn'llunal was a decree within E the meaning of s. 2(2) C.P.C.\n\nAllowing the appeal to this Court,\n\nHELD : The mcmornndt(m of appeal in the instant case falls v.ithln the nmbit of Schedule 11, Article II of the Court Fees Act and the view of the taxing Judge that ad •alorcm court fees were payable under Scbedu1e I Article I was lcllllllY erroneous. [683CJ\n\nF (I) (a) In the definition of \"dmee\" contained ins. 2(2) of the Code of Civil\n\nProcedare, three essential conditions arc necessary : (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii). that the adjudication must be formal nnd final and must be given by a civil or revenue court. [677E-F]\n\nUnder the 1951 Act, a special Tribunal was created to enquire into the claims of displaced debtors or creditors.\n\nIt cannot be called a court in any sense of the term because the legislature bal made a clear distinction between a Tribunal and a court. Secondly, since proceedings before a Tribunal start with an application nnd not with a plaint, the other important ingredient of a decree is wholly wanting. Thirdly the claim beforo the Tribunal had been described as a proceeding rather than a S1lit. Therefore, none of the requirements of a decree is to be found in the decision 11iven by the Tribunal even though the legislature may have described the decision as a decree. A mere description of the decision of the Tribunal as a decree docs not make it a decree \\\\ithin the meaninil of the Court Fees Act. [677G-HJ\n\n(b) The term \"decree\" used in S:hedulc II, Article 11, is referable to a decree as defined in s. 2(2) of the Code of Ci1il Procedure. As the decision of the Tribunal in the instant cnse does not fulfil the requirement<; of a decree.\n\n' •\n\nDIWAN BROS v. CENTRAL BAJSK (Fazal Ali, 1.) 665 I\n\nlt is not a decree within the meaning of Schedule II, Article 11 of the Court Fees Act.\n\n[678D]\n\nMannan Lal v. Mst. Chhotaka Bibi [1970] I ,;.c.c. 769; Ram Prasad v. 1'irloki Nath, AIR [1938] All. 50; Dawood Kari111 A_shrafi v. City bnprovement Board. AIR [1954] Hyd. 81; Antala Gape v. Sarbo Gopain, AIR [1962] Pat. 489; Mrs. Panzy Fernandas v. Mrs. M. F. Cu'ioros & others AIR [1963] All.\n\n153; Dundappa v. S. G. Motor Transport Co1npany: AIR [1966] Mys. 150; lrshad Husain v. Bakshish Hussain, AIR [19i6] Oudh 254; Harri.sh Chandra Chatteriee v. Bhoba Tarini Debi. 8 C.\\V.N. 321; Taxing Officer, High Court Appellate side v. Jamnodas Dharanulas, lilt [1956] Bom. 211; Barras v.\n\nAberdeen Steam Trawling and Fi.shin~ CJrnpany [1933] A.C. 402, 411; Parma~ nand Lokumal and others v. Khudabadi Bhaibund Cv-operati\\•e Credit Bank Ltd. and others, AIR [1958] Cal. 675; Punjah Nationt<l Bank Ltd. v. Ffrm fsardas Kaluram AIR [1957] Raj. 146; The Puniab National Bank Ltd. v. The American Insurance Company Ltd. ILR [1958] 8 Raj. 216 and S. Solian Singh v. Lierpool and London and Globe Insurance Co. Ltd. AIR [1956] Pb. 153, referred to.\n\nFarnunzand Lokun1al and others v. Khudabodi Bhaibund Co-operative Credit Bank Ltd. and others, AIR [1958] Cal. 675; Punjab National Bank Ltd. v.\n\nFirni lsardas Kaluram AIR [1957] Raj. 146; Kishandus v. Parasram AIR [l955] Raj. 81 and Sita Ram v.\n\nMoo/ Chand, AIR [1954] All. 672, not approved.\n\n(c) Where a legislature uses an cxpr:.:ssion bearing J. \\\\'ell-known legal connotation it must be presumed to have used the saiJ. cxpress1on in the sense in \\vhich it has been so understood. Therefor!.!, \\Vhen the Court Fees Act use:; the \\.VOrd 'decree\" which had a ;;'elllno, vn legal significance, the lcgi&lature\n\n•nut be presumed to have used this tr::rm in the sense in \\Vhich it is understood in the Civil Procedure Code. f678F: 679BJ\n\nBarras v. Aberdeen Stea1n Trawling and Fishing ConJpany [1933] A.C. 402, 411, referred to.\n\n(2) There is no force in the contntion of the respondent that under s. 5 of the Court Fees Act the decision of the !axing JudgPwas final and could not be re-opened in any court and JS snch no appeal under Article 136 was n1aintainable. Even though the order of the taxing Juclg:.:\" n1ny be final under s. 5, the power of this Court under Article 136 will override any stan1p of finality given by a statute. The finality undc: s. 5 cannot derogate froin\n\nthe po\\vcr conferred by the Constitution on the Supreme Conrt. f683EJ\n\nS. Rni. Ar. S. Sp. Satlicppa Cht'ttir11 v.\n\nS. Rn'. A;-. R1.:. Ran1anrulia.n\n\nChetriar [1958[ S.C.R. 1021, held inappli!; ablc.\n\nCIVIL APPELLATE JURISDICTION : Civil Appc2l No. ! 370 of 1968.\n\nAppeal by Special Leave from the Judgment and order dated the 6th March, 1967 of the High Court of Juc~:cature at Allahabad in First Appeal No. Nil of 1965.\n\nJ. P. Goyal and S. M. Jain, for the Appellants.\n\nG. L. Sanghi, D. N. Misra and 0. C. 1'vf(lfj;11r, fnr Respondent No. 1. '\n\nG. N. Dixit and 0. P. Rana, for the State of !J.P.\n\nThe Judgment of the Court was delivered by\n\nFAZAL ALI, J.-This is an appeal by spec'al lea'.C against the judgment of the Single Judge of the Allahabad High Court deciding 45-833 Sup. CT/76\n\nSU!'REME COURT RE!'ORTS [1976) SUPPLEMENTARY\n\n- , - '\n\na court fee matter in connection with the memorandum of appeal filed by the appellants before the Allahabad High Court again; t a decree passed by the Tribunal appointed under the Displaced Persons .\n\n(Debts Adjustment) Act, 1951-hereinaftcr referred to as 'the Act'.\n\nThe appellants kd filed an application under s. 13 of the Act before the Tribunal alleging that it was a partnership firm and claimed that an amount .of Rs. 3,50,000/- by way of refund of security deposits and a sum of Rs. 55,000/- as commission was due from the respondents. The application was tried by the Tribunal and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated May 19, 1965.\n\nAdditional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act.\n\nThe appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5/- but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants bdore the Tribunol which had been disallowed.\n\nThe aatter was taken up by the Taxing Officer, who, in view of the substantial importance cf the point raised, made a reference to the Taxing Judge for decidir.c; the court fee payable on the memorandum of\n\nappeal in the h:st::nt c:1sc.\n\nThe piea of the appellants \\.Vas that as l> the decision of the Tribunal did not amount to a decree as contemplated by s. 2(2) of the Cede of Civil Procedure 1908, ad rn!orem court fees. were not payable and the appellants were entitled to pay court fees as prescribed in Sch. II Art. 11 of the Court Fees' A!:!, The stand taken by the revenue was that as the present appeal was\n\nagainst a decree, the case of the appellants squarely fell within the ambit of s. 4 cf the Court Fees' Act and therefore ad valorem court fees were payable under Sch. I Art. 1 of the Court Fees' Act. The matter was taken up by the Taxing Judge who went into th;: question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch. I Art. 1 of the Court Fees' Act.\n\nThe Taxing Judg~ accordingly by his order dated October 11, 1965 directed the appellants to make np the deficiency in the payment of the court fees.\n\nIt was against this order that the appellants filed a petition for special leave to th; s Court which having been granted the appeal has now been placed before us for hearing. ·\n\nThis appeal invohes a short but substantial question cf law as to the interpretation, scope arid ambit of Sch. II Art. 11 of the Court Fees' Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act.\n\nThe point is not free from diffi, ulty and there appears to be a serious dhugence of judicial opinion on the question as to wl1ether in appeals like the present, Sch. I Art. 1 or Sch. II Art. 11 of the Coi; rt Fees' Act would apply.\n\n11 Mr. Goyal learned counsel appearing for the appellants raised two points before us.\n\nIn the first place he contended that as the proceedings before the Tribunal were not proceeding in a Civil Court nor was the Tribunal a Court, therefore, t11e decision cf the Tribunal\n\neven though loosely called as a decree is not a decree as contemplated by s. 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch. II Art. 11 of the Court Fees Act.\n\nIt was next contended that as the Tribunal had disallowed the claim of the appellants by the order impugned before the High Court the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise. In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the Parliament never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so.\n\nMr. Dikshit appearing for the respondents sought to repel the C arguments of Mr. Goyal on two grounds: In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re-opened by this Court even in special leave.\n\nSecondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court. In these circumstances it was con- D tended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under s. 40 of the Act.\n\nTherefore, it was said, Sch. II Art. 11 had absolutely no application and the view taken by the Taxing Judge was Iegally correct.\n\nIn order to understand the contentions raised by the counsel for E the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed.\n\nTo begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colosrnl probkm of rehabilitating the refugees or the displaced persons. i\\lost of these persons had left huge assets behind in Pakistan and had come to this F country without a penuy.\n\nOthers were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country.\n\nSoon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country. In these G circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete coae in itself providing for a cheap and expeditious remedy for displaced debtors and creditors.\n\nThe matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad Hih Court, who after. t'.lking evidence of a large number of displaced persons and exammmg the nature of the claims, submitted a report which H formed the basis of the Displaced Persons (Debts Adjustment) Act.\n\nIntroducing the Bill which preceded the Act, Mr. A. P. Jain, the then Minister of State for Rehabilitation, made a long speech in\n\nParliament dwellin, g on the various aspects of the Bill. The Minister particularly highlighted the fact that the condition of the displaced persons was pitiable as they had left huge assets behind in Pakistan.\n\nIn this connection the Minister observed thus :\n\n\"The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases.\n\nIn the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor.\n\nIn this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity.\n\nI shall later on define what the words 'paying capacity' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment.\n\nClause 1 J deals with claims by displaced creditors against pcrsom who are not displaced debtors, That is not comparatively so important because it only gives relief in respect of court fees.\n\nWe felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of mo:lcy which they have to pay as court fees etc.\n\nI submit tliat these are all very necessary and huniane considerations which take into account the actual paying capacity of the debtor.\n\nWe have n'aintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a Jot of money.\n\nWe have provided only one appeal in clause 40.\"\n\nA perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve.\n\nIt will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money which they may have to pay as co_urt fees.\n\nThus it would appear that the intention of Parliament was to bring out a legislation which would provide for a cheap and expeditious remedy to the displaced persons and entrust the work to a Tribunal which may\n\nbe able to decide the claims quickly instead of leaving the displaced A debtors or creditors to follow the dilatory and cumbersome process of the civil courts.\n\nIn order to shorten the litigation the Mlllister expressly stated that only one appeal had been provided in s. 40 of the Act, to the High Court. These matters will have a very_ important bearing on the interpretation of the provis.ions of the Court Fees Act as applicable to the decrees passed by a . Tribunal under the\n\nB rj • Act. Eveu apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject aud lightening as far as\n\npossible the burden of court fees on the litigant.\n\nThus where an\n\n~~ adjudication given by a Tribunal conld fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant. In A. V. Fernandez v. State of c Kera la('), while interpreting the provisions of a fiscal statute, viz., the Travancore-Cochin General Sales Tax Act, this Court observed ' as follows:\n\n\"It is no doubt true that in construing fiscal statutes and in detennining the liability of a subject to tax one must have D regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the .. other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the E intentions of the legislature and by conidering what was the substance of the matter.\"\n\nSimilarly in State of Maharashtra v. Mishri Lal Tara Chand Lodha and others,( 2) while interpreting some of the provisions of the Bombay Court Fees Act, Raghubar Dayal, J., speaking for the Court observed a' foJ]ow : F\n\n\"The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the snbject-litigant.\"\n\nThese observations manifestly show that the Courts have to inter- G pret the provisins of a fiscal ta!ute strictly. so as to give benefit of • doubt to the hhgant.\n\nThe prmc1ples deducible from the decisions referred to above are well established and admit of no doubt.\n\nWe, therefore, , PT?pose to dcide the question raised before us in the light of the pnnc1ples enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the l\" Act in order to find out the real nature, scope and ambit of the statute.\n\nH ---------\n\nSOJ [1957] S.C.R. 8J7.\n\n(2)' !1964] 5 S.C.R. 230, 46-83JSupCl/76\n\nA To begin with, it may be necessary to extract the relevant portion of the statement of objects and reasons of the statute : .\n\n\"The Bill is designed mainly to give relief to displaced debtors in respect\" of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors. A certain amount of relief was afforc!ed to them by Acts XL VII of 1948 and XXV of 1949, but this was found to be inadequate.\n\nA thorough examination of the various problems involvecj had to be made with a view to affording displaced persons adequate and, at the same time, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation. x x x\n\nA decree under tflie law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor. The first part of the decree will, as a rule, be recoverable in instalments.\n\nIn respect of the second part of the decree, it has been accepted that the amount gayable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan.\n\nWhere no recompense is received, there will be no recovery \\Jf the second part of the decree.\" Section 4 of the Act provides for constitution of Tribunals to exercise jurisdiction under the Act and empowers the State Government to designate any civil court or class of civil couns as the Ttibunal or Tribunals and may also define the areas in which such Tribunal shall exercise jurisdiction. It may be pertinent to note !:ere that the statute deliberately does not entrust the functions of the Act to the civil conrt per se bnt to a Tribunal to be selected from amongst civil courts.\n\nSection 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application. Section 6 authorises the Tribunal to reject the application under s. 5, if it does not fnlfil the requirements of s. 5 and fnrlher gives it the power to grant time to comply with the requirements.\n\nSections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections.\n\nSection 9 p1ovides for an inquiry into the application made under s. 5.\n\nThe statute designedly uses the word \"proceeding\" in s. 9 rather than a suit which clearly shows that the Legislature was aware of the distinction between a \"proceeding\" und a \"suit\". Sub-section (2) of s. 9 authorises the Tribunal to decide the dispute and pass such decree in relation thereto as it thinks fit. It i,, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under s. 5 and section 9 of the Act.\n\nSection 10 deals with claims by the creditors against\n\n•• •\n\ndisplaced debtors and s. 11 regulates the procedum of a petition filed A\n\n~ by .the creditor. .sub-sectioi:i\n\n(2) of s. 11 further auhorises the Tribunal to determme the claim and pass a decree m relat10n thereto. :Section 12 provides for objection by creditor to schedule of assets and s. 13 refers to claims by displaced creditors against persons who are not displaced debtors.\n\nSection 14 prescribes the procedure for displaced creditor's petition filed under s. 13 of the Act and anthonses B the Tribunal to pass a decree as it thinks fit. Sub-section (3) of s. 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists.\n\nA perusal of sub-ss. (2) !?' (3) of_s. 14 clearly.sh?ws that the statute contemplates a decree which may be one of reiec!Ion\n\n~\" Qf the claim put forward by the displaced creditor or one whic~ ari:iounts\n\nto allowing the claim.\n\nThus, in other words, whether claim 1s c11sallowed or allowed, the order passed by the Tribunal would be a c decree in both cases. We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal 3rejects the claim of a displaced creditor or debtor either on the ground \"\" that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree.\n\nThis distinction sought to be made by some of the Courts does not appear to\n\n~ be consistent with the scheme and language of the statute. Section 15 D of the Act deals with the consequences of application by displaced debtor.\n\nThe next relevant provision is s. 18 which regulates the procedure for claims against insurance companies, and sub-s. (2) of this section provides for a decree to be passed by a Tribunal. Section\n\n23 provides for a simplified procedure in certain cases where the claim .. is below Rs. 5,000/- in_which case the Tribunal 1s empowered to record only a memorandum of the substance of I.he deposition of the witnesses E so as to give a short and summary decision. Section 27 refers to the\n\n~- contents of the decree and s. 28 provides for the forum and the Court in which the decree passed by the Tribunal is to be executed. Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor.\n\nSection 36 provides for extension of period of limitation. Section 40 is the provision for appeals against any decree\n\nor final order of the Tribunal or against any order passed in the course F of execution.\n\nThese are the relevant provisions of the Act in so far as the facts of the present case are concerned.\n\nA close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advandng ... the cause of the displaced debtors and creditors by conferring substantia! benefits on them if they are able to prove their claims. Tn these circumstances it is clear to us that the Legislature :ould nevet have intended that the claimants should have to pay heavy court fees either G . ' in getting their claims adjudicated by the Tribunal or even in filing appeals against the decrees of the TribunaJ.s.\n\nThat the displaced persons liod been given such concessions and facilities has been held by this Court in Shri Ram Narain v. The Simla Banking & Industrial Company Ltd.(') where this Court observed as follows : \"- \"Now, the Displaced Persons (Debts Adjustment) Act is one of the statutory measures meant for relief and rehabili- H ----------\n\n(I) [1956] S.C.R. 603.\n\ntation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important natioi1al purpose.\n\nIt is by and large a measure for the rehabilitation of displaced\n\ndebtors. x x x There is 'ito provision therein which com; ids either a displaced debtor or a displaced creditor to go to the Tribunal, if he is satisfied with the reliefs which an ordinary civil court can give him in fos_ normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes into operation. x x x\n\nIt is also desirable to notice that so far as a claim of a displaced creditor against a non-displaced debtor is concerned the main facilities that seem to be available are ( 1) the claim cah be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by way of court-fee which would be payable if he 'had to file a suit, ( 3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which cas(). he would have to file a 'uit at the place where the defendant resides or part o( the cause of action arises.\n\nThere may also be a few other minor facilities.\"\n\nAs pointed out above, the claim of the appellants in the present case before us was dismissed by the Tribunal on merits and the stand taken by the Revenue which found favour with the Taxing Judge of the High Court was that the appellants should pay ad valorem courtfees as their claim was rejected •Jn merits.\n\nCounsel for the appellants has submitted that the present appeal would be governed clearly by Sch. II Art. 11 of the Court Fees Act, This Article re11.ds thus :\n\n\"11. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and ;,; presented.\n\n(a) x x x\n\n(b) to a High Court or Chief Commissioner,. or other Chief Controlling Executive or Revenue Authority.\n\nTwo rupees\"\n\nIn order to attract application of this article, the following conditions must be fulfilled ;\n\nli) that the document sought to be stamped must be a A memorandum of appeal;\n\n(ii) that the appeal should be presented to the High Court; and\n\nlili) that the appeal should not be from a decree or an order having the force of a decree .\n\nTbe third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against deC'rees.\n\nThe question that falfa for determination is as to whether or not_the decision given by the Tribunal under the Act could be said to be a decree within the meaning of Sch. II Art. 11 of the Court Fees Act.\n\nIt was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole.\n\nWe think that the contention is well founded and must prevail. The term \"decree\" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code oCCivil Procedure. It may be pertinent to note here that neither the Court Fees Act nor the Displaced Persons (Debts Adjustment) Act has defined the tel1)1 \"decree\". Nevertheless, as far back as 1859, by Act No. VIII of 1859 passed by the Governor-General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act. By ss. 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned.\n\nSection 189 which expressly dealt with decrees ran thus ;\n\n\"The decree shall bear date, the day on which the judgment was passed. It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit It shall a1so state the amount of costs incurred in the\n\n~\\lit and by what parties and in what proportiorn they are to l:>ii paid, and shall be signed by the Judge, and sealed with\n\nea! of the Court.\" ·\n\nThns when the Court Fees Act was passed in the year 1870 and used the term \"decre.e\" it must be intended to have used the word \"decree\"\n\no as to bear the same connotation a~ the word \"decree\" as explained m s. 189 of Act VIII of 1859. In the Code of Civil Procedure Act XIV of 1882 \"decree\" appears to have bi:; en defined for the first time and the definition may be extracted as follows .\n\n\"'decree' means the formal expression of an adjudication upon any right claimed, or defence set up in a Civil Court\n\nhen uch adjudi<;:ation so far as regards the Court expressing 1t, dc1ds the smt or, appeal. An order ejecting a plaint,\n\nor drrectmg accounts to be taken, or determmmg any question\n\nA mentioned or referred to in .; ection 244, but not specified in section 588, is within this definition : an order specified in section 588 is not within this definition : \"\n\nThe Code of Civil Procedure of 1908 also gave a full and complete: definition of \"decree\" in s. 2 (2) which rnns thus :\n\n\"'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively detenriines the rights of the parties with regard to all or any of -the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include--\n\n(a) any adjudication from which an appeal lies as an appeal from an order, or\n\n(b) any order of dismissal for default.\"\n\nIt would be seen that an order rejecting a plaint was clearly mentkmed as falling under the term \"decree\". In view of this clear defini-· tion of the order rejecting a plaint, it becam; necessary to make a corresponding change in Sch. II Art. 1 ! 0f thJ Court Fees Act and by Act V of 1908 the words \"from an order rejecting a plaint or\" used in Sc':t. II Art. 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition Q.f a \"decree\" it was not necessary to retain it in the Court Fees Act. This is the most important intrinsic evidence to show that the Legislature in enacting the Court Fees Act used the term \"decree\" in the same sense as it was used in s. 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day.\n\nThis also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other. This matter was the subject-matter of a decision of this Court in Manrum Lal v.\n\nMst.\n\nChhota/..a Bibi('), where this Court observed as follows :\n\n\"In our view in considering the question as to the maintainability of an appeal when the court-fee pakl was insufficient to start with but the dficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to be read together to form a hannonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the ei<piess words of a statute clearly override those of the other. Apart from the decisions bearing on the point, there can in otir opinion, be no doubt that Seer.ion 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act anrl the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it.\"\n\n(!) [1970! I S.C.C. 769.\n\nThere are a number of other decisions of the High Courts which have also taken the view that the word \"decree\" appearing in Sch. II Art. 11 has to be read in the same sense as used in the Code of Civil Procedure. In Ram Prasad v. Tirloki Nath(') a Division Bench of .the Allahabad High Court observed as follow>\n\n\"The word 'decree' has not been defined in the Courtfees Act or in the Genetal Clauses Act; and it is safe to assume that the word has been used in the Court-fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning \"the formal expression of adjudicr1tion which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. ........ \"\n\nA Full Be11ch of the Hyderabad High Court in Dawood Karim Ashrafi v. City Improvement Board( 2 ) made a similar observation where the Court observed as follows :\n\n\"To have the force of a di:cree, an order must possess all the characteristics of a decree. It was further held that the word \"decree\" has not been defined in the Court-fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court-fees Act in the sense in which it is used in the Civil Procedur~ Code.\"\n\nA Division Bench of the Patna High Court also in Anta/a Gope v.\n\nSarbo Gopain( 3), while interpreting the word 'decree' used in the Hindu Marriage Act, appears to have taken the same view and observed as follows :\n\n\"The Act provides under section 21 that \"all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908\";\n\nthat is to say, the procedure to be adopted by the Court, iu F dealiug with such proceedings will be akin to that provided for the trial of suits in a Civil Court. But that does not make the proceeding a suit or the application a plaint. x x x x x x\n\nTherefore, in qur view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the Hindu Marriage Act, !955.\"\n\nThe later Full Bench decision of the Allahabad High Court in Mrs.\n\nPanzy Fernandas v. Mrs. M. F. Cusoros & others(•) appears to have endorsed its previous view and observed as follows\n\n(I) A.LR. 1938 All. 50.\n\n(2) A .. I.R.1954 Hyd. 81.\n\n(3) A.LR. 1962 Pat. 489.\n\n(4) A.LR: 1963 All. 153.\n\n\"The same result would, however, follow from a persual of the various provisions of the Code of Ovil Procedure of 1859, as it stood in the year 1870.\n\nThe above provision of law, therefore, indicates that under the Code of Ovil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit.\n\nSection 26 specified the particulars that are to be given in the plaint.\n\nSection 27 laid down the manner in which the plaint was to be subscribed and verified. Thu5 the scheme of the Code of Ovil Procedure of: 1859 as disclosed by the aformentioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint.\n\nProceeding~ for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint.\n\nOn the other hand, as section 278 of the said Act shows, they are commenced by an \"application\" or a petition.\n\nFor the above - reasons we are of opinion that the decision of a Court in proceedings for letters of administration carmot be described as a decree.\n\nIf executability was to be the invariable quality of all decrees, one wonld expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree. Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word \"executable. before -i'order\".\"\n\nIn the above case the order passed in a proceeding before a Probate Court was held not to be a decree.\n\nIn Dundappa v.S. G. Motor Transport Company(') the High Court of Mysore observed as follows :\n\n\"Jn order to understand the expression \"having the force of a decree\" occurring in this article of the Court Fees Act, it would be usefnl to derive guidance from the definition of a \"decree\" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree G is a formal expression of an adjudication conclusively determining the rights of the parties with regard to _all or any of the matters in controversy before the Court.\"\n\nIn Irshad Husain v. Bakhshish Husain(') the same view was taken by the Oudh High Court where the Court observed as follows :\n\n\"The expression \"decree\" is not defined either in the Court-Fees Act or in the General Clauses Act. It may, -·-------\n\n(1) AIR 1966 Mys 150.\n\n(2) AIR 1946 Oudh 25.4\n\ntherefore, be safely assumed that this expression as used in A Sch. 2, Art. 11, Court-Fees Act, bears the meaning given to it bys. 2(2) Civil P.C. Nor can it be disputed that there is a vita! difference between a \"decree\" and an \"order\" in matters relating to appeals.\"\n\nIn Barrish Chandra Chatterji v.\n\nBhoba Tarim Debi(') the Calcutta High Court also appears to have taken the same view, where B the Court observed as follows : ·\n\n\"I do not think this was the \"formal expression of an adjudication\" so as to make the order a decree within the meaning of sec. 2 of the Code of Civil Procedure. The fee payable, therefore, will be one leviable under Art. 11 of the second schedule of the Court-fees Act.\" C\n\nThe Bombay High Court in Taxing Officer, High Court, Appellate side v. lamnadas Dharamdas,(2) which was a case under the Displaced Persons (Debts. Adjustment) Act, ha> clearly held that the term \"decree\" used in Sch. II Art. 11 of the Court Fees Act must be held to have the same meaning as in s. 2(2) of the Code of Civil Procedure.\n\nThus on a consideration of the authorities mentioned above the propositions may be summarised as follows :\n\nFirstly, that under the definition of a \"dem:e\" contained in s. 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary : E\n\n(i) that the adjudication must be given in a suit;\n\n(ii) that the suit must start with a plaint and culminate in ii decree; and\n\n(iii) that the adjudication must be formal and final and must be given by a civil or revenue court.\n\nIn the rroceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims of displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court. Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting .\n\nThirdly, the Legislature has itself made a clear-cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit. In these circumstances, therefore, none of the requirements of a decree are to be found in the decision given by the Tribunal even though t!he Legislature may have described the decision as a decree. A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of\n\n(I) 8 C.W.N. 321.\n\n(2) ILR (1956) Born. 211.\n\nA the Court Fees Act. The term \"decre\" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a \"decree\".\n\nSecondly, as pointed out, the object of the Act is to benefit dis- B placed persons by providing them a cheap and expeditious remedy.\n\nThe argument of Mr. Snghi for the respondents that the Legislature wanted the claimants to pay hea\\y court-lees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act. If the displaced c\\aimants were given the right to have their claims determined ou a nominal court-fee and if only one right of appeal was provided, it surpasses one's comprehension why the Legislature should C have intended that ven if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court-fees if they wanted to file an appeal to the High Court. If the intention of the Legislature was to provide a cheap and expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.\n\nHaving regard to these circumstances we are satisfied that the term ''decree\" used in Sch. II, Art. 11, is referable to a decree as defined in s. 2(2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a \"decree\" as mentioned above, the said decision is not a decree within the meaning of Sch. II, Art. 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch. II Art. 11 of the Court Fees Act and ad valorem court-fees under Sch. I Art. 1 are not leviable.\n\nApart from the above considerations, it is a well-settled principb of interpretation of statutes that where the Legislature uses an expression bearing a well-known legal conntation it must be presumed to have used the said expression in the sense in which it has been so understood.\n\nCraies on \"Statute Law\" observes as follows :\n\n\"There is a well-known principle of construction, that where the legislature uses in '!n. Act a legal term which has received judicial interpretation, it must be assumed th; lt the term is used in the sense in which it has been judicially interpreted, unless a contrary intention appears.\"\n\nIn Barras v. Aberdeen Steam Trawli1ig and Fishing Company(') Lord Buckmaster pointed out as follows :\n\n\"It has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been ascribed to it.\"\n\n(l) [1933]A.C.402,411.\n\n' .\n\n-,\n\nCraies further points out that the rnle a~ to word~ juicially interpreted applies also to words with well-known legal meamngs, even though they hav~ not been the subject of judicial interpretation. Thus applying these principles in the instant case 1t would appear that when tlhe Court Fees Act uses the word \"decree\" which had a well-known legal significance or meaning, then the Legislature must be presumed to have u3ed this term in the sense in which it has been understood, namely, as definea in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.\n\nThere are a number of decisions which have taken the view that Sch. II Art. 11 governs appeals agais~ decisions of the Tribnal. The matter was fully considered in a dec1sto11 of the Bombay Htgh Court in lamnadas Dharamdas's case (supra) where Shah, J., observed as follows\n\n\"But the expression \"decree\" has not been defined in the Court-fees Act.\n\nThe expression \"decree\" as used in the Court-fees Act appears to have th~ same connotation as that expression has in the Code of Civil Procedure. The Courtfees Act is intended to be a complementary piece of legislation to the Code of Civil Procedure dealing with payment of court-fees in matters which are tried bv the civil Courts. If the expression \"decree\" bas the same c'onnotation as that expression has in the Code of Civil Procedure, it would be difficult to regard an adjudication made by a Tribunal appointed under the Displaced Persons (Debts Adjustment) Act as a decree within the meaning of the Court-fees Act, even though it is so called under the Displaced Persons (Debts Adjustment) Act.\n\nIn order that an adjudication should amount to a decree under the Code of Civil Procechm, it must be a formal expressiooJ of an adjudication concluively determining the rights of the parties with regard to all r any of the lllatters in c_ontroversy in the suit The proc:ectm.gs to be m1tJate~ by displaced persons for adjustment o! their debts or by displaced creditors or displaced debtors are by applications.\n\nSuch applications cannot be regarded as plaints in civil suits and are not required by law to bear ad rnlorem court-fee under schedule 1, cl. l, of the Court-fees Act. It is true that the provisions of the Code of Civil Procedure are made applicable to the proceedings whicl1 are coml!lenced by applications. But the proceedings under the Act cannot e ?ailed suits.\n\nAgain the Tribunal in dealing with an .apphcatwn under s. 6 of the isplacecl Persons (Debts Adjustment)_ Act 1~ not .merely decdm.g a claim made by a\n\ndbtor, but is dealmg with an apphcatton for adjustment of his debts. x x x x Even if the Legislature has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub-s. (2) of s. 2 of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court-fees Act.\"\n\nWe find ourselves in complete agreement with the aforesaid observations made by Shah, J.\n\nIn Parmanand Lokumal and other v. Khudabadi Bhai•und Cooperative Credit Bank Ltd. and Others('), while construing an almost identical question, the Calcutta High Court observed as follows :\n\n\"It is to afford relief to displaced persons and that purpose may well be frustrated, if , in cases of preliminary dismissals of the applications the appeals are to be filed with a[ valorem court-fee on the disputed amoum, even assuming that it is capable of ascertainnwnt at the particular stage.\n\nBearing that in mind and having regard t~ the scheme and structure of the Act and the nature of the impugned decree, namdy, of dismissal on the preliminary finding of the failure of the appellants to prove the necessary status, and, the propriety of that finding being the sole question for consideration in the appeal, so far as the appellants are concerned, we do not think that it would be improper to hold that the subjectmatter in dispute in the appeal is that question of status which plainly is incapable of money value.\n\nThe appeal thus \" would come under Schedule II, Art. 17, of the Court-fees Act, provided, of course, the memorandum of appeal is in a 'suit' as contemplated in the opening paragraph of the Article. x\n\n:X. Even if the subject-matter in dispute in the appeal be held to be the relief of reliefs, claimed by the appellants in their original application, the decre~ impugned being one of dismissal of the same, we do not think that any other view on the question of its valuation should be taken.\"\n\nThe Calcutta Hjgh Court appears to have made a distinction between a decree passed by a Tribunal dis; nissing the claim of a petitioner on a preliminary ground that the claimant was not ableto prove his status and therefore had no locus standi to file the claim and a case where the cfaim was dismissed or decreed on merits.\n\nAccordin~ to the High Court, in the former case a decision given by the Tribunal would be only an order, whereas in the latter case i! would bi; decree.\n\nWe, however, do not agree with this part of the observation because a~ pointed out by us the statute makes no distinction at all between the decision of the Tribunal which rejects the claim either on a preliminary point or on merits and one which allows the claim.\n\nBoth these kinds of decisions have been termed as decrees passed by the Tribunal. In these circumstances, therefore, there does not appear to be any\n\nwrrant for the distinction which seems to have been drawn by the Hlflh Court between a decree passed by a Tribunal on a preliminary pomt or that passed on merits.\n\nEven otherwise, according to the general scheme of the Code of Civil Procedure whether the suit culll!ina!es in the rejetion ?f the claim of the plaintiff and thereby in d1srmssal of th~ smt or m acceptance of the claim of the plaintiff, where the suit 1s decreed the final adjudication given by the Court is a decree whether it is one dismissing the claim or one allowing it. ---------\n\n(1) A.I.R. 1958 Cal. 675.\n\n, ___ ..\n\nThe distinction between a decree which is one of dismissal of the sit or a decree which amounts to an acceptance of the claim of the plamt is too articcial to merit any consideration.\n\nWhile. therefore, we do not agree with some of the observations of the Calcutta High Court, we fully agree with the other part of the observations where the Calcutta High Court has held that ad valorem court-fees are not payable.\n\nSimilarly, in Punjab National Bank Ltd. v.\n\nFirm lsardas Kaluram('), a Full Beuch of the Rajasthan High Court observed\n\nx x x x x x\n\n\"We are therefore of opinion that the order passed in this case, though it finally determined the application of the apeellant, was not a decree, because it did not determine the clann which, in the circumstances in which that word has been used in s. 11 (2) must relate to the existence or the amount of the debt due to the creditor.\n\nThe creditor, therefore, if he has a right of appeal, has to pay court-fee under Sch. II.\n\nArt. 11 which mentions appeals which are not preferred from a decree or an order having the force of a decree.\n\nHere the order, though it final!y determined the application under s. 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of s. 11(2) .\n\nx x x x x x\n\nWe feel that this Act is an ameliorative measure for the benefit of displaced persons. It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of Ss. 9, 11 (2) and 14(2).\n\nWhere however the order does not come strictly within the terms of those provisions, it should not l:>e treated as a\n\ndecree, but only as an order determining the application.\" F\n\nHere also a distinction was sought to be drawn between a dismissal of the application on. '.he grond that the claima.nt was not a displaced pe!son. nd. a decmon which ecreed the claim on merits.\n\nBarring this d1s11; iction made by. the High Court, which we do not approve, we are 111. agreement with the other observations made by the Full Bench which are to the effect that the order passed by the Tribunal G not being a decree clearly falls within the ambit of Sch. II, Art. 11, of the Court Fees Act.\n\nIn a later decision of the same High Court in The Punjab National Bank Ltd. v. The American Insurance Company Ltd.(2) the Court observed as follows :\n\n(I) AIR 1957 Raj.146.\n\n(2) ILR [1968] 8 Raj, 216.\n\n\"On an analysis of section 18(2), it cannot be said that the order under appeal passed by the learned Civil Judge is a decree or order having the force of a decree.\n\nThe appellant was, therefore, not liable to pay ad valorem court-fee as required under Schedule I, Art. 1, of the Court Fees Act.\n\nThe tribunal is competent to pass a decree only after submitting a report to the Insurance Claims Board and after receiving their proposal.\n\nIf this is not done and the application is rejected on the ground that the Joss did not take place in the circumstances specified in section 18 (1) that order cannot be said to be a decree.\n\nThe reasoning of the Full Bench case with regard to sec. 11 (2) is applicabie to the present case which is under sec. 18.\"\n\nThe Punjab High Court in S. Sohan Singh v. Liverpool and London and Glo/Je Insurance Co. Ltd.(') appears to have taken the same view and observed as follows :\n\n\"Having regard to the general purpose of the Act, which is almost entirely intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be. any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15-8-194 7 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.\n\nx x x x x My own view is that it was certainly never anybody's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem' court-fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under s. 5 ors. 10 or 13, is merely a final order which does not necessitate the drawing up of. any decree-sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all.\"\n\nWe find ourselves in complete agreement with the observation made G by Falshaw, J., in the decision referred to above.\n\nOur attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary ..._. view, namely, Kishandas v. Parasram; (') Nabh Raj Notan Das v.\n\nSidhu Ram Mool Chand( 3 ) and .Sita Ram v. Mool Chand.(') These decisions have on doubt held that decision of the Tribunal under the\n\nH (I) A.LR. 1956 Pb. 153.\n\n(2) A.T.R.1955 Raj. 81.\n\n(3) A.I.R.1956Pepsu53.\n\n(4) A.T.R.1964 AIL 672.\n\n• i\n\nAct amouuts to a decree and, therefore, does not fall within the ambit A \\- of Sch. II Art. 11 and ad valorem court-fee is payable under the Court Fees Act.\n\nWe are, however, unable to agree with the view taken by these Courts.\n\nIn the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding.\n\nThese decisions have also not considered the various B .. aspects which we have discussed above relating to the essential condi-\n\n~ lions of a decre and finally these decisions have also overlooked the\n\n~ main purpose and object of the Act and seem to have al&o ignored the rule of strict interpretation of a fiscal statute.\n\nFor these reasons, ..... therefore, that the court-fee of Rs. 5/- pa_id by the appellants on the cannot be held to be good law and must, therefore, be over-ruled.\n\nOn a consideration of the facts, circumstances and the law on the c subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, Art. 11, and the view of the Taxing Judge that ad valorem court-fee was payable under\n\nSch. I, Art. 1, of the Court Fees Act was legally erroneous. We hold, therefore, that the court-fee of Rs. 5/- paid by the appellants on the memorandum of appeal was sufficient.\n\nD ..\n\nBefore concluding we must notice an argument' advanced by the learned counsel for the respondents.\n\nIt was submitted that under s. 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court.\n\nIt \" was submitted by Mr. Dikshit that in view of this provision the appeal\n\n} to this Court by special leave was not maintainable.\n\nWe are, how- E ever, unable to agree with this contention. Even though an order of the\n\nTaxing Judge may be final under s. 5 of the Court Fees Act, the power of this Court under Art. 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament.\n\nThe finality which may attach under s. 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court.\n\nReliance, however, seems to have been F placed on a decision of this Court in S. Rm.\n\nAr. S. Sp. Satheppa ' Chettiar v. S. Rm. Ar. Ramanathan Chattiar (•) and particularly on .... the following observations made by this Court :\n\n\"In our opinion, the decision of the Division Bench of .... the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under s.\n\nG 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. , That is why we have not allowed the merits of this order to be questioned in the present appeal.\n\nWe must, therefore, deal with tlte appellant's contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act.\"\n\n'I' These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems H ----------\n\n(I) [1958] S.C.R. 1021.\n\nA to us that this Court was not at all called upon to decide the question of the effect of s. 5 of the Court Fees Act as overriding the provision of Art. 136 of the Constitution. The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J ., who spoke for the Court, where he has clearly mentioned that the Court was _not called upon to consider this point, thus :\n\nB \"We are, however, not called upon to consider the\n\npoint as to whether s. 7 (v) would apply to the present suit or whether the present suit would fall under s. 7(i\") (b).\"\n\nFurther more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did/ not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. ?(iv) (b) of the Court Fees Act.\n\nIn these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents.\n\nFor these reasons the contention raised by the reopondents on this score must be overrnled.\n\nThe result is that the appeal is allowed, the ofder of the Taxing Judge directing payment of the ad valorem court-fees is set aside and the High Court is directed to hear and dispose of the appeal in accordance with the law on the court-fee already paid by the appellants which, in our opinion, is sufficient. In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs.\n\nP.B.R.\n\nAppeal allowed.", "total_entities": 228, "entities": [{"text": "DIWAN BROS", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "DIWAN BROS", "offset_not_found": false}}, {"text": "CENTRAL BANK OF INDIA, BOMBAY AND OTHERS", "label": "RESPONDENT", "start_char": 13, "end_char": 53, "source": "metadata", "metadata": {"canonical_name": "CENTRAL BANK OF INDIA, BOMBAY AND OTHERS", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 88, "end_char": 99, "source": "metadata", "metadata": {"canonical_name": "A.C. GUPTA", "offset_not_found": false}}, {"text": "S. MURTAZA fAZAL ALI, JJ", "label": "JUDGE", "start_char": 104, "end_char": 128, "source": "metadata", "metadata": {"canonical_name": "S. 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{"document_id": "1976_1_67_73_EN", "year": 1976, "text": ", -\n\nPUNJAB UNIVERSITY, CHANDIGARH A\n\nVIJAY SINGH LAMBA ETC. ETC.\n\nAvril 15. 1976\n\n[Y. V. CHANDRACHUD, V, R. KRISHNA IYER AND N. L. UNTWALIA, JJ.] B\n\nQuorun1-Fixing a quo'rum of 2 members in a committee of 3, does not warrant all the three must be vresent for validity of any action of the committee -Punjab University Calendar, 1973, Vol. 11--RegultNions 31 and 32.1-lnter-' pretatidn of.\n\nRegulations 31 and 32.l of the Punjab University Calendar 1973, Volume II are as under : ' C\n\n\"31. The Syndicate shall appoint annually a standing committee to deal with cases of the alleged misconduct and use of unfair means in connection with examinations;\n\n32.1. When the committee is unanimous, its decision shall be final except as provided in S. 32.2. If the Committee is not unanimous, the matter shall be referred to the Vice-Chancellor who shall either .:lecide the matter himself or refer it to the Syndicate for decision\".\n\nBy virtue of the powers vested in the syndicate, the Punjab University appointed a standing committee under Regulation 31 consisting of a retired high court judge, an Advocate who was formerly a minister of State of Punjab & the Registrar of the University, It also resolved, by its Resolutioh date-d 17th August 1971, that two members shall form the quorum for the. meetings of the standing committee appointed under Regulation 31. For adopting unfair practices in the examination, respondents were disqualified by the Committee, in all the sittings of which. only two out of the three members were present. The respondents contended by their writ petitions that the decisions of the Standing Committee were without jurisdiction in as much as all the three members of the Standing Committee had not taken part in the meetings in \\Vhich the decisions to disqualify them were taken.\n\nBy a majority of 2 to 1, the High Court set aside the decisions taking the view that despite the c:rcumstance that two members of the committee formed the quorum, the impugned decisions were vitiated by the fact that only 2 and not all the 3 n1embers of the committee participated in the proceedings.\n\nAllowing the appeals by certificate, the Court,\n\nHELD : (1) The Constitution of the Standing Committee is indisputably \\Vithin the powers of the Syndicate under Regulation 31.\n\nThe Syndicate which had the power to appoint the Standing Committee had the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts mav be lawful. It is wholly inappropriate to draw on the Constitution of judiciil tribunals as a parallel. In the tant cas~, the syndicate by non1inating 3 persons to be members of the Standing Commttee, but by resolving that 2 of them would validly constitte the stnding committee, did no more than provide that though the Standmg Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the bu.sines< of' and oh behalf of the Committee. [70 &F, 71-A-CJ\n\n(ii) By the quorum, a minimum number of members of the committee mnst be present in order that its proceedings ll!ay be lawful, ut that ds not mean that more than the minimu!ll. are denied an opportunity to arhc1pate in the delibeTations and the dec1s1on 1 of the committee. There is no\n\nwarrant for the hypothesis that had the third member attended the meetings be would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice Chancellor under Regulation 32.1. [71 F-G-\n\n72-AB]\n\n(iii) When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting on the committee and who, by forn; tin21 the quorum can validly ind lawfully discharge the functions of the Committee. The fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its pplication or utility. The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.\n\n[72 C-D, E, F]\n\n(iv) Regulation 32.1 is aimed at conferring finality on decisions of the comn1ittee if they are unanimous and at leaving the validity and: priority of a disSenting decision to the judgment of the Vice-Chnncellor who can deal with the matter himself or refer it to the decision of the Syndicate. Regulation 32.1 does not eveh remotely attempt tQ fix the quorum. That i:, not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of n1embers.\n\nQuorums are seldom so fixed and were it intended that the entire committee must decide every case, egulation 31 could appropriately have said so. [72 G-H, 73 Al\n\nIt is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it canhot afford to a static and therefore, judQ.Cs. ought to en1ploy an intelligent teclinique in the use of precedents. But the language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases, it is so much, better that the law is certain. [73 C.D, El\n\nBharat Jndu v. The Punjab Umversity & Anr. !LR [1967] 2 Punjab & Haryana 198; Miss Maniinder Kaur v. The Pun; ab University (Civil Writ No. 35161 72 dt 30-3-1973 decided by the Punjab High Court (approved).\n\nCIVIL APPELLATE ]URISDICTION: Civil Appeals Nos. 1121-1125 of 1975.\n\nFrom the Judgment and Order dated the 31st March 1975 of the Punjab and Haryana High Court in Civil Writ Petition Nos. 5948, 6115, 6736, 6779 and 6780 of 1974.\n\nHardev Singh and R. S. Sodhi for the Appellant.\n\nS. K. Bagga and (Mrs.) S. Bagga for Sole Respondent in CA 1121 R-1 in CAs. 1122-1125/75.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-These appeals arise out of a decision rendered by a Full Bench of the Punjab High Court in various writ petitions filed by the students of the Punjab University, who were disqualified for adopting unfair practices in the examinations. Most of them had copied from a common source.\n\nBy a majority of 2 to 1, the High Court by its Judgment dated March 31, 1975 set aside the decisions of a Committee appointed to inquire into the chaes against the erring students. The judgment of the majority rests solely on. the\n\nl!UNJAB UNIVERSITY v. v. s. LAMBA.·(Chandrachud, !.) 69\n\nview that despite the circumstance that two members of the Com- A mittee formed the quorum the impunged decisions were vitiated by . the fact that only 2 and not all the 3 members of the Committee participllted in the proceedings. Aggrieved by the majority judgment of the High Court, the Punjab University, Chandigarh, has filed these appeals by a certificate granted by the High Court on the ground that the appeals involve a substantial question of law of general impor- 'B lance which requires to be determined by this Co!llt.\n\nThe respondents to these appeals were detected in the use of unfair means by the supervisory staff at different examinations held\n\nby the Punjab University. The Deputy Registrar of the University issued notices to the respondents calling upon them to submit their replies to a questionnaire. Respondents denied having used unfair means in the e; i:aminations but their explanation having been found to be unsatisfactory, the charges were referred for inquiry and decision to the Standing Committee which was appointed to deal with cases of misconduct and use of unfair means at the University examinations.\n\nThe Standing Committee consisted of Shri G. L. Chopra, a retired Judge of the High Court, Shri Ajmer Singh, an advocate who was formerly a Minister of the Punjab Government, and Shri Jagjit Singh,\n\nth~ Registrar of the University. The Standing Committee was appointed by the Syndicate of the University under Regulation 31 of the Punjab University Calender, 1973, Volume II. In a meeting dated August 17, -1971 the Syndicate passed a Resolution that two members shall form the quorum for the meetings of the Standing Committee appointed under Regulation 31. In everyone of the meetings, only two out of the three members of the Standing Committee were present.\n\nRespondents appeared before the Standing Committe.e which, on a consideration of their statements came to the unanimous conclusion that the respondents had adopted unfair means in the examinations.\n\nBy the impugned decisions . they were disqualified for varYing terms.\n\nIt is not alleged that the Standing Committee had committed breach F of any of the procedural provisions or of the rules of natural justice.\n\nWe may also mention in passing that none of the respondents took any objection duril\\g the inqniry that it was not competent to only two members of the Standing Committee to inquire into the barges. Before the High Court also, the sole , ground on which the decisions of the Standing Committee were challeI1ged was that the d.ecisions were without jurisdiction inasmuch as, all the three members of the Standing G Committee hacl not taken part in the meetings in which the decision to disqualify the respondents was taken.\n\nThe Punjab University, Chandigarh, was set l!P under the East Punjab Ordinance 1947, which was later replaced by the Punjab University Act, 194 7.\n\nBy section 8 of the Act the supreme authority of the University vests in the Senate consisting of the Chancellor, the H Vice-Chancellor, ex-officio Fellows and Ordinary Fellows.\n\nSection 11 (2) of the Act provides inter alia that the Senate shall exercise its powers in accordance with the statutes, rules and regulations for the\n\nA time being in force.\n\nSection 20 of the Act provides that the Executive Government of the University shall vest in the Syndicate consisting of the Vice-Chancellor as Chairman, the Directors of Public Instruction Punjab, Haryana and Chandigarh, the Director of Education, Himachal Pradesh, and not less than 12 or more than 15 ex-officio or ordinary Fellows decte<l by various Faculties.\n\nSection 31 (1) of the Act provides for the framing of Regulations and states that the Senate, B with the sanction of the Government, may from time to time make regulations consistent with the Act for providing for all matters relating to the University.\n\nSection 31(2) enumerates matters regarding which regulations can be made and they include the conduct of students, the procedure to be followed at meetings of the Senate, Syndicate and Faculties and the quorum of members to be required c\n\nfor the transaction of business.\n\nActing wtder the power conferred by section 31, the Senate of the Punjab University framed regulations in consultation with the Government, which include regulations relating to the use of unfair means in exanrinations.\n\nThese regulations are contained in Chapter II of the Punjab University Calendar, 1973, Volome II.\n\nThe decision of these appeals turns on the construction and meaning of regulations 31 and 32.1 of Chapter II which read thus:-\n\n\"31. The Syndicate shall appoint annually a Standing Committee to deal with cases of the alleged misconduct and use of unfair means in connection with examinations;\n\n32.1. When the Committee is unanimous, its decision shall be final except as provided in 32.2.- If the Committee is not unanimous the matter shall be referred to the Vice- Chancellor who shall either decide the matter himself or refer it to the Syndicate for decision\".\n\nThe constitution of the Standing Committee is indisputably within the powers of the Syndicate under Regulation 31. No exception can therefore be taken to the appointment of the Standing Committee by the Syndicate and indeed no objection was at any stage taken in that behalf.\n\nEqually clear seems to us the position that the Syndicate which had the power to appoint the Standing Committee nad the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum' denotes the minimum number of 1fiembers of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful.\n\nIt is generally left fo committees themselves to fix the quorum for their meetings and perhaps, if the Syndicate had not fixed the quorum it might have been competent to the Standing Committee itself to devise its day-to-day procedure including the fixation of quorum.\n\nBut that is going one step ahead, for here the quorum was fixed not by the Standlng Committee bnt by the Syndicate itself which appointed the Standing Committee and which indubitably had the right to appoint the Committee -under Regulation 31. We are unable to see any valid reason for which the fixation of quorum for the\n\n~--\n\nPUNJAB UNIVERSITY v. Y. s. LAMBA (Chandrachud, !.) 71\n\nmeetings of a Committee appointed by the Syndicate can be said to be beyond the powers of the Syndicate.\n\nIt is wholly inappropriate in this connection to draw on the constitution of judicial tribunals as a parallel because, if by law such a tribunal must consist of 3 members there is no jurisdiciion in the tribunal to fix a smaller quorum for its sittings.\n\nA court is not a committee and if by law any matter is required to be heard, say by a bench of three Judges, there is no power in those three Judges to resolve that only two of them Will form a quorum. In facl, quorum is fixed for meetings of committees and not for the sittings of courts. In the instant case the Syndicate had the right to fix the number of persons who would constitute the Standing Committee and by fixing the quorum at 2, it did no more than provide that though the Standing Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the business of and on behalf 01' the committee.\n\nPutting the matter a little differently, the Syndicate nominated 3 persons to be members of the Standing Committee but resolved that any 2 of them would validly constitute the StandiQg Committee for the time being to dispose of any business which comes before it.\n\nGreat reliance was placed by the respondents both in the High Court and before us on Regulation 32.1 which we have setout above, in support of the contention that the decision of the Standing Committee was without jurisdiction since all. the members of the Committee had not participated in the various decisions.\n\nBy Regnlation 32.1, if the Standing Committee is unanimous in its decision, the decision is final except as provided in Regulation 32.2; if the committee js not unanimous, the matter has to be referred to the Vice- Chancellor who can either decide the matter himself or refer it to the Syndicate for its decision. It is urged on behalf of the respondents that the possible dissent of the 3rd member, were he present, would have necessitated a reference to the Vice-Chancellor who might not agree with the majority opinion, which shows that no sanctity can attach to a decision rendered by less than the whole body of 3 members of the Standing Committee.\n\nThis argnment is purely hypothetical and besides, it overlooksthat the fixation of quorum for the meetings of a committee does not preclude all the members of the committee from attending the meetings.\n\nBy the quorum, a minimum number of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions of the committee.\n\nWhenever a committee is scheduled to meet, due notice of the meetings has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting.\n\nEvery member has thus the choice and the opportunity to attend every m\"-eting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt. • Though a faint attempt was made in these appeals for the first time to suggest that the notice of the meetings\n\nSU~REME COURT REPORTS\n\n(1976] SUPPLEMENTARY\n\nof the Standing Committee was not served on all the 3 members of the c6mlllittee we are satisfied that such a notice was in fact given and someone or the other of the 3 members chose to remain absent at the meeiings of the Standing Committee.\n\nThere is, therefore, no warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a 1eference to the Vice-Chancellor under Regulation 32.1.\n\nApart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meetings of the Standing Committee.\n\nIf the quorum consists of 2 members, auy 2 out of the 3 members can perform the functions of the Standing Committee, though the committee may be composed of 3 members.\n\nWhen Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the committee and who, by forming the quorum can validly and lawfully discharge the fu'nctiQns of the committee and transact all business on behalf of the committee. If only 2 members out of the 3 who compose the Standing Committee have participated in the business of any particular meeting, the question to ask under Regulation 32.1 is whether there is unanimity amongst those two members. If they are unanimous their decision is final. If they differ, the matter has to be referred to the Vice-Chancellor.\n\nThus, the fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility.\n\nWith respect, we are unable to appreciate the reasoning of the mjority that \"The manner in which Regulation 32.1 has been framed ]eaves no doubt that the consideration of the question of students' misconduct and the use of unfair means in examination by them bas been placed at a high pedestal\" and that therefore \"there is no escape from the conclusion that the consideration of tl)e case of a student against whom there are allegations of rnisconduCl or of use unfair means in an examination, has to be by all the members of the .Standing Committee and not by some of them and that any decision of the Syndicate to the contrary would he violative of the letter and spirit of Regulation 32.1.\" The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation.\n\nThe majority Judges were therefore in error in holding that Regulation 32.1 \"clearly negatives the fixation of a quorum and makes it incumbent that the decision must be taken by the full Committee\" for thei reason that \"In a way, this regulation fixes the quorum at the number of members originally appointed\".\n\nThe learned Tudges read far more into Regulation 32.1 than there is in it and we see no warrant for construing that regulation , as fixing the quorum at the number of mem.bers originally appointed to the committee.\n\nRegulation 32.1 is aimed at conferring finally on decision of the committee if they are unanimous and at leaving the validity and propriety of a dissenting decision to the judgment of the Vice-Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate.\n\nRegulation 32.1 does not even remotely attempt to fix the\n\n) -\n\nPUNJAB UNIV:RSITY v. v. s. LAMBA (Chandrachud, /.) 73\n\nquorum.\n\nThat is not its purpose, and it sounds strange that the A.\n\nRegulation, by a circuitous method, should fix the quorum at the full complement of members.\n\nQuorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so.\n\nWe share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring tl\\e stream of precedents which had consistently recognised ibe validity of decisions taken by 2 members of the Standing Committee.\n\nIn Bharat lndu v. The Punjab University and an!Jther('), Regulation 19 which was the precursor of and was identical with Regulation 32.! came before the Punjab High Court.\n\nBy a closely considered judgment, Dua J. ¥iho spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case.\n\nIn Miss Manjinder Kaur v. The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state oi legal bliss.\n\nLaw must grow, it caonot afford to be static and theretore Judges ought to employ an intelligent technique in the use of precedents.\n\nPrecedents, as observed by Lord Macmillan, should be \"stepping stones and not halting places\".(') But, Justice Cardozo's caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings.\n\nThe language of the Regulations called for no .review of established precedents.\n\nNor indeed is there any fear of unfairness i[ only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases it is so much better that the Jaw is certain.\n\nIn the result we allow the appeals, set aside the decision of the majority and uphold that of the minority Judge.\n\nThe writ petitions filed by the respondents. will consequently stand dismissed but there will be no order as to costs.\n\nS.R.\n\n(I) I. L. R. (1967) 2 Punjab & Haryana 198.\n\n(2) Birch v. Brown [1931] A. C. 631.\n\nAppeal allowed ..", "total_entities": 15, "entities": [{"text": "PUNJAB UNIVERSITY, CHANDIGARH", "label": "PETITIONER", "start_char": 5, "end_char": 34, "source": "metadata", "metadata": {"canonical_name": "PUNJAB UNIVERSITY, CHANDIGARH", "offset_not_found": false}}, {"text": "A\n\nVIJAY SINGH LAMBA ETC. ETC", "label": "RESPONDENT", "start_char": 35, "end_char": 64, "source": "metadata", "metadata": {"canonical_name": "VIJAY SINGH LAMBA ETC. ETC", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 84, "end_char": 101, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "R. KRISHNA IYER", "label": "JUDGE", "start_char": 106, "end_char": 121, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 126, "end_char": 145, "source": "metadata", "metadata": {"canonical_name": "N.L. UNTWALIA", "offset_not_found": false}}, {"text": "S. 32", "label": "PROVISION", "start_char": 740, "end_char": 745, "source": "regex", "metadata": {"statute": null}}, {"text": "Vithin the powers of the Syndicate under Regulation", "label": "STATUTE", "start_char": 2231, "end_char": 2282, "source": "regex", "metadata": {}}, {"text": "East Punjab Ordinance 1947", "label": "STATUTE", "start_char": 9341, "end_char": 9367, "source": "regex", "metadata": {}}, {"text": "section 8", "label": "PROVISION", "start_char": 9435, "end_char": 9444, "source": "regex", "metadata": {"linked_statute_text": "the East Punjab Ordinance 1947", "statute": "the East Punjab Ordinance 1947"}}, {"text": "Section 11", "label": "PROVISION", "start_char": 9611, "end_char": 9621, "source": "regex", "metadata": {"linked_statute_text": "the East Punjab Ordinance 1947", "statute": "the East Punjab Ordinance 1947"}}, {"text": "Section 20", "label": "PROVISION", "start_char": 9787, "end_char": 9797, "source": "regex", "metadata": {"linked_statute_text": "the East Punjab Ordinance 1947", "statute": "the East Punjab Ordinance 1947"}}, {"text": "Section 31", "label": "PROVISION", "start_char": 10153, "end_char": 10163, "source": "regex", "metadata": {"linked_statute_text": "the East Punjab Ordinance 1947", "statute": "the East Punjab Ordinance 1947"}}, {"text": "Section 31(2)", "label": "PROVISION", "start_char": 10408, "end_char": 10421, "source": "regex", "metadata": {"statute": null}}, {"text": "section 31", "label": "PROVISION", "start_char": 10717, "end_char": 10727, "source": "regex", "metadata": {"statute": null}}, {"text": "Great reliance was placed by the respondents both in the High Court and before us on Regulation", "label": "STATUTE", "start_char": 14155, "end_char": 14250, "source": "regex", "metadata": {}}]}
{"document_id": "1976_1_74_81_EN", "year": 1976, "text": "LONANKUTTY\n\nTHOMMAN & ANOTHER\n\nApril 15, 1976\n\n[Y. V. CHANDRACHUD, V. R. KRISHNA IYER AND N. L. UNTWALIA, JJ.]\n\nCivil Procedure Code, s. 11, Res judicata, scope of-Co'mmon iudg111ent in cross appeals from two suits on identical questions-Second appelll from only one suit, whether barred by res judicata.\n\nPractice and procedure-Remanding judgment not appealed against, whether challen1reab/e in appeal from final decision. ,\n\nTwo suits were filed in the trial court, one by the respondents, claiming a prescriptive eament OVeil.\" the appellant's land for the ingress and egress of water, -for agriculture and prawn fishing, and the other by the appellant, seeking to restrain the respondents from using his land for the above purposes.\n\nDue to the time-lag between their respective institution, the two suits, although involving common questions, were tried and disposed of separately.\n\nThe respondents' easementary right was upheld in regard to agricultural user but not for prawn fishing.\n\nCross appeals were filed by the parties against both the decrees, ; i.nd the Subordinate~ Judge dismissed all the appeals confirming the decrees by a common judgment. Neither side challenged the decrees in appeals arising from the respondents' suit, but the respondents moved the High Court against the decree in appeals arising from the appellant's suit. The second appeal was contested on the ground that it ¥.ras barred by res ; udicata, as the qu\"6tion in it had already been finally decided by the unchallenged decrees in the appeals arising out of the other suit. This contention was rejected and the appeal was remanded for a fresh hearing. The matter was thereafter disposed of on merits by the Subordinate Judge, and the pre-remand view stood confirmed. The High Court a11owed a second appeal by the respondents, up holding their easementary right both for agriculture and prawn fishing.\n\nIn appeal therefrom the plea of res iudicata Was raised before this Court, and was contested on the ground that the remanding judgment had not been appealed against, and the contention was, therefore, barred by res iudicata.\n\nF Allowing the appeal, the Court\n\nHELD : ( 1) The appeals filed in the District Court arose out of two different suits, one by the appeliant and the other by the respondents. The failure of the respondents to chaUenge the decision of the District Court in so far as it pertained to their suit, attracts the application of section 11, ExpJanatio!1 I, Civil Procedure Code, because to the extent to which the District Court decided issues arising in the respondents' suit against them, that decision \\VOU]d operale\n\nas res judicata since it v; ras not appealed against.\n\n[81A-B]\n\nSheodan Singh v. Smt. Daryao Kunwar [1966] 3 S.C.R. 300; Badri '!•larayan SinRh v. Kamdeo Prasad Singh & Anr. [1962] 2 SCR 759, referred to.\n\nNarhari v. Shanker [1950] SCR 754, distinguished.\n\n(2) The circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom. cannot preclude the appellant from cha1lenging the correctness of the view taken by the High Court in that judgment. [81 DE]\n\n\n' ..\n\n' ,.\n\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 1283 of A 1973\n\n(Appeal by special leave from the judgment and order dated the 8.4.1971 of the Kerala High Court in S. A. No. 1190/65)\n\nD. V. Patel and A. S. Nambiar, for the appellant.\n\nT. C. Raghavan and S. Balakrishnan, for respondents.\n\nThe Judgment of the Court was delivered by\n\nCHANDRACHUD, J.-This 22-year old litigation concerns the right of two adjacent owners to catch prawns on their respective lands .\n\nSurvey No. 673 of Kadamkudi, District Ernakulam, measuring about 11 acres originally belonged to the Cochin Government but by C diverse transfers the title thereto is now vested in the appellant, Lonankutty.\n\nThe land is bounded on the West and South by a river.\n\nA portion of the land on the North-East can be put to agricultural use for a part of the year but the land, by and large, is water-logged and can profitably be used for prawn-fishing.\n\nIn order to make fishing feasible, the appellant has constructed a bund on the western side of the land for arresting the flow of the river water.\n\nThe contrivance D is calculated to permit collection of water on the land, almost to the point of submerging it.\n\nThe prawns enter the land with the high tide, they breed and multiply on the land, and the water while receding leaves the prawns behind.\n\nThe appellant then catches them, presumably under a licence from the Government of Kerala.\n\nSurvey Nos. 672, 677, 655/4 and 670 which sprawl on all sides E of survey No. 673 belong to the respondents : T'homman and his mother Annam.\n\nWe are concerned with the prescriptive rights claimed by them in respect of survey No. 672 which is situated towards the north-east of survey No. 673.\n\nSurvey No. 672 is almost landlocked and between it and the river on the south stands the vast expanse of survey No. 673 belonging to the appellant.\n\nPrawns have an export value and catching them is so much more profitable than growing food-crops.\n\nBut the respondent's land being land-locked, they have no direct access to the river on the west or the south.\n\nThey cannot therefore do any fishing operations becaus~, for prawn-fishing it is necessary that the rrver-water must enter their land, and collect on it so that after the prawns have bred, the water can be released back to the river.\n\nFor achieving this result, respondents constructed a bund with sluice-gates on the border between their land and survey No. 673.\n\nTheir case is that they have a prescriptive easement to take water from the appellant's land and to divert it back through the same land, both for fishing and agriculture.\n\nThe appellant has grave objection to permitting the respondents to engage thus in prawn-:fiShing because along with the water which would pass from his land (survey No. 673) to the respondents' land (survey No. 672), prawns also would pass.\n\nAnd when the water would be released back from survey No. 672 through the sluice gates, survey No. 673 would get flooded, carrying back the prawns left on his land,\n\nto the river on the south. the parties.\n\nThis is the genesis of the dispute between\n\nThe appellant filed Civil Suit No. 666 of 1954 against the respondents for a perpetual injunction restraining them from !Clking wr from survey No. 673, from discharging the water back through survey No. 673 and for a mandatory injunction directing them to demolish the bund and olose the sluice gates. The appellant disputed the right claimed by the respondents in its entirety, contending that they had no right to the flow of water either way for either purpose-fishing or agriculture.\n\nThe respondents filed Civil Suit No. 5 of 1957 for an injunction restraining the appellant from trespassing on the bund constructed by them and for preventing the appellant from interfering with their right to take water from Survey No. 673 and to discharge the water back through that land: Respondents claimed this prescriptive 1ight for fishing as well as for agricultural purposes.\n\nBoth the suits were instituted in the court of the Munsiff of Cochin but in view of the time-lag between their respective institution, they were tried and disposed of separately.\n\nBy a judgment dated September 20, 1957 the learned Munsiff decreed the appellant's suit (No. 666 of 1954) partly, granting an injunction against the respondents to the effect that they had no right to take water from the appellant's land nor to discharge the water back t!hrough that land for the purposes of prawn-fishing. The learned judge, however, expressly upheld the respondents' easementary right to the two-way flow of water from and through the appellants land for agricultural operations during the agricultural season.\n\nThe suit filed by !he respondents (No. 5 of 1957) was disposed of by the learned Munsiff by a judgment dated October 11, 1958.\n\nConsistently with the decree passed in the appellant's suit, he dismbsed\n\nthe respondent's suit in so far as it related to the fishing rights claimed by them but decreed it to the extent of the right claimed by them in regard to agricultural user. Briefly, the result of the decrees passed in the two suits was that the respondents could take water from the appellant's land and discharge water back through that land for agricultural purposes only and during the agricultural season which begins on the 15th Meenam and ends pn 15th Vrischigam of each year.\n\nFrom the decree passed in the appellant's suit, two cross-appeals werll filed in the court of the learned Subordinate Judge, Ernakulam, the appeal filed by the appellant being A. S. 64 of 1956 while that filed by the respondents being A. S. 66 of 1958.\n\nSimilarly, two cross-appeals were filed by the parties as against the decree paBsed by the trial court in the suit filed by the respondents, A. S. 1 of 1959 being the one filed by the respondents while A. S. 17 of 1959 being the one filed by the appellant. Since these four appeals involved common questions for decision the learned Subordinate Judge heard them together and disposed them of by a common judgment dated January 28, 1960.\n\nThe learned Judge dismissed all the appeals and confirmed the decrees passed by the Trial Court.\n\n' '\n\nNo further appeal was filed by either side fro mthe decrees passed by the learned Subordinate Judge in Appeal~ Ns. 1 of 1959 and 17 -0f 1959, which arose out of the respondents. smt.\n\nBut respondents filed a Second appeal in the High Court agamst the decree assed by the learned Subordinate Judge in appeal No. 66 of 1958 which arose out of the decree passed by the trial court in the suit filed by the appellant.\n\nThat was Second Appeal Noc 1149 of 1960.\n\nBefore the High Court it was contended on .bealf of the espoi: dents that the subordinate Judge had faded to consider the entire evidence in the case and therefore his judgment Was vitiated. On the other hand, the appellants, w)lo were defendii:g the.judgments of the Subordinate Judge, contended. that the quest10n raised by the respondents in their Second Appeal was barred by res-judicata as the decrees passed by the Subordinate Judge in appeals arising out of the respondents' suit had become final, not having been appealed against. A learned single judge of the High Court, by his judgment dated July 8, 1964 accepted the first of these contentions, set aside \"the judgment and decree of the Subordinate Judge which was under appeal\" and remanded the appeal for a fresh hearing. The appellant's contention of res judica/a was rejected by the learned Judge on the ground that since in the four appeals the Subordinate Judge had passed only one judgment aud one decree, it was enough for the _respondents to file one appeal in which they could challenge every one of the findings recorded against them.\n\nOn remand, the appeals were heard by another Subordinate Judge before whom the appellant, once again and with some impropriety,\n\npleaded the bar of res judicata. Impropriety, because the High Court having rejected that plea by its remanding judgment, the court of remand-the Subordinate Judge-was bound by the High Court's decision on the question of res judicata.\n\nApparently, the learned Subordinate Judge was in a doubting disposition and he expressed his reaction favourably by observing that the appellant's contention of res judicata was plausible, But very rightly, he proceeded to dispose of the matter on merits as directed by the High Court. By his judgment dated December 22, 1964 he dismissed A. S. 66 of 1958 which was filed by the respondents against the decree passed by the Trial Court in the appellant's suit.\n\nThus the view taken in the judgment before remand stood confirmed after remand on a further consideration of evidence in the case.\n\nRespondents filed Second Appeal No. 1I90 of I 965 against the Subordinate Judge's judgment, which was allowed by a Division Bench of the Kerala High Court on April 8, 1971.\n\nThe High Court held that the respondents had a right to the flow of water through the appellant's land not only for the purposes of agriculture but for the purposes of prawn-fishing also.\n\nAppellant raised once again the plea of res judicata but it was rejected on the ground, rightly, that the plea was concluded by its remanding judgment.\n\nIn the result, the High Court dismissed the appellant's suit (No. 666 of 1964), giving rise to this appeal by special leave.\n\nLearned_ counsel appearing on behalf of the appellant contends that the High Court exceeded its jurisdiction in interfering with the findings of fact recorded by the Subordinate Judge and that it had overlooked certain fundamental principles of law while adjudicating upon t!he prescriptive claim made by the respondents.\n\nIt is unnecessary to go into these questions because another submission made on behalf of the appellant goes to the root of the matter and if that submission is accepted, the High Court's judgment would be impossible to sustain. The contention is that the issue as regards the respondents\" right to the flow of water through the appellant's land for fishing purposes is barred by res judicata, and t!herefore, the High Court could not try and decide that issue in the Second Appeal which came before it.\n\nThis contention is well-founded and must be accepted. By section 11, Code of Civil Procedure, in so far as relevant, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided.\n\nExplanation I to the section provides that the expression \"former suit\" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.\n\nThe only other aspect of the rule of res judicata which on the facts before us must be borne in mind is that it is not enough to constitute a matter res judicata that it was in issue in the former suit.\n\nIt is further ne.cessary that it must have been in issue directly and substantially.\n\nAnd a matter cannot be said to have been \"directly and substantially\" in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the ot!her.\n\nIn the instant case, two suits were filed in the trial court : one by the appellant and the other by the respondents.\n\nThe plaintiff in the first suit was the defendant in the second suit while the defendants in the first suit were plaintiffs in the second.\n\nTo particularize in the interests of clarity, appellant who was plaintiff in the earlier suit (No. 666 of 1954 was the defendant in the later suit (No. 5 of 1957).\n\nRespondents who were plaintiff in suit No. 5 of 1957 were defendants in suit No. 666 of 1954.\n\nIn the appellant's suit, the trial Court framed the following issues for decision in so far as relevant :\n\n\"1. Whether the defendants have trespassed into the north-eastern boundary of the plaint schednle property and have begun construction of a bund there as alleged in para 3 of the plaint ?\n\n2. How long has the bund on the western boundary of S. No. 672 been in existence?\n\n3. Whetlher defendants 1 to 3 have acquired any right of ea11ement over the plaint schedule properties as contended for in paras 4 and 5 of the written statement?\n\n4. Whether the defendants enjoyed such a right against\n\nschedule properties as owners and occupiers of S. Nos.\n\nf -\n\n...\n\n672 and 667 openly as of right and continuously A and for the prescribed period?\n\n5. Whether defendants 1 to 3 have no out-let for water from S. Nos. 667, 672, 655, 670 and 671 other than through the plaint schedule properties?\n\n6. Whether the right to let in and let out water for purpose of prawn-fishing operation is a right of easement B capable of being acquired in law?\n\n7. Whether the plaintiff is entitled to the injunction prayed for?\"\n\nIn the respondents' suit the following issues were framed :\n\n\"1. Whether the plillltiffs have got any easement right\n\nto let in and let out water from the plaint A schedule properties through B schedule property?\n\n2. Whether the defendant can obstruct that right if any, by putting up a bund?\n\n3. Whether the plaintiffs are entitled to the iniunction prayed for?\" D\n\nThe trial court decreed the appellant's suit partly by holding that the respondents had not acquired any right of easement over the appellant's land for the ingress and egress of water for fishing purposes but they had established such a right for agricultural purposes during the agricultural season.\n\nThe trial court issued an injunction restraining the respondents from taking or letting out water from or E through the appellant's land for fishing purposes. In the respondents' suit, the trial court recorded similar findings and issued an injunction against the appellant restraining him from interfering with the respondent's easement right limited to agricultural purposes during the agricultural season.\n\nEach party being partly aggrieved by both the decrees, each filed F an appeal in the District Court against the two decrees.\n\nThe learned - Subordinate Judge, sitting in appeal, had thns 4 appeals before him, 2 arising from each suit.\n\nHe confirmed the decrees under appeal and • dismissed all 11he appeals. ).\n\nRespondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit.\n\nG They filed a Second Appeal in the High Court, only as against the decree passed by the District Court in A. S. 66 of 1958 which arose out of the decree passed by the trial court in the appellant's suit.\n\nThus, the decision of the District Court rendered in t:he appeal arising out of the respondents' suit became final and conclusive.\n\nThat decision, not having been appealed' against, could not be re-opened in the Second Appeal arising out of the appellant's suit.\n\nThe issue H whether respondents had the easementary right to the flow of water through the appellant's land for fislhing purposes was directly and substantially .in issue in the respondent's suit.\n\nThat issue was heard and\n\nfinally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the Second Appeal.\n\nThe decision of the District Court \"as given in an appeal arising out of a suit, which though instituted subsquently,\n\nstood finally decided before the High Court disposed of the Second Appeal. The decision was therefore one in a \"former suit\" within the meaning of section 11, Explanation 1, Civil Procedure Code. Accordingly, the High Court was in error in deciding an issue which was heard and finally decided in a \"former suit\" and was therefore barred by res judicata.\n\nThe High Court in its judgment dated April 8, 1971 assumed wrongly that suit No. 666 of 1954 filed by the appellant and suit No. 5 of 1954 filed by the respondents were \"originally disposed of. by a common judgment\".\n\nThey were not.\n\nThe appellant's suit was disposed of by a judgment dated September 20, 1957 while the respondents' suit was disposed of by a judgment dated October 11. 1958.\n\nNaturally, 2 separate decrees were drawn in the 2 suits and those decrees gave rise to 4 cross-appeals, 2 from each suit.\n\nIn its remanding judgment dated July 8, 1964 by which the plea of res judicata was repelled, the High Court relied principally on the decision of this Court in Narhari v. Shanker('). That decision is in our opinion distinguishable because in that case only one suit was filed giving rise to 2 appeals.\n\nA filed a suit against B and C which was decreed.\n\nB and C preferred separate appeals which were allowed by a common judgment, but the appellate court drew 2 separate decrees.\n\nA preferred an appeal against one of the decrees only and after the period of limitation was over, he preferred an appeal against the other decree on insufficient conrt-fee.\n\nThe High Court held that A should have filed 2 separate appeals and since one of the appeals was timebarrcd, the appeal filed within time was barred by res judicata.\n\nThis Court held that \"there is no question of the application of the principle of res judicata\", because \"When there is only one suit, the question of res judicata does not arise at all\".\n\nThis was put on the ground that \"where there has been one trial; one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.\" In our case, here were 2 suits and since the appellate decree in one of the suits had become final, the issues decided therein could not be re-opened in the Second Appeal filed against the decree passed in an appeal arising out of another suit.\n\nThis precisely is the ground on which Narhari's case was distinguished by this Court in Sheodan Singh v. Smt. Daryao Kunwar( 2 ). It was held therein that where the trial court has decided 2 suits having common issues on the merits and there are two appeals therefrom the decision in one appeal will operate as res judicata in the other appeal.\n\nThe circumstance that the District Court disposed of the 4 appeals by a common judgment cannot affect the application of section 11 because as observed in Badri Narayan Singh v. Kamdeo Prasad Singh\n\n(1) [1950] S. C. R. 754.\n\n(2) [1966] 3 S. C. R. 300,\n\nand Anr.,(1) even where 2 appeals arise out of one proceeding and even if the appeals are disposed of by a common judgment, the decision in that judgment may amount to 2 decisions and not to one if the subject-matter of each appeal is different.\n\nThe case before us is stronger sti11 for the application of section 11 because the appeals filed in the District Court arose not out of one proceeding but out of 2 different suits, one by the appellant and the other by the respondents.\n\nThe failure of the respondents to challenge the decision of the District Court in so far as it pertained to their suit attracts the application of section 11 because to the extent to which the District Court decided issues arising in the respondents' suit against them, that decision would operate as res judicata since it was not appealed against.\n\nIt is necessary to add that the decision rendered by the High Court by its judgment of remand dated July 8, 1964 in Second Appeal No. 1149 of 1960 that the contention raised by the respondents is not barred by res judicata can be re-opened in this appeal against the final judgment of the High Court.\n\nThe decision of this Court in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr.,(') is directly in point on this question.\n\nRelying upon certain decisions of the Privy Council it was held by this Court that an interlocutory order which had not been appealed from either because no appea:l lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order.\n\nAccordingly, the circumstance that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment.\n\nIn view of our decision that the contention raised by the respondents is ban-ed by res judicata, it must be held that the High Court was in en-or in allowing the respondents' appeal and acceptin~ his contention. Accordingly, we allow this appeal, set aside the judgment of the High Court and restore that of the District Court. In the circumstances, there will be no order as to costs.\n\n- We would like to state by way of clarification that our judgment will not affect the respondents' right to the flow of water through the appellant's land for agricultural purposes from 15th Meenam to I 5th _;.\n\nVrischigam every year.\n\nM.R.\n\n(1) [!9621 3 S. C. R. 759.\n\n\\1) \\1%1){ 1 S. C.R. 590.\n\n8-833 SCI/76\n\nAppeal allowed.", "total_entities": 25, "entities": [{"text": "LONANKUTTY", "label": "PETITIONER", "start_char": 0, "end_char": 10, "source": "metadata", "metadata": {"canonical_name": "LONANKUTTY", "offset_not_found": false}}, {"text": "THOMMAN & ANOTHER", "label": "RESPONDENT", "start_char": 12, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "THOMMAN & ANOTHER", "offset_not_found": false}}, {"text": "Y. V. CHANDRACHUD", "label": "JUDGE", "start_char": 48, "end_char": 65, "source": "metadata", "metadata": {"canonical_name": "Y.V. CHANDRACHUD*", "offset_not_found": false}}, {"text": "V. R. KRISHNA IYER", "label": "JUDGE", "start_char": 67, "end_char": 85, "source": "metadata", "metadata": {"canonical_name": "V.R. KRISHNA IYER", "offset_not_found": false}}, {"text": "N. L. UNTWALIA, JJ.", "label": "JUDGE", "start_char": 90, "end_char": 109, "source": "metadata", "metadata": {"canonical_name": "N.L. 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{"document_id": "1976_1_82_86_EN", "year": 1976, "text": "HIRALAL THAKORLAL DALAL v.\n\nIlROACH MUNICIPALITY & ORS.\n\nApril 15. 1976\n\n[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA, P. N. SJIINGHAL AND\n\nJASWANT SINGH, JJ.]\n\nBombay Municipal Boroughs Ac1 1925 S. 73(i) (iv)-Scope-of-Octroi July -If could be le\\lit!d-on-\"through consignments\".\n\nSection 73(i)(iv) of the Bombay Municipal Boroughs Act 192.S empowers a municipal borough to impose octroi on animals or goods or both brought wit.hilt the octroi limits for consumption, use of sale therein. The appellant imported certain consignments of goods within the octroi Ii1nits of the municipality and exported them, the consignments being termed as \"through consignments\" or .. goods in transit\" or .. goods for export'\".\n\nOctroi duty was imposed on the goods and the appellant f.led a petition befo:re the High Court challening the levy. The High Court held that the expression 'sale' used in the definition of \"through consignments\" in the rules had the same connotation as in the Sale of Goods Act and, lhe-refore, if a consignment was brought within the octroi limits and if the municipal authorities were satisfied that the consignment bad been brought in for the purpose of sale, then the consignment did not becom• a through consignment.\n\nAllowing the appeal to this Court.\n\nHELD : The law on the subject has been clearly laid down in Burmali Shell Oil Storage and Distributing Company (India) Ltd. v.\n\nThe Belgaum Borough AJunicipality and the present case is governed by that decision. lt was held in that case that the company was liable to pay octroi on .goods brought into the local area. if t.he Roods are :\n\n(a) to be consumed by the Compan)I itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area and irrespective .of \\\\o-hetlrer such consumer boush, t\n\nthem for use in the area or outs de it; but it was not liable to octroi in respect of goods l'.-hich were brouRhl into tf.e _tocal area and were re-exported. [86 C-D]\n\nBunwh Shell O:I Stdrc.+ge and Distributing Co. India Ltd. v. The Be/gaurn Borou:xh 1\\.funicipality [1963] Supp]. 2 S.C.R. 216, explained and 2pp1kd.\n\nCIVIL APPELLATG JURISDICTION : Civil Appeal No. 1823 of 1969.\n\nApeal by Special Leave from the Judgment 11nd Order dated the 27th/28th/30th January, 1967 of the Gujarat High Court in Special G Civil Application No. 163 of 1962. ·\n\nB. R. Agarwa/a for the Appellant.\n\nI. N. Shroff for the Respondent•.\n\nDr. L. M. Singhvi. Advocate Gmeral, Rajasthan, V. S. Da1•e . and S. M. Jain for Intervener, Mtt.licipal Council, Jodhpur.\n\nH The Judgment o( the Court was delivered by\n\nSmNGHAL, J.-This appeal by special ju0[Jnent o~ the Gujarat High Court &ted\n\nle:ivc uise. from the\n\nJanuary 27, 28 .and 30,\n\n1967. The two petitioners before the High Court were firms trad- A ing in certain commodities within the limits of the Municipal Borough of Broach. The grievance in one of the petitions was that the Municipality had collected certain amounts wrongfully, and the grievance in the other petition was that the Municipality had refused some amounts even though they were refundable under its byelaws.\n\nBoth the petitions concerned goods which were \"imported\" within the octroi limits of the Municipality but came to be \"exported\" B therefrom. The first petition was in respect of a consignment which was designated as a through consignment, and the second petition concerned goods in transit and goods for export other thari those which could be called goods in transit.\n\nThe amounts in dispute related to the levy of octroi under section 73(i) of the Bombay Municipal Boroughs Act, 1923, hereinafter called the Act, which provides as follows : C\n\n\"73 (i) Subject to any general or special orders which the State Government may make in this behalf and to the provisions of sections 75 and 76, a Municipality may impose for the purposes of this Act any of the following taxes, namely :-\n\n• • • •\n\n(iv) an octroi on animals or goods or both, brought, within the octroi limits for consumption, use or sale therein;.\"\n\nThe word \"sale\" was included within the ambit .of octroi when the Act was amended in 1954. The High Court took note of the rules and the bye-laws and held that it was not possible to take the view\n\nthat the rules contemplated that no refund was payable in case the goods had undergone a sale during the course of their stay in octroi F limits.\n\nIt accordingly came to the conclusion that in regard to goods meant for export in the sense defined in the rules, refund was claimable even if a sale transaction in the larger sense (i.e. in a sense other than a sale to a consumer or with the intention that the goods must pass into bands of the ultimate consumer) took place in regard thereto, provided that the other conditions were satisfied.\n\nThe High Court then examined the correct interpretation of the word G \"sale\" in clause (iv) of section 73(i) of the Act and after considering this Court's judgment in Burmah Shell Oil Storage and Distributing Co. India Ld. v. The Belgaum Borough Municipality,(') it held that the word \"sale\" could not be given the narrow meaning of a sale for consumption to the ultimate consumer because, in that\n\nense, the Legislature would be guilty of having introduced a word which it was not necessary for it to introduce.\n\nThe High Court H made a reference to the definition of \"sale\" in section 4 of the Sale of\n\n--·-....:..--'---\n\n(1) [1963) S1ppl. 2. S. C. IL 216.\n\nGoods Act and held that the expression \"sale\" as used in the definition of 'through consignments\" in the rules had the same connotation as in the Sale of Goods Act and therefore \"if a consignment is brought within the octroi limits and if the municipal authorities are satisfied that the consignment has been brought in for the purpose of effecting a sale in the aforesaid sense, then the consignment does not become a through consignment.\" According to the High Court, it was not enough merely to prove that the consignment left the octroi limits within six hours after the goods were imported and that it was necessary to show that the goods were intended only to pass through in the sense that they were not meant for consumption, use or sale, and that in regard to such goods there was no intention of changing hands by way of sale or that there was no intention of breaking their bulk or detaining them beyond six hours or unloading them.\n\nIn the view it took, the High Court issued some directions for compliance by the authorities concerned.\n\nThe writ petitioners felt dissatisfied with the view taken by the High Court and applied for a certificate under articles 132(1) and J33(1)(c) of the Constitution.\n\nThe High Court held that no question arose under article 132, aud no .certificate could be granted under article 133 as there was no final order.\n\nThe petitioners however applied to this Court for special leave on the ground, inter alia, that the High Court put a wrong interpretation on the expression \"sale\" in section 73(i) (iv) of the Act inspite of the decision of this Court in Burmah Shell's case (supra).\n\nAs has been stated, they succeeded in obtaining special leave from this Conrt.\n\nWhen the case came up for hearing before a Division Bench, it noticed the decision in Burmah Shell's case (supra) and felt that there were \"blurred areas\" of sale within the territory which may attract a tax under entry 52 (List II of Seventh Schedule) left uncertain by the aforesaid decision of this Court so that the matter deserved consideration by a larger Bench.\n\nThis is how the case has come up before us for. hearing.\n\nWe have allowed Municipal Council, Jodhpur, to intervene in the hearing at its request.\n\nThe short question before us is whether this Court's decision in the Burmah Shell's case (supra) squarely covers the present controversy or whether that decision requires reconsiderat:on.\n\nThe learned counsel have in fact confined their arguments to this narrow field.\n\nIn order to appreciate the controversy, it will be desirable to refer to the basic facts of the Burmah Shell's case (supra).\n\nThe Burmah Shell Oil Storage and Distribution Co. India Ltd., hereinafter referred to as the Company, was a dealer in petrol and other petroleum products which it manufactured in its refineries situated out- H side the octroi limits of Belgaum Municipality.\n\nIt brought these products inside that area either for use or consumption by itself or for sale generally to its dealers and licensees who in their turn sold them to others.\n\nAccording to the Company, the goods brought by\n\nit within the octroi limits could be divided into follows:\n\n1. Goods consumed by the Company;\n\nfour categories as\n\n.!~I\n\n2. Goods sold by the Company through its dealers or by itself and consumed within the octroi limits by persons other than the Company;\n\n3. Goods sold by the Company through its dealers or by itself inside the octroi limits to other persons but consumed by them outside the octroi limits; an.d\n\n4. Goods sent by the Company from its Depot inside the octroi limits to extra-municipal points where they are\n\nbought and consumed by persons other than the c company.\n\nThis Court examined the scheme of taxation under the Act and the rules and the bye-laws made by the Municipality for the levy of octroi.\n\nIt also took note of the fact that the words ''use or sale\" were substitnted for the words \"or use\" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution.\n\nAfter examining the history of octrois and terminal taxes, this Court held that \"octrois were taxes on goods brought into the local area for consumption, nse or sale\", and that\n\n\"they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user.\" It was specilically clarified that the word \"sale\" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitntion, and that the expression \"consumption\" and \"use\" together \"connote the bringing in of goods and animals not with a view to taking them out aguin but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up.\"\n\nLooking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was \"merely the means for putting the goods in the way of use or consumption\" and that the word \"therein\" does not mean that all the act of consumption must take place in the area of the municipality.\n\nThe Court therefore went to hold as follows.-\n\n\"In other words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re-exported out of the area but were brought inside for use or consumption by buyers inside the area. In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of 'octroi' as explained above.\n\nThat concept included the bringing in of goods in a local area so that the goods come to a repose there.\n\nWhen the Government of India Act, 1935 was enacted, the word\n\n'octroi' was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case.\n\nIn other words, even without the description the tax was on goods brought for 'consumption, use or sale'. The word 'octroi' was also avoided because terminal taxes arc also a kind of octroi and the two were to be allocated to different legislatures.\n\nIn our opinion, even without the word 'sale' in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to othei; s for the purpose of use or consumption by them in the area.\n\nIt was only when the goods were re-exported out of the area that the tax could not legitimately be levied ..... \"\n\nThis Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was \"not liable to octroi in respect of goods which it brought into the local area and which were re-exported.\"\n\nThe law on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shell's case (supra) and the present case squarely falls to be governed by it. We are also in agreement with that interpretation of the law. It may be mentioned E that the learne_d counsel have not been able to advance any new argument justifying a reconsideration of the decision.\n\nThe appeal is allowed, the impugned judgment of the High Court is set aside and the respondents are directed to examine and determine the claims of the appellant in accordance with the above decision. The appellant will be entitled to costs from the respondents.\n\nP.B.R.\n\nAppeal allowed.\n\n,_ '", "total_entities": 24, "entities": [{"text": "HIRALAL THAKORLAL DALAL", "label": "PETITIONER", "start_char": 0, "end_char": 23, "source": "metadata", "metadata": {"canonical_name": "HIRALAL THAKORLAL DALAL", "offset_not_found": false}}, {"text": "IlROACH MUNICIPALITY & ORS", "label": "RESPONDENT", "start_char": 28, "end_char": 54, "source": "metadata", "metadata": {"canonical_name": "BROACH MUNICIPALITY & ORS", "offset_not_found": false}}, {"text": "A. N. 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{"document_id": "1976_1_87_90_EN", "year": 1976, "text": "NEW DELHI MUNICIPAL COMMITTEE 87\n\nKALU RAM & ANR.\n\nApril 20. 1976\n\n[A. C. GUPTA AND JASWANT SINGH, JJ.]\n\nPublic Premises (EvictUna of Unauthorised Occupants) Act, 1958, S. 7, whtt her creates new right or merely provides special procedure, whether subject to limitation.\n\nfn 1950, the appellant allotted small pre-fabricated stalls to several displaced persons including the respondent, at the Iicen~ fee of rupee thirty payable per month .. Later, the~ allottees applied for a fixation of standard rent but ultimately lost in the Punjab High Court at Delhi. MP.anwhile, the reapondent fell in arrears in paying the licence fee.\n\nIn Decembr. 1960, the appellant demanded from him the entire amount in arrears from May 1950 to April 1957 but he failed ro pay. In September 1961, the Estate Officer ordered tho respondent under section 7 ( 1) of the Act, to pay the sum, overruling his objection that the claim was barred by limitation. The respondent's appeal to the Additional District Judge was rejected, but the Punjab High Court at Delhi a11owed bis writ petition on the ground that section 7 could not be availed in case of time barred claims.\n\nThe appellant contended before this Court that the Limitation Act only barred the remedy by way of suit and did not extinguish the right which could still be exercised through section 7 of the Act. Section 7 did not put a time limit for taking action under it, and was, therefore, not subject to the limitation prescribed for a suit to recover the amount.\n\nDismissing the appeal, the Court,\n\nHELD : Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to da:m a debt otherwise time-barred. The word \"payable\" in Section 7 in the context in which it occurs, means \"legally recoverable\". [90 B & D]\n\nHans Raj Gupta and other3 v. Ofiicial Liquidator of the Dehradun Mrissoorie Electric Tramway Co. Ltd. 60 I.A. 13, followed.\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 988 of 1968 .\n\n(From the Judgment and order dated the 8-4-1965 of th~ Punjab High Court, Circuit Bench Delhi-now the High Court of Delhi in Civil Writ No. 228---G of 1962).\n\nHardyal Hardy, B. P. Maheshwari, Suresh Sethi and Bikaramfit Nayar; for the appellant.\n\nA. K. Sen, D. P. Bhandare, Mrs. Laxmi Arvind Mathur and S. S.\n\nKhanduja; for the respondents.\n\nThe Judgment of the Court was delivered by\n\nGUPTA, J.-Respondent Kalu Ram was pavement vendor in Connaught place, New Delhi. In 1950 the appellant.\n\nNew Delhi Municipal Committee, provided a number of displaced persons with small pre-fabricated stalls to enable them to do their business.\n\nKalu\n\nSUPREME COURT REPORTS\n\n[1976] SUPPLEMENTARY\n\nRam who was also a displaced person was allotted one such stall on Irwm Road. Rupees thirty was the licencee fee payable per month by the allottees of these Slalls. Later, the allottees, including the respondent, applied to the Rent Controller for reducing the rent. It is not necessary to refer to the various proceedings arising from these applications for\n\nfixacion of standard rent which were ultuna, ely dismissed by the Circuit Bench ol the Punjab High Court at Delhi as not maintainable.\n\nIn the meantime, many of the allottees fell in arrears in paying the licence fees.\n\nSo far as the respondent is concerned, the appellant took no steps to recover the dues till December 1960 when it demanded the entire amount in arrears from May 1950 to April 1957, The respondent not having paid, the appellant asked the Estate Officer, appointed under section 3 of the Public Premises (Eviction of U nauthorised Occupants) Act, 1958, to take steps to recover the amount in arrears under section 7 of that Act.\n\nThe Estate Officer, who is the second respondent herein, made an order on September 28, 1961 Ul).der section 7 ( 1) of the Act asking the respondent to pay the sum overruling his objection that the claim was barred by limitation. The respondent's appeal to the Additional District Judge from the Estate Officer's order was disallowed.\n\nThe respondent then filed a writ petition before the Circuit Bench of the Punjab High Court at Delhi challenging the order against him.\n\nOne of the grounds of challenge was that section 7 could not be resorted to for recovery of the sum as the claim was time-barred. The High Court accepted the contention a!ild allowed the petition. In this appeal by certificate, the appellant, New Delhi Municipal Committee, questions the correctness of the High Court's decision.\n\nThe only contention raised before us by Mr. Hardy appearing for the appellant is that the High Court was wrong in holdin~ that the amount in question could not be recovered under section 7 because the time for instituting a suit to recover the sum had expired. Admittedly, any suit instituted on the date when the Estate Officer made his order under section 7 (I) would have been barred by time.\n\nMr.\n\nHardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act providin~ a different and special mode of recovery was therefore available to recover rent in arrears beyond three years. Section 7 as it stood at the relevant time reads :\n\nPower to recover rent or damages in respect of public premises as arrears of land revenue.\n\n\"7. (1) Where any person is in arrears of rent payable in respect of ny public premises, the estate officer may, by order, reqmre that person to pay the same within such time and in such instalments as may be specified in the order.\n\n(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the\n\n...\n\nN.D.M.C. v. KALU RAM (Gupta, !.) 89\n\nestate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages witnin such time and in such instalments as may be specified m the order :\n\nProvided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.\n\n(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under sub-section ( 1) or the damages or any instalment thereof payable under sub-section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.\"\n\nAs would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent.\n\nIt was argued\n\nthat since section 7 did not put a time limit for taking steps under that section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent's objection.\n\nIn sup- E port of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English.\n\nWe do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars the remedy without touching the right.\n\nSection 28 of the Indian Limitation Act, 1908 which was in force at the relevant time however provided that the right to any property was extimm; shed on F the expiry of the period prescribed by the Act for institntin• a suit for possession of the property.\n\nBut on the facts of this case no question of a suit for possession of any property arises and section 28 has no application.\n\nIt is not questioned that a creditor whose suit is barred by limitation. if he has any other le.al reme<ly permittin~ him to enforce his claim, would be free to avail of it.\n\nBut the question in every such case is whe•her the narticular statute permits such G a course.\n\nDoes section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable' in resoect of any oublic premises to pay the same within such time and in such instalments as he may soecify in the order.\n\nBefore how•ver the order is made, a notice must issue caltinq uoon the d•fonlter to show H\n\nause way such order should not he made and, if he raised any obiectton, the Estate Officer must consider the same and the evidence oroduced in support of it.\n\nThus the Estate Officer has to determine\n\nSUPREME COURT REPORTS [1976) SUPPl, EMENTARY\n\nupon hearing the objection the mount of rent in arrears which is 'payable.' The word 'payable' is somewhat mdefinite in import and its meaning must he gathered frol!l the context in which it occurs. 'Payable' generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot igaore the existing laws, If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable, When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law.\n\nSection 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a &ource or foundation m a right to claim a debt otherwise time-barred.\n\nConstruing the expression \"any money due\" in section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others v.\n\nOfficial Liquidators of the Dehradun Mussorie Electric Tramway\n\nCompany Ltd. ( t) that this meant moneys due and recoverable in a auit by the company, and observed : \"it is a section which creates a 11pecial procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for riyment.\n\nIt creates 110 new rights.'' We are clear that the word payable\" in section 7, in the context in which its occurs, means \"legally recoverable.'' Admittedly a suit to recover the arrears instituted on the day the order under section 7 was made would have been barred by limitation.\n\nThe amount in question was therefore irrecoverable.\n\nThis being the position, the appeal fails and is dismi£sed with costs,\n\nM.R Appeal dismissed.\n\n(I) 60 I.A. 13.\n\n' '", "total_entities": 34, "entities": [{"text": "NEW DELHI MUNICIPAL COMMITTEE", "label": "PETITIONER", "start_char": 0, "end_char": 29, "source": "metadata", "metadata": {"canonical_name": "NEW DELHI MUNICIPAL COMMITTEE", "offset_not_found": false}}, {"text": "87\n\nKALU RAM & ANR", "label": "RESPONDENT", "start_char": 30, "end_char": 48, "source": "metadata", "metadata": {"canonical_name": "KALU RAM & ANR", "offset_not_found": false}}, {"text": "A. C. GUPTA", "label": "JUDGE", "start_char": 68, "end_char": 79, "source": "metadata", "metadata": {"canonical_name": "A.C. 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{"document_id": "1976_1_91_100_EN", "year": 1976, "text": "ANIRUDH PRASAD\n\nRAJESHW ARI SAROJ DAS & OTHERS\n\nApril 20, 1976\n\n[Y. V. CliANDRACHUD, V. R. KRISHNA !YER AND A. C. GUPTA, JJ.J B\n\nElection-Representation of People Act, 1951-Sec. 91-Recriminatory peti tw,..,..Nature and scope of-Conduct of Election Rule1 196l--R11le 73(2)(d)- _,) Ballot paper1 containing identification marks.\n\n..... I\n\n19 persons contested biennial elections to the Bihar -Legislative Council for filling 11 vacancies. The appellant and respondents No. 1 to IO were declared as the successful candidates. Election was held by the system of proportional representation by a single transferable vote. The votes were counted in accordance with the procedure prescribed in para 7 of the Conduct of Election Rulet 1961, read with the relevant provisions of the Representation of the People Act, 1951. The Returning Officer rejected 9 ballot papers and accepted 306.\n\nTh-e Returning Officer by application of rule 6 fixed the minimum quota of votes sufficient to secure the return of a candidate at 2551.\n\nIn first three rounds respondents 1 to 7 were declared elected. None of the candidates could be declared successful in the fourth round. In the fifth and 6th rounds res~ pendents 8 and 9 were declared elected.\n\nIn the seventh round, respondeht No. 18 (Election Petitioner) was eliminated and in the last round, i.e. the 8th round, the appellant and respondent No. 10 were declared as the successful candidates.\n\nRespondent No. 18 filed an Election Petition in the High Court challenging the election of the successful candidates on the ground that the rejection of 3 ballot papers having first preference votes in its favour, the rejection of 2 ballot papers having first preference votes in favour of respondent No. 9 the illegal acceptance of one ballot paper having first preference vote in favour of res..r pondent No. 8 and wrong counting of votes in the fourth round of counting had materially affected the result of the election. The Returning Officer had rejected one ballot paper on the ground that it contained merely a horizontal line, another on the ground that it had a faint mark and the third on the ground that the voter had scored through the fourth preference vote in favour of one candidate and had assigned it to another.\n\nRespondent No. 8 and some other respondents did not enter appearance in the High Court.\n\nResrondent No. 9 filed a written statement as well as recriminatory petition. He con ...\n\ntended that the Returning Officer had wrongly rejected 2 ballot papers which contained first preference votes in his favour and one other ballot paper having a second preference vote in his favour. The appellant! who was respondent No. 10 in the High Court contested the petition. The High Court with the consent of parties decided as preliminary issue whether the election petition was maintainable and whether the Returning Officer wrongly and illegally rejected the ballot papers and, if so, whether the result of the election had been materiallv affected. The High Court also held that the three disputed ballot papers did not contain anv identification marks within the meaning of rule 73(2)(d) of Conduct of Election Rules, 1961 and, therefore, the Returning Officer was in error in rejecting those ballot papers as invalid. It was not disputed before the High Court that if the 3 ballot papers that were \\HOngly rejected were not eliminated respondent No. t 8 would have been declared elected. Consequently, the High Court recorded the finding that the election of the Election Petitioner was materially affected by the rejection of the 3 ballot papers. The High Court also held that as a result of the i!legaJ rejection of the three votes respondent No. 9 was reQuired to trial behind until the sixth round and that but for the wrongful rejection resnondent No_ 9 would have been declared elected in the very first round. Special leave Petition filed by the Election Petition filed by the Election Petitioner in thi<; Court against the findings of the High Court on issues No. 1, 2 and 3 \\Vas dismissed.\n\nF -\n\nThereafter, th~ Hi&h Court proceeded with the election petition and tried the retp-aining issues.\n\nThe votes were recounted by an Officer appOinted by the court 1n the presence of parties and their counsel. A fair copy of the result sheet was thereafter prepared signed by all concerned in token of its correct--\n\nness. 1 e Hig~. Court consequently allo~'ed the election petition, declared the election peuuoner as elected an'tl set aside the election of th~ appellant who -had secured the smallest number of votes on recounting.\n\nIt was contended Qy the appellants beiore this Court; ·\n\nSince respor,, dent No. 8 had not filed the recriminatory petition he had discntided himself from claiming any benefit, under lb~ ballot papers which were initially rejected by the Returning Officer but which were accepted by the High Court as valid.\n\nDismissing the appeal,\n\nIIELD: Sccfioh 97 of the Reprcsentationlof People Act, 1951 PrOVides that when in election petition a declaration is sought that any candidate other than the returned candid_ate bas been duly elected the returned candidate or any other party may give evidence to prove that the election of such candidate wou!d have been void if be bad been the returned cr:.ndidcte and a petition had been presented calling in qtreslion his election. The proviso to t.i.e said section provides that the returned cand\"-<Iate or uch oth~~·- _party sh~n not be entitled to give such evidence unless he has with:n 40 days from th~ date of commencement of the trial given notice to the I-Iigh Court of hh intention to do so.\n\nSection 97 applies if a composite claim challenging tte election of the returned candidate and for a declaration that some other candidate should be declared elected is made. The returned candidate in that case recriminate,,\n\nagaint the person in whose favour the declaration is claimed. The recrimi natory plea of defence in one's ov1n election is in. truth and substance not so much a p, lea though that be its ultimate purpcse and. effect, as a plea of attack by \\vhich a successfu, l candidate assume! the role of counterretitioner and contends that the election of the candidate in whose favour the declaration is claimed would have been void if be had been the_ returned candidate and a\n\ntit; on had been pre9ented caUihg his elect:on in question.\n\nSinc.e the election petitioner had asked for a compo'iite reliefthe conditions necessary for attract ing section 97 were undoubtedly present.\n\nThe contention of the appellut was, ho•Never, altogether of a different kind. It \\Vas argued that respondent No. 8 cannot take advantage of the first preferenee votes cast in his favour without a recriminatory petition. This. contention is outside the scope of s. 97, because in claiming the first preference vote respondent No. 8 is not in any manner challenging the validity of any of the votes cast .and counted in favour of the election petitioner or any step taken by or on behalf of the electioh petitioocr in fur'herance of hi! e1ectio11.\n\nRespondent No. 8 made no contention and . wahted t.o make none in regard to the claim of the election petitioner that hehould be declared elected. There was no conflict of interest between the election petitioner and re:i; pondent No. 8 on the question whether the particnla.- vo•e hDufd be counted in favour of the latter. If the 3 ballot oapers in question were valid they must be treated a! valid for all pu~ and, therefore. vote~ cast in favour of respondent No. 8 under those ballot papers must be counted in his favour.\n\n[97 C, 98 A, D-F, 99-DJ\n\nJabar Singh v. GeMa Lal (19641 6 S.C.R~ ,4, di!.t.inQ'!lished.\n\nClvrL APPELLATE JURISDICTION: Civil Appeal No. 714 ot 1975.\n\nFrom the Judgment and Order dated 18th April 1975 of the Patna High Court in Election Petition No. 2i74.\n\nPfamod Swarup and K. K. Chaudhury; for the Appellant~.'\n\nK. P. Verma, B. B. Sinha and S. C. Patel; tor Respondents No•. 8 and 9. ·\n\n\" >\n\n--,\n\nAN!RUDH v. RAJESHWARI (Chandrachud, l.)\n\nJ. P. Goyal and M. P. Mukerjee; for Respondent No. 18.\n\nShree Pal Singh; for Respondents Nos. 10, 12 and 17.\n\nThe Judgment of the Court was delivered by-\n\nCHANDRACHUD, J.-Nineteen persons contested the biennial elections to the Bihar Legislative Council which were held on March 29, 19:74 for filling 11 vacancies.\n\nThe appellant, Anirudh B Prasad, and respondents 1 to 10 were declared as the successful candidates.\n\nThe elections having been held by the system of proporfional representation by a single transferable vote, votes were counted in accordance with the procedure prescribed in Part VII of the Conduct of Election Rules, 1961 (hereinafter called the Rules), read with the relevant provisions of the Representation of the People Act, 1951 (hereinafter called the Act).\n\nThe Secretary of the Bihar Legislative Assembly who acted as the Returning Officer rejected 9 ballot papers and accepted the remaining 306 ballot papers as valid.\n\nConsidering that 11 seats were to be filled on the basis of votes cast in 306 ballot jJ'apers, the Returning Officer, by the application of Rule 76, fixed the minimum quota of votes sufficient to secure the return of a candidate at 2551. The technical arithmetical formulae were applied during counting from time to time, votes were likewise added and subtracted from one round to another of counting and the result of the none, too-simple procedure was entered by the Returning Officer in a form prescribed by the rules for that purpose.\n\nIn the first round of counting, respondents 1 to 5 were declared elected as they secured more votes than the fixed quota of 2551.\n\nIn the second and third rounds of counting, respondent 6 (since deceased) and respondent 7 were declared su,>:cessful on the basis of transfer of surplus votes. None of the candidates could be declared successful in the fourth round but in the fifth round, respondents 8 and 9 and in the sixth round, respondent 9, were declared elected. In the seventh round of counting respondent 18 (Indra Kumar) was eliminated and in the eighth round, which was the last round of counting, the appellant Anirudh Prasad and respondent 10 were declared as the successful candidates.\n\n• Respondent 18 filed an election petition in the Patna High Court challenging the election of the successful candidates on the ground that the rejection of 3 ballot papers having First Preferenre votes in his favour, the rejection of 2 ballot papers having First Preference votes in favour of respondent 9, the illegal acceptance of one ballot paper\n\nhavin~ a First Preference vote in favour of respondent 8 and a wrong counting of votes in the fourth round of counting had materially affected the result of the election. Out of the 3 ballot papers which occording, to respondent 18 were wrongly rejected by the Returning Officer, one was reiected on the ground that it contained a small horizontal line, another on the ground that it contained a faint mark and the third on the ground that the elector had scored through the Fourth Preference vote cast in favour of one candidate and had assigned it to\n\n- -\n\nanother. The rejection of these 3 ballot papers which contained First Preference votes in favour of respondent 18 was partly based on ti.e view that while casting their votes, the voters connected with the particular ballot papers had resorted to devices by which their identity could be established. Respondent 18 prayed that the election of successful candidates or of the candidate receiving the smallest number of votes on recount he declared as void and that he himself be declared as duly elected. The rest of the 18 contestant;; were impleaded as respondents to the .Election Petition.\n\nRespondents 1 to 6, 8 and 11 to 17 did not enter appearance in the High Court. Respondents 7 and 10 appeared in the election petition and filed their written statements.· But they took no further part in the roceedings. .\n\nRespondent 9, Nathuni Ram, filed a written statement as well a• a recriminatory petition. He contended that the Returning Officer had wrongly rejected 2 ballot papers which contained Firs_! Preference votes in his favour and one other ballot paper having a Second Preference vote in his favour.\n\nAccording to respondent 9, even if the grievance made by respondent 18 in the election petition was to be accepted as valid, that would not affect his election as, in any view of the matter, he would he entitled to additional votes which were wrongly rejected by the Returning Officer.\n\n. Tile appellant Anirudh Prasad, who was respondent 10 in the High Courf, appeared in the case and filed his written statement. The High Court accepted his written statement subject to the condition that he paid costs of respondent 18 who had filed the election petition and of respondent 9 who was the sole contesting respondent. This condition was imposed by the High Court on the ground that the appellant had filed his written statement much beyond the time fixed for that purpo•e.\n\nThe appellant did not pay the costs as directed by the j-ligh Court and since. the payment of costs was a condition precedent to the acceptance of his written sll.ltement, the High Court passed orders declin-· ing to take the written statement on record. The High Court, !\"1wever, allowed the appellant's counsel to cross-examine the witnesses examined bv the electicn-petitio11er and by. resooll(/ent 9. limitin~ the crossexamination to the statements made by the witnesses in their examination-in-chief.\n\nThe appellant was further permitted by the High Court to lead evidence by way of rebuttal and to submit argurn<lats on the evidence in the case. ·\n\nOn the basis of the averments contained in the election petition ' filed by respondent 18 and those contained in the written statement and the recriminatory petition filed by repondent 9, the High Court framed 5 issues for determination :\n\n\"1. Is the election petition, as framed, maintainah1e ?\n\n2. Did the Returning Offieer at the time of counting of votes illegally and wrongly reject three, with first prefe; ence, votes validly polled in favour of the petitioner ? If so, has the result of election been materially affected on that account7\n\n! <\n\n• ,\n\n3. Did the Returning Officer at the time of counting of votes illegally and wrongly reject two votes wit!' first pre1e.rence and one vote with second preference validly polled m favour of respondent No. 9 '? lf so. has the result of the election been materially affected thereby ?\n\n4. Whether the petitioner has received majority of the valid votes and is entitled to be declared elected; as claimed ?\n\n5. To what relief, if any, is the petitioner entitled in this election petition?\"\n\nSince the decision of issues 4 and 5 depended upon the answers to issues 1 to 3, the High CoUrt, by cousent of the contestm g p1rties, took up issues 1 to 3 for considration in the first instance. By its judgment dated February 28, 1975 it rejected the contention that the election petition was defective and held on issue No. 1 that the petition was maintainable. It held on issue No. 2 that th~ 3 disputed ballot papers (Exhibits 4, 4/a and 4/b) did not contain any identifying marks within the meaning of rule 73(2) (d) and therefore the Return- . ing Officer was iii error in reiectine those ballot paoers as invalid.\n\nIt was not disputed before the High Court at that stage that the election petitioner (respondent 18) was eliminated in the seventh round of counting because of his failure to receive the required quota of 2551 votes and that if the 3 First Preference votes contained in Exhibits 4, 4ia a<0ti 4/b had been counted in his favour, he would have been declared as duly elected. Consequently, the High Court recorded the finding that the election of the election-petitioner was mater.ally affected by the rejection of the 3 ballot papers.\n\nOn the 3rd issue, the question for consideration of the High Court was \"hether 3 other ballot papers (Exhibits B, B/l and B/2) were rightly rejected by the Returning Officer.\n\nThe High Court held that the Returning Officer had rejected the 3 ballot papers wrongly and that the votes cast therein in favour of respondent 9 had to be takon into account.\n\nTh£. wrong rejection of these 3 ballot papers had materially affected the result <'t the election qua respo:Jrk'm 9 in the sense that if the votes cast in his favour in the 3 ballot papers were taken inro account, he would have been declared elected in the very first round of counting and would not have been required to trail behind until the sixtlround.\n\nThe High Court recorded its finding on issue No. 3 accordingly.\n\nThe appellant filed a petition for special leave in this Court agaiiist the aforesaid judgment of the High Court dated February 28, 1975 but that petition was rejected.\n\nThereafter the High Court proceeded with the election petition and tried the remruning issues, 4 and 5. By consent of parties it appointed Shri R. N. Thacore, Ex-Deputy Secretary of the Bihar Legislative Council, to recount the votes on the basis of the findings recorded <>n issues Nos. 2 and 3. .Shri ThaC<'re was expertly conversant with the complicated mechanism of counting votes under the system of pro- H portional representation by single transferable vote.\n\nLearned cmmsel who appeared in the High COurt for the election petitioner and for respondent 10 would appear to have been familiar with the particUlar\n\nA procedure and they agreed to assist Shri Thacore.\n\nRespondent 9 agreed that counsel for the election petitioner may deimttse for him.\n\nAccordingly, the votes were recounted by Shri Thacore m the presence -\n\nof the parties and their counsel. A fair copy 01 the result si<eet was thereafter prepared by Shri Thacore in the presence of counsel for the parties who affixed their signature thereon in token of its correctness.\n\nThe Returning Officer had declared the result of the election on the basis that only 306 ballot papers were valid.\n\nThe High Court by its judgment of February 28, 1975 held that six ballot papers were wrongly rejected by the Returning Officer with the result that the number of valid ballot papers rose from 306 to 312. The minimum quota consequently rose from 2551 to 2601. On the basis of the recounting of vmes done by Shri Thacore, the High Court allowed the election petition and declared respondents 1 to 10 and respondent 18 (the . election petitioner) as the successful candidates.\n\nThe appellant, Anirudh Prasad, who was respondent 10 in the High Court and who had been declared elected by the Returning Officer was found, on a recount of the votes, to have secured 2500 votes as against 2579 votes secured by respondent 18. The High Court set aside the election of the appellant who had secured the smallest number of votes.\n\nThis appeal by special leave is directed against the judgment of the High Court dated April 18, 1975.\n\nAfter the preliminary finding of the High Court that the six ballot papers were wrongly rejected by the Returning Officer and that. those ballot papers were valid, the appellant made an application in the High E Court that since respondent 8, Janardan Prasad Varma, had not filed any recrimination, the I st preference vote cast iu his favour under the ballot paper Ex. B/2 and the 7th preference cast in his favour under Exhibits B and B/l should not be counted in his farnur. By an order rlnied April 14, 1975 the High Couri rejected that application and directed that all the votes contained in and cast under the ballot papers wh; ch were held to be valid should be counted in favour of the F candidates concerned according to the relevant rules.\n\nMr. Pramod Swaroop, who appears on behalf of the appellant, ma(:C a fervent plea that since respondent 8 had not filed a recriminatory petition, he had disentitled himself from claiming any benefit unrer the ballot papers which were initiallv rejected by the Returning Officer but which were accepted by the High Court as valid. It may be recalled that_ _the election-petitioner had asked for the scrutiny and acceptance of three ballot papers only (Ex. 4, 4/a and 4/b), wherein he had secured !st oreference votes. Respondent 9 filed a 1ecrimination under section 97 of the Act asking that two other ballot papers, Exhibits B and B/l, wherein he had secured !st preference votes and the bafl, t paper, Ex. B/2, whernin he had secured a 2nd preference vote should be re-scrutinised and accepted.\n\nThese six ballot papers which were rejected by the Returning Officer were accepted by the Hiuh Court as valid.\n\nApart from the emphasis on the failure of xcspondent 8 to file a recrimination, the grievance of the appellant is this : Ex. B/2 which contains a 1st preference v9te for((fspondent\n\n,__-\n\n, J ,.\n\n' -\n\n8 was not even considered for counting the votes secured by respondent 9 who had filed his recrimination and at whose instance Ex, B/2 was held valid; because, in order to get elected it was enough for respondent 9 to rely on the 1st preference votes cast in bis favour under Exhibits B and B/L The second preference vote cast in his favour under Ex, B/2 was superfluous for bis election, According to the appellant, it is anomalous that respondent 8 who had taken no part in the proceedings before the High Court should get the benefit of the !st preference vote cast in his favour under Ex, B/2 when be asked for no such relief, especially when respondent 9 at whose instance the particular ballot paper was treated as valid did not require for his election the addition of the 2nd preference vote cast in his favour thereunder,\n\nThis argument is founded on the provisions contained in section 97 of the Act, which has been the subject-matter of several decisions of this Court That section provides :\n\n\"97, Recrimination when seat claimed,-(!) When in an election petition a declaration that any candidate other than the returned candidate )las been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.\n\nProvided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given th, e security and the further security referred to in section 117 and 118 respectively,\n\n(2) Every notice referred to in sub-section (l) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner,''\n\nAn election-petitioner may either ask for the rehef under section 100 of the Act that the election of the returned candidate be declared void or he may ask for the additional relief under section 101 that he\n\nor any other candidate may be declared as elected, It is only if such a composite claim is made that section 97 is attracted, The returned candidate can then recriminate against the person in whose favour a G declaration is claimed 1mder section 101, The recriminatory plea is in trutb and substance not so much a plea in defence of one's own election, though tbat be its ultimate purpose and effect, as a plea of attack by which tbe successful candidate assumes the role of a , counterpetitioner and contends that the election of the candidate in whose favour the declaration is claimed would have been void if he had been the returned candidate and a petition had been presented calling his ff election in question, Since respondent 18 who filed the election petition had asked for a composite relief that. the election of the successful candidates 'r of that candidate who was fonnd to have secured the\n\n9-833SCI/76\n\nSUPREME COURJ REPORTS\n\n(1976) SUPPLEMENTARY\n\nleast number of votes should be set aside and that he himself should be declared as a successful candidate, the conditions necessary for attracting section 97 were µndoubtedly present.\n\nBut that does not mean that every contention made by any of the successful candidates or other parties is barred unless a recriminatory petition is filed. The plea of recrimination goes under section 97 to the claim of the electionpetitioner that he or any person other than the successful candidate may be declared elected, the plea of the recriminator being that the election of the person in whose favour the declaration is claimed would have been void if he had been the returned candidate and a petition were filed to challenge his election. For example, any of the successful candidates can contend by a recriminatory petition that the election of the election-petitioner, were he successful, suffered frmu defects by reason of which it would be void. Such a challenge can be made only by a recriminatory petition and unless such a petition is filed in compliance with section 97, it is not open to the successful candidate or any other party to challenge the additional claim made by the election petitioner.\n\nThe contention of the appellant before us is altogether of a different kind. It is argued that respondent 8 cannot take advactage of the 1st preference vote cast in his favour under Ex. B/2 without a recriminatory petition. This contention is outside the scope of section 97 bei'ause, in claiming the 1st preference vote under Ex. B/2, respondent 8 is not in any manner clrallenging the validity of any of the votes cast and counted in favour of the election-petitioner or any step taken by or on behalf of the election-petitioner in furtherance of his election.\n\nIn fact, respondent 8 made no contention and wanted to make none in regard to the claim of the election-petitioner that he should be declared elected.\n\nThe election involved a contest to 11 seats and the claim of respondent 8 to the 1st preference vote in Ex.\n\nB/2 was not in derogation of any of the rights of the election-petitioner who claimed the composite relief.\n\nThe very fact that the electionpetitioner succeeded in the High Court despite the counting of the 1st preference vote in favour of respondent 8 shows that there was no conflict of interest between the election-petitioner and respondent 8 on the question whether the particular vote should be. counted in favour of the latter.\n\nRespondent 8's claim to the 1st preference vote contained in Ex. B/2 did not have the effect, directly or indirectly. of imalidating any of the votes counted originally in favour of the election-petitioner. It may bear repetition that respondent 8, like the appellant, was one of the successful candidates and it is respondent 18 who was declared unsuccessful in the election, who filed the election petition. The appellant's contention comes to this that one successful candidate must file a recrimination against another successful candidate if an unsuccessful candidate files an election-petition asking for a composite relief.\n\nWe see no justification for this contention on the language and intendment of section 97.\n\nIt is also necessary to bear in mind that the election to the legislative Council was held by the system of proportional revresentalioo by a single transferable vote.\n\nNineteen candidates contested\n\n' -\n\nthe election for 11 seats.\n\nRules 76 to 85 of the Conduct of Election Rules, 1961 provide an elaborate procedure for counting of votes when more than one seat is to be filled.\n\nBy rule 76, every valid ballot paper is deemed to be of the value of 100 and putting it simply, the quota sufficient to secure the return of a candidate is determined by multiplying the number of valid baHot papers by 100, dividing the total by one more than the number of vacancies to be filled and adding one to the quotient.\n\nInitially, 306 ballot papers were accepted as valid by the Returning Officer.\n\nThe minimum quota was accordingly fixed at 2551 : (306Xl00=30600711+1=2550+1=2551). The High Court held that 6 ballot papers were wrongly rejected by the Returning\n\nOfficer as a result of which the number of valid ballot papers rose to 312.\n\nThe minimum quota correspondingly rose to 2601 : (312Xl00=31200712=2600+1=2601).\n\nThe minimum quota which is fixed primarily on the basis of valid ballot papers is the key-point of counting and transfer of surplus votes. 'Surplus votes' means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the field.\n\nThe various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive inter-linked method of counting votes. It is therefore difficult to accept the appellant's argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein iµ favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for al]. purposes and therefore the 1st preference vote contained therein in favour of respondent 8 must be counted in his favour.\n\nThis would be so especially when the process can involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates.\n\nNor indeed does such counting involve any recrimination between respondent 8 and the election-petitioner who, as stated earlier, was declared successful by the High Court despite the counting of the 1st preference vote in favour of respondent 8.\n\nOn the facts of the case it is clear that originally, respondent 8 had F secured 2611 votes as against 2500 votes secured by the appellant.\n\nThat was without counting the 1st preference vote cast in favour of respondent 8 under Ex. B/2. On that footing also the appellant cannot claim priority over respondent 8 and his grievance that he, instead of respondent 8, should be declared elected is without any substance .\n\nGreat reliance was placed by counsel for the appellant on the G decisidn. of this Court in Jabar Singh v. Genda Lal('), in support of the contention that respondent 8 cannot claim the benefit of the 1st preference vote cast in his favour under Ex. B/2 without a recriminatorv petition. '\n\nThat was a typical case in which the contention sought to be raised by the successful candidate could not have been raised without a H ,,_, recriminatory petition under section 97 of the Act.\n\nThe respondent\n\n(l) [1964] 6 S. C.R. 54.\n\ntherein challenged the election of the appellant on the grouad of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself.\n\nThe respondent prayed that the appellant's election should be declared void and he himself should be declared to have been duly elected.\n\nThe appellant urged before the tribunal that there had beeu improper rejection of the voles aud improper acceptance of the votes in favour of this respondent. The respondent objected to this course and that objection was upheld by this Court on the ground that in the absence of recriminations it was not open to the appellant to take up the particular plea.\n\nAs we have shown earlier respondent 8 did not contend that there was any improper reception of votes in favour of the election petitioner or for the matter of that in favour of any other candidate. There was therefore no question of his filing a recrimination under section 97.\n\nSecondly, the voting in that case was not by the system of proportional representation by a single transferable vote and the complications which arise by reason of the peculiar system of counting which is required to be adopted in the instant case had no place in the scheme of counting in that case.\n\nIn view of this position it seems unnecessary to discuss the other decisions cited on behalf of the appellant which are reported in Dhara Singh v. District Judge, Meerut & Anr.(1); P. Malaichami v.\n\nM. Andi Ambalam & Ors.(') and the decision in Civil Appeal No. 83 of 1975 decided Jnly 31, 1975.\n\nThese decisions are distinguishable for the same reason for which Jabar Singh's case boas no application to the facts of the instant case.\n\nFor these reasons we dismiss the appeal and confirm the judgment of the High Court but there will be no order as to costs.\n\nP.H.P.\n\n(1) [1968J 1 S. C. 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